Delhi High Court adjourns hearing in marital rape case to December 4
By ANI | Published: 23rd October 2017 08:05 AM |
Delhi High Court. (File photo)
NEW DELHI: The Delhi High Court hearing a plea seeking criminalisation of marital rape has adjourned the case to December 4.
The Public Interest Litigation (PIL) requests that marital rape should be criminalised and treated as rape. The plea has also sought the provisions of rape to be made gender neutral.
On October 11, in another case, the Supreme Court had said that sexual intercourse with wife below 18 years of age would be considered rape.
Earlier on September 8, the top court had informed the HC it was hearing a similar kind of petition with different grounds. It was told by the apex court that the matter concerned women between the age of 15 to 18 years, as against the PIL submitted in the Delhi High Court that concerned women of all age groups.
The high court was to hear the matter last month but had put it on hold after learning that the apex court has taken up a petition for hearing on a similar matter.
Don’t criminalise marital rape, may disturb institution of marriage: Government
Section 375 of the IPC dealing with rape makes an exception for such instances within marriages and holds that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”
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Written by Shalini Nair | New Delhi | Updated: August 30, 2017 4:06 pm
marital rape, criminalisation marital rape, criminalise marital rape, Central Government, Government, Delhi High Court, India News, Indian Express, Indian Express News Section 375 of the IPC dealing with rape makes an exception for such instances within marriages and holds that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape” (Representational Image)
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Stating that what “may appear to be marital rape” to a wife “may not appear so to others”, the central government took a stand against criminalising marital rape, in its affidavit to the Delhi High Court on Monday, on the ground that it “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”. “As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalisation is taken,” states the Centre’s affidavit.
It goes on to cite the “rising misuse of Section 498A of IPC”, commonly known as the dowry law, to demonstrate how laws dealing with violence against women can be misused “for harassing the husbands”.
The central government was responding to a bunch of petitions which wanted marital rape to be legally recognised and made a punitive offence.
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Section 375 of the IPC dealing with rape makes an exception for such instances within marriages and holds that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”. No other statute or law recognises marital rape, and victims only have recourse to civil remedies provided under the Protection of Women from Domestic Violence Act, 2005.
The Centre’s affidavit holds that states should implead in the matter, since criminal law is on the concurrent list and implemented by states — and given the vast diversity in cultures across states. “The fact that other countries, mostly western, have criminalised marital rape does not necessarily mean India should also follow them blindly. This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc., and these should be considered carefully before criminalising marital rape,” it states.
The Justice Verma committee, formed in the wake of the 2012 Delhi gangrape, had recommended removing the exception made for marital rape in the law. Similarly, the report ‘Status of Women in India’, by the high-level Pam Rajput committee of the Ministry of Woman and Child Development, criticised the legislature for its failure to criminalise or even recognise marital rape in the Criminal Laws (Amendment) Act 2013 enacted following the Justice Verma committee report.
The Centre, in its submission to the Delhi High Court, stated that the judgment as to whether a sexual act is a marital rape or not will rest entirely with the wife. “The question is what evidence the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife,” it states.
The submission adds that the Law Commission on Review of Rape Laws and the Department-Related Parliamentary Standing Committee on Home Affairs have examined the issue but not recommended the criminalisation of marital rape.
The Centre has instead advocated the need for “moral and social awareness” to stop such an act. Senior Advocate Colin Gonsalves, who is appearing in the case for one of the petitioners (a marital rape victim), pointed out that till date, 51 countries have criminalised marital rape, beginning with Poland in 1932. “By the seventies, much of the developed world had criminalised it. The United States did it between 1970 and 1993, South Africa in 1993, even Nepal criminalised it in 2006,” he said.
He added that the United Kingdom, whose common law was followed by India, made marital rape a criminal offence in 1991. “Other countries such as Canada and Ireland, which follow the common law, have all over the years made the act an offence,” he said.
The petitions cite several studies to show the prevalence of the issue in India. A 1999 study, ‘Domestic Violence in Northern India’, published in the American Journal of Epidemiology, looked at the nature of wife abuse by 6,700 married men from five districts of northern India. It found that 18-40 per cent of the men in each district had non-consensual sex with their wives, and 4-9 per cent physically forced their wives to have sex.
A more recent study in 2014, ‘Reporting and incidence of violence against women in India’, uses data from the National Crime Records Bureau and the National Family Health Surveys to show the extent of under-reporting in such cases. It finds that only about 0.6 per cent, or one in 167 incidents of sexual violence by husbands, are reported.
Instant Triple Talaq Bill: Tabling legislation in Parliament is political move, BJP's attempt to play protector of Muslims
IndiaSaptarshi MandalDec, 22 2017 11:32:24 IST
The government is all set to introduce a Bill in the current session of the Parliament criminalising instant triple talaq. In August this year, the Supreme Court, by a thin majority, had found the practice of a Muslim male divorcing his wife by pronouncing talaq three times at one go, to be un-Islamic and illegal (and not unconstitutional, as widely reported in the media). The minority opinion in Shayara Bano versus Union of India, by Justice Jagdish Khehar and Justice Abdul Nazeer had held that since personal law was constitutionally protected as religious freedom (a flawed argument), courts were not authorised to rule on the matter, but the state could invalidate the practice by enacting a law.
Consequently, the minority opinion had suggested that the government should enact a law within six months of the verdict. Though the government had ruled out any plan to enact a law back then in view of the majority opinions invalidating the practice, it has now gone a step ahead and proposed a criminal law to deal with, what is decidedly a civil matter.
Titled, the Muslim Women (Protection of Rights on Marriage) Bill 2017, it reportedly makes instant triple talaq, a cognizable and non-bailable offence, punishable with imprisonment for three years. The title of the Bill is strategically worded to speak to a signpost in Indian legal history, and is thus meant to perform a certain function in the politics around personal law. Those familiar with personal law debates in India would be quick to spot that the title plays on the Muslim Women (Protection of Rights on Divorce) Act, 1986 – the law enacted by the Congress government under Rajiv Gandhi, in response to the Supreme Court’s verdict in the Shah Bano case. The 1986 Act was supposedly enacted to undo the Court’s judgment, in which it had held that if a divorced Muslim woman fell on hard times, she could seek maintenance from her former husband under the secular law – section 125 of the Code of Criminal Procedure – even if Muslim law did not require the husband to maintain her after divorce.
Representational image. ReutersRepresentational image. Reuters
In popular consciousness, the 1986 Act embodies Muslim law’s exceptionalism that lets off husbands easily as compared to the law governing other Indian men; the Muslim community’s backwardness that resists reform and denies its women legal rights available to other Indian women; a polity wedded to “vote bank politics” and “minority appeasement”; a pliant state that allows all of the above and fails its commitment to secularism; and so forth. Notwithstanding the fact that creative judicial interpretation of the 1986 Act has ensured that Muslim husbands are not easily let off and their divorced wives have often received better economic protection under the 1986 Act than their non-Muslim counterparts under the secular law, the above narrative continues to frame discussions on personal law.
It is this narrative of a Congress government buckling under the pressure of conservative Muslim organisations and compromising women’s rights in 1986, that the Modi government is trying to capitalise on through the title of this Bill. The Bill’s title is so worded to contrast the illusory protection given to Muslim women’s rights “on divorce” by the 1986 Act, with its own supposedly radical protection offered to them “on marriage”. This is a political move, of a piece with the BJP’s continuous projection of Modi as a liberator of Muslim women and a champion of their rights, during the litigation in Shayara Bano’s case and after the Supreme Court’s verdict.
