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SC ruling on Triple Talaq
Aug 25, 2017

[GS Paper I: (Indian Society, Role of women and women's organisation, their problems and their remedies, Social empowerment)]

Why in News?

On 22nd August, a five-judge bench of the Supreme Court in a split verdict ruled that the practice of instant triple talaq in the Muslim community is unconstitutional. The bench set aside the practice by a majority of 3:2.

Key Points of the SC ruling

Majority Verdict

  • Three judges of the bench said that triple talaq must be struck down as it goes against the constitution and is unacceptable. 
  • They said that the Muslim Personal Law (Shariat) Application Act of 1937 recognised and enforced triple talaq, therefore, it should not be considered a personal law but a statutory law. Hence it comes under the ambit of Article 13(1) of the constitution.
  • Article 13 mandates that any law, framed before or after the Constitution, should not be violative of the fundamental rights.
  • Triple Talaq is manifestly arbitrary and was violative of Article 14 (the Right to Equality) and did not enjoy the protection of Article 25(1) of the Constitution.

Minority Verdict

  • Two judges ruled that triple talaq enjoys the status of fundamental rights as it is a part of Muslim personal law. 
  • They were in favour of putting the practice aside for a period of six months allowing Parliament to legislate on it. 
  • They asked political parties to set aside their differences and introduce a new law on the practice, taking into account concerns of Muslim bodies and the Sharia law.

What is Triple Talaq?

  • There are three forms of talaq (divorce) in Islam: Ahsan, Hasan and Talaq-e-Biddat (triple or instant talaq). Ahsan and Hasan are revocable but Biddat is irrevocable. 
  • Triple talaq is a practice mainly prevalent among India's Muslim community following the Hanafi Islamic school of law. 
  • Under the practice, a Muslim man can divorce his wife by simply uttering "talaq" three times but women cannot pronounce triple talaq and are required to move a court for getting divorce under the Sharia Act, 1937.
  • Triple talaq divorce is banned by many Islamic countries, including Pakistan, Bangladesh and Indonesia.

Background

  • The issue has been making news since a Muslim organisation, Bharatiya Muslim Mahila Andolan (BMMA), launched a campaign to ban triple talaq and "nikah halala" - a practice where divorced women have to undergo second marriage to retain the first marriage.
  • In 2015, Shayara Bano, a resident of Uttarakhand, filed a petition in the Supreme Court seeking a ban on the practice after her husband ended 15-year marriage by sending a letter pronouncing the word talaq thrice.
  • In 2015 only, the SC registered a suo motu public interest litigation (PIL) petition titled ‘In Re: Muslim Women’s Quest for Equality’ to examine if arbitrary divorce, polygamy and nikah halala violate women's dignity.

Past SC rulings

  • In the Shah Bano Case (1985), the SC gave 62-year-old Shah Bano the right to alimony from her husband by invoking a provision in the Criminal Procedure Code, 1973, a legislation for compensation that is to be given by the husband as maintenance to his divorced wife.
  • However, The Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed was the then Central government which was seen as an attempt to dilute the effect of Shah Bano Case judgement. 
  • In 2001, Danial Latifi & Anr v. Union of India case, SC reiterated the validity of the Shah Bano case judgement upholding Muslim women’s rights. 

Triple Talaq and the Indian constitution

  • Article 25 of the Constitution guarantees religious freedom as Freedom of Practice and Propagation of Religion.
  • Like all other Fundamental Rights, it is subject to restrictions and does not protect religious practices that can negatively affect the welfare of citizens. 
  • Hence, Article 25 is overridden by Article 14, which guarantees the Right to Equality as triple talaq denies a Muslim woman’s equality before the law.
  • Article 25 is also subject to Article 15 (1) which states that the State “shall not discriminate against any citizen on grounds only of religion, race, caste, sex…” Since triple talaq does not work in the favour of women, it violates Article 15 (1) of the Constitution.
  • However, section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 recognises triple talaq as a statutory right, bringing it under the ambit of Article 13 of the Constitution. Article 13 defines 'law' and says that all laws, framed before or after the Constitution, shall not be violative of the fundamental rights.

Conclusion

The Judgment is historic for women empowerment in the country granting equality to Muslim women. The court has opened a golden window for all communities to push for progressive reform in personal laws that impact all women, men and children and other reforms like the Uniform Civil Code (UCC).


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