Triple talaq: Here's why Supreme Court may strike down unilateral talaqs

NEW DELHI: When attorney general Mukul Rohatgi asked the Supreme Court to strike down triple talaq as violative of the right to equality guaranteed to all citizens under the constitution, he supported his case by arguing that regressive practices in Hinduism such as sati, polygamy, child marriage and infanticide had all been relegated to the pages of history.
But chief justice of India JS Khehar was quick to point out that none of these had come by way of court intervention but through legislation. Rohatgi parried with recent examples of the Sabarimala temple and the Haji Ali dargah women’s entry cases.

In the Haji Ali case, the highest court had brought enough pressure on the trust to allow Muslim women equal entry. The court is yet to render a judgement on the Sabarimala temple trust’s refusal to allow women of reproductive age entry on the plea that the presiding deity of the temple is a bachelor, but has made clear that discrimination can’t be countenanced under the constitution.

A bench headed by Justice Dipak Misra, who will be CJI when Khehar demits office in August, has said it will be referred to a constitution bench due to the complex interplay between the right to equality guaranteed to Hindu women and the citizen’s right to profess, practice and propagate the religion of his or her choice.

The All India Muslim Personal Law Board (AIMPLB), the writ of which runs large over Muslim personal law in the country, argued through senior advocate Kapil Sibal that in both these cases—Haji Ali and Sabarimala—the courts had only interfered when the laws had been challenged. None of these were suo motu interventions, Sibal said.

Sibal said the origins of the triple talaq case lay in a completely unrelated case. A two-judge bench, comprising Justices Anil R Dave and Adarsh Kumar Goel, had suo motu referred the issue of gender justice for Muslim women in Prakash versus Phulavati. That related to the share of a daughter in joint family property under the amended Hindu law. The judges had noted with concern the discrimination faced by Muslim women.

That bench recommended that the law had since developed worldwide to recognise that gender injustice was a violation of the fundamental rights of women, noting the incremental changes towards this in Indian rulings over the years. Consequently, the triple talaq case figures in the court business list or the cause list in reference to Muslim’s women’s quest for equality. What’s been forgotten in the outcry over the plight of Muslim women abandoned by way of instant triple talaq is that the reference was in-house, Sibal said.

“All these writs (filed by aggrieved Muslim women) came later,” he said. Petitioner Shayara Bano’s lawyer Balaji Srinivasan said this was merely a “happy coincidence.” So how did the court come to embark on this mission? The reference came on October 16, 2015, under chief justice of India HL Dattu. It was later in 2016 that the case was admitted.

The political overtones of the case and the complexities of minority identity issues have only been indirectly alluded to during arguments by Sibal and senior advocate Amit Singh Chadha, appearing for petitioner Shayara Bano.

Sibal would only say that the court should not attempt social change in religion as it was a slippery slope. “Where will it end? The AG wants your lordships to deal with polygamy and nikaah halala as well.” He also voiced the AIMPLB’s disquiet over any attempt to prise open the door of Muslim personal law.

“Why suo motu? Why me?” Chadha would only say: “I am aware of the political climate. The government is unwilling to bring in a law. The board wants us to have a no-triple talaq clause in the nikaah nama. Women rights’ activists want to picket parliament for a law. Where do these women go?” The political overtones apart, there is also the sensitive issue of religious freedom guaranteed to minorities under the constitution.

That’s possibly why the court decided early not to wade into the legality of polygamy—though it has earlier ruled that a Muslim government servant cannot marry more than once as it was barred under the civil services rules—and nikaah halala.

Nikaah halala refers to temporary marriages to third parties, should a husband pronounce talaq a third time, in case the they want to remarry each other.

The board would have the court believe that this was supposed to be a warning to husbands not to pronounce talaq a third time lightly, but the naysayers say that it has boomeranged. Instead of protecting women, it has only helped the patriarchal system exploit women even further.

Lawyer Viju George, who’s appearing for another abandoned woman, Ishrat Jahan of Kerala, claimed that in one case a 90-year-old man and his 80-year-old wife had been asked to marry third parties, and consummate those marriages before they could divorce the third parties and remarry each other.

Ishrat Jahan’s husband divorced her by pronouncing talaq three times over the phone from Dubai, remarried another woman from Bihar and left with her four children. George wants the court to examine the issue of nikaah halala too.

He cited the case of the devadasis, hereditary temple dancers, as a precedent. In that case, the court had banned the practice of exploiting women in the name of the devadasi system in temples.

Srinivasan said that the court had taken care of Shayara Bano’s interests by allowing her to agitate for visitation rights to her children. But Bano, like many others, wants that no other woman should undergo what she has had to.

Sibal argued that that instant triple talaq was only used in 0.44% of divorces, a minuscule proportion. Court hearings on a “dying practice,” only creates a “wrong impression that Muslim men get up in the morning” and suddenly decide to pronounce triple talaq.

Senior advocate Arif Mohammad Khan, who rebelled against the 1986 Act introduced by the Rajiv Gandhi government to overrule the Shah Bano judgement awarding higher maintenance to divorced Muslim women, opposed triple talaq on behalf of the All Indian Muslim Women Personal Law Board.

He said the practice was contrary to the sanctity accorded to marriage by Islam and was a pre-Islamic Arab tradition against the Quran.

The AIMPLB conceded this, saying it was immoral and a sin against God, but had been practiced for 1,400 years and was a valid practice that protected by right to religion under Article 25. The AIMPLB claimed it was educating people against it, and even offered to include it in its model nikaahnama. This would help Muslim women put in a no-triple talaq clause in the nikaahnama or withhold consent for nikaah.

Sceptics wondered if it would help disempowered Muslim women. Mumbai-based activist lawyer Flavia Agnes urged the court not to leave women at the mercy of expensive and overcrowded civil courts to the exclusion of community-based interventions.

She urged the court to address issues such as a divorced woman’s right to her matrimonial home, access to children and maintenance instead. None of these women want to go back to their husbands, she pointed out. The issue was thus the settlement of their economic rights. Sibal was optimistic it would help.

Senior advocate Anand Grover, appearing for the Bharatiya Muslim Mahila Andolan, urged the court to treat three times pronouncement of talaq as one – it would help Muslim women get justice without getting into the hair of purists opposed to any change.

The iddat (waiting) period would then run for 90 days from that day so that the man may take responsibility of any unborn child. And no divorce can be granted without two witnesses and mandatory conciliation and arbitration proceedings in court.

There’s hypothetically another possibility, backed by the government. The court could, secure in the knowledge that its ruling will not be undone as in Shah Bano, strike down all forms of unilateral, nonjudicial talaqs.

A law as promised by the AG would follow, enumerating gender-neutral grounds of divorce applicable to the community like the earlier laws dealing with marriage and divorce among Hindus. That’s a remote possibility, a senior advocate said on the condition of anonymity, given that the court is the last custodian of minority rights. “It will protect the minorities from all such inroads,” he said.