In a split 3-2 verdict on Tuesday, in which Chief Justice of India J.S. Kehar found himself in a minority, the Supreme Court struck down the concept of “triple talaq” uttered in one sitting or in a single instance, which had regrettably become the default divorce procedure among Muslims in India — leaving Muslim women in general, specially among the poor, vulnerable to the tastes of whimsical men, who typically had the backing of clerics, drawing sustenance from the prism of patriarchy.
This method of divorce had been codified in 1937 by the British rulers as a part of Muslim Personal Law, deriving from a narrow reading of Shariat law. Its delegitimising is historic, and should be seen as a blow for gender justice, for which Muslim women in the country have waged a sustained struggle in the face of unremitting opposition by Muslim males more generally, and in particular the All India Muslim Personal Law Board, the self-appointed guardians of social and personal conduct among Muslims.
The board refused to countenance the fact that even in many regressive Islamic countries, including next-door Pakistan, whose social structures are comparable to India’s in the matter of Muslim personal law, the “triple talaq” method of divorce has been done away with. This procedure is in the nature of biddat, or innovation, to the original principle, which crept into the body of the Islamic legal system from the time of Hazrat Umar, after the demise of Prophet Muhammad 14 centuries ago.
“Triple talaq” in one sitting is alien to the Quran, which is the revealed word for Muslims, but is still part of Shariat law, which is an amalgamation of the Muslim holy book, the actions and sayings of the Prophet, and the natural evolution of the legal framework in Muslim societies. It is this which led the Supreme Court to say that instant “triple talaq” was not part of the essential feature of Islam. As such, doing away with it was not an encroachment into a matter of faith.
As far back as 1981, a high court ruling had called instant triple talaq “invalid” and “unconstitutional”, exactly the words used by the Supreme Court while striking it down. The difference this time around is that the top court has asked the government to pass a law in Parliament within six months to regulate divorce procedures in a manner that does not leave Muslim women unprotected and that takes care of the concerns of gender equality in line with India’s constitutional requirements.
This is likely to be a challenge before the political class, who may be wary of coming in the line of fire of the conservative elements of Muslim society, for it is votes that they will count at the end of the day.
