Triple Talaq Verdict: SC Set The Bar High, But We Still Need More

Posted: August 28, 2017

The Supreme Court of India declared instant triple talaq illegal on 22nd August 2017. Let’s understand what this truly means.

Understandably, there was jubilation among Muslim women. Not just them, progressive Muslim men too found it cause for celebration, as did other progressive men and women from all other sections of Indian society. (Let us gloss over the cheer among the Hindu Right, who were just happy that the Supreme Court had rapped the Muslim community on its knuckles. Their cheer and specious concern doesn’t merit discussion.)

Amidst all the jubilation one could also hear dissenting voices from different quarters trying to obfuscate the debate by saying things like – what has been banned is ‘instant’ triple talaq, while triple talaq stays. Or is this judgment different from the 2002 verdict, which had declared dissolving marriages using ‘instant’ triple talaq as invalid.

There were also concerns about Muslim women having to approach the Supreme Court, which is a ‘secular court’ and not competent to deal with matters related to Personal Law. Let us examine these positions one by one.

The Case: Shayara Bano is a 35-year-old woman from Uttarakhand’s Kashipur area, who was divorced by her husband after 15 years of marriage. Her husband employed the now illegal practice of pronouncing a talaq in one sitting (also known as triple talaq) and asked Bano to leave her marital home.

Bano approached the Court with the plea to declare the talaq illegal. She also sought that other clauses in the Personal Law that deal with polygamy and nikah-e-halala should be declared unconstitutional as they violated the rights guaranteed by Articles 14, 15, 21 and 25 of the Indian Constitution.

Shayara’s husband opposed her plea on the grounds that divorce and all other clauses mentioned were governed by the Muslim Personal Law and all three practices are sanctified provisions under the very same law.

Instant Triple Talaq

So what exactly is happening here? Before we proceed further, let us clear the confusion around triple talaq. What is this triple talaq? And how is it different from instant triple talaq?

Divorce in Islam is formalized with the husband pronouncing talaq three times to dissolve a marriage. While the Quran has said that the divorce has to be pronounced over a period of three months with one talaq being given every 30 days – to provide an opportunity for reconciliation between the couple and also make allowances for the fact that the woman could be pregnant when the talaq was first pronounced – this procedure has been twisted out of context over the last 1400 years and given a patriarchal form which results in talaq being pronounced three times at one go. This is what people are now calling ‘instant’ triple talaq.

While Islamic scholars have said time and again that this practice of pronouncing three talaqs in one sitting (triple talaq) is illegal or talaq-e-biddat (the wrong talaq) and feminists have been calling the practice barbaric, triple talaq or talaq-e-biddat continues to be upheld by the patriarchal sections of the Muslim community which included the All India Muslim Personal Law Board.

This, in turn, left many poor, uneducated and religious families in a quandary, without clear directions on whether a woman on whom triple talaq has been pronounced is still married or not. It is THIS confusion that the Supreme Court of India has cleared a couple of days ago. And that, no doubt, calls for a celebration.

Now, for a reality check

While we hail this judgment as a major step towards the ‘empowerment’ of the Muslim woman, it is also time for a reality check. “So, what have the Muslim women really gained with this judgment?”

To put it simply, talaq, talaq, talaq said in a single breath in person, over the phone, letter, email or in any other mode of communication does not automatically nullify the marriage. So far, so good.

But now comes the catch. How would you tell that to the husband who is pronouncing the triple talaq? Or the mullah. Or the men in the family. Or the Muslim Personal Law Board.

Yes, the woman can go to the local court of law, where she might be heard in a year or two if she is lucky. But what would happen in the meantime? Is she still legally married because the court says so? Or does her marriage stands dissolved because Muslim marriages are governed by the Personal Law and not the Law of the Land? Can she approach the law enforcement authorities? These are very pertinent questions that have to be asked.

And let us not forget that even if the Supreme Court judgment was a magic wand, which would make ‘instant’ triple talaq, disappear in a moment, the fact remains that the right to give talaq (divorce) even if it is in a phased manner rests ONLY with the Muslim man. Under the Islamic law, the Muslim woman does not have to right to divorce her husband. Of course, she can SEEK a separation but to give it or not is based on the whims of the husband.

So where does one go from here? The answer is obvious.

India is a secular democracy (at least it pretends to be one) and the rules of marriage and divorce should apply uniformly and equally to all its citizens including the Muslim women. Which means that a uniform civil law should be applied to all civil matters just like a uniform criminal law is supposedly applied to all criminal matters. That, I know, would be opening a Pandora’s Box.

But that could also be the real beginning that the Muslim women are looking for.

Top image via Pexels

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About the Author: Asma is a sometimes writer, a constant fighter, and a disobedient dreamer.
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