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A Small Step Forward

The Supreme Court has successfully traversed a potential minefield in the triple talaq case.

Muslim women in India have won a small victory. They have no one to thank for it except themselves and the judiciary and certainly not the Bharatiya Janata Party (BJP) that has jumped to claim credit for it. It is the efforts of these women that ultimately led to a case in the Supreme Court. It has responded positively to their plea by declaring as illegal the practice of talaq-e-biddat, or triple talaq where a man can divorce his wife merely by uttering the word “talaq” thrice.

The apex court had before it petitions by five divorced Muslim women and the Bharatiya Muslim Mahila Andolan seeking abolition of triple talaq and other discriminatory practices such as polygamy. The Court, however, restricted itself to looking only at talaq-e-biddat. The voluminous 395-page judgment is far from straightforward; the five judges delivered three separate judgments. As the rulings of two of the judges, Justices R F Nariman and U U Lalit, and another judge, Justice Kurian Joseph concurred that the practice of triple talaq should be set aside, that now holds. One needs to note, however, that the Supreme Court had already ruled in 2002 in Shamim Ara v State of UP that this practice is illegal. Surprisingly, that judgment appears to have received little attention from the media, political parties and civil society.

The finer points of this split, complex and layered judgment are likely to be analysed and discussed for many months to come. The judgment does not affect all Muslims, as the community is not homogeneous in its practices. It is important to emphasise this, as there is tendency to place everyone believing in Islam under one umbrella. What is clear is that the majority ruling, using different arguments, has ruled on just one practice followed only by Sunni Muslims of one sect as illegal.

The worrying part of the judgment is the minority ruling by Chief Justice J S Khehar and Justice S Abdul Nazir. They held that talaq-e-biddat was a matter of “personal law” for Sunni Muslims, that “it constitutes a matter of their faith,” and therefore came to the conclusion that it has “the protection of Article 25 of the Constitution.” They go on to say, “Religion and ‘personal law’ must be perceived, as it is accepted, by the followers of the faith. And not how another would like it to be (including self-proclaimed rationalists of the same faith).” If this had become the majority ruling, the chances of women, or anyone else, demanding reforms in personal laws would have been ruled out. The judges also held that any changes in personal law ought not to be made by the judiciary but by Parliament and ordered the government to formulate a law within six months to address the demands of the petitioners. Fortunately, that suggestion too is not binding. Given half a chance, the BJP would have used this part of the minority judgment to push through a uniform civil code.

Now that the Court has ruled, we need to look ahead. This is the first time that an organisation representing Muslim women has been party to a case concerning discriminatory practices in their community. This is significant. Ever since the 1985 Shah Bano case, where the Supreme Court upheld the right of a divorced Muslim woman to maintenance under Section 125 of the Code of Criminal Procedure—a positive development that was undone when the Rajiv Gandhi government under pressure from Muslim clergy brought in the Muslim Women (Protection of Rights on Divorce) Act, 1986—it has been argued that any change in Muslim personal law must arise from a demand within the community. Even women’s groups fighting for equality and gender justice held back on the problems of Muslim women for fear that their efforts could be exploited by the Hindu right that was only too ready to demonise the Muslim community by emphasising the problems Muslim women face. Much has changed since then. For one, Muslim women have organised, expressed their demands, set up a separate All India Muslim Women’s Personal Law Board as distinct from the male-dominated All India Muslim Personal Law Board, and have been ready to defy the conservative leadership of their community.

At the same time, their victory in court is only the first step in a much longer struggle towards their desired goal of gender justice for Muslim women. The individual women who went to court spoke of years of violence and dowry demands. These are burdens that all Indian women carry, not just Muslim women. And although this petition pertained specifically to arbitrary divorce, the issues around violence that Muslim women face will not disappear.

The five-judge bench of the Supreme Court has succeeded in traversing a potential minefield given the fraught communal situation in the country. The significance of this ruling is that it opens the way for Muslims, and particularly women, to debate further how changes that they want in their personal law can be effected.

Updated On : 24th Aug, 2017

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