Saumya Uma

| @ | May 28,2018

Five Muslim women braved an onslaught from their communities and challenged the Constitutional validity of instantaneous, oral, unilateral talaq by the Muslim husband (called talaq-e-biddat or, in common parlance, triple talaq).  Triple talaq has been practised for decades within India, though its magnitude is not clearly known. The challenge led to the clubbing of several writ petitions, culminating in a 395-paged judgment of the Supreme Court, delivered on 22 August 2017, by a Constitutional Bench consisting of five judges – Chief Justice Khehar Singh, Justice Abdul Nazeer, Justice Kurian Joseph, Justice Rohinton Nariman and Justice Uday Lalit.

Muslims in India are divided into two sects – Shias and Sunnis.  Shias do not recognize triple talaq. Hence the case pertains to the practice within the Sunni Muslim community, particularly the Hanafi sub-sect, which regards triple talaq as a valid form of divorce.  Majority of the Indian Muslim population (about 90%) belong to the Hanafi school of Sunni Muslims, and hence, this judgment will have its repercussions on a majority of the Muslim community in India. Additionally, a substantial part of Muslim family law in India remains uncodified, with statutes enacted only on post-divorce maintenance and grounds of divorce for women.  Forms of and procedures for divorce by men remain uncodified, and are largely governed by interpretations of religious texts and judgments by courts of law.

The case witnessed multiple voices and standpoints from within the women’s movements and human rights groups. In short, the petitioners stated that triple talaq was an anachronism in today’s day and age, and an anathema to the Indian Constitution which guarantees right to life with dignity (Article 21), right to equality before the law and equal protection by the law (Article 14) and non-discrimination on grounds including only of sex (Article 15). Arguments were also advanced to illustrate that the practice of triple talaq was unIslamic and was not sanctioned by the Quran or hadiths – a secondary source of Muslim law. Central to the arguments was the gender discrimination perpetuated through the practice of triple talaq, notwithstanding the fact that it may be sanctioned / allowed / recognized as a form of divorce under the Shariat law among Hanafi Muslims.

The judges were not unanimous in their decision and their reasoning.  Triple talaq was held to be invalid by three of the five judges: Justice Kurian Joseph on the ground that it violated the principles of Islam, while Justice Nariman and Justice Uday Lalit on the ground that it violated the fundamental right to equality under Article 14 as it was a manifestly arbitrary and an unreasonable practice. Chief Justice Khehar Singh and Justice Abdul Nazeer held a minority view that triple talaq was protected by the fundamental right to freedom of religion under Article 25 of the Constitution, as it formed an integral aspect of the Muslim faith.  In essence, only two of the five judges applied the Constitutional yardstick of equality and non-discrimination to strike down the practice of triple talaq.

The Gains

For the first time, the Supreme Court has held that the triple talaq is unIslamic and unConstitutional, on grounds of equality guaranteed by the Indian Constitution, although it has been an issue for determination by the courts in the past.  For instance, in Rashid Ahmed vs. Anisa Khatun, the Privy Council decided in 1932 that triple talaq was a legally valid form of divorce among Hanafi Muslims. In 2002, the Supreme Court stated to the contrary, in Shamim Ara vs. State of U.P.  It held that the correct law of talaq as ordained by the Holy Quran is that it must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one from the wife’s family and the other from the husband’s, and if the attempts fail, talaq may be effected. The issue in Shamim Ara was whether the husband had validly divorced his wife through triple talaq as contended by him, after she had approached the court for maintenance for herself and her two minor sons, alleging desertion and cruelty of the husband. However, the question of Constitutionality of triple talaq was not addressed in that instance.

The recent judgment by the Constitutional Bench is significant in holding that freedom of religion is not an absolute right and not every aspect of religious or customary practice will be protected by the fundamental right to freedom of religion, however gender-discriminatory or arbitrary it might be.  The judgment demonstrates, once again, that family law is not a holy cow that is to remain untouched by Constitutional principles of equality, non-discrimination and the right to life with dignity.

The Lost Opportunity

It is clear that none of the judges examined the issue from the point of view of Muslim women facing double discrimination on the grounds of sex and religion. With the sword of triple talaq hanging over their heads, the women’s lived realities of discrimination, violence and threat of violence, a perpetual state of insecurity, day to day subordination within family life, uncertainty of status, a constant threat of becoming a destitute, inability to assert one’s rights – legal, economic or social, and secondary citizenship, among others, are hardly visible in the judgment. It appears that the experiences of women was lost beneath the labyrinth of interpretations of the Quran and hadiths, discussions of judicial precedents and interpretation of Constitutional and statutory provisions. Perhaps this would not have been the case if the court had examined the issue through the lens of women’s right to life with dignity, and discrimination on the ground of sex.

Of course, reform within the community would be a preferred mode, but when religious patriarchy and state patriarchy collude to oppress women within discriminatory family laws, the Constitutional guarantees of fundamental rights provide a potential reprieve.  Even the judges who struck down triple talaq as unconstitutional did not venture into the gender discriminatory aspects of the practice, which demanded an examination of triple talaq through the lens of Article 15.  It is disappointing that they did not do so, as that could have paved way for the incorporation of principles of feminist jurisprudence within the judgment.

