바카라Historic바카라 is a word that gets tossed about too often when it comes to legal verdicts. But here it would be quite apt, tangled up as the issue was in a long timeline of debates over the uneasy fit between the modern Constitution and the place for older 바카라personal laws바카라 within it. The Supreme Court바카라s majority decision holding the pronouncement of triple talaq in one sitting as illegal has been a hard-won victory. The activists and petitioners who had sought the end of the practice are jubilant that it has been recognised as a form of cruelty and shown the door. In the public mind, justice for Muslim women is now also etched into an arc that begins from Shah Bano and ends with Shayara Bano.
Shayara from Kashipur, Uttarakhand, is the unquestioned hero of this moment. A mother of two who was unilaterally divorced, she mounted a legal challenge on the constitutional sanctity of instant triple talaq바카라or talaq-e-biddat바카라last summer. Shah Bano is her alter ego from the 1980s, a woman who had sought alimony after being similarly divorced. While the courts had delivered justice to Shah Bano as well, the political dispensation had snatched it from her by legislating against it바카라one of the black spots on it the Congress has been unable to erase.
바카라Even I did not expect when I approached the court that my case would become such a big issue,바카라 says Shayara. The judgement is one she welcomes selflessly, for it cannot alter her personal situation바카라nor does she seek restitution with her ex-husband. 바카라I wish only for my financial independence now,바카라 says the 35-year-old, who is currently pursuing an MBA. 바카라My husband has remarried and I don바카라t want to be with him. I바카라m happy women will never face instant talaq again. When I was divorced, I felt my life was ruined, but I had no legal recourse.바카라 This, Shayara hopes, will not happen to the next generation of girls. 바카라They will not be cruelly discarded over SMS, phone or e-mail,바카라 she says.
The fascinating part is that all five judges on the constitutional bench have found instant talaq a reprehensible practice. That said, they arrived at three separate verdicts, each through very different arguments. This resulted in a split 3:2 verdict, where the majority even found it un-Islamic. This put away the practice by a hair바카라s breadth, a milestone moment, regardless of the debate on the extent of its prevalence바카라some surveys claim talaq-e-biddat added up to only 0.3 per cent of divorces within Muslims.
Here바카라s how the legal scrutiny unfolded. First, the judges tested instant talaq against the Constitution. If it were found to be protected within the 바카라freedom of conscience바카라 (or space for religion-sanctioned actions) guaranteed under Article 25바카라as Chief Justice Khehar Singh and Justice Abdul Nazeer did바카라there would be no possibility of judicial intervention. Separately, Justices Rohinton Nariman and Uday Lalit did not find instant talaq to be an 바카라essential practice바카라 of Islam. Justice Kurian Joseph felt it was against the Quran itself (hence his remark: 바카라What is held to be bad in the Holy Quran cannot be good in Shariat바카라).
Justices Nariman and Lalit, who did not find instant talaq protected by Article 25, tested it next against Article 14바카라which grants the constitutional right to equality. Here, instant talaq fell apart for 바카라arbitrariness바카라. Ultimately, therefore, two judges ruled that it바카라s unconstitutional because it falls afoul of Article 14. This has happened for the first time in a ruling on personal law, and activists are exulting about it. And it was the two who made up the minority judgment who asked the government to legislate바카라within six months바카라and overcome the bar under Article 25.
Instant triple talaq, then, no longer holds the sanctity of law, but the question of its constitutionality is still open. This is because while instant talaq itself has been annulled by a 3:2 verdict, the supremacy of the Constitution over personal law has been upheld by only two justices. Hence, whether the Constitution has primacy over personal law does not appear to be fully settled by this judgement.