What is problematic about the Modi government’s self-positioning as a protector of (Muslim) women’s rights within marriage, is its contradictory position on two different forms of abuse frequently suffered by women in marriage. The government wants to use criminal law to protect Muslim women from the indignity of being arbitrarily and unceremoniously divorced at a moment’s notice. But in an ongoing case before the Delhi High Court challenging the constitutional validity of the marital rape exception in the Indian Penal Code, the government has taken the stand that recognizing marital rape will “destabilize the institution of marriage apart from being an easy tool for harassing the husbands”. These are not two unconnected issues, as I hope to illustrate with the help of the case of a Muslim woman called Praveen.
Praveen’s story is recorded in an order passed in August 2009 by a magistrate of the Karkardooma district court in Dehi (Praveen versus Ziyaul), and is in the public domain. Praveen had remained in an abusive marriage for twenty-two years, before she filed a case under the Domestic Violence Act, in which she sought an order preventing the husband from committing violence and directing him to pay maintenance. The abuse had a pattern: Ziyaul would periodically divorce her by pronouncing triple talaq, leave her for some time, then come back and force his way into the house, destroy household goods, threaten Praveen and the children with violence, and often commit violence against them. Of particular relevance is Praveen’s allegation recorded in the order, that Ziyaul, “despite giving talak used to have sexual intercourse (…) without her consent on the point of knife”.
This case serves as a reminder that the improper and illegal use of talaq by husbands does not exist as a singular form of abuse; it coexists with other severe and mundane forms of abuse against wives. It is important to remember that even Shayara Bano’s petition contained allegations of domestic violence and dowry harassment, along with that of being divorced through instant triple talaq, though the latter got exceptionalised in the popular discourse owing to its easy association with notions of Muslim backwardness.
What the government’s dual stance with respect to marital abuse means for cases such as Praveen’s is that the abuse of divorce law by Ziyaul – which happens across religious groups, and whose only consequence in family law is the court’s refusal to grant divorce – would likely send him to jail for three years, but for the repeated acts of sexual assault – which is a criminal offence otherwise – he would remain free from liability simply because of his marriage to the victim.
To be sure, my argument is not that either both should be criminalised or neither, but rather that criminal law is relevant in certain contexts, namely, in addressing sexual assault, but not in addressing an issue such as misuse of divorce law. Once again, Praveen’s case is instructive here. The magistrate’s order illustrates the existing law’s potential to respond to women abused by the illegal use of triple talaq. Women oppose triple talaq, not because they want to remain in abusive marriages, but because marriage breakdown implies economic hardship for most women, who do not have independent sources of income or unquestioned support from natal families.
Women oppose triple talaq, because of the uncertainty of the resulting economic predicament. The magistrate in this case directed Ziyaul to pay a monthly amount to Praveen as maintenance under the Domestic Violence Act, noting that he was “legally and morally bound to maintain” the wife.
We do not know whether Ziyaul appealed the order, chose to disregard it, committed further violence, or divorced Praveen following the lawful procedure for talaq, and paid her the dues as per the 1986 Act. We also do not know if Praveen went back to court complaining of further violence, or to recover her maintenance dues under the Domestic Violence Act or the 1986 Act. In either situation, there is very little that the criminal law can do. There is definitely no rationale for using criminal law to prevent people from divorcing their spouses. Divorce is already regulated by matrimonial law. If the government is serious about protecting women’s “rights on marriage”, it needs to ensure their economic well-being upon divorce, so that women like Praveen do not have to accept an abusive marriage as a better deal in comparison to penury, and wait for twenty-two to approach the legal system and assert their rights.
The author teaches at the Jindal Global Law School, Sonipat.
Published Date: Dec 22, 2017 11:32 am | Updated Date: Dec 22, 2017 11:32 am
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Triple Talaq Bill Heads to Lok Sabha Amid Congress Din, AIMPLB Calls Board Meeting
Under The Muslim Women (Protection of Rights of Marriage) Bill, 2017, a Muslim man who resorts to Talaq-e-Biddat or instant talaq would be jailed for three years and custody of any minor children would be granted to the affected woman.
Debayan Roy | News18.com
Updated:December 22, 2017, 9:25 AM IST facebookTwittergoogleskype
Triple Talaq Bill Heads to Lok Sabha Amid Congress Din, AIMPLB Calls Board Meeting Congress members disrupt proceedings in the Lok Sabha on December 20, during the ongoing winter session of Parliament. (PTI Photo/TV GRAB)
New Delhi: A bill which criminalises the practice of instant triple talaq will be tabled in the Lok Sabha next week. The proposed bill is expected to further raise tempers in the lower house where Congress MPs have been demanding an apology from PM Narendra Modi over his remarks against predecessor Manmohan Singh.
Under The Muslim Women (Protection of Rights of Marriage) Bill, 2017, a Muslim man who resorts to Talaq-e-Biddat or instant talaq would be jailed for three years and custody of any minor children would be granted to the affected woman.
A five-judge bench of the Supreme had declared the practice as “unconstitutional” and not an essential part of Islamic law and faith, but cases of Muslim men divorcing their wives through instant triple talaq did not subside.
The proposed bill has made instant divorce a non-bailable offence which can lead to an imprisonment of up to three years upon conviction. It also makes it mandatory for the husband to pay maintenance to his wife and child support towards any children.
The government has maintained that "the legislation would help in ensuring the larger constitutional goals of gender justice and gender equality of married Muslim women and help subserve their rights of non-discrimination and empowerment”.
The government in the recent winter session of the Parliament had informed the Lok Sabha that "66 cases of triple talaq were reported" even though the Apex court struck any such form of divorce thus proving that the verdict had failed to act as a deterrent.
Since three of five judges on the Constitution bench had ruled that personal laws cannot be tampered with and that instant talaq was against Islam, the government too has kept itself limited to criminalising only the instant triple talaq.
Coinciding with the introduction of the bill in the Lok Sabha, the All India Muslim Personal Law Board (AIMPLB) too has decided to hold an executive body meeting at Nadwa-tul Ulema in Lucknow on December 24 to finalise its response to the bill. The body has released an official letter to its executive members to attend the meeting.
AIMIM chief Asaduddin Owaisi, who is a member of the Lok Sabha as well as the AIMPLB, has voiced opposition to the proposed legislation on social media.
"This is a draconian and will lead further exploitation & more injustice to married muslim women this is being done by Modi government only for political considerations,burden of proof on women (again) we need law against abandonment married women (sic)," he tweeted.
Some civil society organisations, too, have raised questions over the provisions of the bill, saying an amendment to the current legislation would have sufficed. They have also demanded that the bill be referred to a Parliamentary Standing Committee so recommendations are added to the proposed law.
“The law is intended to instill fear of the state by being able to walk into your home and incarcerate Muslim men,” said Ayesha Kidwai, a professor at the Jawaharlal Nehru University.
Activists have questioned criminalizing a practice which was anyway declared ‘void’ by the Supreme Court. "When the marriage is not broken, why send the man to jail. The law will make me a divorcee," said Shabina Mumtaz, a social worker from Uttar Pradesh.
However, there is also support for the bill from some quarters. Zakia Soman, founder of the Bhartiya Muslim Mahila Andolan, said bodies opposing the bill like have "no locus standi".
Triple talaq bill to be tabled in Parliament next week: Ananth Kumar
The Muslim Women (Protection of Rights on Marriage) Bill 2017 criminalises instant triple talaq and imposes a prison term of up to three years on husbands who violate the law.
By Zee Media Bureau | Updated: Dec 22, 2017, 09:09 AM IST
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Triple talaq bill to be tabled in Parliament next week: Ananth Kumar
PTI photo
NEW DELHI: A bill which seeks to criminalise the practice of instant triple talaq will be introduced by the government in the parliament next week, announced Union Parliamentary Affairs Minister Ananth Kumar.
