In 1986, the Muslim orthodoxy had its way when it convinced the Congress government to reverse a Supreme Court verdict that allowed a poor, hapless Muslim divorcee, Shah Bano, the right to maintenance—while her husband claimed he was under no obligation to provide maintenance except that provided under Islamic law, the courts had ruled Section 125 of the CrPC applied to Muslim women as well. Reversing Shah Bano was a big setback for Muslim women and a black day for gender equality. It has taken India more than three decades to award them equal rights in the matter of divorce whereas a host of other countries including theocratic Islamic nations have already done so. Against this backdrop, Tuesday’s historic 3:2 verdict, in which the Supreme Court struck down the regressive instant triple talaq or talaq-e-biddat declaring it unconstitutional and even ‘sinful’ is a big victory for Muslim women. Given how sensitive the issue of personal law trumping civil law is, a split verdict was not wholly unexpected, more so since Chief Justice JS Khehar had constituted an all-faith bench—one judge each from five major faiths—to decide on the issue. Justice Rohinton Nariman argued triple talaq violates the fundamental rights guaranteed under Article 14 of the Constitution. It was arbitrary, Nariman said, given how a marriage could be broken “capriciously and whimsically” by a Muslim man without any room for any judicial intervention or even reconciliation. While Nariman was supported by two other judges on the five-member bench, it was unfortunate CJI Khehar chose to take the opposite view on what is clearly a cruel and callous practice. Justice Khehar’s opinion that the courts could not interfere in personal laws, and must exercise restraint even if it was for the good of society, was at odds with the judicial activisim seen in the last few years when overreach has been the rule rather than the exception.
Khehar’s contention that Article 25 required all Constitutional Courts to protect “personal laws” and the government should bring in appropriate legislation to do away with talaq-e-biddat, as had happened in other countries, appeared completely out of place in the 21st century—a small saving grace was his six-month injunction on triple talaq during which time the government was to legislate on the matter. It was left to Justice Kurian Joseph to point out that the 1937 Act was enacted to discontinue “anti-Shariat practices… which include talaq”. As such, such a practice, which had been declared impermissible, could not be given Constitutional protection even if it had been continued for long. As he put it, what is not good in theology, cannot be good in law. It is also disappointing the SC did not use this opportunity to discuss other forms of divorce—talaq-e-ahsan and talaq-e-hasan.
Even observations by legal luminaries on some of these practices would have been instructive and encouraged more women like Shayara Bano, the petitioner in the talaq-e-biddat case, to fight for their dignity. Given the clout of the clerics, it is never easy for Muslim women to raise their voices and some progressive views from the judges would have helped them. While it is unfortunate that the All India Muslim Personal Law Board has said the judgment amounts to interference in Muslim personal law, Tuesday’s judgment is a victory for gender justice. Equally important, though the Muslim Women Act of 1986 sought to reverse the Shah Bano ruling, in later judgments including Daniel Latifi and Shamima Farooqui versus Shahid Khan, the Supreme Court of India upheld its validity and ruled Section 125 applied to Muslim women as well.