LE­GAL SAVVY

That’s how women feel af­ter the Supreme Court de­clared triple ta­laq as un­con­sti­tu­tional, says lawyer Van­dana Shah.

Savvy - - Contents -

The Supreme Court fi­nally abol­ishes triple ta­laq

The high­est court of the land – the Supreme Court of In­dia – has fi­nally de­clared the prac­tice of triple ta­laq as un­con­sti­tu­tional by a 3:2 ma­jor­ity. Jus­tices Kurian Joseph, UU Lalit and RF Na­ri­man de­liv­ered the ma­jor­ity judg­ment. Chief Jus­tice Khe­har and Jus­tice Ab­dul Nazeer dis­sented.

The judges stated, “Given the fact that triple ta­laq is in­stant and ir­rev­o­ca­ble, it is ob­vi­ous that any at­tempt at rec­on­cil­i­a­tion be­tween the hus­band and wife by two ar­biters from their fam­i­lies, which is es­sen­tial to save the mar­i­tal tie, can­not ever take place. …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 393 fun­da­men­tal right con­tained un­der Ar­ti­cle 14 of the Con­sti­tu­tion of In­dia. In our opin­ion, there­fore, the 1937 Act, in­so­far as it seeks to rec­og­nize and en­force

triple ta­laq, is within the mean­ing of the ex­pres­sion ‘laws in force’ in Ar­ti­cle 13 (1) and must be struck down as be­ing void to the ex­tent that it rec­og­nizes and en­forces triple ta­laq… “Till such time as leg­is­la­tion in the mat­ter is con­sid­ered, we are sat­is­fied in in­junct­ing Mus­lim hus­bands from pro­nounc­ing ‘ ta­laq-e-bid­dat’ as a means for sev­er­ing their mat­ri­mo­nial re­la­tion­ship. The in­stant in­junc­tion, shall in the first in­stance, be op­er­a­tive for a pe­riod of six months...”

In lay­man’s terms, triple ta­laq is not a legally valid type of di­vorce af­ter this judge­ment.

THE OR­DEAL TILL NOW

In its most ba­sic form, triple ta­laq was a form of di­vorce prac­ticed by Mus­lim men where even the sim­ple ut­ter­ance of ‘ Ta­laq, Ta­laq, Ta­laq’ was enough to grant them a di­vorce from their wife. Con­trast this with most other laws in In­dia re­gard­ing di­vorce where both the spouses have to ap­proach the courts to seek a di­vorce. In the for­mer, the di­vorce is al­most in­stan­ta­neous, whereas in the lat­ter, as we all know, a di­vorce can also take years, es­pe­cially in a bit­terly con­tested case.

More­over, triple ta­laq was only avail­able to Mus­lim men and not women, who, if they wanted a di­vorce from their spouse, would have had to ap­proach the courts. It di­vested a woman of all sense of equal­ity in a mar­riage. When a man was all-pow­er­ful and had the abil­ity to end his

This uni­lat­eral power that men had com­pletely skewed the bal­ance to­wards the men. Women es­sen­tially had no say and could not ex­er­cise the same right.

The judg­ment is his­toric as it trans­fers power back to women, and en­dorses the right to equal­ity.

mar­riage re­gard­less of whether his wife wanted to or not, was it not a vi­o­la­tion of hu­man rights?

UN­FAIR & MIS­USED!

This uni­lat­eral power that men had com­pletely skewed the bal­ance to­wards the men. Women es­sen­tially had no say and could not ex­er­cise the same right.

HAP­LESS & HELP­LESS

Triple ta­laq, cou­pled with polygamy, is what ren­dered a woman com­pletely help­less. Not only was she di­vorced in­stan­ta­neously, with­out any say in the mat­ter, but the di­vorce also had a le­gal stand­ing. And in case she did go to court to chal­lenge it, her hus­band would have, in the mean­time, re­mar­ried, while she would still be try­ing to fight a los­ing bat­tle in court.

FI­NALLY, EM­POW­ERED

Over 20 coun­tries have abol­ished/ banned triple ta­laq, and af­ter this judg­ment, thanks to the brave ef­forts of the lit­i­gants Shayra Bano, Gul­shan Parveen, Aafreen Rehman, Ishrat Ja­han, Atiya Sabri and their lawyers, In­dia is one of them. The judg­ment is his­toric as it trans­fers power back to women, and en­dorses the right to equal­ity which is one of the fun­da­men­tal rights en­shrined in our Con­sti­tu­tion, which the Mus­lim men seem to have for­got­ten with ref­er­ence to their wives.

“I am very happy that this ver­dict has come across for the wel­fare of Mus­lim women. Ear­lier, peo­ple used to say ta­laq three times and leave the woman help­less with­out any com­pen­sa­tion. Some­times, they did it through What­sapp too. My as­so­ci­a­tion and other as­so­ci­a­tions who were fight­ing for women’s rights are re­ally very happy and thank­ful to the court of law.”

– Kha­toon Sheikh, Head, BMMA (Bharatiya Mus­lim Mahila An­dolan)

“As far as I know, it’s not in the re­li­gion to just say ta­laq three times and sep­a­rate. It’s not that sim­ple and it has been mis­used. It was un­just for women.” – Aamir Ali, ac­tor

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