The bill was cleared by the Union Cabinet last week.
'Muslim Women Protection of Rights on Marriage Bill', prepared by an inter-ministerial group headed by Home Minister Rajnath Singh, makes giving instant triple talaq "illegal and void" and provides for a jail term of three years for the husband.
The Muslim Women (Protection of Rights on Marriage) Bill 2017 criminalises instant triple talaq and imposes a prison term of up to three years on husbands who violate the law.
It also makes a provision for alimony for the woman on whom instant triple talaq has been pronounced and grants her the custody of her children.
Meanwhile, as per a report, the BJP issued a whip to all its MPs on Thursday to attend the Parliament session while the government tables the 'controversial' bill in the House.
In a historic judgment on August 22, a five-judge bench of the Supreme Court struck down instant triple talaq as illegal.
The woman can also seek the custody of her minor children from the magistrate who will take a final call on the issue.
Under the draft law, instant triple talaq in any form -- spoken, in writing or by electronic means such as email, SMS and WhatsApp -- would be bad or illegal and void.
Following the Supreme Court's order pronouncing the 'triple talaq' as invalid, Muslim groups have been up in arms against it with the Jamiat Ulama-e-Hind saying that regardless of what the legal position is, instantaneous triple talaq would continue to happen in Muslim society.
AIMIM MP Asaduddin Owaisi too described the proposed Bill as "draconian".
He said it would lead to further exploitation and more injustice to married Muslim women and that it is being done by the government only for "political considerations".
Meanwhile, on Wednesday, the Ministry of Law and Justice informed the Lok Sabha that no Muslim groups were consulted before framing a law on triple talaq.
Law Minister Ravi Shankar said the government believed that the proposed bill would help ensure gender justice, gender equality and dignity of women.
The government has maintained that since the practice of instant triple talaq or 'talaq-e-biddat' continues despite the Supreme Court striking it down, there is a need to bring a law.
To a written question on whether the government consulted Muslim organisations before framing the draft law, Minster of State for Law P P Chaudhary replied in the negative.
In a separate written reply, Prasad said, "The government is of the view that the issue arises from the humanitarian concept of gender justice, gender equality and dignity of women and not arising from faith and religion."
He said that since the Supreme Court struck down the practice of instant triple talaq, nearly 66 cases of husbands divorcing their spouses through this method were reported.
Earlier, Minority Affairs Minister Mukhtar Abbas Naqvi had said the government had sought suggestions from various people before framing the law.
Triple Talaq Judgment Upholds the Quran Within the Constitution of India
BY NAFEES AHMAD ON 30/08/2017 • 1 COMMENT
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The Supreme Court’s judgment on triple talaq outlines the true meaning and spirit of the Quran on the anvil of individualism, the rule of law and human rights enunciated in the constitution.
Political discourse on triple talaq must now be set at rest and the Supreme Court’s decision must be taken in its letter and spirit. Credit: Reuters/ PTI
The Supreme Court on Tuesday set aside triple talaq as unconstitutional. Credit: Reuters/PTI
Thanks to the historic judgement of a five-judge bench of the Supreme Court declaring the practice of unilateral divorce (also known as triple talaq or talaq-e-biddat) unconstitutional, it is now unequivocally established that the practice – which runs counter to the gender jurisprudence evolved by the Supreme Court, the principles of equality as ordained in the constitution, international human rights law and the Quran – is not fundamental to the religion of Islam in India.
The Supreme Court has consulted and cited the laws of as many as 19 countries including Egypt, Pakistan, Turkey and other nation-states from the Arab peninsula, South-East Asia, and South Asia that have abolished triple talaq. Arab countries such as United Arab Emirates, Egypt, Kuwait, Algeria, Iraq, Jordan, Lebanon, Libya, Morocco, Sudan, Syria, Tunisia and Yemen have enacted laws against the practice of triple talaq.
Triple talaq is not Islamic and is a departure and deviation from the tenets of the Quran to undermine the rights of Muslim women. The beginning of the social justice movement against triple talaq started on April 18, 1966 in Maharashtra for protecting the rights of Muslim women.
This judgment is not against any institution, organisation nor it is against the religion of Islam. Rather, the true meaning and spirit of the Quran has been outlined on the anvil of individualism, the rule of law and human rights enunciated in the constitution. It is a judgment in favour of justice based on women’s rights as human rights that have been denied to Muslim women for centuries despite Quranic provisions relating to gender and spousal equality in wedlock and beyond. The Quran does not sanction triple talaq in one go. According to Islamic scripture, the word talaq is spoken thrice over a period of three months. In such a manner, it demands time and patience in executing a divorce in the hope of making the union possible knowing that the couple is bound to have differences. This Quranic procedure has been laid down with a rationale to establish that marital coverture cannot be terminated in a state of sudden provocation, rage or whims.
During the life of Prophet Muhammad, three utterances of talaq in one sitting used to be treated as one statement. But the second Caliph of Islam, Hazrat Umar, due to administrative reasons, had taken a different view of triple talaq to bind Muslim men who rush into instant divorce by uttering the word talaq three times in one go. This step by the second Caliph was against the principles of the Quran. However, Caliph Umar had discouraged the impugned practice by flogging the men who resorted to triple talaq. Unfortunately, the practice of triple talaq got embedded into Sharia or Islamic law due to the strict interpretation rendered by the later Imams, particularly Imam Abu Hanifa and has been presented by the Muslim clerics as an inalienable part of the Islamic law.
Headed by Chief Justice J.S. Khehar and other justices U.U. Lalit, S. Abdul Nazeer, Kurian Joseph, and R.F. Nariman, the bench had heard seven petitions including the five individual petitions filed by Muslim women challenging the practice of triple talaq. Primarily, the women contended that the practice of triple talaq is unconstitutional and has attained the ugliest form since triple talaq is now being pronounced by an SMS, on the phone and over email. The Supreme Court has observed that the practice of triple talaq is the “worst” and “not a desirable” form of Muslim marriage dissolution barring few exceptions of its acceptance in some schools of Muslim law. The noted jurist Ram Jethmalani termed the practice “abhorrent” and discriminatory on the ground of sex against the constitutional right to equality. He said it violates the tenets of the Quran, and no volume of advocacy can justify its retention. The government, on its part, went beyond this position and designated all forms of talaq provided in the Quran – such as Talaq-e-Hasan and Talaq-e-Ahsan – as “unilateral” and “extrajudicial” and thus inconsistent with the constitution of India.
On the other side, the AIMPLB behaved arrogantly and irresponsibly and did not come out with any credible proposal during the hearing of the case despite the fact that there was opposition to this abhorrent practice in the Muslim community. Therefore, the Supreme Court corrected a historical wrong of gender discrimination that was patriarchal, bad in theology and sinful, and reformed the miasma that was imposed upon Muslim women.
Also read: What the Supreme Court Bench Had to Say While Striking Down Instant Triple Talaq
The Supreme Court, for the first time, has made Articles 25 and 26 of the constitution of India “absolute”, despite these being subjected to restrictions. However, the triple talaq judgment has not been a unanimous decision. Two judges dissented, including Chief Justice Khehar, who regarded triple talaq as an inalienable part of Muslim personal law in India and opined that the practice does not contravene Articles 14, 15 and 21 of the constitution. However, the dissenting judges have taken a cautious approach to balancing the whole gamut of triple talaq by outlining the fact that the practice is not prevalent even in Muslim theocracies.
