By Arif Mohammad Khan
January 9, 2018
On August 22, 2017, the SC judgment held triple Talaq to be violative of the fundamental right contained under Article 14 of the Constitution and agreed with the ruling given by the Supreme Court in Shamim Ara case in 2002, which had laid down the correct law of divorce as ordained in Quran as (1) that Talaq must be for a reasonable cause and that (2) it must be preceded by an attempt of reconciliation between the husband and wife by two arbiters … If their attempts fail, Talaq may be effected.
So actually triple Talaq was banned in 2002 on the ground of it being derogatory to the holy Quran and the 2017 decision also found it to be violative of fundamental rights.
We do not know the exact number of the instances of triple Talaq since 2002, but we know that within four months after the SC verdict of 2017, the number of women who have been subjected to this enormity is more than one hundred. Now one can easily say that these persons who took recourse to triple divorce showed no respect either for the Supreme Court or for their own scripture. But other than these offenders, there were prominent clerics of the Muslim personal law board who publicly asserted that notwithstanding the SC verdict, the practice will continue as according to them it finds sanction in religion.
Now the question is whether the government should remain a mute spectator of this blatant violation of the law as laid down by the Supreme Court. If that happens then it would be an abdication of its moral and constitutional duties. One of the primary duties of the executive is to enforce and implement the laws both originated in the legislature and laid down by the higher judiciary.
The manner in which the Muslim Women (Protection of Rights on Marriage) Bill, 2017 received the approval of Lok Sabha encouraged me to believe in the maturity of the political class and their capability to learn from past experiences, particularly the bad ones. I entertained the hope that now political expediency shall not be allowed to come in the way of gender justice. But within days the personal law board was able to flex its muscles and succeeded in rallying enough support to ensure that the new bill does not become a law too soon.
The main objection that has been raised is that marital affairs are of a civil nature and the bill seeks to criminalise a civil matter. Now nothing can be farther from truth particularly when it comes to triple divorce. A casual look at the history of Muslim law would show that the act of triple Talaq has always been considered a criminal act and Caliph Umar in whose time this practice acquired legal validity used to award a punishment of 400 lashes to a man who would resort to irrevocable or triple divorce.
The second criticism is that who will pay for the maintenance of the wife if the man is sent to jail. Surprisingly the criticism is being raised by those among whom there are many who were party to the passage of the Muslim Women Bill of 1986 that was brought to assuage the feelings of the personal law board, inflamed by the SC judgment in the Shah Bano case.
Then the personal law board had asserted that no Muslim husband has any liability to his divorced wife beyond Iddat that is a period of three months after divorce, whereas section 125 of CrPC expanded this obligation to an unlimited period, particularly in cases where the ex-wife possessed no means to keep her body and soul together. The personal law board refused to accommodate even this indigent woman and asked the government to amend the existing criminal law and exclude Muslims from its ambit.
The government accepted their demand and brought a separate law whose stated purpose was to overturn the SC judgment in Shah Bano. One must not forget that till a few years later when the Supreme Court took a very liberal and pro woman view of this new law, the lower courts had turned down many petitions seeking relief under section 125 of CrPC on the ground that since the petitioners were Muslims, the relief under this section was no longer available to them.
So the question who will pay should be addressed to the personal law board as they still hold the same view as in 1986 and as late as last year they, through press articles, had expressed their dissatisfaction with the court rulings and had said that the judicial interpretation of the 1986 Act has resulted in sabotaging the gains of the Shah Bano agitation.
In May 2017, the personal law board had both orally and through an affidavit promised the Supreme Court that they would organise a campaign against triple divorce since it is an innovation, a sin and is highly unjust to women. Instead of doing what they had promised, they are now lobbying political support to ensure that those who according to them commit the ‘sin’ of ‘injustice’ by resorting to the ‘innovative’ triple divorce are not made accountable and the board may be given credit for having stalled the bill from becoming a law at least temporarily with the support of political parties who had stood by them in 1986.