The Supreme Court Monday sought responses from the Centre and others to a plea seeking to declare all forms of “unilateral and extrajudicial” divorce among Muslims including ‘Talaq-e-Kinaya’ and ‘Talaq-e-Bain’ as void and unconstitutional, reports PTI.
A two-member bench consisting of Justices S A Nazeer and J B Pardiwala issued notices to the Ministry of Law and Justice, Ministry of Minority Affairs and others while seeking their replies. The notice was in response to the plea filed by Karnataka-based Syeda Ambreen asserting the practices are arbitrary, irrational and contrary to fundamental rights to equality, non-discrimination, life and freedom to practice religion.The petitioner has also sought a direction to the Centre to frame guidelines for “gender neutral and religion neutral uniform grounds of divorce and uniform procedure of divorce for all citizens”.
The petition has contended Talaq-e-Kinaya, Talaq-e-Bain and other forms of unilateral and extrajudicial talaq are an “evil plague similar to sati” that continue to trouble Muslim women and pose extremely serious health, social, economic, moral and emotional risks.
“It is submitted that religious officers and priests like imams maulvis, kazis etc. who propagate, support and authorise the Talaq-E-Kinaya and Talaq-E-Bain and other forms of unilateral extrajudicial talaq are grossly misusing their position, influence and power to subject Muslim women to such gross practice which treats them as chattel, thereby violating their fundamental rights,” the plea said.
The petitioner said in January 2022, a pre-filled letter from the ‘kazi’ office was received in which vague allegations were made. It was stated on her husband’s behalf that due to these conditions, it is not possible to continue this relationship and she is relieved of the matrimonial relationship.
“These words are called Kinaya words (ambiguous words or unclear form eg. I free you, you are free now, you/this relation is haram on me, you are separated from me now, etc) through which Talaq-e-Kinaya/Talaq-e-Bain (instantaneous and irrevocable and extra-judicial form of talaq, in single sitting, either pronounced or in written/electronic form) is given,” the plea said.
2017 Triple Talaq un-Islamic, unconstitutional: SC
A five-member Constitutional Bench of the Supreme Court of India had, in 2017, set aside by majority of 3:2 Judgment in Writ Petition (C) No. 118 of 2016 (Shayara Bano vs. Union of India & others), talaq-e-biddat or instant triple talaq in one sitting resorted to by some Muslim men. The Judgement was welcomed in so far as it relieves Muslim women from the misery or potential misery of instant triple talaq in one sitting. However, it was also then argued that this is only a partial amelioration of their misery. The patriarchal interpretation Qur’an’s message, different Sunni fiqhs (Islamic schools of jurisprudence) – Hanafi, Hanbali, Maliki, Shafi, and Shia fiqhs (collectively called as Muslim personal law) will continue to rein even when they are in violation of fundamental rights mentioned in Part III of the Indian Constitution on fundamental rights of citizens.
Way back in 2004, co-editor of Sabrangindia, Javed Anand and convenor of Indian Muslims for Secular Democracy (IMSD), Javed Anand had argued, “ Whichever way you look at it, in simple human terms, rationally, constitutionally or theologically, the dogged refusal of the bulk of the ulema in India and the All India Muslim Personal Law Board (AIMPLB) to call for an end to the Muslim male right to triple talaq (instant divorce) defies comprehension.
In human terms, in terms of any notion of gender justice, the unilateral, arbitrary and whimsical right of a Muslim male to divorce his wife in an instant – a letter, telegram, telephone, telex, fax even an SMS would do – cannot be described as anything but inhuman and anti-women.
In rational terms it defies any definition of justice or equity. Triple talaq cannot but be unconstitutional because it is so blatantly unjust, unfair, arbitrary and discriminatory.
Even theologically, it is difficult to digest the position long held by the ulema and until recently accepted by the courts: “Though bad in theology (haram, sinful), triple talaq is good in law”.
Back to 2017, and the Supreme Court’s interpretation. There were some common grounds in three separate Judgments given in the Shayara Bano case – none of the three Judgments contested the ground that “personal laws”, not being a law passed by the state, cannot be subjected to test of violation of fundamental rights of citizens. The Chief Justice of India (Kehar) and Justice S. Abdul Nazeer in their jointly authored judgment held that personal laws or laws that govern family relations viz. marriage, divorce, maintenance, custody of children, intestate succession, adoption of children, guardianship, etc., as they are not laws passed by the state, could not be subjected to judicial scrutiny as to whether they violate fundamental rights of the citizens.
