Triple Talaq in India

INTRODUCTION

Triple Talaq (also known as Talaq-e-Mughallazah - Irrevocable divorce[1]) is a form of divorce that is practiced by Muslims in India. It has been a subject of controversy and debates within the country, raising the issues of justice, gender equality, human rights and secularism. The Government of India and the Supreme court of India have been involved in addressing the issues. The issue has also caused a debate on the need for a Uniform Civil Code in India.[2]Uniform civil code is the proposal to replace the personal laws based on the scriptures and customs of each major religious community in India with a common set governing every citizen. These laws are distinguished from public law and cover marriage, divorce, inheritance, adoption and maintenance. Taslima Nasrin, made a surprise appearance  on Jan 24th at an unscheduled event on the last day of the festival and reiterated her stands against all forms of fanaticism, whether perpetrated by Muslim or Hindu extremists, and also spoke about her love for India, her support for a uniform civil code has again made  the issue volatile debatable and her continued fight for women's rights. This staunch belief in women’s rights is what propels her to speak up for a uniform civil code in India. Author Lashes Out At Mamata Banerjee For Paying Lip Service To Secularism Till Monday, the Jaipur Literature Festival (JLF) was a largely tame affair. And then exiled Bangladeshi writer Taslima Nasrin made an impromptu appearance on the last day , immediately drawing protesting Muslim groups outside the venue. Adding fuel to fire, the author pledged her firm support for the Uniform Civil Code (UCC) and underscored its importance in ensuring gender equality . She questioned the secularism of Indian state which was sheltering fanatics who issued fatwas and set a prize for her head.

Speaking for equal rights, the author urged the Islamic society to be tolerant and allow progress. Without criticism, it will be impossible to bring democracy to Islamic countries, she said. On freedom of speech, Nasrin emphasized that democracy would have no value without free speech. She called for getting rid of all outdated archaic laws that curb freedom of speech.“All British laws used against freedom of expression should be abolished. Without freedom of expression, democracy will not have meaning,“ Nasrin added.

This session of the `controversial' writer was not scheduled at the JLF. Many in the audience were surprised to see Nasrin on the dais. She argued that fundamentalism cannot be eradicated by killing people or punishing people but only through secular education. Rejecting the idea of nationalism, Nasrin maintained her belief in freedom and one world. “I don't believe in nationalism. I believe in humanism, rationalism, rights, freedom and one passport and one world,“ added Nasrin.

Practice

Triple Talaq is a form of divorce practiced in India, whereby a Muslim man can legally divorce his wife by pronouncing talaq (the Arabic word for divorce) three times. The pronouncement can be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. The man need not cite any cause for the divorce and the wife need not be present at the time of pronouncement. After a period of iddat, during which it is ascertained whether the wife is pregnant with a child, the divorce becomes irrevocable.[3][4] In the recommended practice, a waiting period is required before each pronouncement of talaq, during which reconciliation is attempted. However, it has become common to make all three pronouncements in one sitting. While the practice is frowned upon, it is not prohibited.[5] A divorced woman may not remarry her divorced husband unless she first marries another man, a practice called Nikah Halala. Until she remarries, she retains the custody of male toddlers and pre-pubertal female children. Beyond those restrictions, the children come under the guardianship of the father.[4]

The All India Muslim Personal Law Board (AIMPLB), has told the Supreme Court that women can also pronounce triple talaq, and can execute nikahnamas that stipulate conditions so that the husbands cannot pronounce triple talaq.[6]

Historil background

The Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (Muslim Personal Law), one of the first acts to be passed after the Government of India Act, 1935 became operational, introducing provincial autonomy and a form of dyarchy at the federal level. It replaced the so-called "Anglo-Mohammedan Law" previously operating for Muslims, and became binding on all of India's Muslims.[7] [8] The Shariat is open to interpretation by the ulama (class of Muslim legal scholars). The ulama of Hanafi Sunnis consider this form of divorce binding, provided the pronouncement was made in front of Muslim witnesses and later confirmed by a Sharia court. However, the ulama of Ahl-i Hadith, Ithna Ashariyya and Musta'lian Isma'ili Shia persuasions do not regard it as proper. Scholar Aparna Rao states that, in 2003, there was an active debate among the ulama.[4]

