Open Forum
New Delhi, 31 August 2017
Abolishing Triple Talaq
BOOST TO GENDER EQUALITY
By Dr Oishee Mukherjee
The recent landmark
judgement of the Supreme Court striking down the controversial Islamic practice
of instant talaq, has given a big boost not just to Muslim women but to the
gender justice movement in the country. The
verdict has made India join the list of 19 countries that have already banned
this practice. There is renewed hope that the argument that the practice of
triple talaq being arbitrary and whimsical mode of ending marriage violated
Muslim women’s fundamental right, may well be quoted in other cases of
harassment face by women.
It can also be said
that the apex court clearly stands out as an emancipator for Muslim women
starting with the Shah Bano case, 32 years ago. The present decision is a
reiteration of its decision in Shamin Aram vs State of Uttar Pradesh (2001),
where the court effectively made instant triple talaq divorce void and illegal
if reasons are not stated for talaq.
The ruling is
expected to have a direct impact on Sunni Muslims who favoured this practice.
However, they are still left with two other ways of securing divorce – ‘talaq hasan’ and ‘talaq ahasan’.
Under the former, a Muslim man can divorce his spouse by pronouncing talaq once
every month for three consecutive months. As per ‘talaq ahasan’, divorce can be given by pronouncing talaq during
successive tuhrs
(menstrual cycles) with no intercourse during the period.
One may mention here
that this is not the first time that personal laws have been modified by the
judiciary. The Kerala High Court had struck down provisions of the Christian
personal law that denied women the right to a share of their personal parental
property, without inviting any wrath or criticism from society.
The five Muslim women
who had challenged the validity of triple talaq had made right to life and
dignity guaranteed under Article 21 their main plank to request the apex court
to junk this divorce weapon. They made right to equality and non discrimination
guaranteed under Article 14 their secondary weapon to attack the
constitutionality of triple talaq. However, the majority judgment relied on
Article 14 as this form of divorce failed the test of reasonableness.
As is known, the apex
court was confronted with two basic issues in the batch of petitions
challenging the constitutional validity of the instant triple talaq divorce.
One was whether this form of divorce could be considered as an essential part
of Islam to get protection under religious freedom enshrined under Article 25
of the Constitution and the second, whether personal laws are laws within the
meaning of the “all laws in force” under Article 13 (1) of the Constitution.
The majority judgment
found that triple talaq cannot get protection under Article 25 as it did not
come under the category of being essential part of Islam and hence in violation
of the fundamental right to equality and right to life. Regarding personal laws
or laws in force, it is obviously desirable that such laws have to get rid of
inequality, discrimination and bias. Moreover, these have to fall within the
framework of the Constitution. In fact, Justice Uday Umesh Lalit reiterated what
many Muslim scholars have been saying that triple talaq is “against the Holy
Quran and consequently it violates Shariat laws”.
Undeniably, as has
been argued in the recent past triple talaq is the most undesirable form of
divorce, even in the eyes of those who deem the practice to be legal. The
two judges, who gave the minority view that it requires legislation rather than
a court verdict to remove triple talaq did too disapprove of this practice.
There may be
criticism that the question of discrimination has not been elaborated
explicitly in the present verdict, as many women organizations would have
wanted. Questions relating to gender inequality affecting women, which indeed
is a social problem, has probably been overlooked in the majority
decision.
Many eyebrows were
raised when the outgoing Chief Justice of India stated that the judiciary
should “exercise absolute restraint, no matter how compelling and attractive
the opportunity to do social good may seem”. This statement in fact should not really
mean anything as the courts are supposed to examine issues from the perspective
of law which, in fact, is an extension of social right. There have been umpteen
cases where verdicts have been given keeping in mind the theory of “social
good”. It is indeed difficult to agree with him that the judiciary has no role
to play in transforming society and ensuring societal good.
The present verdict
has thrown open the door for challenging the two remaining methods of divorce
in the Muslim personal law on grounds of violation of the right to equality.
This is likely to be challenged on grounds of discrimination against the
opposite sex and women activists are expected to approach the apex court shortly.
The government is now
considering the issue of uniform civil code after it gets a report from the Law
Commission, which is currently formalising its recommendations. The BJP, which
had set a target of implementing the code as part of its manifesto in 2014, is
seriously thinking of moving ahead in the realm of gender equality by adopting
the uniform civil code that is prevalent in most Western countries. Whether it
does and how soon is the big question.
Though the path
towards gender equality has taken a big stride, one has to agree that there are
many laws for women in the country, most of which lack implementation. In fact,
such implementation poses the biggest challenge. People at the grass-root level
are not aware of these laws and regulations while even authorities at the base
level are not sure of their implementation or sometimes do not want to enforce
them due to vested interests.
There has to be a
change in our outlook towards the opposite sex so as to allow women to live a
life of equality and dignity. Laws and verdicts may come but unless there is
sincerity in giving this section proper status in society towards achieving
what could be said societal good, these judgments possibly won’t have much
value. While political will is, no doubt, necessary, both the lower and higher
bureaucracy has also to come forward. Both women and civil society
organisations have to keep the heat on. ---INFA
(Copyright,
India News & Feature Alliance)
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