SC verdict on triple talaq denies justice to likes of Shayara Bano as order remains ambiguous on 3-month divorce
The Supreme Court's decision to declare the practice of Triple Talaq as unconstitutional is a milestone in the Muslim women's rights movement in India.
The Supreme Court's decision to declare the practice of triple talaq as unconstitutional is a milestone in the Muslim women's rights movement in India. Triple talaq — or the practice whereby a Muslim husband pronounces talaq (divorce) three times to end a marriage — has two variations. One variation is to pronounce talaq three times in one sitting, either verbally or through various written media such as phone call, letter, WhatsApp, Skype, SMS and the likes. The other is to pronounce a talaq each over three months.
At the time of writing this article, it is unclear if both the variations of triple talaq were struck down by the Supreme Court. However, it seems the practice of triple talaq was declared as unconstitutional by a 3:2 majority of the court. It was the instant triple talaq which was at the centre of countrywide debate due to its arbitrary use by Muslim husbands. The decision is a milestone in the life of the poorer sections of Muslim women who are the worst sufferers and don't have the economic means to go to court.
It does appear, however, that the other form of triple talaq will continue to remain valid — which will be welcomed by Islamic clerics. If the non-instant form of triple talaq remains valid, the apex court's decision doesn't significantly ameliorate the conditions of Muslim women. It should be noted that triple talaq affects poor sections of Muslim women who are mostly unable to go to court for financial reasons.
This means the Muslim husband will continue to have his Sharia-based right to unilaterally divorce a wife. From the reports in the media, it doesn't appear that the Supreme Court has addressed this issue of unilateral divorce.
The unilateral divorce by a Muslim husband happens because Muslim husbands are not permitted to go to court to effect divorce — and also because the right of divorce in Islam belongs to the husband, not to the wife. Accordingly, a Muslim wife in India can seek, not give, divorce either through a court or through Islamic clerics.
By reading media reports on the verdict, one fails to reach the conclusion that the Muslim husband will, now onwards, have to go to court to seek divorce. Therefore, any Supreme Court judgment which doesn't require a Muslim husband to effect his divorce before a court of law necessarily falls short of any real change for women. Consequently, Sharia courts run by Islamic organisations in India will remain in business. While laws are good, one must also keep in mind that a Muslim husband and Muslim wife can still divorce by instant triple talaq - if they live by Sharia codes. For example, Sharia-abiding Muslims in Britain already avoid going to court and choose their own Sharia courts.
It also appears that the verdict will be effective from today, 22 August 2017 — which arguably is a milestone because from this day the arbitrariness involved in the practice of triple talaq is removed. However, it remains to be seen how the justices addressed the issue of Shayara Bano whose appeal, along with those of others, before the Supreme Court triggered a countrywide debate leading to the verdict. If the verdict is to be effective from 22 August, it will also mean that Bano got no justice personally and her divorce by triple talaq remains valid.
Media reports also indicate that the court asked the government to make a law and that the verdict declaring triple talaq as unconstitutional is valid for six months - but this point was an observation by the minority two judges of the five-bench court and is therefore meaningless. At the end of the day, Muslim women should keep in mind that this verdict will not make any meaningful change in their daily life if they do not send their daughters and grand-daughters into career-oriented education and from there into cash-paying jobs.
As Chief Justice JS Khehar demits office this week, the Supreme Court has geared up to deliver the judgment on triple talaq before the next CJI takes over.
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The Board also objected to the definition of "talaq" given in Section 2(b) of of the Bill, which, it said, is "beyond the scope of talaq-e-biddat (instant divorce) which alone was set aside by the Supreme Court".
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