Parliament should enact a law to ban triple talaq

The Chief Justice of India, Mr Justice Khehar and Mr Justice Abdul Nazeer wanted a comprehensive legislation to do away with this practice. Though, the two judges felt that this practice was part of Muslim Personal Law and thus protected under Article 25 as a fundamental right, they preferred to stay it for six months. The legal question is whether a ‘fundamental right’ could be stayed by judiciary?

Madabhushi Sridhar

While three judges of SC rejected the triple talaq practice as unconstitutional, two other judges agreed in principle by staying that practice for six months and advised the Parliament to make necessary legislation. It means five member bench has endorsed the view against the age-old practice that orphanizes the muslim women in a single sitting by spelling the word ‘talaq’ thrice even unintentionally.

The Chief Justice of India, Mr Justice Khehar and Mr Justice Abdul Nazeer wanted a comprehensive legislation to do away with this practice. Though, the two judges felt that this practice was part of Muslim Personal Law and thus protected under Article 25 as a fundamental right, they preferred to stay it for six months. The legal question is whether a ‘fundamental right’ could be stayed by judiciary?

The judgment is surely a progressive step that empowers the women. It ensures gender justice to a great extent.  But the modalities of providing relief to victims of triple talaq or methods of preventing it are not crafted. It may not be possible to introduce them in judicial legislation and that is why a full-fledged law is essential. How do we prevent this unconstitutional practice and provide protection or do justice to the victims? How to inject a sense of gender justice among the muslim men?

The Muslim youth should use their education to understand the fallacies of this so called 1400 year practice claiming it to be sanctioned by Quran. How do they protect their mothers, sisters and daughters? Should they also be victims of triple talaq? Why not they see reason or merit in cubs on triple talaq imposed by several Arab and Islamic nations? The Supreme Court judges have rightly referred to 13 Arab countries, three states in Southeast Asia and the subcontinent where this practice is held illegal and protections were prescribed. In Iraq it is necessary to file suit for divorce, since 1987 amendment to Code of Personal Status, 1959. Certificate of Marriage remain valid until cancelled by the judicial court. Decree of competent court is only source of securing divorce in Libya. In Morocco a petition for divorce will be heard by court only after a conciliation effort. The court has to inquire into causes before accepting the petition for divorce in Tunisia, a Sunni majority state. Conciliation is mandatory in Indonesia also. In Malaysia the court will consider the irreconcilable differences and then only permits the husband to say talaq one time in its presence to snap the relation, and the court sends the certificate to the chief registrar. If the wife is pregnant, the divorce will not be affected until the end of pregnancy. Pakistan and Bangaldesh, once the parts of India, also abandoned the practice. The very Hanafi School says it is sinful. When it is not dictated by Quran, how could it be part of personal law? Article 14 will remain a joke if this arbitrary practice is considered constitutional.  When whole lot of Islamic countries is getting civilized in their family relationship, it is pathetic and highly unreasonable to allow an uncivilized practice to ruin the Muslim women. Supreme Court in 2002 in Shamim Ara v State of UP held that triple talaq did not have any legal sanctity.

Article 25, no doubt, provides a protection to practices of minority religion, as their fundamental rights, it says: “Art. 25. Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”.

Article 25 cannot lead to violate Articles 14, 15, and 21. The CJI said Article 25 does not violate Articles 14,15, and 21. It is true, because it is subject to other rights of  part III of the Constitution which contains other fundamental rights. But the practice of triple talaq even if it is part of religious law, cannot be validated even under Article 25, which is subject to three important articles of fundamental rights (14,15 and 21). How can we ignore the qualification added to the Article 25?

When the Qazi-driven talaqs are being replaced by the judicial process of divorcing, in most of the Islamic countries, it is surprising that two judges including the CJI held that triple talaq is fundamental right of Muslims because that was part of their personal law. Then what about fundamental rights of women who were forced out of the marital homes? How can one ignore fundamental rights of fifty (or more) percent of Muslims?

Three judges declared it unconstitutional saying it was not part of personal law, though all five agreed it as undesirable. A marital bond is being broken capriciously and whimsically without any attempt at reconciliation. And it is irrevocable.

The Protection of Women from Domestic Violence Act, 2005 is a practical and secular legislation to resolve so many domestic disputes, it cannot completely remedy the victims of triple talaq. The Parliament should realize its duty to enact a law to protect the Muslim women from this illegal and unconstitutional practice, as soon as possible. When they could reform Hindu Law from sati and polygamy and introduced the divorce and relaxed the process by allowing it to be snapped by mutual agreement, why not the exploitative clauses of religious practices in Muslims should be removed by a comprehensive law?

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