바카라The position of the All India Muslim Personal Law Board was that personal law cannot be tested on the touchstone of the Constitution. Justices Nariman and Lalit have ruled that it can be,바카라 says Saif Mahmood, senior advocate, Supreme Court, and co-author of Introduction to Muslim Law, which is cited in the judgement. 바카라However, Justice Kurian has said the way in which instant divorce is practised militates against what Islam stands for. Thus, his verdict upholds Islamic jurisprudence, but holds the practice of INStant triple talaq illegal.바카라
바카라Instant talaq was not only (held) ultra vires of the Constitution, it was held to be not even part of the Quranic law, and more of a customary practice바카라customs don바카라t override Quranic law,바카라 says Shabnam Lone, senior advocate, Supreme Court. 바카라Pakistan did away with instant talaq 56 years ago, Bangladesh has rejected it. I wonder how the mullahs in India kept their hegemony over it바카라by striking on women with regressive customs that have no place in Muslim society.바카라
The ruling is a blow to the AIMPLB, a self-appointed private body that claims to govern the field of Islamic law in India, which had opposed court intervention in the matter. Activists, on their part, see the judgment as a force that will kindle multiple challenges against many other practices not in sync with gender justice.
바카라Now we are armed with this judgement,바카라 says Zakia Soman, co-founder of Bharatiya Muslim Mahila Andolan (BMMA), one of the petitioners in the case. 바카라We now want a just and fair procedure laid down for divorce under the ehsaan procedure.바카라 Talaq-e-ehsaan is a divorce under Islamic law that lasts over 90 days, its rules and norms giving the couple ample opportunity for reconciliation. The revocation of this divorce at any stage can be only at the instance of the man. 바카라But we don바카라t want divorce to take 90 days just for the heck of it. It should be just in spirit. Women should have a say in the matter and get compensated,바카라 says Soman.
The BMMA wants the rights of women within Islam to ask for divorce바카라khula (via the woman바카라s wish) and mubarat (by mutual consent)바카라to be popularised. It argues that since Muslim family laws are an unregulated space, only laid-down procedures can safeguard women바카라s interests. 바카라Polygamy will be the next legal battle, as will age of marriage, women바카라s share in inheritance, divorce, custody and guardianship,바카라 Soman says. 바카라We바카라ve been working for the codification of Muslim law for years. We have a model ready since 2014,바카라 says Noorjehan Safiya, BMMA founder. 바카라The clerics have brainwashed the community so badly that many accept malpractices as part of religion바카라especially the men.바카라
Divorce remains a contentious issue even after this judgement. There is a great diversity of marriage and divorce norms within Muslims, which is another challenge to reformists. Like all other Indian religions, Islam too is caught up in various layers of belief, identity and practice바카라that is why the activists supported instant talaq to be adjudicated upon in terms of the Constitution rather than the courts examining whether it is Quranic.
The comparative frame offers more food for thought. Even the right to divorce among Hindus바카라a modern, reformist, pro-women step바카라came into being only as a result of legislation, not to speak of inheritance rights for Hindu women. 바카라Not only is their implementation weak, the purview of laws for Hindu women remains patchy,바카라 says Annie Raja, general secretary, National Federation of Indian Women. 바카라Hindu Undivided Family rules are routinely used to deny women바카라s right to property. That바카라s why we very much welcome the judgement against instant talaq. Because we consider it an opportunity to ask the government to fight for all women바카라s rights바카라to move from just INStant talaq and Muslim personal law to gender-just laws for all women.바카라
Hasina Khan, founder of the Bebaak Collective, a women바카라s and minority rights body that was an intervenor in this case, says the terminal goal of activists is to challenge all practices that discriminate between genders. 바카라Yet, when people say we have come from Shah Bano to Shayara Bano, as if nothing had happened in the interim, that just isn바카라t true,바카라 she says.
