Today Shayara Bano is a celebrity not for the stardom of a successful life; instead she is into this status of celebrity hood owing to the pain and trauma inflicted through a strange practice in the 21st century called Triple Talaq. Yesterday, Shayara Bano and many other Shayara Bano’s might have felt the taste of victory after the battle they fought with their own lives against the patriarchal society, when the religiously diverse 5 bench Supreme Court gave its verdict on Triple Talaq . Yes, the Apex Court  held in the majority (3:2) judgment, that triple Talaq is unconstitutional. This was an awaited moment for all Muslim women as the ghost of triple talaq was always following them as a threat to their marital life. As I said earlier this strange practice of Triple Talaq is a unique feature to India as almost all the countries following Shariat law as the law of the Land has declared  it as an unislamic practice. Here comes the relevance of understanding why this practice existed in India still now and why judiciary was forced to look into the matter through a suo -moto Public Interest Litigation. This verdict came out of the grievances from various petitions clubbed into the Public Interest Litigation. This verdict is a result of awakening of Muslim women in India to fight against the injustice she has been suffering through an institutionalized harassment. 

Background of the debate of Triple Talaq

History of Indian soil has volumes to speak as to why the Muslim Personal law got distorted to such an extent to have such a practice in India. The most perverted concept in Muslim Personal law is none other than the concept of “Dissolution of Marriage”. The practice and the true law of Shariat on the Talaq are totally under contradiction. This contradiction came into existence as aptly quoted by Justice Krishna Iyer in Yusuf Rawther v. Sowramma (AIR 1971 Ker 261) as “Marginal distortions are inevitable when the Judicial Committee in the Downing Street has to interpret Manu and Muhammad of India and Arabia.” The Anglo- Indian judges interpreted the Sharia , without understanding the basic tenets of Islam and this was followed as precedents. Triple Talaq which was practiced years back in a very different geographical and social context was upheld by Hanafi School. This was legally made binding by various English judges in India unaware of the true objective of Sharia (maqasid-al-sharia).  

What is Triple Talaq?

Triple talaq, a mere pronouncement of Talaq thrice in a single sitting, termed as Talaq-e-bidat is the most problematic form of divorce common among the Indian Sunni Muslim Community(Shia do not accept Triple Talaq) . Under this form of divorce the husband without any reasonable cause or justification can break the marital relationships in one sentence uttering three times the word Talaq. The strange part is that the husband can chose any mode, interestingly now- a-days even through phone, skype, via email and simply through a text message, in any state of mental condition, no matter you are drunk or angry. This form of Talaq has come in through innovation and mere practice through human conduct. The reality is that Talaq-e- bidah , the least approved form of divorce originated from the ill practices of the Arab Community during the period of Ommayid monarchs. They wanted a sanction to escape from the rigidity of divorce law professed by the Prophet Mohammed. This form of divorce has not been derived from any Quranic injunctions and has no sanctity in the Shariat law.

Triple Talaq
Farha Faiz, a Supreme Court lawyer, speaks to media after the apex court declared Triple Talaq unconstitutional in its verdict, in New Delhi / AP Photo 


Relevance of the Recent Judgment in the contemporary socio-political condition

Gender justice is a part of social justice and that is what is assured by the Supreme Court through this verdict. The Supreme Court was focussing on one major issue. What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right. Justice Kurien Joseph who gave the majority judgment very lucidly pointed out how triple talaq is mere practice with no quranic sanctity by drawing lights on to the true procedure of Talaq as enshrined in the Holy Quran. He reiterated that “Quran is very clear and unambiguous as far as talaq is concerned. The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality. In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.  Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Shariat Act, no practice against the tenets of Quran is permissible.”Further the court relying on the Supreme Court judgments of Shamim Ara  and Jiauddin Ahmed held that “talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife’s family and the other from the husband’s; if the attempts fail, ‘talaq’ may be effected.” 

Impact of the current judgment

This judgement brings into light how Prophet brought forward strict restriction on the law of Talaq and how it is clearly expressed in the Holy Quran that women should be treated with honour and shall provide her fair equitable treatment (Quran 2:231). What is thereby followed as a form of valid divorce in India in the colour of religious practice is totally in contradiction with the Sharia. In fact these unethical practices are really a mockery to the law of Allah as Holy Quran is very clear on how a divorce woman needs to treated, for instance it expressly expatiates that she should not be thrown out of the matrimonial home empty hands. She has to be given her right to dower in full and alimony as she desires (Quran 65:2). 

No wonder why Shah Bano and Shayara Bano had to knock the doors of judiciary when rest of the world closed the doors to ensure their basic rights. She is harassed on the other side of the story too where she needs to get a divorce out of her option. In India she does not have any right to divorce unless it is a fasakh or through judicial process. The only available legislation is the dissolution Of Muslim Marriage Act, 1939, under which she has to prove (as the burden of proof is on the wife) grounds which are aberrant. Even if she takes up any grounds mentioned in the Act, the chances of proving the facts are rare as most of the circumstantial evidences are within the four walls of the matrimonial house. The ground reality is that majority of the Indian Muslim women population is denied the access to justice through litigation owing to illiteracy, poverty and societal as well as community pressure. The fear of isolation and stigma will haunt her and her children. So the concluding aspect on this side is that there is a blanket denial of her Shariat rights apart from the constitutional rights.

Chief  Justice of India Khehar while pronouncing his dissenting judgment forgets the ground reality that even if a legislation is made on this behalf for Muslim women through an assurance from the  Central government or an affirmation from All India Muslim Personal Board on issuing an advisory through its Website, Publications and Social Media Platforms and thereby advising the persons who perform ‘Nikah’ (marriage) and requesting them to do the following:- (a) At the time of performing ‘Nikah’ (marriage), the person performing the ‘Nikah’ will advise the Bridegroom/Man that in case of differences leading to Talaq the Bridegroom/Man shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat; (b) That at the time of performing ‘Nikah’ (Marriage), the person performing the ‘Nikah’ will advise both the Bridegroom/Man and the Bride/Woman to incorporate a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three divorces by her husband in one sitting, will not make any change because access to justice for Muslim women in India is far from her reach.

The most viable of all solutions apart from such positive judgement is that religious consciousness must be aroused among the community itself. Imagine this religion is so rational and liberal which grants the wife release from the marital bonds even if she is not compatible with the husband for no fault of him. This liberal spirit of Islam in terms of dissolution of marriage should be disseminated among all the generations, especially the younger generation who are the future of this nation. Muslim men like women should also be equally aware of the permitted sanctions of Islam which strictly ordains men can divorce only twice and triple Talaq pronounced in a single sitting will amount to only one Talaq. Men of faith should be aware of the fact that if anything done against the command of Allah, the consequences from Him would be worse.

(Neema Noor is a lawyer practising at the Supreme Court)