Amidst all the discussions going throughout the country, the debate of triple talaq and a possibility of uniform civil code have caused a national stir. It all came into limelight on October 27th, 2015 when a Supreme Court bench of Justice A. R. Dave and Justice A. K. Goel while dealing with a case of Muslim divorce, ordered registration of a suo motu PIL titled ‘Muslim women’s quest for equality’ concerning the gender discrimination Muslim women face under the personal law. The question of uniform civil code remains a multifaceted issue but the question that remains before the court at the moment is whether the triple talaq is constitutionally valid and should it be struck down.
Triple talaq also known as ‘Talaq-ul-Bidat’, is an ancient practice of repudiation of marriage by Muslim men by pronouncement of the dreaded word “Talaq” thrice. It is an abhorrent form of divorce where unilateral power is vested in the hands of Muslim men to divorce the women according to their whims and fancies. More than 20 Islamic countries including our neighbours Pakistan and Bangladesh have banned this medieval atrocity, but India still fails to achieve it.
There is a constant demand to ban Triple talaq because of its discriminatory character wherein the women are not given equal rights to divorce. Once the woman is divorced with triple talaq, she is denied the ‘Mehr’ i.e. the compensation provided by husband as an assistance to maintain herself after marriage. Not only this, she has to perform a ‘Halala nikah’ where she would have to marry another man so that her previous husband can re-marry her after a subsequent divorce. With an upsurge in technology, a new trend came into the picture in which the women are divorced through calls, mails, letters or messages. It was a recent case where a Muslim woman named Ishrat Jahan from West Bengal was divorced by her husband sitting in Dubai, simply by uttering “talaq” thrice on a phone call. This practice has led to hegemony of personal laws over the rights of women. In India, the different religions are allowed to freely exercise their personal laws and customs. But when the fundamental rights of the women are violated, can religious laws be allowed to override the constitutional rights?
According to a survey conducted by Mumbai based Bharatiya Muslim Mahila Andolan, nearly 92 percent of Muslim women want a total ban on this practice. The Muslim women in India have claimed in a number of cases that section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which provides for triple talaq, is unconstitutional and violative of article 14(right to equality), article 15(prohibition of discrimination) and article 21(right to life and personal liberty). Triple talaq is not only a form of cruelty but is also a violation of fundamental rights of the Muslim Women. It is a grave infringement of Article 14 as it does not provide the women a similar right to divorce and they have no kind of protection against it. Not only has the gender inequality prevailed but also has the discrimination under article 15. The Muslim women are denied the equal rights and privileges enjoyed by the women of other religions like right to divorce, maintenance, inheritance, etc. Along with these rights, article 21 is also gravely violated. The life and liberty of Muslim woman is always in the clutches of the man. At his own will, a man can throw out the woman out of the house without her prior permission, whereas the woman is not at liberty to separate herself from her male counterpart at her own will. She is not allowed a dignified life even after divorce. She has to spend the rest of her life bearing her own expenses and upbringing her children. It can be easily implied that a Muslim divorced woman who is socially, physically and economically vulnerable cannot avail these fundamental rights in their true spirit. It is more like a travesty of justice rather than religious provision.
It all started with the Shah Bano case when the need to the amend Muslim personal law was found important. Since then, in a series of judgements, the approach of court has observed a need to reform the Muslim personal law. In the case of Nagma Bibi v. State of Orissa it was held by the court that Triple Talaq and Halala are not prescribed in Quran and the main source is Shariat and Muslim law. These are social evils and not Islamic practices and only continue to be propagated because of the ignorance of community leaders as well as the community as a whole. In the case of A.S.Parveen Aaktar v. Union of India, 2003-1-LW (Crl) 115, it was submitted that -“the assumptions and beliefs upon which such a form of divorce is recognised are factually false, scientifically untenable and contrary to the spirit and provisions of the Constitution”. In Danial Latifi v. Union of India,(2001) 7 SCC 740, the court held that the interpretation of Muslim Women (Protection of Rights on divorce) Act, 1986 would be unconstitutional if not interpreted to give women a reasonable and fair provision and maintenance. These were few of those cases where the Supreme Court based the interpretation of the concept of triple talaq on the constitution and found that this practice is grossly injurious to the basic rights of the Muslim women.
The Muslim women have been the hapless victims of the personal laws for time immemorial and it’s the duty of government to finally take a step forward to strike down such personal law provisions which transgress the basic human rights. If the personal laws of Hindus and Christians can have peaceful existence after the amendments, can’t the Muslim personal law have the same? Altogether, there is a need that the provision of triple talaq should be banned completely. The main issue is not uniformity, but to end gender discrimination and ensure gender justice and equal rights. The need of the hour demands measures to stop constant exploitation of Muslim women, so that they may be brought to an equal footage with others. Society is changing, law is dynamic and so the Muslim women shouldn’t stay stuck in a time warp. The ban on Triple talaq is a necessity- a crucial step forward. A step to transform India, strengthen India and ultimately to develop India.