Political discourse on triple talaq must now be set at rest and the Supreme Court’s decision must be taken in its letter and spirit without brooking any pressure from organisations like the AIMPLB who played the politics of procrastination on this issue. The AIMPLB is not an elected body and does not represent the diversity among the Indian Muslims in their religious practices and beliefs. Among Indian Muslims, 90% are Sunni Hanafi and the remaining 10% belong to Ahle-Hadees and Shafaiis. The Shafaiis support the Hanafi stand on the validity of triple talaq. However, Ahle-Hadees does not subscribe to the practice. Moreover, the judgment has clarified that all personal laws must conform to the constitution and its mandate on matters relating to marriage, divorce, property and succession. It has rightly been contented by the government before the Supreme Court that it is not a “majority v. minority” narrative but an intra-community tug of war between fundamentalists and deprived Muslim women.
Political will at the highest level of the government is required to take necessary measures for enforcing the judicial dicta. August 22, 2017 would be regarded a defining moment and turning point in the judicial history of India when gender equality for Muslim women took a definite step forward. India’s Muslim women have achieved what was considered unattainable since independence. The Supreme Court’s decision has established the supremacy of constitutional guarantees in upholding gender equality in relationships within the religious structures of Islam.
Nafees Ahmad is professor of Comparative Constitutional Law of SAARC Nations, Faculty of Legal Studies, South Asian University, New Delhi.
SC verdict on triple talaq, a legal reading: Judgment welcome, but doesn't address sex discrimination
IndiaShreya MunothAug, 23 2017 11:58:46 IST
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On Tuesday, a five-judge bench of the Supreme Court, by a narrow 3:2 majority, struck down the practice of talaq-e-biddat – 'instantaneous triple talaq' – as unconstitutional. Women’s movements across the country, among others, have lauded the judgment for striking down this regressive and patriarchal practice.
This article seeks to, briefly, examine the contours of the Supreme Court’s judgment, including its limitations.
The primary question before the Supreme Court was whether the practice, which authorised a Muslim man to unilaterally, irrevocably and instantaneously divorce his wife by saying the word ‘talaq’ three times in succession was constitutionally valid or violated the fundamental rights guaranteed under the Constitution of India, particularly Articles 14 (equality before law), 15 (protection against discrimination) and 21 (protection of life and personal liberty).
To answer this question, the Supreme Court had to first examine whether instantaneous triple talaq was a practice regulated by codified/statutory law (i.e. the Muslim Personal Law (Shariat) Application Act, 1937) or whether it was merely in furtherance of uncodified religious practice or ‘personal law’. This is important because of the existing position of law as had been laid down by the Bombay High Court in 1951 in the case of State of Bombay versus. Narasu Appa Mali.
Representational image. ReutersRepresentational image. Reuters
In Narasu, the high court held that personal laws were not subject to judicial scrutiny and cannot be examined for violating fundamental rights. Therefore, if the Supreme Court found that triple talaq was a practice sanctioned by a statute, the 1937 Act, it could be examined for violation of fundamental rights. On the other hand, if it found that triple talaq was a part of uncodified ‘personal law’, it would have to revisit the decision in Narasu and answer a second question as to whether uncodified personal law could be subject to a scrutiny for violating fundamental rights and whether the practice of triple talaq did in fact violate any fundamental rights.
The majority outcome
While the majority judges agreed on the outcome of striking down instantaneous triple talaq as unconstitutional, they took two different routes to arrive at that outcome.
Justice Rohinton Nariman, with whom Justice UU Lalit concurred, held that the practice of triple talaq derived statutory sanction from the 1937 Act, and could therefore be subject to a challenge for violating fundamental rights. Having so found, their judgment sought to analyse whether the practice of triple talaq would be protected by Article 25 of the Constitution (freedom of conscience and free profession, practice and propagation of religion). While doing so, the judgment made forays into the domain of Islamic practices and held that instantaneous triple talaq is not essential to the practice of Islam and does not therefore benefit from the constitutional protection granted by Article 25.
The judgment then went on to examine whether triple talaq is inconsistent with any of the fundamental rights. While doing so, the judgment upheld the doctrine of manifest arbitrariness as a valid touchstone for examining the constitutionality of a practice, overruling a series of decisions that held the contrary view. The doctrine of manifest arbitrariness allows the striking down of a law under Article 14 on account of being capricious, irrational, disproportionate or excessive. The judges went on to hold that the practice of triple talaq violates Article 14 of the constitution for being manifestly arbitrary. Specifically, Justice Nariman held:
"…This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India…"
Justice Kurian Joseph, in a separate opinion, held that triple talaq is bad in theology and therefore bad in law and lacks legal sanctity. Justice Joseph differed from Justices Nariman and Lalit, inasmuch as he held that triple talaq was not regulated by the 1937 Act, rather it fell within the domain of ‘personal law’. He, however, relied on the earlier Supreme Court decision in Shamim Ara versus State of UP and concluded that triple talaq was not integral to Islam, was against the tenets of the Quran and Shariat, and therefore constitutionally void.
Despite the inconsistencies in the reasoning of the two sets of opinions constituting the majority judgment, the conclusion arrived at by these judges is consistent in striking down the practice of instantaneous triple talaq as unconstitutional.
The dissent
The two judges who delivered the minority opinion, authored by Chief Justice JS Khehar with Justice Abdul Nazeer concurring, took the position that triple talaq is not regulated by the 1937 Act, rather it is an integral and constituent part of personal law. They went on to hold that since the practice of triple talaq was not contrary to public order, morality and health, it enjoyed the constitutional protection granted by Article 25.
Surprisingly, they also held that the practice was not amenable to a challenge on grounds of Articles 14, 15 and 21, because these provisions are limited to State actions, whereas the practice of triple talaq regulated the conduct of private parties. In so doing, the minority opinion held that the practice of triple talaq was not inconsistent with constitutional values and fundamental rights, and directed the government to consider legislating on the issue.
With due respect, the dissenting opinion is based on rhetoric rather than sound jurisprudence or legal analysis. What is even more surprising is that the dissenting judges felt compelled to grant a ‘relief’ (injuncting the practice of triple talaq for an initial period of 6 months during the legislative process) despite recording no finding of constitutional infirmity with the practice.
A missed opportunity
The majority opinions have been commended by many, including feminist legal activists, as a necessary step in reforming inherently patriarchal and discriminatory practices, and rightly so. The exposition of law on the doctrine of arbitrariness to strike down a practice as unconstitutional would also have been commendable, had the Supreme Court not entirely overlooked the issues of gender justice, which were at the forefront of the case.
The issue was more of discriminatory treatment meted out to Muslim women through the ‘capricious and whimsical’ practice of men, rather than that of arbitrariness. Numerous arguments were advanced before the Supreme Court on the practice of triple talaq being antithetical to gender justice in general, and to Article 15 and the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which India is a signatory, in particular.
Unfortunately, the Supreme Court has chosen to use this case to set the legal position right on the doctrine of arbitrariness, wholly sidelining the very pressing issue of sex discrimination. That being said, Justice Nariman specified in his judgment that since he based his decision on the narrower ground of arbitrariness, there was no occasion to examine the grounds of discrimination. Nonetheless, the lack of exposition on gender discrimination and the the missed opportunity to ground the decision in progressive sex discrimination jurisprudence in such a seminal case is a major drawback in an otherwise welcomed decision.
As we celebrate this judgment, I hope that at the next available opportunity the Supreme Court gives issues of sex discrimination a fair consideration.
The author is a New Delhi-based lawyer.
Published Date: Aug 23, 2017 11:58 am | Updated Date: Aug 23, 2017 11:58 am
This Is What Supreme Court Said In Triple Talaq Judgment [Read Judgment] BY: LIVELAW NEWS
http://www.livelaw.in/supreme-court-said-triple-talaq-judgment-read-judgment/
By ANI | Published: 23rd October 2017 08:05 AM |
Delhi High Court. (File photo)
NEW DELHI: The Delhi High Court hearing a plea seeking criminalisation of marital rape has adjourned the case to December 4.