British India (1858–1947)

The debate for a uniform civil code dates back to the colonial period in India. The Lex Loci Report of October 1840 emphasized the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract but it recommended that personal laws of Hindus and Muslims should be kept outside such codification [1]According to their understanding of religious divisions in India, the British separated this sphere which would be governed by religious scriptures and customs of the various communities (Hindus, Muslims, Christians and later Parsis). These laws were applied by the local courts or panchayats when dealing with regular cases involving civil disputes between people of the same religion; the State would only intervene in exceptional cases. Thus, the British let the Indian public have the benefit of self-government in their own domestic matters with the Queen's 1859 Proclamation promising absolute non-interference in religious matters. The personal laws involved inheritance, succession, marriage and religious ceremonies. The public sphere was governed by the British and Anglo-Indian law in terms of crime, land relations, laws of contract and evidence - all this applied equally to every citizen irrespective of religion. Throughout the country, there was a variation in preference for scriptural or customary laws because in many Hindu and Muslim communities, these were sometimes at conflict; such instances were present in communities like the Jats and the Dravidians. The Shudras, for instance, allowed widow remarriage - completely contrary to the scriptural Hindu law.[5] The Hindu laws got preference because of their relative ease in implementation, preference for such a Brahminical system by both British and Indian judges and their fear of opposition from the high caste Hindus. The difficulty in investigating each specific practice of any community, case-by-case, made customary laws harder to implement. Towards the end of the nineteenth century, favouring local opinion, the recognition of individual customs and traditions increased. The Muslim Personal law or Sharia law, was not strictly enforced as compared to the Hindu law. It had no uniformity in its application at lower courts and was severely restricted because of bureaucratic procedures. This led to the customary law, which was often more discriminatory against women, to be applied over it. Women, mainly in northern and western India, often were restrained from property inheritance and dowry settlements, both of which the Sharia provides Due to pressure from the Muslim elite, the Shariat law of 1937 was passed which stipulated that all Indian Muslims would be governed by Islamic laws on marriage, divorce, maintenance, adoption, succession and inheritance.

Legislative reforms

The Hindu law discriminated against women by depriving them of inheritance, remarriage and divorce. Their condition, especially that of Hindu widows and daughters, was poor due to this and other prevalent customs The British and social reformers like Ishwar Chandra Vidyasagar were instrumental in outlawing such customs by getting reforms passed through legislative processes. Since the British feared opposition from orthodox community leaders, only the Indian Succession Act 1865, which was also one of the first laws to ensure women's economic security, attempted to shift the personal laws to the realm of civil. The Indian Marriage Act 1864 had procedures and reforms solely for Christian marriages. There were law reforms passed which were beneficial to women like the Hindu Widow Remarriage Act of 1856, Married Women's Property Act of 1923 and the Hindu Inheritance (Removal of Disabilities) Act, 1928, which in a significant move, permitted a Hindu woman's right to property.[7]

The call for equal rights for women was only at its initial stages in India at that time and the reluctance of the British government further deterred the passing of such reforms. The All India Women's Conference (AIWC) expressed its disappointment with the male-dominated legislature and Lakshmi Menon said in an AIWC conference in 1933, "If we are to seek divorce in court, we are to state that we are not Hindus, and are not guided by Hindu law. The members in the Legislative assembly who are men will not help us in bringing any drastic changes which will be of benefit to us." The women's organizations demanded a uniform civil code to replace the existing personal laws, basing it on the Karachi Congress resolution which guaranteed gender-equality

