SC verdict on triple talaq to push BJP's Uniform Civil Code agenda
By : Onkareshwar Pandey, New Delhi [India], Aug. 22 : The landmark triple talaq verdict has given big boost to the ruling Bharatiya Janata Party (BJP) which has long pushed for a uniform civil code to be enforced which would end the reach of different religious laws in civil issues, sanctioned originally to protect the independence of different faiths.In a far-reaching verdict empowering millions of Muslim women, the Supreme Court on Tuesday struck down triple talaq, or instant divorce, by a 3:2 verdict of the constitutional bench.
Three of the five judges banned the practice for six months till the government introduces new legislation. Chief Justice J S Khehar and Justice Nazeer, even while holding triple talaq to be valid ordered a stay on this practice for six months, to enable the legislature bring a law banning this practice.
The verdict has given the Centre an opportunity to fulfill their long pending agenda of having a common civil code through a new legislation.
Backing the petitioners in this landmark case, in different public speeches, Prime Minister Narendra Modi had spoken against the practice, pledging to protect the right to equality of all women declaring triple talaq unconstitutional, derogatory and discriminatory for women.
The apex court has said that if a legislation banning triple talaq completely is placed before Parliament within six months, the stay on the practice would continue till Parliament enacts or rejects the law."
Bhartiya Janta Party president Amit Shah welcomed the apex court judgment, saying that "It marks the beginning of a new era of pride and equality for Muslim women. The BJP welcomes the respect and the expansion of Muslim women's rights and sees today's court order as a step towards a determined 'New India'.
In the last six decades since the Constitution was adopted, Congress party-led governments at the Centre have been accused of shirking their responsibility of announcing a Uniform Civil Code (UCC) as mandated by Article 44, which was placed as a Directive Principle of State Policy, mandating the government to endeavour to bring in a political climate that would be conducive to enacting the code.
However, at the time of the drafting of the Constitution, in the wake of the partition of the subcontinent and the riots that gripped the country thereafter, it was believed that the time was not right to enact a UCC.
The mood in the BJP is upbeat after the SC judgement which had been accusing the Congress-led United Progressive Alliance government of 'minority appeasement'.
Triple talaq has been an issue of concern for over 65 years for Muslim women, who comprise approximately eight percent of the population as per the 2011 census. The Supreme Court on Tuesday struck down the practice terming it "unconstitutional". After reading separate judgements, the majority of five-judge bench of Supreme Court ruled triple talaq to be void and illegal.
Here are some highlights of the Supreme Court judgement and all about the issue which you may like to know:
The constitution bench of SC, headed by the Chief Justice J S Khehar, invalidated the practice as part of the Muslim Personal Law in a spilt verdict (3:2). The majority three judges - Justice Rohinton Nariman, Justice Kurien Joseph and Justice U U Lalit gave their judgment against it. While Chief Justice of India J S Khehar and Justice S Abdul Nazeer gave dissenting judgment in favour of it, saying that they were of the view that triple talaq can't be declared illegal.
Striking down triple talaq in the majority verdict, the three judges extensively quoted from Quranic verses and Hadith. The judges said one cannot seek constitutional protection for a practice for which the primary source is not the holy Quran. "What is not permissible under Quran can't be protected by the Constitution," judges said.
Triple talaq has so far been legal for Muslims according to the Constitution, but several Muslim women who have been divorced, including on Skype and on WhatsApp, had challenged the 1400-year-old practice.
A Constitution bench of five judges of different faiths - Chief Justice Jagdish Singh Khehar, Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice S. Abdul Nazeer - heard the case over five days from May 12 to May 18. The court had framed questions that included whether triple talaq is fundamental to Islam and whether it is an enforceable fundamental right.
After six days of the historic hearing, which saw some of the top lawyers argue whether triple talaq was essential to Islam or not, Justice Kurian Joseph, Justice Rohinton Fali Nariman and Justice U U Lalit were of the view that triple talaq was not essential to Islam, and therefore, it should be banned.
Justice Kurian Joseph said: There are four sources of Islamic law. Only the Quran is the first source of law. Therefore, sources other than the Quran are supplement to what is in it. Therefore, there can be nothing more than what is written in the Quran.. Quran attributes permanence to matrimony. Essential steps required before talaq. Triple talaq is against the tenets of Quran, and therefore, violates the Shariat. As held in Shamimara, talaq must be after having tried to resolve issues. Triple talaq not a part of sharia, therefore, I do not agree with CJI that it's part of personal law...Freedom of religion is absolute, I agree with CJI. However, triple talaq being a part of religion is what I disagree with...After 1937 Act, no practice deviating from Quran is valid. I expressly endorse and uphold the law in Shamimara. What is bad in theology is bad in law. What is bad in Quran can't be good in Shariat.
Justice Rohinton Fali Nariman said: It is a disapproved form of divorce. Even Hanafi law says triple talaq is sinful. 1937 Act recognizes triple talaq and therefore does not violate Article 13...Triple Talaq won't fall within confines of Article 13(1)...It is not possible for court to fold his hands when petitioners come to court. Court has to declare whether practice is legal or not.