The Public Interest Litigation (PIL) requests that marital rape should be criminalised and treated as rape. The plea has also sought the provisions of rape to be made gender neutral.
On October 11, in another case, the Supreme Court had said that sexual intercourse with wife below 18 years of age would be considered rape.
Earlier on September 8, the top court had informed the HC it was hearing a similar kind of petition with different grounds. It was told by the apex court that the matter concerned women between the age of 15 to 18 years, as against the PIL submitted in the Delhi High Court that concerned women of all age groups.
The high court was to hear the matter last month but had put it on hold after learning that the apex court has taken up a petition for hearing on a similar matter.
Don’t criminalise marital rape, may disturb institution of marriage: Government
Section 375 of the IPC dealing with rape makes an exception for such instances within marriages and holds that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”
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Written by Shalini Nair | New Delhi | Updated: August 30, 2017 4:06 pm
marital rape, criminalisation marital rape, criminalise marital rape, Central Government, Government, Delhi High Court, India News, Indian Express, Indian Express News Section 375 of the IPC dealing with rape makes an exception for such instances within marriages and holds that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape” (Representational Image)
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Stating that what “may appear to be marital rape” to a wife “may not appear so to others”, the central government took a stand against criminalising marital rape, in its affidavit to the Delhi High Court on Monday, on the ground that it “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”. “As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalisation is taken,” states the Centre’s affidavit.
It goes on to cite the “rising misuse of Section 498A of IPC”, commonly known as the dowry law, to demonstrate how laws dealing with violence against women can be misused “for harassing the husbands”.
The central government was responding to a bunch of petitions which wanted marital rape to be legally recognised and made a punitive offence.
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Section 375 of the IPC dealing with rape makes an exception for such instances within marriages and holds that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”. No other statute or law recognises marital rape, and victims only have recourse to civil remedies provided under the Protection of Women from Domestic Violence Act, 2005.
The Centre’s affidavit holds that states should implead in the matter, since criminal law is on the concurrent list and implemented by states — and given the vast diversity in cultures across states. “The fact that other countries, mostly western, have criminalised marital rape does not necessarily mean India should also follow them blindly. This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc., and these should be considered carefully before criminalising marital rape,” it states.
The Justice Verma committee, formed in the wake of the 2012 Delhi gangrape, had recommended removing the exception made for marital rape in the law. Similarly, the report ‘Status of Women in India’, by the high-level Pam Rajput committee of the Ministry of Woman and Child Development, criticised the legislature for its failure to criminalise or even recognise marital rape in the Criminal Laws (Amendment) Act 2013 enacted following the Justice Verma committee report.
The Centre, in its submission to the Delhi High Court, stated that the judgment as to whether a sexual act is a marital rape or not will rest entirely with the wife. “The question is what evidence the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife,” it states.
The submission adds that the Law Commission on Review of Rape Laws and the Department-Related Parliamentary Standing Committee on Home Affairs have examined the issue but not recommended the criminalisation of marital rape.
The Centre has instead advocated the need for “moral and social awareness” to stop such an act. Senior Advocate Colin Gonsalves, who is appearing in the case for one of the petitioners (a marital rape victim), pointed out that till date, 51 countries have criminalised marital rape, beginning with Poland in 1932. “By the seventies, much of the developed world had criminalised it. The United States did it between 1970 and 1993, South Africa in 1993, even Nepal criminalised it in 2006,” he said.
He added that the United Kingdom, whose common law was followed by India, made marital rape a criminal offence in 1991. “Other countries such as Canada and Ireland, which follow the common law, have all over the years made the act an offence,” he said.
The petitions cite several studies to show the prevalence of the issue in India. A 1999 study, ‘Domestic Violence in Northern India’, published in the American Journal of Epidemiology, looked at the nature of wife abuse by 6,700 married men from five districts of northern India. It found that 18-40 per cent of the men in each district had non-consensual sex with their wives, and 4-9 per cent physically forced their wives to have sex.
A more recent study in 2014, ‘Reporting and incidence of violence against women in India’, uses data from the National Crime Records Bureau and the National Family Health Surveys to show the extent of under-reporting in such cases. It finds that only about 0.6 per cent, or one in 167 incidents of sexual violence by husbands, are reported.
Instant Triple Talaq Bill: Tabling legislation in Parliament is political move, BJP's attempt to play protector of Muslims
IndiaSaptarshi MandalDec, 22 2017 11:32:24 IST
The government is all set to introduce a Bill in the current session of the Parliament criminalising instant triple talaq. In August this year, the Supreme Court, by a thin majority, had found the practice of a Muslim male divorcing his wife by pronouncing talaq three times at one go, to be un-Islamic and illegal (and not unconstitutional, as widely reported in the media). The minority opinion in Shayara Bano versus Union of India, by Justice Jagdish Khehar and Justice Abdul Nazeer had held that since personal law was constitutionally protected as religious freedom (a flawed argument), courts were not authorised to rule on the matter, but the state could invalidate the practice by enacting a law.
Consequently, the minority opinion had suggested that the government should enact a law within six months of the verdict. Though the government had ruled out any plan to enact a law back then in view of the majority opinions invalidating the practice, it has now gone a step ahead and proposed a criminal law to deal with, what is decidedly a civil matter.
Titled, the Muslim Women (Protection of Rights on Marriage) Bill 2017, it reportedly makes instant triple talaq, a cognizable and non-bailable offence, punishable with imprisonment for three years. The title of the Bill is strategically worded to speak to a signpost in Indian legal history, and is thus meant to perform a certain function in the politics around personal law. Those familiar with personal law debates in India would be quick to spot that the title plays on the Muslim Women (Protection of Rights on Divorce) Act, 1986 – the law enacted by the Congress government under Rajiv Gandhi, in response to the Supreme Court’s verdict in the Shah Bano case. The 1986 Act was supposedly enacted to undo the Court’s judgment, in which it had held that if a divorced Muslim woman fell on hard times, she could seek maintenance from her former husband under the secular law – section 125 of the Code of Criminal Procedure – even if Muslim law did not require the husband to maintain her after divorce.
Representational image. ReutersRepresentational image. Reuters
In popular consciousness, the 1986 Act embodies Muslim law’s exceptionalism that lets off husbands easily as compared to the law governing other Indian men; the Muslim community’s backwardness that resists reform and denies its women legal rights available to other Indian women; a polity wedded to “vote bank politics” and “minority appeasement”; a pliant state that allows all of the above and fails its commitment to secularism; and so forth. Notwithstanding the fact that creative judicial interpretation of the 1986 Act has ensured that Muslim husbands are not easily let off and their divorced wives have often received better economic protection under the 1986 Act than their non-Muslim counterparts under the secular law, the above narrative continues to frame discussions on personal law.
It is this narrative of a Congress government buckling under the pressure of conservative Muslim organisations and compromising women’s rights in 1986, that the Modi government is trying to capitalise on through the title of this Bill. The Bill’s title is so worded to contrast the illusory protection given to Muslim women’s rights “on divorce” by the 1986 Act, with its own supposedly radical protection offered to them “on marriage”. This is a political move, of a piece with the BJP’s continuous projection of Modi as a liberator of Muslim women and a champion of their rights, during the litigation in Shayara Bano’s case and after the Supreme Court’s verdict.