They argued, “It is not difficult to comprehend, what kind of challenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities. We have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices, and ‘personal law’.” The Honourable Justices further held, “….while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist. It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’ must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be (-including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem.” (Shayara Bano vs. Union of India, 2017, p. 267, para 196). To follow personal law then, is part of freedom to profess, practice and propagate religion, unless it falls foul of reasonable restrictions mentioned in Article 25 of the Constitution, viz. public order, morality and health.
Interestingly, a fresh interpretation came from two other Judges of the Supreme Court. Rohinton F. Nariman and Uday U. Lalit JJ in their collective judgement did not contest the premise viz., that personal laws are beyond the pale of judicial scrutiny. They held that the practice of talaq-e-biddat was recognized and enforced by Section 2 of ‘The Muslim Personal Law (Shariat) Application Act, 1937’, a colonial legislation. Talaq-e-biddat was therefore ‘law in force’ within the meaning of Article 13 (1) of the Constitution and liable to be struck down if talaq-e-biddat fell foul of the Part III of the Constitution of India on fundamental rights. The Constitutional Courts therefore had power to set it aside on the ground that it was arbitrary.
Justice Kurian Joseph in his Judgment agreed with the premise propounded by the CJI and Justice S. Abdul Nazeer, viz. that talaq-e-biddat could not be termed as ‘law in force’ being a customary law and traditional practice. Impugned practice of instant talaq therefore was part of personal law and was amenable to judicial scrutiny for violation of fundamental rights. But there was a point of disagreement. Justice Kurian disagreed with the CJI and Nazeer J. on the issue that talaq-e-biddat was against the tenets of Holy Quran and that being so, it was ultra vires the S. 2 of the Shariat Act, 1937 and did not enjoy Constitutional protection. Talaq-e-biddat was therefore liable to be set aside.
Unrestrained freedom of personal laws
In conclusion, it can therefore be interpreted that Judges of the Constitutional Bench gave a 3:0, if not 5:0, verdict that personal laws of all communities would reign unrestrained and enjoyed the protection of Article 25[1] of the Constitution which guarantees right to freedom of religion. Personal laws, as mentioned above, are customary rules which pertain to marriage, divorce, etc. Unless codified (and to the extent codified) by the legislature, they are based on religious scriptures, customs, traditions and usages of communities. Custodians of religious scriptures and customs of all communities have always been the patriarchal and feudal elite. They often enforce them using fear of God and at times use coercive force which may include threat of exclusion from community controlled institutions, social boycott and even physical force. Personal laws often privilege a section (feudal and patriarchal elite) and disadvantage the rest in various degrees. Women and children have always been disadvantaged by the prevalent understanding of religious scriptures mediated through patriarchal culture. The custodians of personal laws – we can call them cultural entrepreneurs or gate keepers of culture, customs and traditions – are necessarily conservative, may be with a few exceptions. Much necessary changes in customs and traditions come about when individuals within communities challenge the practices and traditions in face of ostracization and coercive harassment.
Muslims, for example, for instance author, Farhan Rahman, have strongly argued that the fight against triple talaq is not just a fight of Indian Muslim women against non-representative and decrepit organisations like AIMPLB. It is also a fight of all liberal and progressive Muslims against the demagoguery of community leaders who raise a false alarm of Islam in danger and thereby communalise the whole issue.
The issue was again highlighted in the Shayara Bano’s case, in which a woman after facing 15 years of domestic violence was divorced by her husband, sending her a talaqnama by post. The issue immediately caught media limelight and parallels started being drawn with the similar rhyming case of Shah Bano of 1985, in which a 62-year-old, mother of five children, divorced from her husband, won the right to alimony in the Supreme Court.
However, the then Congress government under pressure of orthodox ulema passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the Supreme Court judgment and denied even the destitute Muslim divorcees the right to alimony. It was a classic example of placating the orthodox community leaders for the sake of reaping political dividends through community support, which gave tooth to non-representative and decrepit organizations like AIMPLB. The AIMPLB was instrumental in pressuring the government to enact the Muslim Women’s Act in 1986 as well as the Dissolution of Muslim Marriages Act, during the pre-independence period.
Related:
Visions of Secularism: Triple Talaq Judgment
Triple Talaq: Time for the Ulema to Wake Up and Smell the Coffee