The passing of the Hindu Women's right to Property Act of 1937, also known as the Deshmukh bill, led to the formation of the B. N. Rau committee, which was set up to determine the necessity of common Hindu laws. The committee concluded that it was time of a uniform civil code, which would give equal rights to women keeping with the modern trends of society but their focus was primarily on reforming the Hindu law in accordance with the scriptures. The [2]committee reviewed the 1937 Act and recommended a civil code of marriage and succession; it was set up again in 1944 and send its report to the Indian Parliament in 1947. The Special Marriage Act, which gave the Indian citizens an option of a civil marriage, was first enacted in 1872. It had a limited application because it required those involved to renounce their religion and was applicable only to Hindus. The later Special Marriage (Amendment) Act, 1923 permitted Hindus, Buddhists, Sikhs and Jains to marry either under their personal law or under the act without renouncing their religion as well as retaining their succession rights

Post-colonial (1947–1985)

Hindu Code Bill and addition to the Directive Principles

Jawaharlal Nehru in 1930, though he supported a uniform civil code, he had to face opposition by much senior leaders like Vallabhbhai Patel and Rajendra Prasad The Indian Parliament discussed the report of the Hindu law committee during the 1948–1951 and 1951–1954 sessions. The first Prime Minister of the Indian republic, Jawaharlal Nehru, his supporters and women members wanted a uniform civil code to be implemented.[  As Law Minister, B. R. Ambedkar was in charge of presenting the details of this bill. It was found that the orthodox Hindu laws were pertaining only to a specific school and tradition because monogamy, divorce and the widow's right to inherit property were present in the Shashtras. Ambedkar recommended the adoption of a Uniform Civil Code. Ambedkar's frequent attack on the Hindu laws and dislike for the upper castes made him unpopular in the parliament. He had done research on the religious texts and considered the Hindu society structure flawed. According to him, only law reforms could save it and the Code bill was this opportunity.                                                                                                                                         

He thus faced severe criticism from the opposition. Nehru later supported Ambedkar's reforms but did not share his negative view on Hindu society. The Hindu bill itself received much criticism and the main provisions opposed were those concerning monogamy, divorce, abolition of coparcenaries (women inheriting a shared title) and inheritance to daughters. The first President of the country, Rajendra Prasad, opposed these reforms; others included the Congress party president Vallabhbhai Patel, a few senior members and the Hindu fundamentalist parties. The fundamentalists called it "anti-Hindu" and "anti-Indian"; as a delaying tactic, they demanded a uniform civil code. The women members of the parliament, who previously supported this, in a significant political move reversed their position and backed the Hindu law reform; they feared allying with the fundamentalists would cause a further setback to their rights. Thus, a lesser version of this bill was passed by the parliament in 1956, in the form of four separate acts, the Hindu Marriage Act, Succession Act, Minority and Guardianship Act and Adoptions and Maintenance Act. It was decided to add the implementation of a uniform civil code in Article 44 of the Directive principles of the Constitution specifying, "The State shall endeavor to secure for citizens a uniform civil code throughout the territory of India." This was opposed by women members like Rajkumari Amrit Kaur and Hansa Mehta. According to academic Paula Banerjee, this move was to make sure it would never be addressed. Aparna [3]Mahanta writes, "failure of the Indian state to provide a uniform civil code, consistent with its democratic secular and socialist declarations, further illustrates the modern state's accommodation of the traditional interests of a patriarchal society".[16]

Later years and Special Marriage Act

The Hindu code bill failed to control the prevalent gender discrimination. The laws on divorce were framed giving both partners equal voice but majority of its implementation involved those initiated by men. Since the Act applied only to Hindus, women from the other communities remained subordinated. For instance, Muslim women, under Sharia law, could not inherit agricultural land. Nehru accepted that the bill was not complete and perfect, but was cautious about implementing drastic changes which could stir up specific communities. He agreed that it lacked any substantial reforms but felt it was an "outstanding achievement" of his time. He had a significant role in getting the Hindu Code bill passed and laid down women-equality as an ideal to be pursued in Indian politics, which was eventually accepted by the previous critics of the bill. Uniform civil code, for him, was a necessity for the whole country but he did not want it to forced upon any community, especially if they were not ready for such a reform. According to him, such a lack of uniformity was preferable since it would be ineffective if implemented. Thus, his vision of family law uniformity was not applied and was added to the Directive principles of the Constitution.

