How was the Muslim law applied in India?

The Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim to formulate an Islamic law code for Indian Muslims. The British who were at this point in time governing India were trying to ensure that Indians be ruled according to their own cultural norms. When it came to distinguishing between laws made for the Hindus and those for the Muslims, they laid out the statement that “clear proof of usage will outweigh the written text of the law” in the case of Hindus. For the Muslims on the other hand, the writings in the Quran would be of foremost importance. Since 1937 therefore, the Shariat Application Act mandates aspects of Muslim social life such as marriage, divorce, inheritance and family relations. The Act lays out that in matters of personal dispute the State shall not interfere.

Are personal laws specific to Muslims in India?

Such legislation have been made over the years for other religious groups in India as well, thereby framing separate civil codes for different religions in the country. For instance, the Hindu Succession Act of 1956 which lays out guidelines for property inheritance among Hindus, Buddhists, Jains, and Sikhs. The Parsi Marriage and Divorce Act of 1936 lays out rules to be followed by the Parsis according to their religious traditions. The Hindu Marriage Act of 1955 had codified laws related to marriage among Hindus. In fact, in 1955 this Act had been amended to include laws on divorce and separation which were previously not part of it.

Apart from these separate civil codes related to marriage, there exists a Special Marriage Act as well which was last amended in 1954. It lays out provisions for marital laws irrespective of the religion to which the persons concerned belong. Muslims too can get married under this law.

Is triple talaq or instantaneous triple talaq really a Quranic message?

More than 20 Islamic countries including Egypt, Sudan, Jordan, Iran, Syria, Lebanon, Morocco, Iraq, and even Pakistan and Bangladesh, are updating Sharia laws relating to marriage and have imposed a court injunction against a husband pronouncing talaq. In Turkey and Cyprus, unilateral divorce has been disapproved and needs court intervention.

Marriage in Islam is a contract and since Muslim laws are not codified, the law always remains open to interpretation, and thus in complete control of the clergies. Arif Mohammad Khan, a minister in the Rajiv Gandhi government, who resigned over the Shah Bano case, once remarked, ‘We Muslims in India have contracted our religion to the clergy. We don’t apply our own mind’.

Triple Talaq meaning: Talaq is an Arabic text in Muslim Laws, and means freedom from the bondage of marriage by the husband in accordance with the procedure laid down by the Sharia law in Sunni Islam. But in Shia law, talaq has to be pronounced orally. Under some schools of Sunnis, a talaq pronounced under compulsion, coercion, undue influence, fraud or under intoxication is invalid.

Instantaneous triple talaq means a man can divorce his wife by pronouncing the word thrice.

What are the different viewpoints:

The Koran states the conditions which have to be observed. Triple talaq must be pronounced over three months. One per month. During the months, mediation is essential with both parties being represented during the negotiation. This is a Koranic injunction and it is only after following these conditions that talaq is granted and once granted is irrevocable.

India’s Prime Minister Narendra Modi has spoken on the issue a number of times, calling for “justice for Muslim women”.

The All India Muslim Personal Law Board (AIMPLB), a non-governmental organization that aims to educate Muslims on the protection and application of Islamic laws, has opposed the move to ban triple talaq and polygamy.

A recent survey by the Bharatiya Muslim Mahila Andolan (BMMA) suggests that 92% of Muslim women in India want the practice of ‘triple talaq’ to end.

A high-level committee set up by the Central government to review the status of women in India has reportedly recommended a ban on the practice of oral, unilateral, triple talaq and polygamy, Muslim organizations shrugged its recommendations and deemed them a Hindutva conspiracy.

Subjugation of women:

The question of abolishing triple talaq is not just a movement against patriarchy, but a call for justice for women’s rights. But for a majority of Muslims, this isn’t only a clear interference on the Supreme Court’s part in personal and religious laws of the community, but it is also a violation of the religious freedom given to the people of India by the Constitution.

But the Muslim Personal Law Board and other major Muslim representatives of Sunni Islam in India, and the Darul Uloom Deoband and Barelvis, are not in favor of any extra religious judicial interference despite the large section of women. It might sound bizarre, but the Deobandis and Barelvis had justified the instantaneous triple talaq against women by a man, even in a drunken stage or under intoxication, by simply calling it a man’s right under Sharia law.