What is problematic about the Modi government’s self-positioning as a protector of (Muslim) women’s rights within marriage, is its contradictory position on two different forms of abuse frequently suffered by women in marriage. The government wants to use criminal law to protect Muslim women from the indignity of being arbitrarily and unceremoniously divorced at a moment’s notice. But in an ongoing case before the Delhi High Court challenging the constitutional validity of the marital rape exception in the Indian Penal Code, the government has taken the stand that recognizing marital rape will “destabilize the institution of marriage apart from being an easy tool for harassing the husbands”. These are not two unconnected issues, as I hope to illustrate with the help of the case of a Muslim woman called Praveen.
Praveen’s story is recorded in an order passed in August 2009 by a magistrate of the Karkardooma district court in Dehi (Praveen versus Ziyaul), and is in the public domain. Praveen had remained in an abusive marriage for twenty-two years, before she filed a case under the Domestic Violence Act, in which she sought an order preventing the husband from committing violence and directing him to pay maintenance. The abuse had a pattern: Ziyaul would periodically divorce her by pronouncing triple talaq, leave her for some time, then come back and force his way into the house, destroy household goods, threaten Praveen and the children with violence, and often commit violence against them. Of particular relevance is Praveen’s allegation recorded in the order, that Ziyaul, “despite giving talak used to have sexual intercourse (…) without her consent on the point of knife”.
This case serves as a reminder that the improper and illegal use of talaq by husbands does not exist as a singular form of abuse; it coexists with other severe and mundane forms of abuse against wives. It is important to remember that even Shayara Bano’s petition contained allegations of domestic violence and dowry harassment, along with that of being divorced through instant triple talaq, though the latter got exceptionalised in the popular discourse owing to its easy association with notions of Muslim backwardness.
What the government’s dual stance with respect to marital abuse means for cases such as Praveen’s is that the abuse of divorce law by Ziyaul – which happens across religious groups, and whose only consequence in family law is the court’s refusal to grant divorce – would likely send him to jail for three years, but for the repeated acts of sexual assault – which is a criminal offence otherwise – he would remain free from liability simply because of his marriage to the victim.
To be sure, my argument is not that either both should be criminalised or neither, but rather that criminal law is relevant in certain contexts, namely, in addressing sexual assault, but not in addressing an issue such as misuse of divorce law. Once again, Praveen’s case is instructive here. The magistrate’s order illustrates the existing law’s potential to respond to women abused by the illegal use of triple talaq. Women oppose triple talaq, not because they want to remain in abusive marriages, but because marriage breakdown implies economic hardship for most women, who do not have independent sources of income or unquestioned support from natal families.
Women oppose triple talaq, because of the uncertainty of the resulting economic predicament. The magistrate in this case directed Ziyaul to pay a monthly amount to Praveen as maintenance under the Domestic Violence Act, noting that he was “legally and morally bound to maintain” the wife.
We do not know whether Ziyaul appealed the order, chose to disregard it, committed further violence, or divorced Praveen following the lawful procedure for talaq, and paid her the dues as per the 1986 Act. We also do not know if Praveen went back to court complaining of further violence, or to recover her maintenance dues under the Domestic Violence Act or the 1986 Act. In either situation, there is very little that the criminal law can do. There is definitely no rationale for using criminal law to prevent people from divorcing their spouses. Divorce is already regulated by matrimonial law. If the government is serious about protecting women’s “rights on marriage”, it needs to ensure their economic well-being upon divorce, so that women like Praveen do not have to accept an abusive marriage as a better deal in comparison to penury, and wait for twenty-two to approach the legal system and assert their rights.
The author teaches at the Jindal Global Law School, Sonipat.
Published Date: Dec 22, 2017 11:32 am | Updated Date: Dec 22, 2017 11:32 am
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Triple Talaq Bill Heads to Lok Sabha Amid Congress Din, AIMPLB Calls Board Meeting
Under The Muslim Women (Protection of Rights of Marriage) Bill, 2017, a Muslim man who resorts to Talaq-e-Biddat or instant talaq would be jailed for three years and custody of any minor children would be granted to the affected woman.
Debayan Roy | News18.com
Updated:December 22, 2017, 9:25 AM IST facebookTwittergoogleskype
Triple Talaq Bill Heads to Lok Sabha Amid Congress Din, AIMPLB Calls Board Meeting Congress members disrupt proceedings in the Lok Sabha on December 20, during the ongoing winter session of Parliament. (PTI Photo/TV GRAB)
New Delhi: A bill which criminalises the practice of instant triple talaq will be tabled in the Lok Sabha next week. The proposed bill is expected to further raise tempers in the lower house where Congress MPs have been demanding an apology from PM Narendra Modi over his remarks against predecessor Manmohan Singh.
Under The Muslim Women (Protection of Rights of Marriage) Bill, 2017, a Muslim man who resorts to Talaq-e-Biddat or instant talaq would be jailed for three years and custody of any minor children would be granted to the affected woman.
A five-judge bench of the Supreme had declared the practice as “unconstitutional” and not an essential part of Islamic law and faith, but cases of Muslim men divorcing their wives through instant triple talaq did not subside.
The proposed bill has made instant divorce a non-bailable offence which can lead to an imprisonment of up to three years upon conviction. It also makes it mandatory for the husband to pay maintenance to his wife and child support towards any children.
The government has maintained that "the legislation would help in ensuring the larger constitutional goals of gender justice and gender equality of married Muslim women and help subserve their rights of non-discrimination and empowerment”.
The government in the recent winter session of the Parliament had informed the Lok Sabha that "66 cases of triple talaq were reported" even though the Apex court struck any such form of divorce thus proving that the verdict had failed to act as a deterrent.
Since three of five judges on the Constitution bench had ruled that personal laws cannot be tampered with and that instant talaq was against Islam, the government too has kept itself limited to criminalising only the instant triple talaq.
Coinciding with the introduction of the bill in the Lok Sabha, the All India Muslim Personal Law Board (AIMPLB) too has decided to hold an executive body meeting at Nadwa-tul Ulema in Lucknow on December 24 to finalise its response to the bill. The body has released an official letter to its executive members to attend the meeting.
AIMIM chief Asaduddin Owaisi, who is a member of the Lok Sabha as well as the AIMPLB, has voiced opposition to the proposed legislation on social media.
"This is a draconian and will lead further exploitation & more injustice to married muslim women this is being done by Modi government only for political considerations,burden of proof on women (again) we need law against abandonment married women (sic)," he tweeted.
Some civil society organisations, too, have raised questions over the provisions of the bill, saying an amendment to the current legislation would have sufficed. They have also demanded that the bill be referred to a Parliamentary Standing Committee so recommendations are added to the proposed law.
“The law is intended to instill fear of the state by being able to walk into your home and incarcerate Muslim men,” said Ayesha Kidwai, a professor at the Jawaharlal Nehru University.
Activists have questioned criminalizing a practice which was anyway declared ‘void’ by the Supreme Court. "When the marriage is not broken, why send the man to jail. The law will make me a divorcee," said Shabina Mumtaz, a social worker from Uttar Pradesh.
However, there is also support for the bill from some quarters. Zakia Soman, founder of the Bhartiya Muslim Mahila Andolan, said bodies opposing the bill like have "no locus standi".
Triple talaq bill to be tabled in Parliament next week: Ananth Kumar
The Muslim Women (Protection of Rights on Marriage) Bill 2017 criminalises instant triple talaq and imposes a prison term of up to three years on husbands who violate the law.
By Zee Media Bureau | Updated: Dec 22, 2017, 09:09 AM IST
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Triple talaq bill to be tabled in Parliament next week: Ananth Kumar
PTI photo
NEW DELHI: A bill which seeks to criminalise the practice of instant triple talaq will be introduced by the government in the parliament next week, announced Union Parliamentary Affairs Minister Ananth Kumar.
