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India's Supreme Courts calls 'triple talaq’ unconstitutional. Is Article 35A next?
Updated:Aug 26, 2017
 
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By Brig (retd) Anil Gupta
 
In a historic judgement, the Supreme Court of India, through a majority judgement has pronounced the controversial instant 'triple talaq' prevalent amongst a section of Muslims in India as unconstitutional. The judgement has been widely welcomed including by the members of the Muslim community.
 
The Supreme Court is due to hear another controversial issue, Article 35A of the Constitution and all eyes are on the constitutional bench that is due to hear the arguments and pronounce a judgement on the issue. The anticipated Supreme Court judgement is going to affect many lives.
 
So what is common between the two cases? The commonalities are many.
 
First and foremost, both promote gender inequality. India is one of a handful of countries in the world where a Muslim man can divorce his wife in minutes by saying the word ‘talaq’ (divorce) three times- and not necessarily consecutively, but at any time, and by any medium including a telephone, text message or social media post. Many affected Muslim women and activists say the practice is "discriminatory".  Interestingly,  most Islamic countries, more than 20, including Pakistan, Iran, Morocco, Algeria, Tunisia, Indonesia, Afghanistan ,Bangladesh, Turkey, Cyprus, Sarawak (Malaysia), Sri Lanka, Jordan, UAE, Qatar, Sudan, Egypt, Iraq, Brunei, Kuwait, Yemen and Saudi Arabia have banned triple ‘talaq’, but it thrives in India, with the second largest Muslim population in the world.
 
If triple talaq (instant divorce) is discriminatory against the Muslim women of India, Article 35A discriminates against the women of Jammu & Kashmir state. It facilitates the violation of the right of women to ‘marry a man of their choice’ by not giving their heirs any right to property, if the woman marries a man not holding a permanent resident certificate (PRC). Therefore, her children are not given a PRC, thereby rendering them unable to inherit or given any right to such a woman’s property, even if she is a permanent resident.
 
If a male permanent resident of J&K marries anywhere outside the state including in Pakistan, his wife gets the permanent residency automatically and their children also get the same privilege. But if a Kashmiri woman decides to choose a life partner from any other state of the country, her permanent residency was cancelled. That practice was checked in 2002 when, in the Susheela Sawhney case, the High Court of J&K gave an adverse decision against this practice.
 
The Court ruled, “In view of the majority opinion, we hold that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of the state of Jammu & Kashmir.” The decision was widely welcomed but both the major regional parties, prompted by the Hurriyat, opposed it and delayed its implementation.
 
While in power, both these parties tried to adopt the legislative route to amend the definition of permanent resident by introducing Permanent Resident (Disqualification) Bill, instead of honouring the court judgement. The legislation could not be passed because of stiff opposition from the Jammu region. However, the issue remains to be resolved fully as the children of such  marriages are not deemed to be permanent residents until and unless a female child born from this marriage is married to a permanent resident of the state, again violating her right of “marrying a man of own choice.”
 
Other similarities include that affected women in both instances have approached the Supreme Court, indicating awareness among them in their quest for gender equality. Both have not been supported by relevant religious or legislative provisions. 
 
Even though it has been practised for decades, the unilateral instant "triple talaq" divorce finds no mention in Sharia or the Koran. Islamic scholars say the Koran clearly spells out how to issue a divorce - it has to be spread over three months which allows a couple time for reflection and reconciliation. While triple talaq is not included in the Sharia, gender discrimination also does not form part either of the State Subject Law 1927 promulgated by the Maharaja or the J&K Constitution, part III of which deals with Permanent Residents.
 
Note III of the 1927 law has been ruled as inapplicable by the High Court to daughters of the soil and stated that it was applicable only to those wives or widows who acquired the status of State Subject by virtue of their marriage to a State Subject and decide to reside outside the state thereafter. 
 
Even during the Maharaja’s time, in 1939, the state subject of Mrs. Ghulam Kabra and her right to inherit property was challenged in the State High Court on the ground that though a State Subject by birth, she had lost that status by marrying a non-state subject. The Court then held that Ghulam Kabra was the legal heir of the property which she could inherit on the plea that there was no provision in the State Subject Law to cancel a state subject once granted. Similarly, provisions made in rule 8 of the Jammu and Kashmir Grant of Permanent Resident Certificate (Procedure) Rules 1968 does not provide any ground for cancellation or disqualification of women on any ground. 
 
Balraj Puri, an eminent writer from J&K, said, “It was in the mid -sixties when the then Revenue Minister issued an executive order directing all deputy commissioners to issue the certificate of permanent resident to women with the proviso “valid till marriage”.
 
Even this order which lacked the force of law was differently interpreted. When the daughter of a senior bureaucrat of the state, SAS Qadri married Mehmood-ul-Rehman, an IAS officer from outside the state, in 1973, her status as a permanent resident of the state and her right to inherit property of her father under that was declared valid by the Revenue Minister on the ground that “the constitution of Jammu and Kashmir or any other law does not provide for deprivation of a permanent resident of the state of his or her status.”
 
The provision of the Article, thus, has been used selectively, arbitrarily and discriminatorily by Kashmiri politicians. Like the triple ‘talaq’, this also does not have any legal or moral sanctity.
 
Both have also been marred in controversies. While a section of Muslim society, particularly the Muslim Personal Law Board and the clergy vehemently opposed dragging the issue of triple ‘talaq’ to the Supreme Court on the pretext that it was a matter of faith and personal law and courts do not have the jurisdiction to interfere in the same, activists termed it as exploitation of women and wanted it to be prohibited.
 
Similarly, Kashmiri power brokers, whose tunnel vision is confined to the Kashmir Valley and a handful of their party cadre in the other two regions of the state, vehemently oppose any tampering with Article 35A, terming it as a guarantee of their ‘special status.’
 
The majority population in Jammu & Ladakh hopes that the Supreme Court will strike down or amend the provisions of the article in its present form as it is highly discriminatory and gender-biased. The triple ‘talaq’ judgement has set India on the path of achieving the dream of New India- free of hate and discrimination.
 
Hopefully, the verdict on 35A will take the nation a step closer to the same.
 
(The author is a Jammu based political commentator, columnist, security and strategic analyst. He can be contacted at anil5457@gmail.com)
 
 
 
 
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