The Allahabad High Court has today said ‘triple talaq’ or the divorcing of women under Islamic laws — is unconstitutional in Indian law.
The provision “violates women’s rights” and no personal law board is above the Indian constitution, the court said while hearing a petition filed by a Muslim woman from Bulandshahr.
The constitution of India assures all citizens of equal rights and triple talaq, which more or less allows any man to divorce his wife by uttering ‘talaq, talaq, talaq’ is a violation of this principle.
The constitution of India prohibits discrimination on the basis of gender, caste, creed and religion, except for providing upliftment support for weaker sections of the society.
The comments come even as the Supreme Court of India is hearing another petition by a man who felt threatened by the relatives of his second wife.
The court’s comments came while dismissing the man’s petition. However, Justice Suneet Kumar also said he was not making further comments about the triple talaq given that the Supreme Court is “seized of the matter.”
“Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce,” the court observed.
“Divorce is permissible in Islam only in case of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of marriage by Talaq or by Khola,” Justice Kumar added.
Instant talaq “is a cruel and the most demeaning form of divorce practised by the Muslim community at large. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quran. Personal laws of any community cannot claim supremacy over the rights granted to individuals by the Constitution,” it added.
It should be noted that the observations have limited legal implications as precedent as they were not directly related to the primary matter in case — which was threats faced by the husband who had conducted triple talaq on his first wife and was now living with a woman half his age.
In February, the Supreme Court asked the government for its stand, and the Modi government is expected to say that it does not support triple talaq.
In addition to the government, other parties, including religious group Jamiat Ulema-e-Hind, have also been asked to give their statements.
SHAH BANO CASE
In 1985, the Supreme Court had directed a person, who professed the Muslim faith, to pay alimony to his divorced wife, citing Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion.
The section imposes the obligation on every Indian citizen to take care of his or her wife, children and parents within his or her means.
In addition, the court had also dismissed the argument that forcing the husband to pay maintenance for his divorced wife was anti-Islamic. The court ruled that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife.
However, the then Congress government led by Rajiv Gandhi, overturned the court ruling by bringing in the The Muslim Women (Protection of Rights on Divorce) Act of 1986.
The latest move by the Supreme Court has come under attack from Islamic scholars and activists.
Last week, Jamiat Ulema-i-Hind told the Supreme Court there is no scope for interference with the Muslim Personal Law in which triple talaq, ‘nikah halala’ and polygamy are well rooted and stand on much higher pedestal as compared to other customs.
It said the Muslim Personal Law has an element of certainty and is not local or regional in operation.
“There is no scope for interference with the Muslim Personal Law, which is based on primarily the Holy Quran and the Sunnah of Prophet Muhammad, explained and applied by various scholars of great antiquity and authority after thorough research,” it averred.