The Supreme Court did not address the Muslim husband’s unilateral right to divorce. By not ruling that a Muslim husband must divorce in a court of law, all the judges left the husband with the unilateral power to divorce.

On August 22, the Supreme Court delivered a historic verdict setting aside the practice of instant triple talaq among Muslims. The verdict is a milestone in the women’s rights movement in India, but doesn’t go far insofar as Muslim women’s rights, liberties and well-being are concerned. There are two types of triple talaq: a husband can pronounce one talaq (divorce) each month over three months, the first two being revocable; or, he can utter talaq three times in one sitting—informally or formally through phone, email, WhatsApp and so on. The second type of divorce, talaq-e-biddat, is known as instant triple talaq and is irrevocable. The 395-page verdict contains two parts: the judgments and the order. The judgments discuss the lines of reasoning the judges took to form their view. The five judges delivered three judgments, which can be used in future court cases. The new law is the court’s order: “In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’—triple talaq is set aside.” There was a nationwide uproar by right-wing activists and Muslim women against the instant triple talaq, a social disease of our times. It is invalid now. The five judges on the constitution bench were Chief Justice JS Khehar, Justice Kurian Joseph, Justice Rohinton F Nariman, Justice Uday U Lalit and Justice S Abdul Nazeer. Each judge belonged to a different religion: Sikhism, Christianity, Zoroastrianism, Hinduism and Islam. Of the three judgments: one was delivered by Chief Justice Khehar and Justice Nazeer; the second by Justice Kurian; and the third by Justices Nariman and Lalit.

In their judgment, Chief Justice Khehar and Justice Nazeer argued that the instant triple talaq had existed for 1,400 years as part of Islam and was protected by Article 25, which guarantees the fundamental right to religion. They also said: “It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion.” Over past centuries, religion has given way to secular ideas in lawmaking. Jurists, thinkers and activists have sought to separate religion from the State and the law. Therefore, these observations by the two judges are regressive, especially because 22 Muslim nations have abolished the instant triple talaq. The judges also asked Muslim husbands not to use the instant triple talaq for six months so as Parliament could legislate on the issue. They said reforms in personal laws had come through legislation, notably to eradicate sati and devadasi practices. In brief, Chief Justice Khehar and Justice Nazeer missed a historic opportunity to reduce religion’s role in law and to diminish an individual’s subordination to religion and community. Younger Indians are looking for greater freedom from caste, community and religion. The remaining three judges—Justices Joseph, Nariman and Lalit—disagreed with the judgment.

During the hearing of the case, known as Women’s Quest for Equality versus Jamiat Ulema-e-Hind and Others, counsels had agreed that the Quran censures talaq as distasteful and sinful. But Islamic groups like All India Muslim Personal Law Board had insisted that the instant triple talaq was still valid. In his judgment, Justice Joseph put this to a theological test. Citing Quranic verses, he ruled that talaq-e-biddat was not approved by the Quran. Also, he noted that this talaq lacked legal sanctity as per a Supreme Court ruling in Shamim Ara versus State of UP and Another. He ruled: “What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.” Chief Justice Khehar and Justice Nazeer said it was not for a court to make law and the government should introduce reforms in personal laws through legislation. This argument was rejected by Justices Nariman and Lalit. They said that citizens cannot be left to wait for Parliament to make law. They quoted a 2015 verdict of the US Supreme Court: “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.” In India, there is no “Muslim Personal Law”—it is only an expression referring to a set of laws as per which Muslim issues are decided by courts. One of these laws is the Muslim Personal Law (Shariat) Application Act, 1937. The Act’s Section 2 deals with subjects like “marriage, dissolution of marriage, including talaq.” A point argued by the All India Muslim Personal Law Board is that the 1937 Act, being a God-made Shariat, is not law as per Article 13 of the Constitution. Article 13 stipulates that a legislation can be void if it violates fundamental rights of citizens.

Justices Nariman and Lalit declared the 1937 Act as a law, making it liable to be quashed for not upholding fundamental rights. They cited cases in which legislations were declared void for being arbitrary. This “arbitrariness test” is key to the fundamental right to equality under Article 14. Justices Nariman and Lalit ruled that the instant triple 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 fundamental right contained under Article 14.” On this point, Justice Joseph too held Section 2 of the 1937 Act as unconstitutional insofar as it approved the instant triple talaq.

After the verdict, a Muslim divorce can be effected as follows. One, a husband can utter one talaq and wait for three months for it to become valid. Two, he can pronounce three talaqs—one each over three months. In both the cases, the risk is that the wife will file a dowry harassment or domestic violence case. Women are opposing triple talaq not because it is arbitrary but because they are aggrieved by divorce itself which is looked down in Indian society. Another way of divorce is that a Muslim can convert to another religion, thereby rendering the marriage invalid. Despite the verdict, a Muslim husband can still use a letter, phone call, SMS, Skype and the like to deliver divorce. This is because Islam permits only men to give talaq, while women are deemed to be less intelligent and can only seek, not give, divorce. The Supreme Court did not address the Muslim husband’s unilateral right to divorce. By not ruling that a Muslim husband must divorce in a court of law, all the judges left the husband with the unilateral power to divorce. Contrary to this, Muslim women in India can go to Islamic clerics to seek divorce, or to the courts as per the Dissolution of Muslim Marriages Act, 1939.

The judges could have easily ruled that a husband must file a case and upon a judge’s approval deliver the instant triple talaq before a court, removing the element of arbitrariness. Currently, the Muslim husband is barred from approaching courts. Because no law exists under which he can divorce, a Muslim man undergoes the humiliating experience of approaching Islamic clerics to divorce, or delivers his divorce through a letter, or other means of communication. This is where a big void exists in the Indian legal system. This is also where the non-binding minority judgment of Chief Justice Khehar and Justice Nazeer, asking the government to make a law, becomes relevant. The Supreme Court played its part to uphold Muslim women’s dignity. Now, the government must enact a law that addresses all associated issues, including the other forms of talaq, halala and maintenance for divorced women.

By Tufail Ahmad

Author and a former BBC journalist