Divorcing triple talaq

Govt must step in to follow Supreme Court's lead

In a historic decision, a five-judge bench of the Supreme Court has struck down the practice of “talaq-e-biddat” (commonly referred to as triple talaq) — an egregious practice that many Muslim men in India employ to divorce their wives instantaneously and without their consent, merely by uttering the word talaq thrice. This arbitrary practice was being opposed by women’s rights activists, who saw it in the context of poor gender equity in Indian society. An IndiaSpend data analysis of Census 2011 shows that for every divorced Muslim man in India, there are four divorced Muslim women. In any case, legal luminaries have said even the Quran does not consider triple talaq as valid. The court’s ruling was restricted to the constitutional validity of triple talaq, and it did not go into the other form of triple talaq (or talaq-ul sunnat), under which the husband utters the first talaq and can only repeat it in the next lunar cycle. It is only when this period expires that the divorce is considered irrevocable and final. 

Despite the near unanimity against triple talaq – from the petitioners to the All India Muslim Personal Law Board as well as the Union government – the decision of the apex court was not unanimous. Three judges, Justices Kurian Joseph, Rohinton Fali Nariman and Uday Umesh Lalit, held that the practice was bad in law. Quoting from the Quran, Justice Joseph argued that it was bad in law because it was bad in theology. The Quran, he argued, did not allow for a severance that denied an attempt at reconciliation. Justices Nariman and Lalit, too, took exception to the fact that this kind of divorce was “instant and irrevocable”, obviating any possibility of a reconciliation, and as such argued that it violated Article 14 of the Constitution that promises all individuals equality before law. The two dissenting judges, Justices J S Khehar and S A Nazeer, however, saw it as an integral part of Muslim personal law and as such found it beyond the remit of the court. They asked the Union government to frame appropriate legislation to weed out this practice as several egalitarian countries with sizeable Muslim populations, including Islamic states, had done. 

The Union government had in May submitted before the court that it wanted to bring in a new law to regulate marriage and divorce among Muslims if the practice of triple talaq was declared unconstitutional by the court. Tuesday’s verdict leaves the government with a historic opportunity to walk the talk and champion the cause of gender rights in a domain that was hitherto considered beyond reproach due to political reasons. The Rajiv Gandhi government’s overruling of the Shah Bano verdict was a case in point. If it manages to pull it off, the present government will do a historic job that would equal the Congress government’s reform of Hindu personal law and the previous National Democratic Alliance government’s reform of Christian personal law.