The Special Marriage Act, 1954, provides a form of civil marriage to any citizen irrespective of religion, thus permitting any Indian to have their marriage outside the realm of any specific religious personal law. The law applied to all of India, except Jammu and Kashmir. In many respects, the act was almost identical to the Hindu Marriage Act of 1955, which gives some idea as to how secularized the law regarding Hindus had become. The Special Marriage Act allowed Muslims to marry under it and thereby retain the protections, generally beneficial to Muslim women, that could not be found in the personal law. Under this act polygamy was illegal, and inheritance and succession would be governed by the Indian Succession Act, rather than the respective Muslim Personal Law. Divorce also would be governed by the secular law, and maintenance of a divorced wife would be along the lines set down in the civil law]

Shah Bano case (1985)

After the passing of the Hindu Code bill, the personal laws in India had two major areas of application: the common Indian citizens and the Muslim community, whose laws were kept away from any reforms.[17] The frequent conflict between secular and religious authorities over the issue of uniform civil code eventually decreased, until the 1985 Shah Bano case. Bano was a 73-year-old woman who sought maintenance from her husband, Muhammad Ahmad Khan. He had divorced her after 40 years of marriage by triple Talaaq (saying "I divorce thee" three times) and denied her regular maintenance; this sort of unilateral divorce was permitted under the Muslim Personal Law. She was initially granted maintenance by the verdict of a local court in 1980. Khan, a lawyer himself, challenged this decision, taking it to the Supreme court, saying that he had fulfilled all his obligations under Islamic law. The Supreme court ruled in her favour in 1985 under the "maintenance of wives, children and parents" provision (Section 125) of the All India Criminal Code, which applied to all citizens irrespective of religion. It further recommended that a uniform civil code be set up. Besides her case, two other Muslim women had previously received maintenance under the Criminal code in 1979 and 1980.

The Shah Bano case soon became nationwide political issue and a widely debated controversy. Many conditions, like the Supreme court's recommendation, made her case have such public and political interest. After the 1984 anti-Sikh riots, minorities in India, with Muslims being the largest, felt threatened with the need to safeguard their culture. The All India Muslim Board defended the application of their laws and supported the Muslim conservatives who accused the government of promoting Hindu dominance over every Indian citizen at the expense of minorities. The Criminal Code was seen as a threat to the Muslim Personal Law, which they considered their cultural identity. According to them, the judiciary recommending a uniform civil code was evidence that Hindu values would be imposed over every Indian. The orthodox Muslims felt that their communal identity was at stake if their personal laws were governed by the judiciary.[  Rajiv Gandhi's Congress government, which previously had their support, lost the local elections in December 1985 because of its endorsement of the Supreme Court's decision. The members of the Muslim board, including Khan, started a campaign for complete autonomy in their personal laws. It soon reached a national level, by consulting legislators, ministers and journalists. The press played a considerable role in sensationalising this incident.[

An independent Muslim parliament member proposed a bill to protect their personal law in the parliament. The Congress reversed its previous position and supported this bill while the Hindu right, the Left, Muslim liberals and women's organisations strongly opposed it. The Muslim Women's (Protection of Rights on Divorce) was passed in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women. The debate now centred on the divinity of their personal law. A Muslim member of parliament made a claim emphasising the importance of the cultural community over national by saying that only a Muslim judge could intercede in such cases. Bano later in a statement said that she rejected the Supreme Court's verdict. It also led to the argument defining a woman's right according to her specific community with political leader Jaffar Sharief saying, "today, in the Shah Bano's case, I am finding that many people are more sympathetic towards Muslim women that their own women. This is very strange."

