For many women in India, the Supreme Court stood on the right side of history today after it struck down the practice of instant divorce called triple talaq, practiced by Sunni Muslims in the country.
In a 3-2 judgment, Justices Kurian Joseph, RF Nariman and UU Lalit struck down the practice of instant divorce, describing it as "illegal and sinful" and ruling that it violates the right to equality enshrined in the Indian constitution.
"Triple talaqmay be a permissible practice but it retrograde and unworthy. Since triple talaqis instant it is irrevocable and the marital tie gets broken. It is violative of Article 14, the right to equality," the three judges said.
Chief Justice of India JS Khehar and Justice Abdul Nazeer, the two judges in the minority, were of the opinion that triple talaq was "sinful" but valid. Justice Khehar said that triple talaq does not violate Articles 14 (equality), 19 (free speech) and 21 (life and liberty) of the Constitution.
But the two judges still called for triple talaq to be banned until the Indian government brought a law in this regard within six months.
In one of the most significant women's rights cases in the country, five judges from five faiths had asked the question whether triple talaq is an integral part of Islam.
In his judgment, Chief Justice Khehar, who headed the five judge bench, said that triple talaq had been an integral part of the Sunni community for 1,400years. Justice Joseph said that triple talaq was not sanctioned by the Koran and it did not form a fundamental part of the religion.
The five judges represented five faiths: Hinduism, Christianity, Islam, Sikhism and Zoroastrianism.
Triple Talaq has been banned in 22 countries including Pakistan and Bangladesh, but religious men in India, fronted by All Indian Muslim Personal Law Board (AIMPLB), a non-governmental organisation that "defends" the application of Muslim personal law, had argued that the practice is an integral part of Islam and the courts have no business adjudicating on personal laws of the Muslim community.
Lawyers, human rights activists and members of civil society who oppose triple talaq had argued that Muslim personal laws should not be immune to change and that the practice of instant divorce is unconstitutional because it violates the fundamental rights of Muslim women.
While religious leaders say that the Koran carries various stipulations to ensure that triple talaq is practiced in a manner fair to both sides, the other side rejects that argument as irrelevant. In reality, all that instant divorce involves is the husband saying the word "talaq" three times. In the age of information technology, there are horrific instances of Muslim men divorcing their wives via text and over messaging platforms including Skype and Whatsapp.
It is worth noting that the triple talaq case also involved the overarching question of whether the Supreme Court could ban personal laws. On the first day of the hearings in May, noted human rights lawyer, Indira Jaising, asked the five-judge bench, "Does the Constitution stop where family laws begins?"
Meanwhile, the former law minister Kapil Sibal, who appeared for the AIMPLB, had argued that the Supreme Court should not intervene in triple talaq and that change needs to come from within the community. He also argued that the countries that had done away with triple talaq had made changes by enacting laws and not through the courts.
Justices Khehar and Nazeer, who were in the minority today, described triple talaq as "sinful," but they were of the opinion that courts cannot interfere in personal laws and that it was lawmakers who should ban the practice.
While women rights activist have long railed against triple talaq, polygamy and nikah halala, these practices received widespread attention after the Modi government took a stand against them in court, and the Bharatiya Janata Party came down against triple talaq while campaigning for the Uttar Pradesh Assembly election, earlier this year.
In several public addresses over the course of the past year, Prime Minister Narendra Modi has denounced the practice of triple talaq. In his Independence Day speech on August 15, Modi said, "I pay my respects to those women who had to lead miserable lives due to triple talaq and then started a movement which created an environment in the whole nation against the practice."
Skeptics however question why the BJP is focusing on the problems of one religious community. Some see it as a way for the Hindu nationalist party to cock a snook at the Muslim community, while others see it as a back channel method to usher in the Uniform Civil Code.
In the face of an unprecedented backlash, earlier this year, the AIMPLB issued an eight-point guide on how Muslims should divorce, which included advice that couples should try settle their differences by themselves, observe a waiting period before uttering 'talaq', and provide maintenance to the woman during it.
Although it urged social boycotting of those who practice instant divorce, the AIMPLB has not outlawed instant divorce, describing it as wrong but valid under Muslim personal law.
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