The draft Muslim Women Protection of Rights on Marriage Bill was sent to the state governments on last Friday for their views. Photograph: (India.com)
The Supreme Court has declared triple talaq unconstitutional but no consensus has yet been reached on the best way of reforming Muslim Personal Law
The long awaited triple talaq verdict is finally out. And it has been hailed as a historical verdict by all concerned - the lawyers who argued the case, the petitioners who had approached the court to challenge their arbitrary and instant triple talaq, to various Muslim women’s groups who had intervened in the matter, and political leaders of various hues. It has secured the rights of Muslim women and brought gender parity within Islamic law of divorce.
This was an expected outcome of this marathon litigation. No one was going to hold triple talaq as valid or gender just. What was under contest was the best or the most appropriate manner of bringing reforms within Muslim Personal Law – the legislature, the courts or the Muslim religious leadership. On this important issue, the verdict is split.
The Chief Justice of India, Justice Khehar, who presided over the five judge bench, held that though triple talaq is undesired, the courts could not declare the law or strike down triple talaq. So, he gave a six-month window for the Parliament to declare the law. The only Muslim judge on the bench Justice Abdul Nazeer concurred.
This set out a flutter among the journalists and lawyers waiting on tether-hooks in the packed court room. But just as a sense of gloom was beginning to descend, the other three judges on the bench - Justices Rohinton Nariman, Kurien Joseph, and U.U. Lalit gave their verdict. They spoke more decisively and held triple talaq invalid. So, it was a 3:2 verdict with the majority view holding triple talaq invalid.
But again their ground for holding so differed. While Justice Nariman and Lalit held that as the Sharia Application Act, since 1937, has been mentioning the word ‘Talaq’, talaq forms part of a statute and becomes “law in force”. Hence, there was no difficulty in declaring this practice unconstitutional.
Supreme Court in its earlier ruling in Shamim Ara in 2002 had already held this practice invalid and also laid down the procedure for pronouncing talaq.
But Justice Kurien Joseph differed. He did not agree that this provision could be tested against the fundamental rights as the court was dealing with personal laws. He stayed within the realm of Islam and examined whether it forms an essential core of the religious practice. Since the Supreme Court in its earlier ruling in Shamim Ara in 2002 had already held the practice of triple talaq invalid, and also laid down the procedure for pronouncing talaq, he had no hesitation in coming to the conclusion that triple talaq is not a valid practice under Islamic law.
Where does this leave the Muslim Personal Law Board? Mr. Kapil Sibal who argued the matter for the Board has given a statement that he is happy with the verdict as the court has upheld the validity of personal laws. The AIMPLB has adopted a cautious approach and called for a meeting to discuss the implications of this judgment and decide the future course of action.
Earlier, the Board had issued an advisory that triple talaq is sinful and laying down the correct procedure for pronouncing talaq.
Earlier, the Board had issued an advisory that triple talaq is sinful and had laid down the correct procedure for pronouncing talaq. But they were not willing to walk the last mile and hold it invalid. Now, the courts have come to the rescue of Muslim women by declaring it as invalid under Muslim law as well as unconstitutional.
Will the government still go ahead and enact a law for Muslims as stated by the Advocate General Mukul Rohatgi during the arguments. It appears unlikely. But there are some, who have already started the clamor for enforcing a Uniform Civil Code. We need to wait and watch as to how this debate will now proceed.
The important question is – where does this judgment leave Muslim women, who were aggrieved by the pronouncement of arbitrary triple talaq? Well, this was a public interest litigation for deciding legal principles and not for deciding individual rights. But for the moment they can be content that their struggle has yielded positive results for all Muslim women.