The politicisation led to argument having two major sides: the Congress and Muslim conservatives versus the Hindu right-wing and the Left. In 1987, the Minister of Social Welfare, Rajendra Kumari Bajpai, reported that no women were given maintenance by the Wakf Board in 1986. Women activists highlighted their legal status and according to them, "main problem is that there [are] many laws but women are dominated not by secular laws, not by uniform civil laws, but by religious laws."[18] The legal reversal of introducing the Muslim Women law significantly hampered the nationwide women's movement in the 1980s.[

Dispute post-1985

The debate for a uniform civil code, with its diverse implications and concerning secularism in the country, is one of the most controversial issues in twenty-first century Indian politics. The major problems for implementing it are the country's diversity and religious laws, which not only differ sect-wise, but also by community, caste and region. Women's rights groups have said that this issue is only based on their rights and security, irrespective of its politicisation. The arguments for it are: its mention in Article 44 of the Constitution, need for strengthening the unity and integrity of the country, rejection of different laws for different communities, importance for gender equality and reforming the archaic personal laws of Muslims-which allow unilateral divorce and polygamy. According to Qutub Kidwai, the Muslim Personal laws are "Anglo-Mohammadan" rather than solely Islamic. The Hindu nationalists view this issue in concept of their law, which they say, is secular and equal to both sexes.[19] In the country, demanding a uniform civil code can be seen negatively by religious authorities and secular sections of society because of identity politics.[  The Sangh Parivar and the Bharatiya Janata Party (BJP)-one of the two major political parties in India, had taken up this issue to gain Hindu support.] The BJP was the first party in the country to promise it if elected into power

Goa is the only state in India which has a uniform civil code. The Goa Family Law, is the set of civil laws, originally the Portuguese Civil Code, continued to be implemented after its annexation in 1961

In September 2003, in an interactive session in PGI Chandigarh, then President A. P. J. Abdul Kalam supported the need of Uniform Civil Code, keeping in view the population of the [4]country. Sikhs and Buddhists objected to the wording of Article 25 which terms them as Hindus with personal laws being applied to them. However, the same article also guarantees the right of [5]members of the Sikh faith to bear a Kirpan.

In October 2015, Supreme Court of India asserted the need of a Uniform Civil Code and said that, "This cannot be accepted, otherwise every religion will say it has a right to decide various issues as a matter of its personal law. We don’t agree with this at all. It has to be done through a decree of a court"[On 30 November 2016, British Indian intellectual Tufail Ahmad unveiled a 12-point document draft of it, saying citing no effort by the government since 1950.

On 24th Jan, 2017,Taslima Nasrin, made a surprise appearance at an unscheduled event on the last day of the festival and reiterated her stands against all forms of fanaticism, whether perpetrated by Muslim or Hindu extremists, and also spoke about her love for India, her support for a uniform civil code, and her continued fight for women’s rights. This staunch belief in women’s rights is what propels her to speak up for a uniform civil code in India.

“Muslim personal laws... actually run against women. Hindu shastras also do not give any freedom to women. In Bangladesh, Hindu women do not have right to divorce their husbands or any rights to their father’s property. In India, you now have modern law and Hindu women are getting equal rights. But why shouldn’t Muslim women have the same democratic rights?” she asked. “Some fanatics don’t want it for selfish reasons, but why do you, Indian secular people not want a uniform civil code?” she asked.

Nasrin reiterated her belief in “absolute freedom of expression,” and championed it by speaking without holding back. She came down strongly on fanatics, both Muslim and Hindu, and also those who claim to be secular. She spoke of the time Syed Noorur Rehaman Barkati issued a fatwa against her in Kolkata and the alleged inaction on the part of the state and the law enforcement.People protesting Taslima Nasrin’s participation on the fifth day of the Jaipur Literature Festival outside the venue, Diggi Palace, on Monday. (Himanshu Vyas/HT Photo)

“People (in India) proudly say this country is secular, the state is secular. What do you mean by secularism? Secularism means that you have to encourage Muslim fanatics who issue fatwas against people? Who set a price on writers? Here, Muslim fanatics, whatever crime they commit, will not get punished. Rather the victim will be punished,” she said.

