The Allahabad High Court on 8 December delivered its judgment on the very sensitive issue of triple talaq, a judgment that’s sure to have legal as well as political implications, and will have a lasting impact on the future of gender equality in the country. The court said that the practice of triple talaq is unconstitutional, and is by all means, a violation of rights of Muslim women.
Triple talaq or talaq-ul-biddat is a patriarchal Islamic practice of divorce where the man has a right to obtain divorce, instantly, by the mere unequivocal statement of the word “talaq” three successive times. The practice grants men the unbridled power to dissolve a marriage with a single word, without the consent of the wife.
For years, this form of divorce has been debated by legal experts as well as academicians. In addition, women’s rights activists have also called for the reform of the Muslim personal law that discriminates against women, contributing to violence and abuse, and is against the right to equality.
The order of the Allahabad High Court, calling the practice cruel and demeaning to Muslim women, declared: “No Personal Law Board is above the Constitution.” A single judge bench of Justice Suneet Kumar, who passed the order while hearing the petition of an aggrieved woman whose husband had arbitrarily divorced her, stated: “The personal laws of any community cannot claim supremacy over the rights granted to the individuals by the Constitution.”
He also stated that, “Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce […] it is a popular fallacy that a Muslim male enjoys, under the Quranic Law, unbridled authority to liquidate the marriage.”
Several previous Supreme Court judgments have also attempted to invalidate the infamous practice of triple talaq. In 2002, Shamim Ara v. State of UP and Anr. held that talaq-ul-biddat, though, instantaneous, does not dissolve a marriage nor end the liability of a husband to pay nafaqah or maintenance. In essence, the landmark ruling invalidated arbitrary triple talaq, and became precedent for numerous high court rulings involving Muslim divorce law.
In Bombay High Court judgments such as Najmunbee v S.K. Sikander S.K. Rehman (2004) and Dagdu Pathan v Rahimbi Pathan (2002), it was held that a husband does not have the unrestrained and arbitrary power to repudiate a marriage at will.
Maulana Khalid Rasheed Firangi Mahali of the All India Muslim Personal Law Board (AIMPLB) said the practice cannot be unconstitutional, as “…the practice is a part of Islamic law. The personal law is an integral part of Islam and the two cannot be seen in isolation.”
He has said that he will appeal against this decision.
At this point, there is another plea, of Shayara Bano’s, pending discussion and judgment at the Supreme Court. Bano has challenged the constitutional validity of three rules relating to a Muslim nikah: Triple talaq or talaq-ul-biddat; nikah halala — a practice by which a divorced couple can remarry each other only if the wife marries a second time, consummates this marriage, and then the second marriage is dissolved through death or divorce; and a Muslim man’s right to have four wives (polygamy). Shayara Bano was subjected to an instantaneous triple talaq by her husband after 15 years of marriage, last October. Her plea moves the apex court to declare these repulsive practices as illegal as they clash with fundamental rights under Article 14 (equality before the law), 15 (prohibition of discrimination), 21 (right to life) and 25 (freedom of religion).
The Shayara Bano case will change the way religious personal law interacts with the Constitution, and in all likelihood, will reform Muslim Personal Law in India as well. Nevertheless, this Allahabad High Court judgement paves the road to gender justice and the dismantling of patriarchal tenets by Muslim clerics.
First Published On : Dec 8, 2016 19:40 IST
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