By Indira Jaising
July 1, 2004
Triple Talaq is a system of divorce that
exists in Muslim Personal Law that allows the husband to divorce his wife by
uttering the word ‘Talaq’ thrice. This right does not exist for the woman. A
Muslim woman has no right to divorce her husband through a system similar to
the triple Talaq. She would need to go to a Darul Quaza and prove the
atrocities committed by her husband in order to get a divorce.
I have dealt with several cases where
Muslim women have been driven to the divorce court in prolonged proceedings
when their husbands have opposed a divorce. She can, however, get an
extra-judicial divorce on the condition that she forgoes her Mehr. The
situation is patently discriminatory against women. It is primarily an issue of
justice – can a marriage contract entered into by the free consent of two
parties be broken by the unilateral will of one party? No other contract,
including commercial contracts, can be broken in this manner. The breaking of a
marriage contract has emotional and financial concerns that go beyond any other
contractual concerns. Often it is not only the interests of women that are at
stake but those of children as well.
Bombay high court observed many years ago that the practice of triple Talaq may
be ‘good in law’ but is ‘bad in theology’. This is a strange role reversal. I
believe the truth lies the other way around – ‘may or may not be good in
theology’, but ‘bad in law.’
Supreme Court on Triple Talaq:
In Ahmedabad Women’s Action Group (AWAG)
and others v. Union of India, (1997) 3 SCC 573, a writ petition was filed to
declare Muslim Personal Law, which enables a Muslim male to give unilateral
Talaq to his wife without her consent and without resort to judicial process of
courts, as void, offending Articles 13, 14 and 15 of the Constitution.
However, the Court refused to entertain the
writ petition because the issue involved State policies. The Court was of the
opinion that the remedy could not be provided by the judicial process and
instead must be sought elsewhere.
At the same time, the Court has tried to
introduce some safeguards into the Talaq process. The Court has stated that
Talaq, in order to be effective, has to be pronounced. In Shamim Ara v. State
of UP and another, (2002) 7 SCC 518, a mere plea taken in a written statement
of a divorce having been pronounced sometime in the past was held to not be
treated as effectuating a Talaq. Instead, a Talaq had to be ‘pronounced’, that
is, it had to be proclaimed, uttered formally and articulated. Therefore, the
Court has introduced a condition precedent for the effectiveness of a divorce.
I totally disagree with this approach of
the court in the AWAG case. Under our scheme of laws, the courts are bound to
give their opinion of the constitutional validity of any personal law, be it
Hindu, Muslim, Sikh or Parsi. I recognise the problem that arose in the Shah
Bano case. Yet I think that the problem there was the fact that the Court,
instead of confining itself to the constitutional and legal validity of the
grant of maintenance to Muslim women under Section 125, CrPC, took it upon
itself to interpret the Quran.
It is no part of the court’s role to
interpret the Quran and spell out the entitlements of women from the Quran. Our
constitutional entitlements as spelt out by the courts must come from the
Constitution, not the Quran or the Manusmriti. It is in no part the business of
the courts to interpret religious texts that is the job of theologians, not the
constitutional court. When judges begin to interpret the Quran, or give us a
definition of ‘Sati’ as being a Sita from Ramayana and Anasuya, or interpret
the content of ‘Hindutva’ as in Manohar Joshi’s case, they destroy one of the
core commitments of the Constitution, namely, secularism. No secular judiciary
has the right to interpret what is the core content of any religion, Hindu,
Muslim or Christian. The storm over Shah Bano was over the authority of the Court
to interpret the Quran. It has nothing to do with gender justice.
While the Personal Law Board may or may not
recognise a triple Talaq, a constitutional court certainly should not, on the
ground that it is unjust, unfair, arbitrary and discriminatory.
We are passing through difficult times,
when right wing forces have polarised society and unleashed an assault against
the minorities. At such times it is even more necessary that the courts take a
"hands off" position on religion.
This, however, does not mean that they take
a ‘hands off’ position on law. Any rule, regulation, custom or law that binds
citizens is capable of being challenged on the grounds that it violates the
fundamental rights of citizens. Triple Talaq must be declared unconstitutional,
not because it is un-Islamic, but because it is unconstitutional.
More than 54 years after independence, it
is time we recognise that our constitutional values are as much a part of our
cultural inheritance as any other. Courts have been put in place to enforce
constitutional values. That is their job. Their refusal to do so is an
abdication of function. It is relevant to note the approach of the Supreme
Court in Danial Latifi v. Union of India, (2001) 7 SCC 740. In interpreting the
Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court held that
the Act would be unconstitutional if not interpreted to mean that women would
get a reasonable and fair provision and maintenance. The Court fought shy of
declaring the Act unconstitutional, but at least they did not base their
interpretation of the Act on theology, but on the Constitution.
It is not as if courts have taken a hands
off approach to Muslim law alone, they have done the same with Hindu Personal
Law. No provisions of Hindu Personal Law have been declared unconstitutional,
though repeatedly challenged. This deference to religion, be it Hindu or
Muslim, is unhealthy and has subverted a debate on gender justice.
All unjust personal laws must go, be they
Hindu, Muslim or Christian. The issue is not uniformity but gender justice –
all unjust laws must be declared unconstitutional. It is up to women of all
persuasions to challenge all unconstitutional personal laws. While the Personal
Law Board may or may not recognise a triple Talaq, a constitutional court
certainly should not, on the ground that it is unjust, unfair, arbitrary and
At a recent meeting of the All India Muslim
Personal Law Board, the Board refused to discuss the issue of triple Talaq and
the need to reform the practice into more equitable and gender sensitive
practices. The meeting ended with the promise that the Board would spread
awareness among the Muslim community about practices of ‘triple Talaq in one
These may be laudable efforts by the Board.
The body however has no authority to lay down the law of the land and interpret
the Constitution. Its legitimate role would be advocacy for the acceptance of
an altered and equitable constitutional regime.
Archived from Communalism Combat, July 2004
Year 10 No. 99, Cover Story 7
Indira Jaising is a Senior lawyer, Supreme Court of India, and women’s