On October 16, 2015, a Supreme Court bench asks the Chief Justice of India to set up a constitutional bench to examine whether Muslim women face gender discrimination in divorce cases. This suo motu issue was raised while they heard a case under Hindu Succession Act. Next year in February, the Supreme Court requests the Attorney General of India to guide it through the petitions challenging the constitutional validity of triple talaq, nikal halala and polygamy practices among Muslims in India. Subsequently, the All India Muslim Law Board (AIMPLB) was made party to the case, and the Central Government was asked to present a report on the family laws on divorce and marriage. The stage was set for a constitutional scrutiny.
The BJP government, which otherwise remains defiant against secularism, opposed the practice of triple talaq on grounds of the same. This year on February 16, the Supreme Court declared that a five-judge Constitution bench would be set up to hear the case. AIMPLB saw this as an attack on their religious faith and responded critically and vociferously, claiming that this matter falls out of the jurisdiction of the Court. Meanwhile, the Central government assures that it will bring a law that regulates the tradition of marriage and divorce if triple talaq is deemed null and void. Muslim Personal Law Board now went to the extent of saying that triple talaq is a matter of faith like Hindus believe Ayodhya to be birthplace of Lord Ram, and hence doesn’t need to pass the test of constitutional morality. Nevertheless, on August 22, 2017, the apex court passed a historic judgement declaring divorce through triple talaq to be constitutionally invalid. This has sparked debates and reactions across the nation, and there are speculations of a Uniform Civil Code to emerge in near future.
The judgement of 395 pages comes as 3:2 majority judgments from the bench consisting of Chief Justice J S Khehar and Justice S Abdul Nazeer on the minority side, and Justices Kurian Joseph, R F Nariman and U U Lalit to be of majority view. The court is of the view that instant talaq given by a Muslim man “capriciously and whimsically,” without an attempt at reconciliation, was “manifestly arbitrary and violative of Article 14 (right to equality).”
The campaign against this had gathered media attention as the Bhartiya Muslim Mahila Andolan had launched a movement to end triple talaq and nikah halala. The petitioners on the other hand were Shayara Bano, Ishrat Jahan, Gulshan Praveen, Aafreen Rehman, and Atiya Sabri, all of them victims of this arbitrary, sinful, and anachronistic practice.
While politics over this issue has heated up, reactions are pouring in from all directions. The judgment comes at a time when minorities in India already feel dejected, apprehensive, and targeted. However, this case has got nothing to do with the communal temperature. AIMPLB calls it a vindication of its stand, but has largely welcomed the judgment. A shot in the arm to the gender justice activists, and Muslim women who will now stay protected against the fear of instant talaq. Rest other provisions of divorce remains intact, hence Koranic practices and Shariat law hasn’t been tinkered with. Judiciary of our nation has once again through this landmark judgment assured its farsightedness, peril to religious fundamentalism, and unbiased wisdom.
Article by Mausam.