CJI JS Khehar said: Till the time a legislation is considered, the court injuncts Muslim husbands from pronouncing triple talaq for six months.
Chief Justice Khehar further said: "Triple talaq does not violate article 25, 14 and 21 of the Constitution...Practice being constituent of personal law, it can't be set aside on ground of constitution morality by judicial intervention. Triple Talaq is important to sunnis of hanafi school, has to be accepted as important to their culture. Legislative intervention needs to be followed in respect of triple talaq if it has to be set aside... International conventions do not have any bearing on the subject as the practice is part of personal law. This is a case where court should exercise Article 142 and direct the Union to enact appropriate legislation keeping in mind advances in Muslim personal law".
Chief Justice Khehar added: "Despite Rashid Ahmed decision by privy council the issue needs fresh examination. All parties were unanimous that triple talaq is a heinous practice. It won't be appropriate for the court to observe whether practice is valid as per hadith due to variations in the school".
Justice Kurian said, "Extremely difficult to agree with CJI that Triple Talaq is integral to practise of Islam. Triple talaq was against the tenets of Holy Quran and hence violates Shariat law, Justice Kurian added.
Triple talaq in SC: How it came
The Supreme Court on October 16, 2015, questioned whether Muslim personal law practices of marriage and divorce reduce women to mere chattels. In a rare move, it registered a suo motu public interest litigation (PIL) petition titled 'In Re: Muslim Women's Quest for Equality' to examine whether arbitrary divorce, polygamy and nikah halala (where a Muslim divorcee marries a man and divorces him to get re-married to her former husband) violate women's dignity.
The court ruled missing the opportunity to address the question of gender inequality in both the Shah Bano and Danial Latifi cases. In the Shah Bano case, the court merely goaded the government to frame the Uniform Civil Code. In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage.
Several Muslim women and organisations has welcomed the court's verdict.
Six petitioners including Five women, Shayara Bano, Ishrat Jahan, Gulshan Parween, Aafreen Rehman, and Atiya Sabri along with the Bharatiya Muslim Mahila Andolan (BMMA), had filed case and had approached the Supreme Court on the controversial triple talaq issue.
Bano, in her petition, contended that "the Muslim husband's right to ask for divorce by uttering talaq three times in a row is completely unilateral, unguided, absolute and has no rationale. It cannot be identified with Muslim culture and is not part of Muslim law. So it is not part of religion and hence not part of the right to practice or propagate religion and deserves no protection".
Three forms of triple talaq
In the Muslim society, there are three forms of talaq (divorce): Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable.
Biddat is considered 'sinful,' but permissible in Islamic law. In Biddat, however, pronouncing divorces in one go by the husband is irrevocable.
What Arif Mohammad Khan had said?
In May this year, former Union Minister Arif Mohammad Khan had said, "Triple talaq is "anti-Constitution, anti-Quran, and anti-humane" and that Uniform Civil Code is a "constitutional obligation of the government" which should come up with a draft soon.
Triple Talaq denies the rights of equality, it is anti-Quran because Quran describes the elaborate procedure which it lays down.It is anti-humane because a young Muslim girl grows up with the consciousness that after marriage her husband if he wishes so, can turn her out of the marital home on any day of his choice. That to me is anti-humane, oppressive and an ignominy," Khan said during a public lecture on 'Triple Talaq and Uniform Civil Code' at the Nehru Memorial Museum and Library.
The Governments position
The Centre had claimed that instant talaq is not fundamental to Islam. It promised to bring in a new divorce law for Muslim men in case the court strikes down the three forms of talaq. The government argued that Muslim marriage and divorce is codified under Section 2 of the Shariat Act of 1937 and came within the ambit of 'law' under Article 13 of the Constitution. Hence, they should abide by the principles of dignity and non-discrimination.
The All India Muslim Personal Law Board (AIMPLB)
The All India Muslim Personal Law Board too had described the divorce practice as "horrendous", "sinful" and "undesirable" with no sanction of the Quran and the Shariat, during the arguments,. However, India's largest Muslim body had also cautioned that "testing the validity of customs and practices was a slippery slope".
The AIMPLB had earlier countered that triple talaq is a matter of faith like the Hindu belief that Ayodhya is Ram's birthplace. The Personal Law had argued that for the Hanafis, who make up more than 90% Sunnis in India, triple talaq is a matter of faith followed for 1,400 years. The courts and the government should leave reform to the community, it said, quoting the Bombay High Court's unchallenged decision in the Narasu Appa Mali case that personal law should not be tinkered with. Where will Muslim men go for divorce if you (the court) strike down talaq and Parliament refuses to pass a new law, the AIMPLB had asked.
Attorney general Mukul Rohatgi on May 15 had told SC that the Centre will bring in a new law to regulate marriage and divorce among Muslims if the practice of triple talaq is declared unconstitutional.
Arshiya Ismail, a triple talaq victim expressed her happiness while commenting on the SC judgement and said, "It's a big victory for the victims of triple talaq. Victims like us have suffered a lot. God has been very kind. Faith in judiciary has come back. Supreme Court's triple talaq verdict has taken out right essence of shariya".
Millions of Indian Muslim women have the same feeling on the verdict, commented another Muslim woman.