By a majority of 3 : 2, a five-judge Constitution Bench of the Supreme Court has “set aside” the practice of Triple Talaq prevalent among Indian Muslims.
By Saif Mahmood
By a majority of 3 : 2, a five-judge Constitution Bench of the Supreme Court has “set aside” the practice of Triple Talaq prevalent among Indian Muslims. As political parties of various hues and views rush to welcome the judgment, let us first understand what the issue was before the Court and what the Court has actually done. Unlike the Hindu Law or even the so-called progressive Special Marriage law, Islamic Law recognizes the irretrievable breakdown of marriage as a ground for divorce. Both the husband and wife have a right to dissolve their marriage without providing reason.
However, it prescribes an exhaustive procedure for the exercise of such a right. In the case of dissolution at the behest of the husband (called talaq), the procedure prescribed is this :
1. If a Muslim man wants to dissolve his marriage by way of talaq, the dissolution must be preceded by attempts at reconciliation by arbiters from both sides.
2. If reconciliation attempts fail, he may pronounce talaq.
3. Talaq must be pronounced in the presence of the wife and witnesses. In the event the wife refuses to be physically present, the husband must pronounce it in writing and must communicate the writing to his wife.
4. However, there will be a ‘cooling period’ of 3 months during which, if parties reconcile, the talaq so pronounced may be revoked. For these 3 months, this talaq shall remain in abeyance.
5. If during the aforesaid 3-month period, the talaq is not revoked, it will be effective on the expiry of 3 months.
6. If the husband pronounces talaq in accordance with the aforesaid procedure and revokes it within the 3-month cooling period, the marriage stays intact. However, he can do this (pronouncing talaq and revoking it) only twice. If he pronounces talaq for the third time, he cannot revoke it and the marriage shall stand dissolved.
7. The husband must make reasonable provision for maintenance and alimony for the wife.
In India, for decades now, Muslim husbands have been told by ill-informed (and often mischievous) clergy that talaq will not be effective except when pronounced thrice in one sitting. That a Muslim husband must necessarily utter the word talaq three times at one go to dissolve his marriage. They have also been told that such an utterance will lead to an ‘irrevocable’ dissolution of marriage after which parties can neither revoke the divorce nor remarry even if both of them so desire, unless the divorced wife first marries another man, consummates that marriage and gets divorced by that man.
This absolutely un-Islamic practice called halaala was nothing but reprehensible mischief devised by a misogynist clergy to persecute innocent couples (especially the wife) who wanted to rethink their divorce. This practice – pronouncing talaq three times in one go to make it irrevocable and forcing the woman to go through the inhuman practice of halaala — which was challenged before the Supreme Court and which is commonly called Triple Talaq.
The Constitution Bench on August 22 pronounced three different judgments – one each authored by Chief Justice J S Khehar (Justice Abdul Nazeer concurring with him), Justice Kurien Joseph and Justice R F Nariman (Justice UU Lalit concurring with him). While the Chief Justice has upheld the practice of Triple Talaq in a curious and rather oxymoronic fashion, the judges who have authored the other two judgments have set it aside. In this manner, a majority of three judges (Joseph, Nariman and Lalit) have set aside the practice of Triple Talaq and a minority of two judges (the Chief Justice and Justice Nazeer) have upheld it. Needless to explain that the majority judgment is the one that is the law of the land.
What have these judges said ? The Chief Justice has, in his 272-page judgment, held that Triple Talaq is an essential religious practice of Islam and, therefore, protected by Article 25 of the Constitution which guarantees the right to freely profess, practice and propagate religion. Rights guaranteed by Article 25 cannot be abrogated except on grounds of public order, morality or health, and since Triple Talaq does not affect any of these, it must be upheld as part of the right of Muslims to profess and practice their religion.
On the basis of this finding, he has refused to touch the practice of Triple Talaq or declare it as unlawful. He has, however, noted that all parties before the Court have been unanimous in maintaining that, whether or not it is un-Islamic, it is a bad practice and has been abolished by statutory reforms in many Islamic countries.
He has, therefore, exercised jurisdiction under Article 142 of the Constitution and directed the Central government to consider appropriate legislation on the subject keeping in mind the progressive developments that have taken place in this regard in the Muslim world. He has further injuncted Muslim husbands from pronouncing Triple Talaq till such time as “legislation in the matter is considered”. His injunction shall, in the first instance, operate for 6 months and its further continuation will depend on what legislative process is brought into action.
