SC Strikes Down Triple Talaq, But Does Little for Gender Justice

The long wait for the triple talaq judgment has ended today in court. It is difficult to say what the ratio of the judgment is. Two judges have said the practice of triple talaq is protected by Article 25 and therefore Constitutional.

Two have said that it is unconstitutional as it violates Article 14 and is manifestly arbitrary, and one has said that it is un-Islamic and, therefore, illegal. Hence, one can say that the practice of triple talaq is now illegal in this country. For this reason alone, the majority judgment of three judges is welcome.

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Legal Scrutiny

Two Judges, Justice R Nariman and Justice UU Lalit, have come to the conclusion that triple talaq is now part of statutory law and it is therefore subject to the discipline of Fundamental Rights.

It is not protected by the right to freedom of religion. This is the most important advance made in the Judgement.

For the first time, a law governing family matters has been subjected to the discipline of the Constitution.

The critical issue was whether the right to freedom of religion is attracted to the case at all. Two of the judges said:

We have already seen that though permissible in Hanafi jurisprudence, that very jurisprudence castigates triple talaq as being sinful. It is clear, therefore, that triple talaq forms no part of Article 25(1).

Religion vs Family Law

The other two, Chief Justice Kehar and Justice Nazeer, have come to the opposite conclusion.

We have arrived at the conclusion, that ‘talaq-e-biddat’, is a matter of ‘personal law’ of Sunni Muslims, belonging to the Hanafi School. It constitutes a matter of their faith. They have practiced it for at least 1,400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of personal law, has been protected by Article 25 of the Constitution.

This proposition raises serious issues for secularism in the country. It fails to distinguish between the legitimate domain of religion and family law. The Chief Justice goes on to say:

“Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice, which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (and even rationalists, practicing the same faith) unacceptable, in today’s world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endeavours to protect and preserve the beliefs of each of the separate entities, under Article 25.”

While religious consciousness does bind people together , this does not answer the question of what if this consciousness violates  equality for women ? Are all matters of faith protected by the right to freedom of religion? What if tomorrow, it is argued that witchcraft is part of faith and must be protected by the right to freedom of religion?

What would the court say about the argument that some believe and it is a matter of faith, that Ram was born in Ayodhya at the site of the Babri Masjid and that belief is protected by the right to freedom of religion? The minority judgment will no doubt be cited for acceptance when the case is argued in December and it is anybody’s guess what a larger Bench may say.

The Swing Vote: Triple Talaq Bad in Theology

The story does not end with these four judges however. The fifth judge, Justice Kurian, Joseph held:

What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.

Justice Kurian Joseph has the swing vote and hence the practice of triple talaq is now illegal. The Chief Justice of India departs on Friday leaving a divided court on this issue. The real problem is the inability to decide what falls within the legitimate domain of religion and what does not. The issue is not going away, and has very important consequences for secularism as such across all issues and way beyond family laws.

No Discussion on Gender Justice

But the big question is, why did the court once again dodge the question of whether the law violated the rights of women since it discriminates against women based on sex? There is no discussion in the judgment on what gender justice means for women. Justice Rohington, instead of striking down the law for its violation of Article 15 that is non-discrimination based on sex, struck it down for being “manifestly arbitrary”.

The law is indeed manifestly arbitrary but it is also manifestly discriminatory based on sex and hence there is no reason why it should not have been struck down on that ground, laying the foundation for a gendered understanding of the Constitution.

Since the 1950s, the Supreme Court of India has dodged the question of whether family law is beyond purview of the Constitution – this judgment makes a breakthrough. Such a ruling would benefit not just Muslim Women but all women, since all family laws discriminate against women. The court has been saying, introducing the Constitution into family law is like “introducing a bull in a china shop”. Now with the judgment, the Bull has indeed entered the China shop, and happily so.

While the majority judgment could have been better reasoned, it has the merit of declaring the practice of triple talaq illegal and to that extent comes as a relief to many women. As for the injunction restraining Muslim men from giving a triple talaq for six months, no court has the power to prevent a divorce after having held it to be valid. It is an opinion without any basis in law and in view of the majority judgment, no one can pronounce triple talaq anyway.

Also Read: Triple Talaq: 5 Judges, 3 Views, 1 Order, But Why No Clarity?

The only solution to this vexed issue is marriage to consider a civil contract entered into voluntarily between any two persons with well-defined rights for women on the breakdown of the marriage. It is the separation of marriage and its discontent from religion which will show the way forward. As Justice Nariman says:

...contracts, may under certain circumstances, be terminated. There is something astonishingly modern about this – no public declaration is a condition precedent to the validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried out.

It is this modernity that we seek for women of all faiths with well-defined rights to community of property on the breakdown of a marriage.

Also Read: Is Triple Talaq Her Biggest Concern? Wonders a Practising Muslimah

(The writer is a former Additional Solicitor General of India. She can be reached at @IJaising. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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