Khan is referring to claims by senior BJP leaders that a new law would be framed to regulate divorce among Muslims. (The direction to legislate was in a minority ruling, but the government can always legislate regardless.) 바카라We activists didn바카라t approach the court just on this issue,바카라 says Khan. 바카라We바카라ve been doing it for very long. The groundwork for this judgement was laid out over decades바카라it hasn바카라t appeared as if by magic.바카라 A law, if the government opts to frame one, must be transparent and conceptually clear, activists say. 바카라It must seek out a variety of Muslim bodies and consider all views,바카라 Khan says. 바카라The Hindu Code Bill was discussed for five years, so how can they make this law in six months: that바카라s the fear.바카라
바카라I바카라m very happy with the judgement,바카라 says Shabnam Hashmi, social activist and human rights campaigner. 바카라My only concern is with the talk about six months to frame a new law. The government must avoid this temptation or it will open a Pandora바카라s Box. The Rajasthan Human Rights Commission head has verbally abused live-in couples and no political leader has asked to ban marital rape. So let us just not indulge in polarising and dividing the Muslims on these issues.바카라
The other contentious issue is the age of consent, which stands at 15 years for married Muslim women. (Recently, the Delhi High Court upheld this age as valid.) 바카라We need to decide these issues바카라are we really okay with Muslim girls being married off at 15?바카라 asks Soman.
This is an issue for Hindus as well. A recent IndiaSpend survey based on census data finds there were 12 million married children below 10 years of age in 2011 (only 11.1 per cent of them Muslim). This is another example how, unless reformist ideas percolate down to the people, the purpose of legal reform is defeated. 바카라The question is, who has the capacity to enforce the ban on instant triple talaq,바카라 says Faizan Mustafa, vice-chancellor, NALSAR University of Law, Hyderabad. He also wonders how the judgement has substantially changed things, considering how the 2002 ruling in the Shamim Ara case had ruled against instant talaq as not adhering to underlying Islamic principles. 바카라Had instant talaq been found to be in the Quran, it would have been upheld, so I do wonder what this ruling has properly achieved,바카라 he says. The difference is one of scale in that this was a full constitutional bench that made a definite cut through the maze of issues.
Then come community organisations바카라the Jamiat Ulema-e-Hind has openly defied the Supreme Court바카라s judgement, saying it would encourage the practice. This stokes the concern that if a Muslim couple opts for instant talaq, and should they not approach the court, merely passing a law will not resolve a big part of this problem. But it바카라s the unilateral nature of it, and its implications on the woman바카라s emotional-financial security, that is the crux. 바카라Muslim women do understand INStant talaq is an assault on their rights,바카라 says Rehana Adib, an activist in Uttar Pradesh. 바카라It바카라s religious 바카라leaders바카라 and families who frighten them into submission.바카라
바카라In the case of instant triple talaq, the Muslim woman is seen as hapless and lacking in agency, but when it comes to inter-religious marriages with Muslims, those are frowned upon바카라so there must be some consistency in the approach towards women바카라s rights and issues,바카라 says Manisha Sethi, who teaches at the Centre for the Study of Comparative Religions and Civilisations at Jamia Millia Islamia university, Delhi. According to Annie Raja, the practice was often hard even on the men. 바카라We have come across so many cases where the man regrets his instant divorce, given on impulse or anger. It is very welcome to strike it down and move on to other gender justice issues that plague all women.바카라
This lopsidedness came in for a mention in the Justice Rajindar Sachar Committee report: in its third chapter, it spoke of how primacy is given to identity where Muslim women are concerned, relegating other aspects바카라income, jobs, nutrition, security, education바카라to obscurity. 바카라Gender issues are also given a Muslim slant...the rules of marriage, right to divorce and maintenance have become benchmarks,바카라 it says. The 바카라obsessive바카라 focus on select cases of Muslim women abets this discriminatory gaze: Islam is blamed for gender injustice while the state is absolved.
This casts the much-deserved condemnation of instant talaq in a new light: where do the Indians celebrating this judgement each stand on the vast panorama that spans from liberal tolerance to rabid bigotry? The goal, it바카라s worth recalling, is to erase oppression of women in general바카라not to make instrumental use of one issue in a fraught political field.
By Pragya Singh with Prachi Pinglay-Plumber in Mumbai and Naseer A. Ganai in Srinagar