She alleged this was a ploy to bank Muslim votes – a reason why many in power do not fiercely oppose fanaticism. She also said it was not just Muslims but Hindu fundamentalists too who have troubled her. “You call yourselves secular, but you don’t see it when I get attacked by Hindu fanatics. You only see it when I get attacked by Muslim fanatics,” said Nasrin who added that she criticized religions as most are anti-women.

Though the audience appreciated the unscheduled event, pockets of protest were reported outside the venue. About 20 representatives of organisations like the Rajasthan Muslim forum, the Mili Council, the Tahfuz-e-Iman, the Jamaat-e-Islami, the SDPI, the popular front, the Muslim personal law board, and the Mansuri Samaj raising slogans outside Diggi Palace against Nasrin [6]and the JLF organizers.

Be it any religion, they are always against women. I believe in absolute freedom of expression. To curb rising intolerance in society and atrocities on women, education can play a major role.
"When I talk about women rights, I criticise religions that do not have equal rights for women. Hindu women in Bangladesh do not get the freedom they have in India. What kind of democracy is it?" she said

Opposition

The practice has faced opposition from various Muslim women.[12] Some of them have filed PIL in Supreme Court of India against the practice terming it as "regressive".[13] The petitioner has asked for scrapping of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, terming it against the Article 14 of the Constitution.[14]

During the hearings before its final judgement, the Supreme Court of India, on 13 May 2017, has described Triple Talaq as the "worst form of marriage dissolution". It also noted that the custom is banned in Muslim-majority countries Saudi Arabia, Morocco, Afghanistan and Pakistan.[2][15]

Previously on 8 December 2016, the Allahabad High court in its ruling, has observed that the practice of Triple Talaq is unconstitutional and violates the rights of Muslim women.[16][17]

In March 2017, over 1 million Muslims in India with women in majority, have signed a petition to end Triple talaq. The petition was started by the Muslim Rashtriya Manch (MRM), an Islamic organization affiliated to the right wing Hindu nationalist Rashtriya Swayamsevak Sangh (RSS).[18]

Prime Minister Narendra Modi has raised the issue of Triple Talaq several times. On 29 April 2017, he commented that reformers from Muslim community would come forward to protect women from bad effects of Triple Talaq. He said, the Muslim community should not allow the issue to be politicised. On 9 May 2017, he told a delegation of 25 Muslim leaders from Jamiat Ulama-i-Hind to take the responsibility for initiating reform in this regard.[19][20][21]

On 16 April 2017, the Bharatiya Janata Party led Government of Uttar Pradesh has said that it will constitute a high level committee of ministers, representatives of Muslim women’s organisations and women who have been given talaq to address the issue.[22

Support

The All India Muslim Personal Law Board (AIMPLB) defends the practice.[13] In April 2017, citing a report prepared by Muslim Mahila Research Kendra in coordination with Shariah Committee for Women, AIMPLB has claimed that Muslims have a lower rate of divorce compared to other religious communities, countering the argument that Muslims have highest number of divorce in the country due to the practice of Triple Talaq. It also claimed that it had received forms from 3.5 crore Muslim women across the country, supporting Shariat and Triple talaq.[23][24][25]

Measures

AIMPLB issued a code of conduct in April 2017 regarding talaq in response to the controversy over the practice of Triple Talaq. It also warned that those who divorce for reasons not prescribed under Shariat will be socially boycotted in addition to calling for boycott of those who use Triple Talaq recklessly and without justification.[26] In addition, it also stated that it should be delivered in three sittings with a gap of at least one month each.[27] Recently Apex court has also On in a landmark 3:2 judgement, Supreme Court invalidated the practice of triple talaq among Muslim community. The court declared the practice whereby Muslim men divorce their wives by uttering the word Talaq thrice as “an irregular or heretical form of talaq”.  It therefore said that the practice must be held to be  “violative of the fundamental right contained under Article 14 of the Constitution of India”. However, the court hasn’t strictly looked at the practice through the prism of the fundamental rights guaranteed by the constitution but first and foremost deemed it as antithetical to the religion itself.

