Photo credit: Indian Express, August 23, 2017

Through its historic ruling delivered by a five-judge bench in the case of Shayara Bano and Ors v. Union of India on August 22nd 2017, the Supreme Court of India (SC) liberated Muslim women from the perpetual fear of arbitrary and whimsical divorce. The SC banned the regressive practice of instant ‘triple talaq’, which allowed Muslim men to unilaterally end their marriages simply by uttering the word “talaq” thrice without making any provision for maintenance or alimony. These often happened on the flimsiest of grounds, if any, which left the women at a serious and grave disadvantage.

The long-standing battle to get triple talaq abolished gained renewed momentum in October 2015, when the SC decided to look into the matter of Muslim women facing gender-based discrimination within the community. A Constitutional Bench of the SC was set up to examine if Muslim women face gender discrimination in divorce cases.

Issues before the SC

The question before the SC was simple:

  1. Whether divorce by way of ‘talaq-e-biddat’ (instant triple talaq), falls foul of the ‘Fundamental Rights’ guaranteed under the Indian Constitution, because it has a statutory sanction under the Muslim Personal Law (Shariat) Application Act, 1937 (“Shariat Act”); and
  2. If not, whether it has the stature of ‘personal law’ which can be interfered with on the judicial side by Courts.

In essence, the SC was to test the practice on the touchstones of the Constitution, and within the framework of whether it constitutes an essential religious practice, which saves it from the rigours of Constitution altogether.

These issues have been answered from different perspectives by the bench – itself showing that this issue remains highly divisive and controversial. While the majority of the bench agreed on the outcome of striking down instant triple talaq as unconstitutional, the reasoning given by the judges differ.

The Majority Judgement

The concurrent opinion delivered by Justice Rohinton Nariman and Justice UU Lalit said the following:

  • Instant triple talaq derived its statutory sanction from the Shariat Act, and could therefore be subject to a challenge for violating fundamental rights.
  • Instantaneous triple talaq is not essential to the practice of Islam, and does not therefore benefit from the constitutional protection granted by Article 25, which provides for freedom of conscience and free profession, practice and propagation of religion.
  • It violates the constitutional right to equality on account of being capricious, irrational, disproportionate or excessive.
  • Any practice or action which is disproportionate, excessive or unreasonable and hinders the complete enjoyment of fundamental rights, is liable to be struck down under the doctrine of manifest arbitrariness.

Separate Opinion by Justice Kurian Joseph

An argument was made by Senior Counsel Ms. Indira Jaising on behalf of petitioners that instant triple talaq being sinful is bad in theology, and that any religious practice, which was considered as a sin, by the believers of that very faith, could not be considered as enforceable in law. This argument was only accepted by Justice Kurian Joseph who rendered a separate opinion, which said:

  • Instant triple talaq goes against the primary source of Islamic tenets, the Holy Koran.
  • It is bad in theology and therefore bad in law.

Despite the inconsistencies in the reasoning of the two sets of opinions constituting the majority judgment, the conclusion arrived at by these judges is consistent in striking down the practice of instantaneous triple talaq as unconstitutional.

Minority View

The minority view given by Chief Justice Kehar and Justice Abdul Nazeer held as follows:

  • Triple talaq is not regulated by the Shariat Act, rather it is an integral and constituent part of personal law. Thus, it enjoyed the constitutional protection granted to religious practices under Article 25.
  • Fundamental rights enshrined in Constitution are available only against State actions. A challenge under Part III (Fundamental Rights) can be invoked only against the State whereas practice of instant triple talaq only concerns two private parties, husband and the wife. Since fundamental rights cannot be violated by private parties but only by State, the present challenge is unsustainable in law.
  • The SC directed the Central Government to consider legislating on the issue.

Is it a road to Uniform Civil Code?

The direction by the SC to the Central Government, being a part of the minority view, is not per se binding. However, this might be a strong nudge towards a path to the much debated (and controversial) Uniform Civil Code (“UCC”), which seeks to codify and bring uniformity across all personal laws. This has been going through various stages and revisions for over seven decades, but perhaps this judgement will bring it new life.

The said direction highlighted the fact that Muslim personal law has always remain untouched by various personal law reforms made so far – perhaps given its politically charged nature, going to the very root of the practise of Islam. A ruling that a codified religious personal law is unconstitutional has perhaps opened the door to full-fledged secularism, thereby hinting that much debated UCC might be reopened.

What more lies ahead for Muslim Women?

Keeping aside the cynicism raised by some Muslim Councils and conservatives about the judgement, who consider the verdict a furtherance of a political agenda to try and oppress Muslim minorities, the judgement is due to have wider effects in aspects of personal law and more broadly, in relation to women’s rights.

In the past, maintenance or alimony has been denied to Muslim women in case of instant triple talaq, characterizing it to be a matter of personal law. With this verdict, which has furthered the feminist jurisprudence in India, it is likely that such issues will now be seen in new dimensions. It is a welcome decision as it puts an end to the insecurity of their marital lives and future. This will strengthen the case of women in their battle against violence and abuse within families. A marriage on a more secure footing, granted the protection of the law, will give them a better hand in negotiating for property rights, inheritance and custody rights in marriages.

A welcome judgment overall

Undoubtedly, Muslim women all over India were happy with the judgement. The All India Muslim Women Personal Law Board and the All India Shia Personal Law Board welcomed the judgement, terming it as a victory of Islam and for Muslim women all over India. The largely positive reactions to the triple talaq judgment shows India has come a long way. It still remains to be seen how things unfold, but in order to take full advantage of the judgement, there is an urgent need to plan and consider various family law aspects attached to a long married life. But for now, this victory for Muslim women deserves further celebration.

* The author was assisted by Kunal Savani, Director – Tax, Private Client Practice and Shraddha Suryavanshi, Associate