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Talaq judgment deconstructed

The Statesman
By Professor  

Triple talaq was set aside by the Supreme Court’s voluminous decision which eases the position of Muslim women to an extent. However, Muslim men are still entitled to divorce their wives over a period of a few months. While Muslim women, brave and litigious personalities, challenged the practice of triple talaq on the grounds of gender equality, the decision makers reduced them to mere victims of circumstance, lacking any agency to survive without men’s protection.

Chief Justice Khehar with the concurrence of Justice Nazeer cited Quranic verses to highlight the solemnity of the marital relation of men and women “where men sow their field (wife) to reap harvest by ensuring that he does not sow out of season, or cultivate in a manner which will injure or exhaust the soil”. Such an interpretation of the Quran to impose marriage as a sacramental institution where women are mere objects for their husband seems egregious and draconian. This ruling followed concurring majority opinions set out by Justices Kurian Joseph, R.F. Nariman and Uday U. Lalit.

While their reasoning lacks gender perspective, they seem to have reached a pro-women outcome by a matter of chance. Their verdict holds the Shariat Act which validates triple talaq as unconstitutional. However, they miss the golden opportunity to decide upon several other discriminatory practices under Muslim law such as other regressive forms of talaq. It is paradoxical as the Court conveniently overlooked talaq-e-ahsan or talaq-ehasan where men unequivocally can divorce their wives without women having the right to do the same.

Justice Nariman myopically sets aside instantaneous talaq, but doesn’t adjudicate upon triple talaq given over a period of three consecutive months by the husband while women can’t do the same. Moreover, Justice Nariman invalidates triple talaq on the grounds of it being an arbitrary practice of dissolving marital ties, since instantaneous triple talaq allowed Muslim husbands unfettered power to divorce their wives. This practice allowed no possibility for reconciliation between the families, which was an essential component of a valid talaq as held in the case of Shamim Ara.

This reasoning under Article 14 overshadowed the primary reason of challenge, namely the right to non-discrimination based on sex under Article 15. Justice Nariman subsequently asserted that the practice of instantaneous triple talaq enables the marital tie to be “broken capriciously and whimsically by a Muslim man without any attempt at reconciliation to save it”. Here, there is a prominent effort to safeguard marriage as a sacred social institution as a justification to invalidate instantaneous triple talaq, while avoiding the double discrimination that the Muslim women face due to the intersectionality of gender and religion.

Additionally, the myopic approach of the Court failed to recognise the entire practice of talaq under Muslim personal law as discriminatory against women, and restricted themselves to a single form of talaq under the Muslim practices. Perhaps questioning the central practices of all forms of talaq under Muslim law would amount to revisiting the issue of exclusion of uncodified personal laws from Constitutional scrutiny as previously held by the two judge Bombay high Court bench in the Narasu Appa Mali case.

The Court avoided the delicate task of overruling the decision and left it for future judicial review, if challenged. This escapism of the Court consequently has deprived women and minority communities of a chance to challenge discriminatory personal laws and customary practices under Part III of the Constitution. Since the ghost of the Narasu case has not laid to rest by the bench in the triple talaq decision, there seems to be no opportunity for Muslim women to initiate litigation against the other unequal and unjust practices such as Nikahhalala and polygamy under Muslim law which challenge the sole privileges of Muslim men.

The ungendered and laboriously verbose 3:2 verdict fails to provide a gender- just reasoning to invalidate triple talaq. A gender-just reasoning could have been a precedent for setting aside several discriminatory practices against women of all faiths and religions. The Shayara Bano decision has nonetheless provided Muslim women with temporary relief against the practice of instantaneous talaq.

(The writers are, respectively, a law student and professor of law at the Jindal Global Law School, Sonipat.)