“The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women, but also empowers the state to adopt measures of positive discrimination in favor of women.” and it well understood that a constitution without the spirit of constitutionalism is no constitution. Hence, to uphold the constitutionalism and its spirit of equality among all the genders. Judiciary as an organ of the state has pronounced the judgment of Triple Talaq on this front.
To put it in Sir Kofi Anan’s words, “there is no tool more effective than empowerment of women for development of a country. The judicial review, judicial activism, social action litigation and the duty of enforcement of fundamental rights the superior Courts in India have evolved a gender jurisprudence which has given substance and life to the constitutional scheme of protective discrimination in favor of women.”
It is rightly said that the law changes with the changing society, the Dynamic Nature of the Law. There were times when sati system was in practice and being a woman was seen as a curse in the Indian society. But with the rising awareness and passing time, people have started questioning women rights.
“Personal law in India is a law that applies to citizens of various faiths and is based on the religion of the person. Muslim women have been fighting for gender equality in Islamic law, which governs marriage and divorce rights, for decades.” The Quran, on the other hand, does not favor a structure that is solely managed by patriarchy. The court also upheld rules for Muslim women's gain as a result of their battle for divorce rights.
“Besides the various sources, custom, equity, justice and conscience have also played a pivotal role in the development of the law, which prevailed. When the law was silent on certain aspects, judicial decisions also acted as a source of law.” Since, in the present era, the Muslim personal law is not codified, the Judiciary has given a ray of hope by pronouncing Judgements in favor of women. Its latest attempt of abrogating Triple Talaq as a means of Divorce in a Muslim Marriage.
The judgment pronounced in the recent past upholds the rights and dignity of Muslim women in the country and promote a spirit of equality among all the genders. “Women are an integral part of all the societies. They play an important role in determining the destiny of a nation. It has been rightly said by Swami Vivekanand, The Best thermometer to the progress of nation is its treatment of women.” It is indeed true that the Society has indeed witnessed change with the upcoming of such a judgement.
The progressive judgment which has been delivered by the apex court, further persuades the Indian legislature and executive to frame laws to uphold women’s rights as no branch of the state can work on any issue by itself. Further, after the Triple Talaq Judgement, the parliament introduced Muslim Women (Protection of Rights on Marriage) Act, 2019.
“When a judicial body delivers an order, that order not only becomes binding on the parties, but are binding in rem i.e., against the whole world. In this manner, the judiciary through the triple talaq judgment has a crucial role in interpreting the law to uphold women’s rights and providing a lawful impetus to the law-making bodies in framing laws that protect muslim women and setting precedents for lower courts and guiding them to deliver such judgments.” The case of Shayara Bano to great extent helped in the setup of a dynamic system of law.
Shayara Bano v. Union of India & Ors.
It was in 2017 that the Supreme Court passed a landmark verdict to uphold the rights of women of the modern India by declaring “the practice of Triple Talaq (talak-e-biddat), against the basic tenets of the holy Quran.”
Triple talaq is an instantaneous form of divorce whereby the husband was given an unwarranted right to divorce his wife just by pronouncing a triplet of the word ‘talaq’ i.e., calling the word thrice. The husband could give the divorce in this manner even without the consent of his wife.
In 2017 a lady named “Shayara Bano challenged the practice of Triple Talaq, when her husband, Rizwan Ahmed divorced her after 15 years of marriage by the invoking instantaneous triple talaq (talaq-e-biddat) in 2015.
She filed a writ petition in the apex court to hold the practices of triple talaq, polygamy, and halala as unconstitutional as they violated Article 14, 15, 21, 25 of the constitution” i.e., the basic rights of equality and freedom of practicing the religion.
The Judiciary by declaring the provisions of Triple Talaq as void and unconstitutional, has given the Muslim women an equal standing.
Decision of the court
The court asked whether the ritual, which is theologically immoral, was a part of a community's culture. The Supreme Court examined personal laws against the backdrop of fundamental rights in order to ensure that they are compatible with those rights. The court further ordered Parliament to pass laws to this effect within six months, in reaction, to which the government enacted “the Muslim Women (Protection of Rights on Marriage) Act, 2019.”
Muslim Women (Protection of Rights on Marriage) Act, 2019
According to the act,
“–Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal;
– Any Muslim husband who pronounces talaq upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.”
The offence is recognized as cognizable i.e., the arrest can be made without a warrant on a report of the same by the wife.
The reasoning behind the abrogation
The provisions of Triple Talaq gave the Muslim husbands an unwarranted right to divorce their wives at any small stance in just one sitting. Such divorce had not only the mental effect of separation but was also accompanied with the societal pressure which was laid on the woman, hence, when a woman was given divorce by her husband she was not easily accepted in the society. She had to go through a lot trauma and stress of marriage as the Indian society is known to be conservative and patriarchal. This provision made it easy for the husbands to pressurize their wives against any of their choice as they could be divorced just by pronouncing the word talaq, thrice.