The bill was cleared by the Union Cabinet last week.
'Muslim Women Protection of Rights on Marriage Bill', prepared by an inter-ministerial group headed by Home Minister Rajnath Singh, makes giving instant triple talaq "illegal and void" and provides for a jail term of three years for the husband.
The Muslim Women (Protection of Rights on Marriage) Bill 2017 criminalises instant triple talaq and imposes a prison term of up to three years on husbands who violate the law.
It also makes a provision for alimony for the woman on whom instant triple talaq has been pronounced and grants her the custody of her children.
Meanwhile, as per a report, the BJP issued a whip to all its MPs on Thursday to attend the Parliament session while the government tables the 'controversial' bill in the House.
In a historic judgment on August 22, a five-judge bench of the Supreme Court struck down instant triple talaq as illegal.
The woman can also seek the custody of her minor children from the magistrate who will take a final call on the issue.
Under the draft law, instant triple talaq in any form -- spoken, in writing or by electronic means such as email, SMS and WhatsApp -- would be bad or illegal and void.
Following the Supreme Court's order pronouncing the 'triple talaq' as invalid, Muslim groups have been up in arms against it with the Jamiat Ulama-e-Hind saying that regardless of what the legal position is, instantaneous triple talaq would continue to happen in Muslim society.
AIMIM MP Asaduddin Owaisi too described the proposed Bill as "draconian".
He said it would lead to further exploitation and more injustice to married Muslim women and that it is being done by the government only for "political considerations".
Meanwhile, on Wednesday, the Ministry of Law and Justice informed the Lok Sabha that no Muslim groups were consulted before framing a law on triple talaq.
Law Minister Ravi Shankar said the government believed that the proposed bill would help ensure gender justice, gender equality and dignity of women.
The government has maintained that since the practice of instant triple talaq or 'talaq-e-biddat' continues despite the Supreme Court striking it down, there is a need to bring a law.
To a written question on whether the government consulted Muslim organisations before framing the draft law, Minster of State for Law P P Chaudhary replied in the negative.
In a separate written reply, Prasad said, "The government is of the view that the issue arises from the humanitarian concept of gender justice, gender equality and dignity of women and not arising from faith and religion."
He said that since the Supreme Court struck down the practice of instant triple talaq, nearly 66 cases of husbands divorcing their spouses through this method were reported.
Earlier, Minority Affairs Minister Mukhtar Abbas Naqvi had said the government had sought suggestions from various people before framing the law.
Triple Talaq Judgment Upholds the Quran Within the Constitution of India
BY NAFEES AHMAD ON 30/08/2017 • 1 COMMENT
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The Supreme Court’s judgment on triple talaq outlines the true meaning and spirit of the Quran on the anvil of individualism, the rule of law and human rights enunciated in the constitution.
Political discourse on triple talaq must now be set at rest and the Supreme Court’s decision must be taken in its letter and spirit. Credit: Reuters/ PTI
The Supreme Court on Tuesday set aside triple talaq as unconstitutional. Credit: Reuters/PTI
Thanks to the historic judgement of a five-judge bench of the Supreme Court declaring the practice of unilateral divorce (also known as triple talaq or talaq-e-biddat) unconstitutional, it is now unequivocally established that the practice – which runs counter to the gender jurisprudence evolved by the Supreme Court, the principles of equality as ordained in the constitution, international human rights law and the Quran – is not fundamental to the religion of Islam in India.
The Supreme Court has consulted and cited the laws of as many as 19 countries including Egypt, Pakistan, Turkey and other nation-states from the Arab peninsula, South-East Asia, and South Asia that have abolished triple talaq. Arab countries such as United Arab Emirates, Egypt, Kuwait, Algeria, Iraq, Jordan, Lebanon, Libya, Morocco, Sudan, Syria, Tunisia and Yemen have enacted laws against the practice of triple talaq.
Triple talaq is not Islamic and is a departure and deviation from the tenets of the Quran to undermine the rights of Muslim women. The beginning of the social justice movement against triple talaq started on April 18, 1966 in Maharashtra for protecting the rights of Muslim women.
This judgment is not against any institution, organisation nor it is against the religion of Islam. Rather, the true meaning and spirit of the Quran has been outlined on the anvil of individualism, the rule of law and human rights enunciated in the constitution. It is a judgment in favour of justice based on women’s rights as human rights that have been denied to Muslim women for centuries despite Quranic provisions relating to gender and spousal equality in wedlock and beyond. The Quran does not sanction triple talaq in one go. According to Islamic scripture, the word talaq is spoken thrice over a period of three months. In such a manner, it demands time and patience in executing a divorce in the hope of making the union possible knowing that the couple is bound to have differences. This Quranic procedure has been laid down with a rationale to establish that marital coverture cannot be terminated in a state of sudden provocation, rage or whims.
During the life of Prophet Muhammad, three utterances of talaq in one sitting used to be treated as one statement. But the second Caliph of Islam, Hazrat Umar, due to administrative reasons, had taken a different view of triple talaq to bind Muslim men who rush into instant divorce by uttering the word talaq three times in one go. This step by the second Caliph was against the principles of the Quran. However, Caliph Umar had discouraged the impugned practice by flogging the men who resorted to triple talaq. Unfortunately, the practice of triple talaq got embedded into Sharia or Islamic law due to the strict interpretation rendered by the later Imams, particularly Imam Abu Hanifa and has been presented by the Muslim clerics as an inalienable part of the Islamic law.
Headed by Chief Justice J.S. Khehar and other justices U.U. Lalit, S. Abdul Nazeer, Kurian Joseph, and R.F. Nariman, the bench had heard seven petitions including the five individual petitions filed by Muslim women challenging the practice of triple talaq. Primarily, the women contended that the practice of triple talaq is unconstitutional and has attained the ugliest form since triple talaq is now being pronounced by an SMS, on the phone and over email. The Supreme Court has observed that the practice of triple talaq is the “worst” and “not a desirable” form of Muslim marriage dissolution barring few exceptions of its acceptance in some schools of Muslim law. The noted jurist Ram Jethmalani termed the practice “abhorrent” and discriminatory on the ground of sex against the constitutional right to equality. He said it violates the tenets of the Quran, and no volume of advocacy can justify its retention. The government, on its part, went beyond this position and designated all forms of talaq provided in the Quran – such as Talaq-e-Hasan and Talaq-e-Ahsan – as “unilateral” and “extrajudicial” and thus inconsistent with the constitution of India.
On the other side, the AIMPLB behaved arrogantly and irresponsibly and did not come out with any credible proposal during the hearing of the case despite the fact that there was opposition to this abhorrent practice in the Muslim community. Therefore, the Supreme Court corrected a historical wrong of gender discrimination that was patriarchal, bad in theology and sinful, and reformed the miasma that was imposed upon Muslim women.
Also read: What the Supreme Court Bench Had to Say While Striking Down Instant Triple Talaq
The Supreme Court, for the first time, has made Articles 25 and 26 of the constitution of India “absolute”, despite these being subjected to restrictions. However, the triple talaq judgment has not been a unanimous decision. Two judges dissented, including Chief Justice Khehar, who regarded triple talaq as an inalienable part of Muslim personal law in India and opined that the practice does not contravene Articles 14, 15 and 21 of the constitution. However, the dissenting judges have taken a cautious approach to balancing the whole gamut of triple talaq by outlining the fact that the practice is not prevalent even in Muslim theocracies.