None of the judges squarely addressed the 1952 Bombay High Court judgment in State of Bombay vs. Narasu Appa Mali which stated that family laws were beyond the pale of being tested against fundamental rights, and could not be struck down by the judiciary. Interestingly, Narasu’s case challenged the Constitutionality of a state legislation that sought to prohibit bigamy among Hindu men, by arguing that the law discriminated against them as Muslim men were allowed to be polygamous, thereby violating the fundamental right to equality. The zeal to instil monogamy for Hindu men coupled with a reluctance to intervene in polygamy under Muslim law could have motivated the judges then to reject an application of constitutional principles.  The escape route used by the judges was to state that ‘personal law’ is not ‘law in force’ under Article 13 of the Constitution.  However, sixty five years later, the tide ought to change as law is expected to be dynamic and keep pace with changing social realities.

Justice Nariman and Justice Lalit, by categorically stating that triple talaq is unconstitutional as it is violative of the guarantee of equality under Article 14, have implied that the 1952 judgment is bad in law.  However, from a close reading of the judgment, it appears from that all five judges skirted the issue and did not want to take the 1952 judgment head on and overrule it.  This is puzzling, more so when there have been ample instances of successful Constitutional challenges to family law – such as by a five judge Bench of the Supreme Court in Danial Latifi vs. Union of India (2001) which dealt with post-divorce maintenance to Muslim women and Githa Hariharan vs. Reserve Bank of India (1999) which addressed the issue of equal guardianship rights for Hindu women.  Hence the ghost of Narasu judgment continues to haunt the discourse on gender justice vis-à-vis family laws.

The only plausible explanation is that the Bench felt the need to tread gently and carefully on issues of ‘personal law’ as religious sentiments were at play.  As Adv. Indira Jaising eloquently argued, there is nothing ‘personal’ about personal law, particularly when gender-discriminatory practices affect the woman’s right to life with dignity, her shelter and other survival issues as well as her property rights.  She asserted that Muslim law was ‘public law’ not ‘personal law’ as the latter pertained to disputes between the family and private individuals wherein the State has no role. Feminist discourse informs us that the public-private dichotomy is a patriarchal device used to perpetuate and justify discrimination and violence against women within the four walls of the home or within the institution of marriage, with the blessings of state institutions such as the police and the judiciary. Indeed, the Protection of Women from Domestic Violence Act, 2005 is a vindication of the public-private divide and the role of the State in intervening in and regulating family relationships, should there be violence, discrimination or violation of fundamental rights of women in the domestic sphere.

 Present Context

In the current context of communalism, targeted violence against Muslims and Islamophobia in India as well as a large part of the world, the credit for the gains go squarely to the Muslim women who reposed their faith in the judiciary and in the Indian Constitution.  It was rather ironical to read the several arguments advanced by the Attorney General of India in favour of striking down the triple talaq as unconstitutional – among them, the fact that in a secular democracy, religion can be no reason to deny equal status and dignity, that women’s right to life with dignity ought to be upheld, and that gender equality and dignity of women are non-negotiables. Bravo! We hope that there will be no selective amnesia and these same arguments would hold true even when the Constitutional validity of various discriminatory provisions in Hindu family law are challenged in future!

Miles to Go Before We Sleep

While the judgment has provided a glimmer of hope that the Supreme Court would uphold Constitutional values when women challenge discriminatory aspects of family law, the road ahead is arduous and riddled with challenges. The manner in which the judgment is understood, accepted and implemented at the community level is a primary challenge. In the present context, to expect the Legislature to be saviours of Muslim women, and to enact a gender-just law regulating divorce within the Muslim community, would be to remain blissfully ignorant of its communal and patriarchal nature.

The Constitutional challenge to the practice of polygamy and nikah halala (a rule by which a divorced woman can re-marry her former husband only if she marries another man in the intervening period, has sexual intercourse with him, and that husband divorces her / dies bringing that marriage to an end) within Muslim law remain unresolved and are pending in the Supreme Court.  The effort to codify Muslim family law in a gender just manner within the Quranic and Constitutional frameworks, in order to bring about clarity and consistency in the law, is under way.

Religious texts and their interpretations are mostly patriarchal in nature; since religious texts and their interpretations are the source of all family laws in India, no family law in India is free from gender-discriminatory provisions. For example, the Hindu law of succession and inheritance is riddled with anti-women provisions, and these need to be amended without any further delay.

If a Uniform Civil Code is likely to be a mechanism to impose majoritarian Hindu law on the entire population; if reform from within the communities is stiffly resisted by local patriarchal forces; if silent reforms in court rooms are often too silent and invisible, perhaps we could additionally focus our energy on examining and challenging the constitutionality of plural laws governing family relations in a piecemeal manner.  The fulcrum ought to be the lived realities of women’s experiences and the discrimination and disadvantages faced at multiple levels by them through their intersectional identities, even as we apply the Constitutional yardstick of equality, non-discrimination and right to life with dignity.


Saumya Uma is a feminist legal scholar, currently teaching at the School of Law, Governance and Citizenship at Ambedkar University Delhi.  She writes, speaks and researches on aspects of human rights, gender and the law.

Image sourced from The Quint