Triple Talaq declared unconstitutional in India

Supreme Court verdict calls for legislative action

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August 23, 2017

/ By / Kolkata



The verdict on Triple Tala in India has been awaited

The verdict on Triple Tala in India has been awaited

India’s Supreme Court shared a long standing verdict on Triple Talaq by placing a halt on the practice for the duration of six months during which the legislature is required to formulate a new law.

As the triple talaq practice in India became a centre of controversy, the Supreme Court of the country announced a verdict on the issue. The constitutional validity of the practice of instant triple talaq was questioned today, a form of divorce that can be carried out by a Muslim man upon uttering the talaq word thrice. The five judge bench, with a 3:2 majority ruled that this practice is void and illegal. It then directed the government to formulate a new law on the issue, in the window of six months during which this practice remains banned. The verdict has stated that the injunction is to continue after the six months if the government doesn’t meet the deadline.

The Constitution of India, with a vision to integrate and accommodate the large number of religions followed in the country had initially provided for a ‘personal law’ to look after matters pertaining mostly to marriage, divorce and inheritance. This law, left open to specific religions, has seen many changes over the years and grown contentious with time. This set of laws has allowed practices such as the divorce method of triple talaq to continue in the country. However, the challenge to the practice has come from within the community, in the form of the case that was brought to court by women who had to bear the burden of instantly being divorced. A report by Mumbai-based Bharatiya Muslim Mahila Andolan in 2015 revealed that 92 pc of the Muslim women wanted a ban on verbal and unilateral talaq, and many leaders from the community have vocally spoken against it.

Besides personal laws followed by Muslims, religious groups such as Hindus, Parsis as well as Christians also have their own set of personal laws. There exist some general acts such as the Special Marriage Act and Indian Inheritance Act that deal with the issues like laws of inheritance, divorce, custodianship and succession which have seen as being played out in different ways. For example, Hindu Marriage Act is also applicable for Jains, Sikhs and Buddhists. Fathers are considered as having a superior right of guardianship over their minor children. For Parsis (or Zoroastrians), marriage and divorce laws applicable specifically to their community comes as most important. Christians have their own marriage law and these laws date back to pre-independence era.

As a number of these laws have similar provisions that stem from recognition of fundamental rights of individuals, particularly of women, there has been a call for a Uniform Civil Code, that is to transform laws relating to these issues regardless of religion. This proposition, which has been a part of the promises as per the current ruling party Bharatiya Janata Party’s (BJP) manifesto from the previous elections, has evoked mixed reactions. Possibilities of insensitivity to religious peculiarities as well as the futility of simple legal reforms in the path of gender justice have been pointed out by critics.

In India, not only have religion based personal laws taken precedence over what many contest to be basic human rights for women and other gender minorities, laws ascribing to moral sentiment and ‘social realities’ are also reflective of regressive, patriarchal attitudes that find patronage and validation from the legal setup. Two clear examples of such laws can be part of the Section 377 of the constitution, dealing with ‘unnatural sexual acts’ as well as status of marital rape, which is not recognised as illegal. While the first law has resulted in persecution of sexual and gender minorities, the second one completely takes bodily autonomy and consent for married adult women out of the picture. In recent news, in a perplexing verdict by the Supreme Court, the marriage of a 24-year-old woman to a Muslim man was annulled in the southern Indian state of Kerala after which she was instructed to live at her parents’ house due to her ex-spouse’s religion.

A step forward

As three of the five judges hearing the case on triple talaq stated it was “unconstitutional”. The Supreme Court also questioned the reason why the practice has continued on in India, giving detailed comparisons to neighbouring country Pakistan as well as Morocco, who have done away with this practice. The court stated additionally, “Like Morocco, Algeria, Indonesia, Iran, and Tunisia have similar legislations which do not recognise a divorce given by a husband unilaterally and compel the parties to resort to a court of law.”

The triple talaq has been contested on and off, most recently at the Supreme Court since last year, but the debate has gained momentum in the past few months with support from leaders such as the Indian prime minister to ban it. Today’s verdict and the proceedings of the court raised the status of India being an exceptionally regressive country to uphold until now a practice that has been forbidden in 20 Islamic countries.

As it stands, the Court has now given the legislative authority of India to take the further required measures pertaining to the implications of this declaration of invalidity. The Parliament of the country, headed by the majority of BJP, has been asked to formulate the necessary legal amendments in the coming six months. Political differences inside the parliament have been asked to be kept aside to make this happen, as legislature is required to translate this change in the existing laws.

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