SC Strikes Down Triple Talaq, But Does Little for Gender Justice
Legal Scrutiny
Two Judges, Justice R Nariman and Justice UU Lalit, have come
to the conclusion that triple talaq is now part of statutory law and it
is therefore subject to the discipline of Fundamental Rights.
It is not protected by the right to freedom of religion. This is the most important advance made in the Judgement.
It is not protected by the right to freedom of religion. This is the most important advance made in the Judgement.
For the first time, a law governing family matters has been subjected to the discipline of the Constitution.
The critical issue was whether the right to freedom of religion is attracted to the case at all. Two of the judges said:
We have already seen that though permissible in Hanafi jurisprudence, that very jurisprudence castigates triple talaq as being sinful. It is clear, therefore, that triple talaq forms no part of Article 25(1).
Religion vs Family Law
The other two, Chief Justice Kehar and Justice Nazeer, have come to the opposite conclusion.
We have arrived at the conclusion, that ‘talaq-e-biddat’, is a matter of ‘personal law’ of Sunni Muslims, belonging to the Hanafi School. It constitutes a matter of their faith. They have practiced it for at least 1,400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of personal law, has been protected by Article 25 of the Constitution.
This proposition raises serious issues for secularism in the
country. It fails to distinguish between the legitimate domain of
religion and family law. The Chief Justice goes on to say:
“Religion is a matter of faith, and not of logic. It is not
open to a court to accept an egalitarian approach, over a practice,
which constitutes an integral part of religion. The Constitution allows
the followers of every religion, to follow their beliefs and religious
traditions. The Constitution assures believers of all faiths, that their
way of life, is guaranteed, and would not be subjected to any
challenge, even though they may seem to others (and even rationalists,
practicing the same faith) unacceptable, in today’s world and age. The
Constitution extends this guarantee, because faith constitutes the
religious consciousness, of the followers. It is this religious
consciousness, which binds believers into separate entities. The
Constitution endeavours to protect and preserve the beliefs of each of
the separate entities, under Article 25.”
While religious consciousness does bind people together , this does not answer the question of what if this consciousness violates equality for women ? Are all matters of faith protected by the right to freedom of religion? What if tomorrow, it is argued that witchcraft is part of faith and must be protected by the right to freedom of religion?
What would the court say about the argument that some believe
and it is a matter of faith, that Ram was born in Ayodhya at the site of
the Babri Masjid and that belief is protected by the right to freedom
of religion? The minority judgment will no doubt be cited for acceptance
when the case is argued in December and it is anybody’s guess what a
larger Bench may say.
The Swing Vote: Triple Talaq Bad in Theology
The story does not end with these four judges however. The fifth judge, Justice Kurian, Joseph held:
What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.
Justice Kurian Joseph has the swing vote and hence the
practice of triple talaq is now illegal. The Chief Justice of India
departs on Friday leaving a divided court on this issue. The real
problem is the inability to decide what falls within the legitimate
domain of religion and what does not. The issue is not going away, and
has very important consequences for secularism as such across all issues
and way beyond family laws.
No Discussion on Gender Justice
But the big question is, why did the court once again dodge
the question of whether the law violated the rights of women since it
discriminates against women based on sex? There is no discussion in the
judgment on what gender justice means for women. Justice Rohington,
instead of striking down the law for its violation of Article 15 that is
non-discrimination based on sex, struck it down for being “manifestly
arbitrary”.
The law is indeed manifestly arbitrary but it is also manifestly discriminatory based on sex and hence there is no reason why it should not have been struck down on that ground, laying the foundation for a gendered understanding of the Constitution.
Since the 1950s, the Supreme Court of India has dodged the
question of whether family law is beyond purview of the Constitution –
this judgment makes a breakthrough. Such a ruling would benefit not just
Muslim Women but all women, since all family laws discriminate against
women. The court has been saying, introducing the Constitution into
family law is like “introducing a bull in a china shop”. Now with the
judgment, the Bull has indeed entered the China shop, and happily so.
While the majority judgment could have been better reasoned, it has the merit of declaring the practice of triple talaq illegal and to that extent comes as a relief to many women. As for the injunction restraining Muslim men from giving a triple talaq for six months, no court has the power to prevent a divorce after having held it to be valid. It is an opinion without any basis in law and in view of the majority judgment, no one can pronounce triple talaq anyway.
Also Read: Triple Talaq: 5 Judges, 3 Views, 1 Order, But Why No Clarity?
While the majority judgment could have been better reasoned, it has the merit of declaring the practice of triple talaq illegal and to that extent comes as a relief to many women. As for the injunction restraining Muslim men from giving a triple talaq for six months, no court has the power to prevent a divorce after having held it to be valid. It is an opinion without any basis in law and in view of the majority judgment, no one can pronounce triple talaq anyway.
Also Read: Triple Talaq: 5 Judges, 3 Views, 1 Order, But Why No Clarity?
The only solution to this vexed issue is marriage to consider a
civil contract entered into voluntarily between any two persons with
well-defined rights for women on the breakdown of the marriage. It is
the separation of marriage and its discontent from religion which will
show the way forward. As Justice Nariman says:
...contracts, may under certain circumstances, be terminated. There is something astonishingly modern about this – no public declaration is a condition precedent to the validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried out.
Also Read: Is Triple Talaq Her Biggest Concern? Wonders a Practising Muslimah
(The writer is a former Additional Solicitor General of India. She can be reached at @IJaising. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
