The five-member constitutional bench of the Supreme Court on Tuesday struck down the controversial practice of triple talaq in a landmark 3-2 verdict saying that it was ‘unconstitutional’.
Although the judgement isn’t ‘historic’ as Prime Minister Narendra Modi termed it, it should be bringing relief to a small minority of Muslim women who constitute eight per cent of the country’s total population. It’s because, of the small minority of married Muslim women who get divorced, those who become victims of triple talaq constitute only a very small figure. It’s true that not all cases of divorce are unilateral or one of injustice. Couples get divorced due to genuine reasons as well with mutual consent. There are several instances of giving a legal divorce to partners due to unjustifiable reasons after fulfilling all liabilities. However, there are also cases of a section of men calling off their marriage unilaterally and by neglecting the interests of justice by uttering talaq to their wives, instead of seeking ways to resolve the typical quarrels and arguments that arise in a marriage according to religious fundamentals. It’s this aspect that provides opportunities for the Sangh Parivar and religious fanatics to use it as a tool against the Muslim Personal Law and argue for a uniform civil code.
When the five-member bench of the Supreme Court was appointed to look into the constitutionality of the practice of triple talaq, the Union Law Commission preparing a detailed questionnaire related to Muslim Personal Law and sending it to different organisations, establishments and individuals seemed mysterious. The Modi government has been devising different tactics to prepare the ground for Uniform Civil Code that’s the agenda of Sangh Parivar. In these circumstances, Chief Justice Khehar stating during the judgement that the Muslim Personal Law had the protection of Article 25 of the Constitution that ensures freedom of religion, is relevant. The fact that none of the five members of the bench opined the Personal Law to be unconstitutional and was something to be made invalid, will bring relief to the concerned community. Justice Kurian Joseph who said that instant divorce was against the tenets of Islam, citing that ‘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’, shows the possibility of a Personal Law rooted in actual Quran teachings and religious tenets. Muslim reformist organisations and liberals in India have long demanded a restructuring of Personal Laws that have been in existence since the tenure of the British government. They also argue that it is the core fundamentals of religion that should be the foundation of law reform. It was based on these observations that the Muslim Personal Law Board welcomed the court verdict.
If triple talaq is unconstitutional, then what would be the constitutional method of Muslim divorce? In the existing Muslim law, triple talaq has three forms, talaq ahsan, talaq hasan and talaq-e-biddat. With talaq-e-biddat set aside by the apex court, it could be claimed that the two other modes of securing divorce exist. However, the essence of the court verdict is that an appropriate, transparent and just law should be formed to deal with the issue. The court has asked the Centre to enact a legislation within six months. The Chief Justice urging the political parties and law makers to give the issue thoughtful deliberation by setting aside vested interests when an appropriate law is formed, deserves special mention. PM Modi driven by the Sangh Parivar agenda of a Uniform Civil Code or the hardcore secularists who demand a ban on religious Personal Laws, shouldn’t take advantage of the opportunity and make attempts to slaughter the Personal Laws closely entwined with the beliefs and practices of the country’s largest religious minority, is what forms the crux of the CJI’s statements.
Given that the Muslim Personal Law form an integral part of the freedom of religion guaranteed by the Constitution, the Muslim community have the right to demand that any legislation formed to deal with the issue should be based on Shariat that ensured equal justice, decent conduct and safety to women. Zafaryab Jilani, the legal advisor to the All India Muslim Personal Law Board (AIMPLB) that welcomed the Supreme Court verdict, has informed that future decisions would be taken by the Board Executive meeting scheduled on September 10 in Bhopal. Those concerned are expected to not repeat the same blunders like claims in the apex court of triple talaq being an inevitable part of the Quran. The latest affidavit issued by the Personal Law Board was to socially boycott those who practiced triple talaq. The reality that time and society changes shouldn’t be forgotten.