One of the judges Justice Kurian Joseph contended that the triple talaq was not a part of the Islamic religious practice and “is against the basic tenets of Islam”. At the same time, the Chief  Justice J S Khehar counselled “absolute restraint” in matters of the personal laws, saying they enjoyed constitutional protection, an observation which is certain to also reassure people in Valley anxiously looking forward to the court’s decision on Article 35A. By rallying around the personal laws, Chief Justice Khehar has made it clear that these laws are a subtle trade-off between fundamental rights and the religious freedom and thus their validity can’t be entirely judged by the yardstick of the constitution.

Same parameters should apply to Article 35A. It is a sacred covenant between J&K and the Republic of India and it can’t be set aside merely by invocation of the constitution of India and fundamental rights. Such absolutist and legalistic view of a politically complex issue will only further complicate the issues in Kashmir.

A nuanced and a restrained judgement in Triple Talaq has been largely welcomed by the Muslim community. Even All India Muslim Personal Law Board has fallen in line. So has more or less Deoband which has said that it has itself always discouraged the practice. The Supreme Court's recent landmark judgment banning instant triple talaq by terming it "discriminatory and unconstitutional" is set to become one of the main reference texts for the Law Commission which is in the process of compiling public opinion on the contentious Uniform Civil Code (UCC).

"Yes we will closely study the judgment. It will form one of the basis (of report). The Supreme Court has done its bit and now we will do the remaining work", Law Commission Chairman Justice Balbir Singh Chauhan told Mail Today when asked about the impact of the SC judgment.

Having said that it would hardly be possible to ignore the politics that aurrounds the SC judgement. Over the past three years, it was one of the BJP’s flagship Muslim issues. The issue has received the attention and the media focus which is disproportionate to its fallout on the Muslim society. According to 2011 census, divorce rates are highest among Christians and Buddhists and lowest among Jains. Even between Hindus and Muslims, the separation rate is higher among the former. Only around five in thousand Muslim women are divorced. But the BJP made it one of its major Muslim issues. Though apparently an attempt to reform the Muslim community, the BJP framed even this issue in terms of its communal politics. Ever since its founding, BJP attempt has always used Muslim community to unite and consolidate Hindu vote bank. And the one sure-fire way to do has been to invoke the hate against Muslims.  This has been one abiding template of the saffron politics in the country. When all else fails, BJP raises Muslim bogey to try and forge a monolithic Hindu vote bank. The strategy has been a factor in the rise of BJP as a national party, up from two seats in 1984 polls. While the judgment on Triple Talaq certainly has a constructive dimension, it doesn’t detract from the force of the contention as to why reform should only be rammed down the throats of the Muslim community. Why not the other communities too.[7]

CONCLUSION

The Supreme Court's recent landmark judgment banning instant triple talaq by terming it "discriminatory and unconstitutional" is set to become one of the main reference texts for the Law Commission which is in the process of compiling public opinion on the contentious Uniform Civil Code (UCC).

"Yes we will closely study the judgment. It will form one of the basis (of report). The Supreme Court has done its bit and now we will do the remaining work", Law Commission Chairman Justice Balbir Singh Chauhan told Mail Today when asked about the impact of the SC judgment.

He was speaking on the sidelines of the farewell function of outgoing Chief Justice JS Khehar.

Justice Chauhan said the focus is on family laws of all religions and the diversity of customary practices, and to address social injustice and gender inequality rather than the plurality of laws.

"Personal laws will not be touched beyond the extent permitted by the constitution", the panel said.

The ruling BJP has been pushing for a common code despite resistance from rivals and even some allies. Religious minority groups have opposed the plan, saying such a common law would interfere with their codes of conduct.

Under UCC, all personal laws based on scriptures and customs of every religion will be replaced with a common law governing every citizen.

The Catholic Bishops' Conference of India has supported UCC on the condition that it confirms to the 'spirit and mandate' of the constitution. The commission was set up in September 2015 for a period of three years.