However, the Muslim Personal Law Board is ready to revisit their position, even echoing the sentiments of annulling instantaneous triple talaq, if not the triple talaq.

Supreme Court judgment on Triple Talaq:

There are petitions from seven Muslim women who had been divorced through triple talaq, before Supreme Court. SC constituted five-Judge bench to look into the Constitutionality of Triple talaq.

During the hearings, the court had clarified that it would only deliberate whether the practice of ‘triple talaq’ is part of an “enforceable” fundamental right to practice religion among Muslims and not on the practice of polygamy. The bench, which includes Justices Kurian Joseph, R F Nariman, UU Lalit, and S Abdul Nazeer, while deliberating the issue, heard several pleas filed by Muslim women who had challenged the practice of instant triple talaq. The bench, which consisted of judges from different religious communities – Sikh, Christian, Parsi, Hindu, and Muslim – had heard seven, please.

What is the Judgement: By a majority verdict of 3:2, the Supreme Court set aside the practice of divorce through triple talaq among Muslims, ruling that the practice was ‘void and invalid’. The apex court observed that triple talaq was against the basic tenets of Quran and, it was violative of Article 14 and 21 of the Indian Constitution.

What was the minority judgment: The Chief Justice J S Khehar and Justice S Abdul Nazeer were in favour of putting on hold for six months the practice of triple talaq in the hope that the Centre’s legislation will take into account the concerns of Muslim bodies and the Sharia law.

Conclusion: As like in any SC judgments, where the majority judgment prevails the minority judgment, here in this case also the majority judgment written Triple Talaq is “unconstitutional.” That means there is no requirement of any special legislation will have to enact by the Parliament as the minority judgment is suggesting.

How the case was originated: The case before the Supreme Court was born out of an unrelated matter regarding the denial of inheritance rights to Hindu women under a 2005 amendment to the Hindu Succession Act (Prakash and Ors versus Phulavati and Ors, October 16, 2015). A Hindu woman had won against her brothers in the High Court but lost in the Supreme Court. At the end of the judgment, the Bench of Justices Adarsh Kumar Goel and Anil R Dave ordered that Muslim law to is discriminatory, for which a separate Public Interest Litigation should be initiated.

Who filed this present case: The current case was filed by Shayara Bano to get a triple divorce, polygamy and Shalala declared unconstitutional. Though she regularly faced domestic harassment, after 13 years of marriage and two children, Ms. Bano’s life was shattered in October 2015 when she received a speed post from her husband, Rizwan Ahmed, a property-dealer based in Allahabad. The letter contained a pronouncement of instant divorce — “talaq, talaq, talaq”.

The case had an interesting twist — her husband had, prior to giving her triple divorce, filed a case for the restitution of conjugal rights (the rights, especially to sexual relations, regarded as exercisable in law by each partner in a marriage), and it was Shayara who had left her matrimonial home. While Phulavati did not get justice and the property to which she was entitled under the progressive 2005 amendment, Muslim women who are victims of instant triple divorce, have got some relief.

The Judgement:

The issues in the case were so complicated that we have as many as three judgments. Chief Justice of India J S Khehar authored one opinion, with which Justice S Abdul Nazeer agreed. The second opinion was authored by Justice Kurian Joseph. The third judgment was written by Justice Rohinton F Nariman on behalf of himself and of Justice Uday U Lalit. Justice Kurian agreed with Justice Khehar on some points, and with Justice Nariman on others. Let us understand the judgments and reasons for the different opinions. All the opinions have clearly stated that they are dealing just with instant triple divorce, and not with other forms of divorces under Muslim Personal Law.

Nariman: Triple divorce is unconstitutional

Justice Nariman has held that instant irrevocable triple talaq not preceded by the efforts at reconciliation is unconstitutional, as it is contrary to the right to equality (Article 14), which includes the right against arbitrariness. The basis of his decision is the recognition of triple divorce by the Shariat Act, 1937. The Act laid down that in matters of talaq, gift, will, inheritance etc., “the rule of decision where parties are Muslims shall be Muslim Personal Law”. He quoted the 1932 decision of the Privy Council (A privy council is a body that advises the head of state of a nation. Privy Council was considered to be the highest court of appeal here and India retained the right of appeal from the Federal Court of India to the Privy Council after the establishment of the Dominion of India. Following the replacement of the Federal Court with the Supreme Court of India in January 1950, the Abolition of Privy Council Jurisdiction Act 1949 came into effect, ending the right of appeal to the Privy Council) in which triple divorce was held as valid under Sharia to conclude that since instant triple divorce is “manifestly arbitrary”, the Shariat Act, to the extent it recognized triple divorce, is ultra vires the Constitution.

