In a historic decision on Monday 21 August 2017, a five-judge constitution bench of the Indian Supreme Court struck down by 3:2 majority, the practice of “Triple Talaq”, or instant divorce.
The two judges, Chief Justice J S Khehar and Justice S Abdul Nazeer held triple talaq to be part of fundamental rights to religion of Muslims and said it was not unconstitutional.
But, Justices Kurian Joseph, R F Nariman and U U Lalit said triple talaq violated the fundamental rights of Muslim women as they are subjected to arbitrary, instant, irrevocable divorce through this practice.
Interestingly, the bench consisted of five male judges from different faiths — Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. They told the Government to come up with a new law within six months.
The debate has been raging across India about the validity of Triple talaq for the past few decades. Eventually the Central Government challenged the practice and took the case to Supreme Court against the All India Muslim Personal Law Board (AIMPLB), the body providing for the application of the Islamic Law Code of Shariat to Muslims in India in personal affairs, known as Indian Muslims Personal Law.
According to groups opposing instant triple talaq, the practice has caused injustice to many ordinary Muslim women in India. Very often short tempered men pronounce talaq three or more times in anger or otherwise most of the time following differences or disputes.
Under this practice, the triple talaq results in divorce between the couple with no way of reconciliation except going through Halala, where the wife has to marry another man and get divorce from him to remarry the previous husband.
Instant triple talaq supporters claim that incidents of triple talaq constitutes less than 1 % cases of divorce among Muslims as found in a survey conducted by the New Delhi-based Centre for Research and Debates in Development Policy (CRDDP). They claim that it is an attempt by the Hindu Nationalist government to interfere with Muslim Personal Law provisions for Muslims in India.
Islam aims at strengthening the institution of marriage. The right of divorce is given but only in exceptional circumstances. It is important to safeguard the best interests of women and children as well as peace within the family.
Many Islamic scholars around the world regard the practice of triple talaq in one instance un-Islamic, clearly contrary to Quranic teachings that specify a period of three-month process during which attempts of reconciliation should be made.
The practice of instant triple talaq has been abolished in most of the Muslim countries including neighbouring Pakistan and Bangladesh.
While debate on instant triple talaq divides Muslim groups, they all oppose current government’s attempt to implement uniform civil code to replace the personal law provisions of major religious communities in India covering marriage, divorce, inheritance, adoption and maintenance.
Thirteen years ago, nationally acclaimed Justice V R Krishna Iyer, pleaded in a piece titled ‘Unifying personal laws’ saying, “My powerful plea is that the personal laws may be reformed from within, without a quantum leap into a common code. Remarkable changes in Islamic laws are possible without violating the Quran but adopting progressive hermeneutics.”
The issue described as ‘triple talaq’ has unnecessarily been confused with the issue of a uniform civil code, thus thrusting India’s minority Muslim community into the defensive. But this dilemma is essentially a question of whether the Supreme Court can pronounce on an issue of religious personal law?