The Supreme Court  banned the controversial Islamic practice that allows men to leave their wives immediately by stating "talaq" (divorce) three times, calling the practice "unconstitutional". The verdict vindicates the stand of the government, which had said triple talaq violates fundamental rights of women. Several Muslim women who have been divorced because of it, including on Skype and on WhatsApp, had appealed to the top court to end the practice.

References

1 Mohammed Siddique Patel. "The different methods of Islamic separation - Part 2: The different types of Talaq". Retrieved 2017-05-29.
2 "Triple Talaq". Times of India. 13 May 2017. Retrieved 13 May 2017.
3 Choudhury, (Mis)Appropriated Liberty (2008), p. 72-73.
4 Rao, Kinship, Descent Systems and State - South Asia (2003), p. 341.
5 Choudhury, (Mis)Appropriated Liberty (2008), p. 95.
6 "Women can say triple talaq, Muslim law board tells Supreme Court". The Times of India. 17 May 2017.
7 Mukhopadhyay, Construction of Gender Identity (1994), p. 61.
8 Murshid, Inheritance: Contemporary Practice - South Asia (2003), p. 304.
9 Esposito & Delong-Bas, Women in Muslim Family Law (2001), pp. 30-31.
10 Schacht, J. and Layish, A. (2000). "Ṭalāḳ". In P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, W.P. Heinrichs. Encyclopaedia of Islam. 10 (2nd ed.). Brill. p. 155.
11 Esposito & Delong-Bas, Women in Muslim Family Law (2001), pp. 111-112.
12 "What India's liberals get wrong about women and sharia law".
13 "Muslim Personal Law Board to discuss Ayodhya dispute, triple talaq on Saturday", Hindustan Times, 14 April 2017
14 "Triple Talaq: Law panel studies practices of Muslim nations", The Times of India, 24 January 2017
15 "Triple talaq undesirable, worst form of dissolution of marriage among Muslims: Supreme Court". Retrieved 2017-05-13.
16"Allahabad High Court calls triple talaq unconstitutional, says no personal law board is above Constitution". India Today. Retrieved 2017-04-21.
17 Rashid, Omar. "'Triple talaq' a cruel and most demeaning form of divorce practised by Muslim community: HC". The Hindu. Retrieved 2017-04-21.
18 CNN, Manveena Suri. "Triple talaq: 1 million Indian Muslims sign petition against divorce practice". CNN. Retrieved 2017-05-22.
19"'Don't politicise triple talaq issue', says PM Narendra Modi - Times of India". The Times of India. Retrieved 2017-05-19.
20 "PM Narendra Modi on triple talaq: Muslim community should come forward to protect its women"
Shiv Sahai Singh (1 January 1993). Unification of Divorce Laws in India. Deep & Deep Publications. pp. 7, 287-288. ISBN 978-81-7100-592-5.
Chavan & Kidwai 2006, p. 90, 94-100.
"Ambedkar And The Uniform Civil Code".
"Ambedkar favoured common civil code".
Sarkar & Sarkar 2008, p. 480-491.
[3]Samaddar 2005, p. 56-59.
Lawrence & Karim 2007, p. 265-267.
Samaddar 2005, p. 60-63.
Chavan & Kidwai 2006, p. 13-20.
[4] "President Kalam votes for uniform civil code".
"Kalam calls for uniform civil code".
"Uniform Civil Code essential: Kalam".
"Puri seer rallies for uniform civil code".
Boyle, Kevin; Sheen, Juliet (2013-03-07). Freedom of Religion and Belief: A World Report. Routledge. pp. 191-192. ISBN 9781134722297.
[5]
[6] TOI Jaipur edition and Hindustan times of 224th Jan 2017
[7] Apex court judgment 0n August21,2017

 

JasRaj Rajawat 
on 07 September 2017
Published in Constitutional Law
Views : 298
Other Articles by - JasRaj Rajawat
Report Abuse









×

  LAWyersclubindia Menu

web analytics