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A Small Step Towards Equality: The Indian Supreme Court Triple Talaq Decision

Sulema Jahangir, Associate with Dawson Cornwell, applauds 'a small victory' on the road to a uniform civil code regulating the personal affairs of all religious groups.

Sulema Jahangir, Associate, Dawson Cornwell

Sulema Jahangir, Associate, Dawson Cornwell

The Shayara Bano v Union of India decision of 22 August 2017 is the first time the Indian Supreme Court has considered the practice of triple talaq (known as talaq-e-biddat in Shariah) and whether this complies with the fundamental rights of equality and non-discrimination guaranteed by the Indian Constitution.  By a three to two verdict, the court held that the practice of triple talaq is "illegal and sinful" and that it "is not integral to religious practice and violates constitutional morality". The majority asserted that since "triple talaq is instant it is irrevocable and the marital tie gets broken, it violates the right to equality [under the Constitution]." Chief Justice JS Khehar and Justice Abdul Nazeer differed and said that while triple talaq "may be sinful", the court cannot interfere in personal laws which have the status of fundamental rights under the constitution. They were of the view that parliament should bring a law to end the practice. However the majority opinion disagreed holding there cannot be any constitutional protection to the practice of triple talaq. Unsurprisingly the All India Muslim Personal Law Board which oversees the application of Muslim Personal Law in India had opposed any court intervention, arguing that the court must keep out of matters of faith.

Muslims in India are governed by their personal law that came into force in 1937 as the Shariat Application Act and is based on religious rules. The constitutional bench heard petitions filed by five Muslim women challenging the practice of triple talaq, including one who was divorced on WhatsApp. What is surprising about this decision is that it has taken so long to come about. For decades if a Muslim man in India wished to divorce his wife, all he needed to do was say or write, message or text the word 'talaq' three times. There was no requirement to attend court or engage in any formal process. He could virtually do it in his sleep. This is what is meant by a triple talaq. Once the word 'talaq' was uttered or written three times the wife would not be entitled to financial support, child support or anything else from her husband.

Muslim women make up roughly 8 per cent of the Indian population of 1.324 billion, approximately one in 11 of these Muslim women are reported to be talaq survivors (Dawn Article 24 Aug 2017) – a huge number of people by any standards!  Many of these women come from the poorest sections of society and talaq survivors are often left prone to violence, subservience and abject poverty. India is proud of its secular government but it does not have a uniform civil code that applies to the personal affairs of its different religious communities. For Muslims it is the application of Muslim Personal Law based on various interpretations of Shariah. While neighbouring Pakistan, a state based on theocracy, and where laws are to be in compliance with Islamic Shariah for its Muslim majority population, does not have the triple talaq and requires a formal process for giving talaq, Indian politicians have not been able to do away with the triple talaq for fear of upsetting a male-dominated Muslim minority population. In fact the Triple Talaq Judgment itself traverses the practice of triple talaq in twenty Muslim majority and minority countries and concludes that it has been banned in almost all these countries. The most common form of talaq (such as in Pakistan) is Talaq-e-Ahsan, where a 90 days waiting period follows after the pronouncement of talaq during which three reconciliation meetings are held between the parties and/or their representatives. The talaq becomes finalised after the 90 day period where no reconciliation is possible. Even here no court process is required but the talaq has to be effected through a written notice, following certain non-mandatory reconciliation meetings conducted by a government body and is only finalised after a period of 90 days.

The judgment in Shayara Bano v Union of India was given by five Supreme Court judges and each one hails from a different religion – Hindu, Muslim, Christian, Sikh and Zoroastrian – which will hopefully give less impetus for Indian Muslim nationalists to object that their religious rights are being threatened in a Hindu majority country used to communal violence. The reluctance of Indian politicians to deal with this issue for decades suggests that they have prioritised religious nationalist votes over the suffering of women. It also brings back memories of the Shah Bano case where a 60 year old divorced Muslim woman applied for maintenance from her husband (who was incidentally a lawyer) under the Criminal Procedure Code that had been introduced by the Colonial British Government to provide basic sustenance for destitute women and children. The amount she was granted by the magistrates' court was Rs.50 per month (a paltry sum even at that time) yet the religious riots it caused were big enough to panic a government.  The Congress Government immediately caved in and enacted the Muslim Women (Protection of Rights on Divorce) Act 1986, which denied Muslim women the right to claim maintenance from their husbands during the 90 days waiting period after a talaq and from claiming maintenance under the Criminal Procedure Code while women from other faiths continued to enjoy this right.

It is therefore heartening that the practice of triple talaq has finally been banned even if it is too little too late. The fact that Muslim women's talaq had been politicised for the last seven decades while Hindu practices such as Hindu widows remarriage, child marriage, sati and the dowry system were outlawed decades ago without much opposition is frustrating. Despite the current Indian government's posturing against the practice of triple talaq it is really the redoubtable women's rights groups and survivors of the triple talaq who are to be congratulated for this hallmark decision. They advocate that this is only one small victory and that ultimately there should be a move to a uniform civil code. Indeed it would be odd if a woman in a secular, democratic and progressive India had access to differing sets of rights and remedies depending on which religion she came from.