“Talaq” to interference in personal laws

Bar & Bench August 27 2017
muslim women

By Haris Beeran

Consequent to the Supreme Court's decision on the legality of Instant Triple Talaq, hasty reporting and political expediency seems to have altered the essence of what has been laid down. Since the judgment was not unanimous, the same has to be viewed with surgical precision. Let us cull out what the five Judges that constituted the Bench held in the judgment:

CJI JS Khehar and Justice Abdul Nazeer

- held Instant Triple Talaq to be Constitutional

Justice Rohinton Nariman and Justice UU Lalit

- held Instant Triple Talaq to be Unconstitutional

Justice Kurian Joseph

- held Instant Triple Talaq to be Illegal.

Since there is no majority view on its Constitutionality, all that has been held in majority is that the practice of instant Triple Talaq is illegal.

A brief history of Instant Triple Talaq

The origins of the practice of Instant Triple Talaq can be traced back to the time of the Caliphate of Umar. During the lifetime of Prophet Muhammad up until the early period of the Caliphate of Umar, three utterances of talaq on one occasion used to be taken together as only one utterance. However, it was witnessed by Caliph Umar that despite the fact that a system had been laid down, which permitted the husband to withdraw his first, or even second talaq, a lot of men still wanted to rush into the divorce and make it final as early as possible. He felt that if they were bent on being hasty, a rule should be imposed on them binding them to a final divorce on the utterance of talaq three times in a row. The rule was meant to protect the interests of women and to teach such men a lesson, and make them see their fallacy in trying to rush into a delicate matter, which required considerable thought and consideration. He then proceeded to impose such a rule.

Judicial pronouncements on Instant Triple Talaq

This is not the first time that the Courts have dealt with this issue. The issue of instant Triple Talaq has long since been dealt with by the Courts, which have held it to be against the basic tenets of the Holy Quran and consequently, violative of Sharia Law.

Most notable is the case of Shamim Ara v. State of UP, wherein the Supreme Court has held that Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife.

Justice Badar Durrez Ahmed later relied upon the decision in Shamim Ara's case in Masroor Ahmed v. State (NCT of Delhi) & Another and held that mere pronouncement of Talaq is not sufficient and that reasonable cause must be shown that attempts at reconciliation have taken place after the pronouncement of Talaaq.

Also, as recently as 2016, the Kerala High Court has referred to the Shamim Ara judgment in Nazeer @ Oyoor Nazeer v. Shemeema and disapproved instant Triple Talaq.

Therefore, the Courts have frowned upon the practice of instant Triple Talaq way before Supreme Court judgment last week. Thus, as regards as the validity of Instant Triple Talaq is concerned, the Supreme Court did not have anything new to say in the judgment.

History of present litigation

The present case on Instant Triple Talaq originated on October 16, 2015 when a two-judge bench of the Supreme Court comprising Justice Anil Dave and Justice AK Goel, while pronouncing a judgment on the applicability of the Hindu Succession Act, 1956 (amended in 2005), referred to injustices faced by Muslim women. The Supreme Court then went on to question the Muslim personal law practices of marriage and divorce. Following this, the Supreme Court registered a suo motu public interest litigation (PIL) to examine whether the practices of arbitrary divorce (Instant Triple Talaq), polygamy and nikah halala violated women’s dignity. The Bench further, asked the Chief Justice of India to set up an appropriate bench to examine if Muslim women face gender discrimination in cases of divorce.

Thereafter, five different writ petitions were filed by women who had been divorced through instant Triple Talaq communicated either through whatsapp, social media or letters.

Gender Justice

Although the suo moto proceedings were initiated by the Supreme Court on the aspect of gender justice, it is to be noted that this aspect does not find any material mention in its judgment. And the same is a complete deviation from the very reason why the suo moto PIL was initiated by the Supreme Court in the first place.

Triple Talaq Politics

The fact that instant Triple Talaq is unislamic against the Quranic principle is almost undisputed. In such a scenario, the community leaders, particularly in North India ought to have shouldered the responsibility and courage to say that this system being unislamic has to be done away with. This would have taken the wind out of the sails of persons who seek to raise the issue with ulterior motives. Rather than doing the same, they chose to defend this practice before the Supreme Court, thereby giving a definite political edge to those political parties who wanted to take up the cause of Muslim Women. “Muslim Women” is a huge constituency and they played their cards well. I can only sound a note of caution that if the community leaders don’t rise to the occasion, similar incidents will happen in the Babri case also.

Bright spot in the judgment

The brightest spot indisputably, is the banning of instant Triple Talaq. However, for a student of law, the law laid down has to be deciphered from reading all the three dictum. The issue as to whether the Court has tested the Muslim Personal Law on the touchstone of Article 14 of the Constitution is what we have to ascertain.

Quoting from Justice Kurian Joseph’s dictum:

I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14.”     

Therefore, the majority view as far as Court’s interference in personal laws is concerned, is that the tried and tested rule of non-interference has been sustained. Justice Nariman takes cognisance of Section 2 of the 1937 Act to give Triple Talaq a statutory flavour, after which he proceeds to examine whether the same is arbitrary or not.

What is important to note is that Justices Khehar, Nazeer and Kurian Joseph have taken a view that 1937 Act is to regulate the custom and usages prevalent in Muslim community and therefore, that cannot be stretched to give a statutory flavour to Triple Talaq. Their view, is not to venture into the Constitutionality of personal laws. Therefore, the foundation of Justice Nariman’s dictum that Section 2 of the 1937 Act gives a statutory flavour to Triple Talaq is a minority view.

Being a minority view, whether the directions to hold the same unconstitutional can be held to be a majority view point have to be discussed further. The reasoning, which helped Justice Nariman to reach the conclusion has been reduced to a minority on a careful analysis of the judgment. In such a situation whether Justice Nariman's reasoning and conclusions will hold good is the point to ponder.

Conclusion

To conclude, it could be safely said that the Supreme Court has said Talaq to interference in the personal laws. The Personal Laws have been given the protection they are entitled to under Article 25 of the Constitution. If the judgment is not properly understood it would have repercussions in other pending cases like the right to entry of women in Sabarimala temple etc.

Haris Beeran is an advocate practicing in the Supreme Court of India.  This article was first published in Malayala Manorama. 

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