Political discourse on triple talaq must now be set at rest and the Supreme Court’s decision must be taken in its letter and spirit without brooking any pressure from organisations like the AIMPLB who played the politics of procrastination on this issue. The AIMPLB is not an elected body and does not represent the diversity among the Indian Muslims in their religious practices and beliefs. Among Indian Muslims, 90% are Sunni Hanafi and the remaining 10% belong to Ahle-Hadees and Shafaiis. The Shafaiis support the Hanafi stand on the validity of triple talaq. However, Ahle-Hadees does not subscribe to the practice. Moreover, the judgment has clarified that all personal laws must conform to the constitution and its mandate on matters relating to marriage, divorce, property and succession. It has rightly been contented by the government before the Supreme Court that it is not a “majority v. minority” narrative but an intra-community tug of war between fundamentalists and deprived Muslim women.
Political will at the highest level of the government is required to take necessary measures for enforcing the judicial dicta. August 22, 2017 would be regarded a defining moment and turning point in the judicial history of India when gender equality for Muslim women took a definite step forward. India’s Muslim women have achieved what was considered unattainable since independence. The Supreme Court’s decision has established the supremacy of constitutional guarantees in upholding gender equality in relationships within the religious structures of Islam.
Nafees Ahmad is professor of Comparative Constitutional Law of SAARC Nations, Faculty of Legal Studies, South Asian University, New Delhi.
SC verdict on triple talaq, a legal reading: Judgment welcome, but doesn't address sex discrimination
IndiaShreya MunothAug, 23 2017 11:58:46 IST
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On Tuesday, a five-judge bench of the Supreme Court, by a narrow 3:2 majority, struck down the practice of talaq-e-biddat – 'instantaneous triple talaq' – as unconstitutional. Women’s movements across the country, among others, have lauded the judgment for striking down this regressive and patriarchal practice.
This article seeks to, briefly, examine the contours of the Supreme Court’s judgment, including its limitations.
The primary question before the Supreme Court was whether the practice, which authorised a Muslim man to unilaterally, irrevocably and instantaneously divorce his wife by saying the word ‘talaq’ three times in succession was constitutionally valid or violated the fundamental rights guaranteed under the Constitution of India, particularly Articles 14 (equality before law), 15 (protection against discrimination) and 21 (protection of life and personal liberty).
To answer this question, the Supreme Court had to first examine whether instantaneous triple talaq was a practice regulated by codified/statutory law (i.e. the Muslim Personal Law (Shariat) Application Act, 1937) or whether it was merely in furtherance of uncodified religious practice or ‘personal law’. This is important because of the existing position of law as had been laid down by the Bombay High Court in 1951 in the case of State of Bombay versus. Narasu Appa Mali.
Representational image. ReutersRepresentational image. Reuters
In Narasu, the high court held that personal laws were not subject to judicial scrutiny and cannot be examined for violating fundamental rights. Therefore, if the Supreme Court found that triple talaq was a practice sanctioned by a statute, the 1937 Act, it could be examined for violation of fundamental rights. On the other hand, if it found that triple talaq was a part of uncodified ‘personal law’, it would have to revisit the decision in Narasu and answer a second question as to whether uncodified personal law could be subject to a scrutiny for violating fundamental rights and whether the practice of triple talaq did in fact violate any fundamental rights.
The majority outcome
While the majority judges agreed on the outcome of striking down instantaneous triple talaq as unconstitutional, they took two different routes to arrive at that outcome.
Justice Rohinton Nariman, with whom Justice UU Lalit concurred, held that the practice of triple talaq derived statutory sanction from the 1937 Act, and could therefore be subject to a challenge for violating fundamental rights. Having so found, their judgment sought to analyse whether the practice of triple talaq would be protected by Article 25 of the Constitution (freedom of conscience and free profession, practice and propagation of religion). While doing so, the judgment made forays into the domain of Islamic practices and held that instantaneous triple talaq is not essential to the practice of Islam and does not therefore benefit from the constitutional protection granted by Article 25.
The judgment then went on to examine whether triple talaq is inconsistent with any of the fundamental rights. While doing so, the judgment upheld the doctrine of manifest arbitrariness as a valid touchstone for examining the constitutionality of a practice, overruling a series of decisions that held the contrary view. The doctrine of manifest arbitrariness allows the striking down of a law under Article 14 on account of being capricious, irrational, disproportionate or excessive. The judges went on to hold that the practice of triple talaq violates Article 14 of the constitution for being manifestly arbitrary. Specifically, Justice Nariman held:
"…This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India…"
Justice Kurian Joseph, in a separate opinion, held that triple talaq is bad in theology and therefore bad in law and lacks legal sanctity. Justice Joseph differed from Justices Nariman and Lalit, inasmuch as he held that triple talaq was not regulated by the 1937 Act, rather it fell within the domain of ‘personal law’. He, however, relied on the earlier Supreme Court decision in Shamim Ara versus State of UP and concluded that triple talaq was not integral to Islam, was against the tenets of the Quran and Shariat, and therefore constitutionally void.
Despite the inconsistencies in the reasoning of the two sets of opinions constituting the majority judgment, the conclusion arrived at by these judges is consistent in striking down the practice of instantaneous triple talaq as unconstitutional.
The dissent
The two judges who delivered the minority opinion, authored by Chief Justice JS Khehar with Justice Abdul Nazeer concurring, took the position that triple talaq is not regulated by the 1937 Act, rather it is an integral and constituent part of personal law. They went on to hold that since the practice of triple talaq was not contrary to public order, morality and health, it enjoyed the constitutional protection granted by Article 25.
Surprisingly, they also held that the practice was not amenable to a challenge on grounds of Articles 14, 15 and 21, because these provisions are limited to State actions, whereas the practice of triple talaq regulated the conduct of private parties. In so doing, the minority opinion held that the practice of triple talaq was not inconsistent with constitutional values and fundamental rights, and directed the government to consider legislating on the issue.
With due respect, the dissenting opinion is based on rhetoric rather than sound jurisprudence or legal analysis. What is even more surprising is that the dissenting judges felt compelled to grant a ‘relief’ (injuncting the practice of triple talaq for an initial period of 6 months during the legislative process) despite recording no finding of constitutional infirmity with the practice.
A missed opportunity
The majority opinions have been commended by many, including feminist legal activists, as a necessary step in reforming inherently patriarchal and discriminatory practices, and rightly so. The exposition of law on the doctrine of arbitrariness to strike down a practice as unconstitutional would also have been commendable, had the Supreme Court not entirely overlooked the issues of gender justice, which were at the forefront of the case.
The issue was more of discriminatory treatment meted out to Muslim women through the ‘capricious and whimsical’ practice of men, rather than that of arbitrariness. Numerous arguments were advanced before the Supreme Court on the practice of triple talaq being antithetical to gender justice in general, and to Article 15 and the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which India is a signatory, in particular.
Unfortunately, the Supreme Court has chosen to use this case to set the legal position right on the doctrine of arbitrariness, wholly sidelining the very pressing issue of sex discrimination. That being said, Justice Nariman specified in his judgment that since he based his decision on the narrower ground of arbitrariness, there was no occasion to examine the grounds of discrimination. Nonetheless, the lack of exposition on gender discrimination and the the missed opportunity to ground the decision in progressive sex discrimination jurisprudence in such a seminal case is a major drawback in an otherwise welcomed decision.
As we celebrate this judgment, I hope that at the next available opportunity the Supreme Court gives issues of sex discrimination a fair consideration.
The author is a New Delhi-based lawyer.
Published Date: Aug 23, 2017 11:58 am | Updated Date: Aug 23, 2017 11:58 am
This Is What Supreme Court Said In Triple Talaq Judgment [Read Judgment] BY: LIVELAW NEWS
http://www.livelaw.in/supreme-court-said-triple-talaq-judgment-read-judgment/
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