By Advait Moharir
Religion forms a significant part of the public sphere in India. Thus, issues revolving around the topic are a matter of great discussion and debate. The feasibility of implementing a common civil code for issues relating to marriage and inheritance has often been at the centre of various debates in India. In this context, the Supreme Court’s decision to declare the validity of the Triple Talaq between May 11 and 19 assumes significant importance.
A historical overview
Matters on inheritance, family, property, marriage and inheritance in India are subject to personal laws – codified edicts based on religion. Various codes have evolved for different religions. Similarly, Islam in India is governed through the Sharia Law, which is based on writings in the Quran and the Hadiths. This was codified in the Muslim Personal Law (Shariat) Application Act passed in 1937. Triple Talaq is a part of this law, and defines the procedure for divorce, which is generally understood as a husband divorcing his wife by orally saying the word “Talaq” thrice.
This law has been controversial and many legal altercations have occurred in the past with its regard. It is usually contraposed with Section 125 for CrPC, that is the Right to Maintenance. Many Muslim women have protested against the obvious unfairness of the law, which leaves them with no alimony and gives the husband absolute and arbitrary power to divorce the wife at any time. In fact, some have also interpreted the triple talaqs sent by E-mail, and WhatsApp to be completely valid!
The Triple Talaq’s continued validity
The Triple Talaq has remained valid mainly due to the sheer sensitivity of the issue being packaged as a religious one. Governments have been reluctant to tamper with it for the fear of losing a valuable vote bank. A major issue was the Shah Bano Case, which was a controversial maintenance lawsuit in India. Shah Bano applied for alimony under Section 125, and won the right to alimony from her husband. The Rajiv Gandhi Government used its brute majority to pass a legislation, leaving the Court’s judgement null and void. The Court’s initial judgement triggered controversy over it conflicting with the Islamic law.
Many Court judgements have been in favour of maintenance as well. A notable case to mention is Daniel Latifi v/s Union Of India(2001), where the Court innovatively interpreted the law, incorporating the Rajiv Gandhi legislation to rule that a husband must make reasonable provision for upkeep beyond the iddat or compulsory maintenance time period. While there have been umpteen court judgements against it, the governing body for Muslim personal law, the All India Muslim Personal Law Board’s persistence and negotiation has ensured that the Triple Talaq has remained alive.
Implications for the future
Triple Talaq is an extremely regressive, patriarchal and unrequired law. It is phased out in most Muslim majority countries in Southeast Asia, including Pakistan. Its persistence in India is a harsh reminder on how far India has to go in its aim to be more egalitarian and progressive.
In case the judgement is in favour of abolishing Triple Talaq, it will be a huge boost for the BJP government and it will push forth the Uniform Civil Code, one of the main components of its core ideology.
Thus, the Court’s judgement, in whichever direction, will be a watershed event in determining the nature of personal law in India. It will reignite the debate on the role of religion in politics.
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The Triple Talaq: Will the Courts rule for progress? http://theindianeconomist.com/the-triple-talaq-will-the-courts-rule-for-progress/