The Indian Supreme Court banned verbal divorce or instant triple talaq in a historic judgment on 22nd of August by a 3:2 majority decision citing it as “unconstitutional”, “arbitrary” and “not a part of Islam”. Though hailed as one of the most significant judicial decisions, with an unlikely coalition of Muslim women groups and the PM of India and his BJP party, there are voices already opposing the making of history– from the regressive, stubborn and patriarchal Mullahs/Qazis of the Jammat-i-Islami Hind to the nuanced and erudite Indira Jaisingh, Former Additional Solicitor General, the only woman lawyer to have argued the case in the Supreme Court.
The president of the Jamaat-e-Islami Hind, Hamid Mohammad Khan, asserted that the court of law should not intervene with the Islamic laws, taking the regressive stand that “…in other communities, the couples turn old fighting divorce cases for years, hence by the time they are liberated from a troubled marriage, they cross the right age to marry. This move taken by the court of law is condemnable.” On the other hand, Indira Jaisingh’s misgivings and disappointment are because she thinks “…the judgment had not only failed to address issues of gender injustice, but it barely acknowledged the agony endured by the women at the receiving end of triple talaq.”
Jaisingh further expresses that the judgment would not alleviate the suffering of Muslim women in any real way. “How could it not have come up. I am disappointed. I am disappointed that the Supreme Court of India failed to acknowledge that they were talking about the lives of real women. It was about gender but there is no mention of gender injustice. There is not a single word on how triple talaq disproportionately impacts women. It’s not there except, of course, when Justice Nariman says that it is “manifestly arbitrary”. But then there is no explanation as to why is it manifestly arbitrary. How does it ruin the life of a woman, how is it discriminatory, why is that only Muslim men have the right to give triple talaq, what happens to the life of a woman who is talaqed.
The human dimension is missing from this judgment. After all, gender justice is about humanity. It is about the law, but who is this person that you are talking about? What impact will it have on her life and why is it so important that gender justice should be done to her?”
Aarti Tikoo Singh, Senior Assistant Editor, The Times of India, also wrote on her Facebook page that “It is an insult to human intelligence to add or remove a law on the basis of what a religious book or Scripture decrees. It is a bigger shame especially when the legislature, the executive, the judiciary and the press of a secular democratic republic do not understand why it is important to keep religion at bay and not let religion govern our law and public affairs. The context of the post is this: The Supreme Court verdict did not strike down any religious law. Instead, it upheld the religious law and only abolished a cultural practice (INSTANT triple talaq) that was being passed off as a religious law. In other words, the court gave supremacy to the right to religion over all other fundamental rights. It gave precedence to religion over the tenets of the Preamble of the Constitution. And that is a real shame!
This is no victory even though it is justice and relief for Muslim women. What is sad in the instant Triple Talaq verdict debate is the fact that two judges including the Chief Justice of India, exposed their ignorance and regressive outlook by advocating that a misogynistic religio-cultural practice should stay. Besides, the three judges, who struck down the patriarchal practice invoked religion to argue their case. It is pathetic if our judges are as ignorant and regressive as the rest of the citizenry.”
Both women are right, while I will reserve my opinion about the president of the Jamiat-e-Islami Hind, obviously. A secular judiciary in a secular country cannot use regressive reasoning for such a progressive outcome pertaining to religious laws, laws that are patriarchal in nature and man-made, especially in 2017 when the global struggle is to separate religion from the state – a task getting uphill and bloodier by the minute. The regressive reasoning will do more damage than good for Muslim women. In his TOI blog post, Arghya Sengupta writes: “Justice Kurian, the swing vote, agrees with the conclusion of the majority that triple talaq is invalid. However he comes to this conclusion, not on constitutional grounds, but pursuant to an ecclesiastical finding that triple talaq has no basis in the Quran.
The dissenting opinion is surely astonishing. If the personal law can be constitutionally protected, then it is common sense that such personal law can also be challenged on constitutional grounds. Further, if it is constitutionally protected, neither can a Muslim husband be disallowed from exercising his fundamental right to pronounce triple talaq nor can Parliament be expected to come up with a law that says otherwise.”
Pratap Bhanu Mehta, Vice-Chancellor of Ashoka University, makes a much detailed and alarming dissection of the judgment. He writes: “I disagree with all of Khehar and Nazeer’s conclusions. It is a seriously argued judgment. But the normative picture it presents of the Indian Constitution is frightening since it leaves no recourse for individuals to have their dignity and equality affirmed; it puts them entirely at the mercy of their communities. It is chilling to read a sentence like, ‘It is not open to a Court to accept an egalitarian approach over a practice which constitutes an integral part of a religion.’ This, even when these practices have the imprimatur of state power behind them. It elevates faith to an un-negotiable status. I suspect this doctrine will have more implications than the judgment by Nariman and Lalit.”
The misgivings about the landmark judgment by eminent civil society in India is well worth pondering over, considering that reform in Islam is coming excruciatingly slowly and at very heavy prices, yet the need for reform in Islam has never been at such an all-time high among communities, be it Ethiopia, Ghana, Sudan, Morocco, Pakistan, India, Bangladesh, Indonesia, or even the Western countries under the influx of refugees. Every victory counts, however small a step it maybe, because the fight for the dignity and rights of an individual are worth dying for in order to make our future generations, especially daughters, sisters and mothers free from regressive laws and practices.
It is a time to raise a toast to the Muslim women who made it possible, but there are miles to go before we sleep. Miles to go before we sleep.