By FutureLaw Desk
On a landmark verdict delivered Tuesday, the Supreme Court of India suspended the use of a Muslim
divorce law until the government frames new legislation. The Court states that law violated Article 14 and
21 of the Constitution of India, which is related to equality, and protection of life and personal liberty
respectively. Petitioners and the rights activists had long argued that the "triple talaq" law, which allows Muslim men to divorce their wives simply by uttering the word "talaq" three times is a violation of the right to equality. This judgment is now regarded as a partial victory for Muslim women in India.
The 5 members bench of the Supreme Court delivered the judgment in 3:2 majority, where Justices
Kurian Joseph, UU Lalit and RF Nariman delivered judgment against triple talaq. However, Chief Justice
JS Khehar and Justice Abdul Nazeer dissented the view.
While announcing a six-month suspension on the practice of the divorce law, Justice J.S. Khehar noted
that this is a sensitive case where sentiments are involved. We are directing the Union of India to consider
appropriate legislation in this regard.
Read the full judgment of the case from LiveLaw.In
The ball was rolled by Bharatiya Muslim Mahila Andolan, a Muslim civil rights organization who
launched a campaign two years ago to ban triple talaq. According to a recent survey by the BMMA, 92%
of the 4,710 Muslim women surveyed wanted a total ban on verbal or unilateral divorce.
Last year, in a similar case Allahabad High Court also declared triple talaq illegal, noted that this form of
“instant divorce” is “cruel” and “most demeaning” which “impedes and drags India from becoming a
nation”. The case was filed by president of the All India Muslim Women’s Personal Law Board
Muslims in India, are governed by the Muslim Personal Law i.e. Sharia Law. which is not a codified
legislation. Therefore, local clergy can interpret the law and give decisions. However, the Muslim Law
Board of India stated that while the practice of triple talaq is generally considered as wrong hence
discouraged, but the the matter be left to the community to tackle without the intervention of the court.
Personal Law vs the Principles of equality and non-discrimination
According to Islamic Law, Talaq-e-bidat or triple talaq provides that a man can pronounce talaq thrice at one go to divorce his wife without waiting for her consent or giving her a chance to explain her position. Muslim women argued that this practice, which does not exist in any other Islamic country, is an incorrect interpretation of the Quran which provides that the word talaq should be uttered thrice during the period of two menstrual cycles, or tuhar.
Nikah halala (known as Hilla marriage in Bangladesh) prevents the reversal of the triple talaq pronouncement, even if it is uttered in a drunken state. It enjoins that the divorced woman cannot remarry the same man even if the two are willing. This law requires that the divorced woman marry some other man. She can remarry her first husband only after obtaining a divorce from her second husband.
While deciding the case, Supreme Court initially sought a response from the government. A committee was formed to examine the Muslim Personal Law.
The committee examined the provisions related to niqah, talaq and inheritance and recommended under title ‘Women and Law’ that Talaq-e-bidat and men’s right to have four wives be done away with. The report has been submitted Ministry of women and child development. All India Muslim Personal Law Board insisted on their position in Shariah Law and stated to the Supreme Court that the Constitution provided freedom of religion as a fundamental right.