He also observed that the duties or obligations of a Muslim can be divided into five categories, viz., Farz, which must be obeyed and Wajib, which is slightly less important; Mustahab, or recommendatory; Jazz, which is permissible, and to which religion is indifferent; Makruh, or unworthy; and finally, Haram, or forbidden. Instant triple talaq, he said, is either in category 3 (permissible) or, probably, in category 4, which is undesirable.

Since it is not obligatory or recommended and is rather sinful or undesirable, it cannot meet the “essentiality test”, and is, thus, not protected by Article 25 (freedom of religion). Also, triple talaq, which is irrevocable and is valid under Muslim Personal law even when the husband assigns no reason for his action, is arbitrary, and therefore, unconstitutional, Justice Nariman has said.

He has struck down Section 2 of the Shariat Act, which recognizes and enforces triple divorce. All parent laws, subordinate legislation and executive orders are subject to fundamental rights and must be struck down if they are not compatible. Justice Nariman dissented with the judgment of the CJI on the issue of the judiciary not being the right forum to dispose of such matters. The Supreme Court cannot refuse to decide when approached by a litigant under Article 32 against the violation of his/her fundamental rights, and put the ball in Parliament’s court, he said.

Khehar: Major milestone on freedom of religion

Justice Khehar’s judgment is the most detailed — 272 pages — and a major milestone in the history of freedom of religion in India. For the first time in Indian judicial history, freedom of religion subject to restrictions given in Articles 25 and 26 has been held to be “absolute”. After quoting Constituent Assembly debates on Articles 25 and 44, the CJI held that personal law is part of the freedom of religion, which courts are duty-bound to protect. He also said courts are not supposed to find fault with provisions of personal law, which are based on beliefs, not logic. Personal law, he said, is beyond judicial scrutiny.

The CJI explicitly said that accepting the petitioner’s prayer to hold triple talaq unconstitutional would amount to negating freedom of religion. He equated triple divorce to fundamental rights. Disagreeing with Justice Nariman, he observed that since the recognition of Muslim Personal Law by the Shariat Act of 1937 does not give it statutory status, and because Muslim Personal Law is not ‘law’ as held by the Supreme Court, the Shariat Act, or triple talaq under it, cannot be held unconstitutional. He also turned down the central government’s argument citing international conventions, saying such conventions, if they were contrary to fundamental rights, cannot be implemented.

The CJI also refused to strike down triple divorce as violative of public order, health, and morality, or for being contrary to other fundamental rights such as the right to equality or the right to live with human dignity. As in the case of sati and the devadasi practice, in triple talaq, too, Parliament should take the lead, keeping in view similar reforms in Muslim countries, he said. Using the Supreme Court’s extraordinary powers under Article 142, he ordered that no triple talaq will be given for six months. Justice Joseph disagreed with the use of Article 142 in this case.

Joseph: Triple divorce is un-Islamic

The third and most important judgment was delivered by Justice Joseph who fully endorsed the CJI’s opinion on freedom of religion, thereby ensuring its majority. He agreed with Justice Nariman on triple divorce not being an essential part of Muslim Personal Law. But he disagreed with Justice Nariman on the interpretation of the Shariat Act — concurring, rather, with Justice Khehar’s opinion that the Shariat Act is not legislation regulating triple divorce.

He held that the purpose of the 1937 Act was to remove un-Islamic and oppressive customs and usages from Muslim Personal Law, and since triple divorce is not mentioned in the Quran, it is not a part of Sharia — and thus cannot be enforced under the Shariat Act. What is sinful in theology must be held bad in law as well, Justice Joseph ruled. He also observed that the legislature, while enacting laws on gender justice, must give due weight to freedom of religion.

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