The 395-page judgement of the Supreme Court on the triple talaq issue ends with a short order: ” In view of the different opinions recorded, by a majority of 3:2 the practice of talaq-e-bidat – triple talaq is set aside.” It is signed by all the five judges involved, namely Jagdish Singh Khehar (Chief Justice), Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and S. Abdul Nazeer.
The arguments are extensive and will require further reading and study, and he three judges who gave the majority judgement reached the same conclusion, though on different grounds. But it can be unambiguously stated that the majority judgement is most welcome and is a significant step forward for women’s rights.
This order constitutes a victory for the secular struggle for women’s rights. Any judgement which enhances the rights of women of one community certainly impacts positively on all women. Muslim women have been in the forefront of the struggle against what they consider a patriarchal misinterpretation of Koranic tenets such as the talaq-e-bidat form of divorce which is instant and arbitrary, and all credit to their struggle and that of democratic women’s organisations like AIDWA who took up this issue many decades ago and campaigned in a sustained manner among Muslim women.
In the face of the struggle of Muslim women, the Muslim Law Board was forced to change its stand. It had to shift from its utterly reprehensible and objectionable first affidavit which demeaned women and glorified male supremacist arguments. Its last affidavit agreed that the practice was “sinful” and it pledged to prevent its use. The affidavit stated, “At the time of performing Nikkah (marriage), the person performing the Nikkah will advise the bridegroom/man that in case of differences leading to talaq, (he) shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat.” Even if this was just a last ditch attempt to prevent an adverse court verdict, its position is there on record. It would be in the best interests of the Board to accept the court verdict and to cooperate in its implementation.
The reactions of BJP leaders are amusing, hailing it as their victory. It is nothing of the sort. The court has maintained a fine balance between the protection for personal laws granted by the constitution and judicial intervention. In the majority judgement too, the judgement is careful to point out that it is related to only one type of triple talaq, talaq-e-bidat, which it found arbitrary and not intrinsic to Koranic tenets. It did not accept the efforts and arguments of the Attorney General representing the central government to widen the scope of the court intervention to other aspects of divorce under Muslim personal law. The efforts to bring in arguments in favour of the Uniform Civil Code were also not taken into consideration by the Court. In fact, the Chief Justice of India made a specific mention of the arguments of the Attorney General and made an implicit warning against a “cascading effect.” He spoke specifically about the contention of the Attorney General that “all forms of talaq suffered from the same infirmities as have been expressed as talaq-e-bidat”.
The majority judgement is clear that it is only discussing triple talaq and not all forms of talaq under Muslim Personal law. It is this which has been held to not be “essential practice to the religion.” A large number of countries with a majority Muslim population do not have this practice including Pakistan, Bangladesh. In his separate judgement also decreeing that the practice, which is against the tenets of Quran cannot be permitted, Justice Kurien held that “the power of the legislature has to be exercised within the constitutional parameters without curbing religious freedom guaranteed under the Constitution of India.”
It would be typical of the BJP and its narrow reading of women’s rights to attempt to hijack struggles of minority women for reforms in their personal laws and to insert their own agenda, namely, to impose a uniform civil code.
On the contrary, it is reforms in personal laws, such as reflected in the Supreme Court judgement, of all communities which can best suit the present situation.
Uniformity is not equality and a uniform civil code is no guarantee for justice. On the contrary, under this government, even secular laws applicable to all women presently in the IPC are being sought to be diluted such as Section 498A. In the name of prevention of misuse of the law, the law itself is sought to be scrapped. The government is refusing to bring a law against honour killings. These examples are an indication of the approach of this government to the concerns of women.
The Uniform Civil Code will only be another stick to beat the minorities with, to isolate them and to put women within these communities on the defensive. Muslim women are ready and leading the struggle for reform within their personal laws. All personal laws require reform including laws relating to Hindu women such as the Guardianship law. Today’s judgement gives strength to crusaders for reforms
Brinda Karat is a Politburo member http://www.ndtv.com/opinion/bjps-hypocrisy-in-seeking-credit-for-triple-talaq-ban-1740464of the CPI(M) and a former Member of the Rajya Sabha.