Supreme court verdict on Triple Talaq – a reality check

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Talaq - representational image

At a time when the landmark verdict of the Supreme Court terming ‘Triple Talaq’ unconstitutional has prompted journalists, TV reporters and anchors to celebrate with burqa-clad Muslim women, let us do a reality check on this and find out what it really means for the Muslim women.

Forms of Talaq

From the point of view of the mode of pronouncement and effect, there are two kinds of Talaq: Talaq-ul-Sunnat or revocable Talaq and Talaq-ul-Bidaat or irrevocable Talaq.

Talaq-ul-Sunnat, regarded to be the approved form of Talaq was in practice even during the life of the Prophet. Under this form of triple talaq, the husband says the first ‘talaq’ and can only say the second time in the next lunar cycle. The wife, meanwhile, has to prepare herself for the three-month ‘iddat’ period, covering three menstrual cycles. In this duration, the husband can rethink over his decision and re-conciliate with the wife. When the period of iddat expires and the husband does not revoke the talaq either expressly or by consummation, the divorce is considered irrevocable and final. This mode of Talaq is recognised both by Sunnis as well as by the Shias. Talaq-ul-Sunnat may be pronounced either in Ahsan (most proper) or in the Hasan (proper) form.

Instant triple talaq (or talaq-e-biddat) happens when the husband spells out the word ‘talaq’ (divorce) three times in one instance – either in a single sitting, or through phone, email, or text messages.

The Supreme Court Verdict

A five-judge Constitution Bench of the Supreme Court comprising Chief Justice Jagdish Singh Khehar, Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice S Abdul Nazeer in a split verdict declared ‘Triple Talaq’ as ‘unconstitutional’ on 22 August. The Supreme Court bench in a 3:2 verdict said that triple talaq is unconstitutional and violative of Articles 14 and 15. The apex court reportedly referred to the abolition of triple talaq in Islamic countries and asked “why can’t independent India get rid of it.”

While Justices RF Nariman and UU Lalit held that triple talaq is unconstitutional and violative of Article 14, Justice Kurian Joseph struck down the practice on the ground that it goes against shariat and the basic tenets of the Quran. Chief Justice JS Khehar and Justice Abdul Nazeer dissented.

CJI (Chief Justice of India) Khehar, while pronouncing the verdict, however, upheld the practice and said, “Talaq-e-biddat is not violative of articles 14, 15, 21 and 25 of the Constitution.”

Media Hype

Though the media has hailed the Supreme Court judgement of 22 August 2017 as ‘historic’, but the judgement itself is not path-breaking, as there was an earlier ruling in 2002 which held that triple talaq is invalid and it has been followed by several High Courts. Since there was no media hype back then as the one we are witnessing today, the 2002 judgement was overlooked by women’s groups and individual women. But an astute lawyer could have used it to bring respite to victims of triple talaq.

In Dec 2016, a single bench of the Kerala High Court pronounced an order in Oyoor Nazeer vs. Shameema, that paved the path for many aggrieved women. The single bench said that the practice of triple talaq is not valid as per Quran and utterance of the same is punishable under the Indian Penal Code.

While the Supreme Court only deliberated upon instant triple talaq, the Kerala High Court in its 2016 order had gone a step ahead and stated that the power to pronounce triple talaq should be taken away from men and women and be vested with the courts alone.

Real Implications of the Verdict

In spite of such a landmark judgement of the Supreme Court said to have been aimed at protecting the rights of equality of Muslim women, paradoxically Muslim husbands still retain the unilateral right to get rid of their wives by pronouncing talaq over a period of a few months. This leaves us wondering – wherein lies the much hailed victory?
The claim by some that this decision adds to the gender justice jurisprudence of the Supreme Court is somewhat a bogus claim. A close reading of the ruling reveals that the court has missed a historic opportunity to render an informed, clearly reasoned and potentially landmark decision on women’s rights. Instead, the 395-page rambling and unwieldy decision offers little sound jurisprudential grounds to advance women’s rights.

The petitioners, who are Muslim women, painstakingly steered the case in the direction of the right to gender equality while at the same time seeking to preserve their right to religious identity. However, throughout the judgment, they are repeatedly reduced to suffering victims, mute and/or without agency. There is a particular shocking moment in the dissent where Chief Justice J.S. Khehar offers his interpretation of a line in the Quran that compares the relationship between a husband and wife to a man’s tilth or fertile soil. According to him, this verse refers to the solemnity of sex between a husband and wife. He opines that marital sex is tantamount to a man sowing his fields “in order to reap a harvest, by choosing his own time and mode of cultivation, by ensuring that he does not sow out of season, or cultivate in a manner which will injure or exhaust the soil”. Not only are such opinions unacceptable from the standpoint of feminist jurisprudence, they also reflect the court’s continued inability to comprehend women, both Muslim and non-Muslim, as bearers of rights entitled to full equality as Indian citizens.

Women remain framed within a protectionist discourse to be recuperated through male or state protection. The implicit approval and interpretation of the chief justice that the Quran declares “men as protectors, and casts a duty on them to maintain their women’, sends a collective shiver down any feminist’s spine.

Conclusion

While the issue of triple talaq has received wide publicity from all sections of the media, there has been a marked silence on a corresponding issue affecting the Muslim community – that of public lynching of Muslims, on the mere suspicion of slaughtering cows, storing beef or merely because they “look Muslim”.

Claims in favour of gender equality under Article 14 of the Indian constitution, as well as India’s international legal obligations to uphold women’s equality rights, are ultimately either shrugged off or simply not addressed by any of the five judges.

Reluctance of the court to deliver a robust judgment on gender justice will in fact strengthen the hand of the Hindu nationalists in furthering their ideological agenda of demonising Muslim men. However, with Muslim women as petitioners and at the helm of this case, a golden opportunity was lost to develop jurisprudence based on the inter-sectionality of gender and religious (as well as class, ethnic or racial) identity. Instead, we are presented with a laboriously lengthy and impotent decision which sadly reflects the judges’ lack of knowledge on feminist jurisprudence.

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An article by Debjani Biswas, a practitioner lawyer at Durgapur Court fighting for women cause.

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