Personal laws of any community cannot claim supremacy over the rights granted to the individuals by the Constitution because personal law board doesn’t stand above constitution
The Allahabad High Court on 8 December delivered its judgment on the very sensitive issue of triple talaq, a judgment that’s sure to have legal and political implications, and will have a lasting impact on the future of gender equality in the country. The court said that the practice of triple talaq is unconstitutional, and is by all means, a violation of rights of Muslim women.
Triple talaq or talaq-ul-biddat is a patriarchal Islamic practice of divorce where the man has a right to obtain divorce, instantly, by the mere unequivocal statement of the word “talaq” three successive times. The practice grants men the unbridled power to dissolve a marriage with a single word, without the consent of the wife.
For years, this form of divorce has been debated by legal experts and academicians. In addition, women’s rights activists have also called for the reform of the Muslim personal law that discriminates against women, contributing to violence and abuse, and is against the right to equality.
The order of the Allahabad High Court, calling the practice cruel and demeaning to Muslim women, declared: “No Personal Law Board is above the Constitution.” A single judge bench of Justice Suneet Kumar, who passed the order while hearing the petition of an aggrieved woman whose husband had arbitrarily divorced her, stated: “The personal laws of any community cannot claim supremacy over the rights granted to the individuals by the Constitution.”
He also stated that, “Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce […] it is a popular fallacy that a Muslim male enjoys, under the Quranic Law, unbridled authority to liquidate the marriage.”
Several previous Supreme Court judgments have also attempted to invalidate the infamous practice of triple talaq. In 2002, Shamim Ara versus State of UP held that talaq-ul-biddat, though, instantaneous, does not dissolve a marriage nor end the liability of a husband to pay nafaqah or maintenance. In essence, the landmark ruling invalidated arbitrary triple talaq, and became precedent for numerous high court rulings involving Muslim divorce law.
In Bombay High Court judgments such as Najmunbee versus SK Sikander SK Rehman (2004) and Dagdu Pathan versus Rahimbi Pathan (2002), it was held that a husband does not have the unrestrained and arbitrary power to repudiate a marriage at will.
Maulana Khalid Rasheed Firangi Mahali of the All India Muslim Personal Law Board (AIMPLB) said the practice cannot be unconstitutional, as “…the practice is a part of Islamic law. The personal law is an integral part of Islam and the two cannot be seen in isolation.”
He has said that he will appeal against this decision.
At this point, there is another plea, of Shayara Bano’s, pending discussion and judgment at the Supreme Court. Bano has challenged the constitutional validity of three rules relating to a Muslim nikah: Triple talaq or talaq-ul-biddat; nikah halala — a practice by which a divorced couple can remarry each other only if the wife marries a second time, consummates this marriage, and then the second marriage is dissolved through death or divorce; and a Muslim man’s right to have four wives (polygamy). Shayara Bano was subjected to an instantaneous triple talaq by her husband after 15 years of marriage, last October. Her plea moves the apex court to declare these repulsive practices as illegal as they clash with fundamental rights under Article 14 (equality before the law), 15 (prohibition of discrimination), 21 (right to life) and 25 (freedom of religion).
The Shayara Bano case will change the way religious personal law interacts with the Constitution, and in all likelihood, will reform Muslim Personal Law in India as well. Nevertheless, this Allahabad High Court judgement paves the road to gender justice and the dismantling of patriarchal tenets by Muslim clerics.
Trigger for UP Assembly Polls
The Allahabad High Court judgment judgment that triple talaq is ‘unconstitutional’ will spark off a fresh political debate on the issue. The high court’s judgment comes just weeks ahead of the expected announcement of the Uttar Pradesh Assembly poll schedule by the Election Commission, and is this bound to figure in political narrative during electioneering.
While the BJP has made its position clear – reflected by Prime Minister Narendra Modi’s statement in Mahoba and Bundelkhand, and by filing an affidavit in the Supreme Court – three other players in Uttar Pradesh politics, Samajwadi Party, BSP and SP, have so far chosen to not take a stand on the matter. With an eye set on Muslim community votes, these parties have been treading a cautious path; basically, they had declared that triple talaq was a community issue. Now, it could be difficult for them to revive a narrative on the issue, for the BJP would constantly hammer them.
The BJP has played smart. Though there are sensitivities around the issue, the party is not fearful in taking a categorical position as the Muslim community at large is not a part of its support base. If it succeeds in striking a cord with a section of Muslim women as a result of their gamble, it would be a significant achievement for the party. The party, thus, has been making efforts to delink the triple talaq issue from the Uniform Civil Code debate.
But Congress, Samajwadi Party (SP) and Bahujan Samaj Party (BSP) have so far remained unmoved. Both Mulayam Singh Yadav and Mayawati have maintained that it is up to the Muslim community leaders to resolve the issue. Congress too has a similar position. The problem for Congress, SP and BSP is that if they take a position against triple talaq, they would antagonize influential Muslim clerics, community leaders and a large number of the male Muslim population. If they publicly come out in support of triple talaq, they might antagonize progressive elements in the Muslim community. The other problem, particularly for the Congress, is that it would be taken as a hugely regressive position on the issue, one which is not approved by over 20 Islamic countries.