The Quran does not mention it at all. It laid down the proper procedure for divorce but Triple Talaq was still prevalent and left the Muslim women helpless. “Quranic divorce involved not only two arbiters, one from the wife's side and one from the husband's side, but also two trustworthy witnesses to declare divorce. The Quran says, if you fear a breach between the two, appoint an arbiter from among his people and an arbiter from among her people. If both desire agreement, Allah will affect harmony between them.” Hence, Islam forbids either the husband or the wife from using divorce as a form of ridicule, and it takes special precautions to ensure the wellbeing of wives.
Therefore, it is fallacy on the part of those who understand that polygamy is a fundamental
right of a Muslim Male. Polygamy is exception, but not a rule. The relevant Quranic provision on polygamy institution itself considers monogamous marriage as an ideal one. No doubt that there is misuse of this provision; this can be checked by providing effective machinery through legislation. Under the provision of the dissolution of Muslim Marriage Quran itself has laid down the proper procedure for divorce but still people are following very informal way to pronounce the Talaq and left the Muslim women helpless. Therefore, Islam does not allow the husband or wife to use divorce as mockery and takes extra precaution for the welfare of wives.
Codification of Muslim Personal Law- In India, there is no formal codification of Muslim personal rules. Though Muslim personal law and its forerunner Anglo-Muhammadan Law are often referred to as a single body of law influenced by legal digests and case precedent, Muslim personal law bears no relation to the constitutional actions that already regulate Hindu, Christian, and other citizens family rules. Hence, there is a need of the codification of Muslim Personal Law.
Timely Justice - It is a well-known notion that ‘Justice delayed is justice denied’. The steps taken by the Judiciary in ensuring the rights of Muslim women were appropriate but took huge time in pronouncement at first stance and then the implementation was delayed too. In the meanwhile, individuals had to suffer. So, the suggestion would be timely pronouncement of the Judgements and their implementation.
Public Awareness- Building public support and awareness is crucial for the judicial activism to be successful. Judiciary should also be more vigilant in protecting the rights of women and it should state more positive judgement in favor of women victims. The public opinion needs to be steered toward liberal judgments that help to mitigate the inequities of current personal Muslim laws to some degree. As a result, a public awareness campaign against the misapplication of various Muslim women's divorce rights is needed.
Empowerment of women-It is the need of the hour to have aware and empowered women. An empowered woman not only protects herself but also protect people around her. It can start from family itself. The mindset and the patriarchal views that have engulfed Indian people mindset since ages should be changed and then only can the real fruits of law will be enjoyed by the women. To put in the words of Melinda Gates, "A woman with a voice is, by definition, a strong woman.”
The author believes that the judgement pronounced by the court was the need of the hour. As it is well known that law is dynamic in nature and it evolves along the society. Judiciary by pronouncing the judgement in the favor of Muslim women shows a change in the mindset of the Indian Society.
The Indian society hereby is witnessing a slow and steady evolution. No changes can come overnight in a society. “The road map for women empowerment is there but still we have miles to go on this path of empowerment”. The cultures, norms and values are deep rooted in the society. So, to bring a wholesome change it needs patience and support of all the members of the society.
As there are always two sides of the coin, some individuals welcomed the Judgment as an evolutionary change to the prevalent structures whereas others called them as an over reach by Judiciary breaking the prevalent Muslim law, they termed it as a sin.
Hereby, In the end the author would like to conclude that ‘Beauty lies in the eyes of beholder’. Henceforth, the Judicial Pronouncement for upholding of Muslim women rights in the Modern India would always be remembered for bringing positive reforms in the institution of marriage in the author’s eyes.
Shayara Bano v. Union of India & Ors. (2017) 9 SCC 1
Muslim Women (Protection of Rights on Marriage) Act, 2019 (Act No. 20 of 2019)
Ahmad A., Mohammedan Law (27th, Edition 2021)
Justin Jones, Towards a Muslim Family Law Act? Debating Muslim women's rights and the codification of personal laws in India, (1st April 2021, 11:00 a.m.), https://www.tandfonline.com/doi/full/10.1080/09584935.2019.1684444
Anita Yadav, Rights of Muslim women: An Analysis of Indian Muslim personal Law, (23rd March,2021 7:09 p.m.), https://www.researchgate.net/publication/274702838_Rights_of_Muslim_women_An_Analysis_of_Indian_Muslim_personal_Law
Live Law Network, Triple Talaq- Relatives Of Husband Cannot Be Accused Of Offence Under Muslim Women (Protection of Rights on Marriage) Act: Supreme Court (19th March 8:30 a.m.), https://www.livelaw.in/top-stories/triple-talaq-relatives-of-husband-muslim-women-protection-of-rights-on-marriage-act-supreme-court-167826
BBC News, Triple talaq: India criminalises Muslim 'instant divorce', (13th March 9:37 a.m.), https://www.bbc.com/news/world-asia-india-49160818
TOI,Triple Talaq, (7th April 2021 7:58 a.m.), https://timesofindia.indiatimes.com/topic/Triple-Talaq
-By Harsimran Kaur of Hidayatullah National Law University, Raipur.
Semester 2nd, UG 2020-25.