Apart from being predicated on a completely absurd foundation, viz., that Triple Talaq is an essential religious practice of Islam, the Chief Justice’s opinion is also ridden with inherent contradictions. On the one hand, he holds that Muslims have a fundamental right to practise Triple Talaq since it is an essential religious practice and therefore constitutionally protected, but on the other hand he not only directs the State to consider legislation to curb Triple Talaq, but also injuncts Muslim husbands from pronouncing Triple Talaq for an uncertain period.
If Triple Talaq is Constitutionally protected, how can its practice be injuncted or how can the State pass a law to curb it? The minority judgment is not only confusing and inconsistent but also falls foul of elementary canons of judicial interpretation. Thankfully, it is a minority judgment and, consequently, does not require to be treated as the law laid down by the apex court. Both the majority opinions demonstrate a great degree of judicial scholarship. Justice Joseph quotes verse after verse from the Holy Quran and finds that Triple Talaq is absolutely impermissible under the Quran. He maintains, and rightly so, that when the Quran – which is the primary source of Islamic law — itself is unambiguous about the impermissibility of Triple Talaq, there is no need to look at secondary sources of Islamic law.
He then holds that since Triple Talaq is un-Quranic, it cannot be deemed to be Islamic, much less an essential practice of Islam even if it has been practised for a long period of time. On the ground of being un-Islamic, he sets it aside holding 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”.
Since he sets aside this practice, he finds it imperative to explain the correct procedure to be followed by Muslim men to dissolve their marriage. In doing so, he relies upon and reaffirms the 2002 judgment of the Supreme Court in Shamin Ara Vs Union of India where the Court has affirmed the procedure explained in (1) to (4) above as the correct procedure of talaq prescribed by Islamic law. Justice Joseph believes that when religion is pitted against other Constitutional rights, a reconciliation between the same is necessary and such reconciliation can be done only by the legislature.
Justice Nariman begins his judgment with disagreeing with the Chief Justice. Like Justice Joseph, Justice Nariman also finds that Triple Talaq is not an essential religious practice of Islam ; in fact, it is deprecated. But he adds an ingenious argument in his judgment. The Muslim Personal Law Board, while supporting Triple Talaq, had argued that Muslim Personal Law is de hors (outside) the definition of “law” as found in Article 13 of the Constitution and, therefore, its Constitutionality cannot be tested by the Supreme Court. Justice Nariman maintains that since Triple Talaq is a form of Talaq and Talaq has been recognized as a mode of dissolution of marriage in the Muslim Personal Law (Shariat)
Application Act 1937, the practice of Triple Talaq has now been incorporated in a statute and has, consequently, become part of “law” for the purpose of Article 13. It can therefore be tested on the touchstone of Constitutionality. As a result, the apex court can review the practice of Triple Talaq. Having reached this conclusion, he tests the practice on the cornerstone of the Right to Equality guaranteed by Article 14 of the Constitution and finds that it violates the said right and, consequently, sets it aside as un-Constitutional.
At the end of the day, the practice of Triple Talaq has been set aside by the Supreme Court for different reasons. It is interesting that the majority judgment which has set it aside has not held that the Islamic law of divorce is unconstitutional or unfair. What has been held is that the practice of Triple Talaq is illegal, and to reach this conclusion, the Bench has not repelled the Islamic law of divorce but has, in fact, relied upon it.
It has found that the practice of Triple Talaq is un-Islamic and violates Islamic law itself. In that sense, the Court has actually recognised that true Islamic law is progressive and does not violate women’s rights ; only the un-Islamic practice of Triple Talaq does. Right-wing Muslim bashers who are rejoicing over the apex court having come down on the Shariat with a heavy hand need to hold their horses. Far from doing this, the apex court has actually fallen back on and relied upon the Shariat itself to accord justice to Muslim women by declaring the practice of Triple Talaq as illegal.
Though, in our peculiar social milieu, women’s rights cannot be ensured by judicial pronouncements alone, this judgment will surely go a long way in making a much-needed beginning. One only hopes that this judgment is not politicized by vested interests to defile and deface Islam and similar judgments are pronounced by the apex courts on other issues facing women and disadvantaged groups across religions.
Indian Express, August 24, 2017