In a historic judgment delivered on Tuesday, the Supreme Court declared the controversial practice of triple talaq unconstitutional. It also told the government to enact a fresh legislation on the matter, and barred the practice of instant triple talaq till the time the Parliament formulated a legislation on the matter.
The question faced by the apex court was what legal sanction the practice of triple talaq had. How did this sanction apply in the context of the fundamental rights granted to each citizen of India by the Constitution.
Those opposed to the practice argued that triple talaq is discriminatory towards women and goes against their fundamental rights and dignity.
Claiming the validity of triple talaq, on the other hand, was the All India Muslim Personal Law Board (AIMPLB), which argued that the court should not interfere on the issue as it is a matter of faith.
“Personal law is drawn from Quran, Hadith and triple talaq is 1,400 years old. Who are we to say it is un-Islamic. It is not a question of good conscience or morality but a question of faith. It is not a question of constitutional morality,” senior counsel Kapil Sibal, who represented the Board, told the court in May.
Here are the arguments made for and against triple talaq.
Triple talaq is discriminatory and ‘bad’ law
The case against instant triple talaq began with a petition filed by Shayara Bano in 2016, after her 15-year marriage ended in 2015 with a talaqnama sent by telegram.
In her petition, Bano argued that the practices of talaq-e-bidat, nikah halala (a remarriage practice) and polygamy should be declared illegal and unconstitutional on the grounds that they violate Articles 14, 15, 21 and 25 of the Constitution.
Article 14 provides for equality before law, Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth, Article 21 upholds right to life and personal liberty, and finally, Article 25 entitles a person to freedom of conscience and the right to profess, practice, and propagate a religion.
"The practice of talaq-e-bidat and divorce of a woman without proper attempt at reconciliation violates the basic right to live with dignity of every Muslim woman," her petition states.
"Muslim women have been given talaq over Skype, Facebook and even text messages. There is no protection against such arbitrary divorce. Muslim women have their hands tied while the guillotine of divorce dangles, perpetually ready to drop at the whims of their husbands who enjoy undisputed power. Such discrimination and inequality hoarsely expressed in the form of unilateral triple-talaq is abominable when seen in light of the progressive times of the 21st century," it adds.
The petitioners argued that instant triple talaq could not be justified either in terms of modern law, which aspires to gender equality, nor in terms of religious sanction.
As another petitioner, Ishrat Jahan from West Bengal, stated in her petition filed in 2016, “This practice of talaq-e-bidat (unilateral triple-talaq) which practically treats women like chattel is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic faith, according to various noted scholars."
"According to many scholars, talaq-e-bidat is not a form of divorce recognised in the Holy Quran as the Holy Book provides for reconsideration and reconciliation before recognising divorce as irrevocable," it adds.
Advocate Indira Jaising, who appeared for Bebak Collective, a Muslim women organisation that was also a petitioner, argued that even ‘personal law’ could not be exempt from adhering to the Constitution of India, reported Firstpost.
The key question, Jaising pointed out, was “whether personal laws will have to stand scrutiny of fundamental laws."
"Regardless of the legal system, all the system will have to comply at the end of the day with the discipline of the Constitution," she said.
"Does the Constitution stop where the family law begins?" she asked.
Pointing out that marriage was a contract with life-changing effects, she argued that it’s dissolution had to take account of the interests of both parties involved. Instantaneous triple talaq, however, she argued was a completely unilateral process that gave no place for the consent of the woman. "The bottom line is consent because as an individual, we all are citizens and are equal,” she said.
Further, pointing out the lack of judicial oversight on the process of triple talaq, Jaising argued that a this was unconstitutional. “No matter how liberally you interpret triple talaq, it is unilateral. It is an extra-judicial unilateral process and it is final without any discussions on the consequences,” she said.
Triple talaq cannot be interfered with
The AIMPLB argued that pleas challenging the practices of triple talaq, 'nikah halala' and polygamy among Muslims are outside the realm of the judiciary and are matters of legislative policy. It told the Supreme Court that the issue of Muslim Personal Law is a cultural issue, which is “inextricably interwoven” with Islam.
The Board argued that personal laws of a community cannot be "re-written" in the name of social reforms and contended that the contentious issue relating to Muslim practices of polygamy, triple talaq (talaq-e-bidat) and nikah halala are not matters of "legislative policy" and hence cannot be interfered with.
The Board argued that any order would infringe on Muslims’ freedom of conscience and freedom to profess, practice and propagate religion guaranteed under Article 25 of the constitution.
The Board said that Muslim Personal Laws are founded on religious scriptures and do not derive their validity on the ground that they have been passed or made by a legislature or other competent authority.
AIMPLB also said that the courts should not venture into the areas of changing personal laws by following the trend in several other countries.
“It is pertinent to note that any change or reform that comes with the backing of legislature takes due care of diverse cultural background, sensitivity and sensibility of the stakeholder community and thus in spirit adheres to both the principles i.e. the principle of democracy and principle of separation of powers,” the AIMPLB said.
The reservations against the SC ruling on the triple talaq issue also stemmed from the fear that it may be used, as this Livemint opinion says, as a “back door” for bringing in Uniform Civil Code.
The AIMPLB, therefore, said that the Uniform Civil Code is based on the “illusion” that uniformity will help the cause of national integration. However, history is replete with examples that uniform laws have not furthered the cause of integration amongst different groups of people.
Referring to the Hindu Code Bill that was passed with the objective of applying uniform civil laws to all Hindus in the matters of marriage, divorce, succession, maintenance, adoption, etc, the Board argued that the uniformity in the law did not succeed in erasing difference in caste, difference in views of the different schools of Hinduism.
It also questioned whether there is genuine public demand for Uniform Civil Code and whether it is practical.
Concluding that the law of personal and family affairs is primarily determined and influenced by social, moral, and religious considerations, the Board said, “Any forcible imposition of alien rules and regulations on such people will have the repercussions of alienating them from the mainstream.”