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Triple talaq is an incomplete verdict: It doesn't empower Muslim women

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Kamal Mitra Chenoy
Kamal Mitra ChenoyAug 24, 2017 | 17:53

Triple talaq is an incomplete verdict: It doesn't empower Muslim women

The so-called landmark verdict the Supreme Court pronounced on August 22 in setting aside the centuries-old instant triple talaq was actually long overdue. In any case, the two other kinds of divorce allowed — talaq-e-hasan and talaq-e-ahsan are untouched. Muslim husbands still have the right to decide when they want to stop marital intercourse for the three months prescribed by Muslim personal law for this form of divorce and the reason to do so.

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Further, the disastrous decision by the Rajiv Gandhi-led Congress to overturn the Supreme Court’s decision in the Shah Bano case to deny Muslim divorcees maintenance under the law very much holds. In the wake of the government's stand, the All India Muslim Personal Law Board (AIMPLB) and other Muslim bodies promised to use their resources to support Muslim divorcees’ maintenance. But this never happened.

The hyperbolic support by Union law minister Ravi Shankar Prasad that "...It is a great dawn for women in the country. The judgment is special and historic...it’s not only a constitutional and legal victory, but also a moral victory for Muslim women" ignores the very limited scope of the already criticised triple talaq that only represents the Hanafi school of Sunni personal law. It is rejected by most Muslim countries, including Pakistan.

The fact that the narrow majority of 3-2 judges in support of withdrawing triple talaq is shocking. This despite the fact that the Constitution Bench had no less than four judges who belonged to minority religions: Chief Justice of India JS Kehar, a Sikh: Justice S Abdul Nazeer, a Muslim (both upholding triple talaq); Justice Rohinton F Nariman, a Parsi; Justice Kurian Joseph, a Christian; with Justice Uday U Lalit, a Hindu.

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The time and date of talaq remains a Muslim man's prerogative.

The latter three called the practice of triple talaq arbitrary and disagreed with the view that it was an integral part of Islam.

CJI JS Kehar writing for himself as well as Justice S Abdul Nazeer underlined the primacy of Muslim law and said the practice of triple talaq enjoyed constitutional protection and was beyond the scope of judicial scrutiny. They further argued that triple talaq has "the protection of Article 25 of the Constitution" and "will not be subjected to any challenge..."

This is not the usual reading of Article 25 that grants "freedom of conscience and free profession, practice and propagation of religion". It maintains such freedom is

(1) Subject to public order, morality and health and to the other parts of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion;

(2) Nothing in this article shall affect any the operation of any existing law or prevent the State from making any law--(a) regulating or restricting any economic, financial, political, or any secular activity which may be associated with religious practice;

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In other words, any secular activity associated with secular practice cannot be prevented by the State which makes the appropriate law. So there can be another reading of Article 25 contrary to CJI JS Kehar’s.

Further, Justice Kurian Joseph cited the Shamim Ara ruling: "This court in Shamim Ara vs State of UP and another has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, in terms of Article 141, Shamim Ara is the law that is applicable in India."

Article 141 stipulates that a law declared by the Supreme Court shall be binding on all courts.

So, after all the debate and shouting, only triple talaq has been removed and nothing decided on talaq-e-ahsan or talaq-e-hasan. No relief for women seeking return of marital gifts, let alone the choice of time and date when they are divorced. This remains a Muslim man's prerogative. This judgment, with all sides taken into account, is just a small, predictable victory.

Muslim personal law has yet to empower Muslim women. How long will they wait for justice?

Last updated: August 25, 2017 | 13:18
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