Supreme Court of India begins hearing against triple talaq

Friday, May 12, 2017

The Indian Supreme Court yesterday formally began a hearing against triple talaq, an Islamic rule which allows men to divorce their wives instantly without the need of a judicial hearing. Activists and Muslim women have filed many petitions against Islamic practices — triple talaq, nikah halala, and polygamy — saying they are unconstitutional and demanding gender equality.

A bench of five justices — Chief Justice Jagdish Singh Khehar, Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit, and Justice S Abdul Nazeer, belonging to five different religions — Sikhism, Christianity, Zoroastrianism, Hinduism, and Islam — are to hear the case for gender equality. However, there are no women on the panel.

Talaq allows a husband to effect a divorce solely by saying talaq thrice. Muslim women who are against this law say it ruins their lives and is against gender equality.

Talaq is an Arabic word which translates to repudiation or divorce. It is a right limited to the Muslim men, to divorce their wives simply by saying talaq thrice. The announcement must be clear and unambiguous but it does not require a judicial hearing. There is a waiting time of three months – or, precisely, three menstrual cycles; called Iddah — in which the husband can change his decision. Once the divorce is final, it is the responsibility of the husband to pay his wife a certain sum, known as Mahr. Mahr is declared at the time of marriage, and the husband only need pay it if Mahr was not paid before. The husband does have some continuing financial obligations to his ex-wife during Iddah and if she is pregnant, the husband must look after her until the child is born.

In order to reconcile with her husband after the end of Iddah, the divorced wife needs to marry another man, have sex with him, and divorce him to marry her former husband.

The hearing allows each side two days to place their arguments and a day for rebuttal. The hearing is to finish by May 19. The court said, “We will also examine whether triple talaq is a part of enforceable fundamental right”. A hearing on October 16, 2015 asked for separate filing for talaq, nikah halala, and polygamy. According to the government, these religious practices were not shielded by Article 15 (1) of the Indian constitution, which guarantees the freedom to practice any religion and those practices violate the right to equality. It states, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. Last month, Allahabad’s High Court, in the Indian state of Uttar Pradesh, said the triple talaq law was unilateral.

According to opponents of this law, husbands discarding their marriage with their wives in a moment by repeating the word often leaves their spouses helpless and eventually destitute. But according to the All India Muslim Personal Law Board, this hearing is unjustified. In an affidavit filed in September, they said, “If there develops serious discord between the couple, and the husband does not at all want to live with her, legal compulsions of time-consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive.” Though there exists a rule about blood money under Shari’a law Qisas and Diya, honour killing which was cultural tradition in India is now illegal, and punishable by death. A 2011 hearing in the Supreme Court labelled it a “slur on the nation” and said there is “nothing honourable about honour killings.”

The Muslim Personal Law (Shariat) Application act of 1937 says the state would not interfere in matters of personal dispute. Maulana Syed Arshad Madani, president of Jamiat Ulama-i-Hind, said this issue should be addressed outside the courts, preferably by Islamic scholars. Citing the instance of the Babri masjid dispute, of building a mosque on the Hindu shrines by Mughal ruler Babur in the city of Ayodhaya, considered as the birthplace of Hindu god Ram, Madani said, “If the Supreme Court can say that the issue of Babri Masjid should be resolved outside the court, why not this issue be solved by the ulemas?” He added, “You are doing politics over Muslim issues”.

25-year-old Muslim woman Amreen Begum had filed a police complaint in Meerut against her husband for domestic violence. She, in front of the police station, shouted talaq thrice to divorce her husband. She said, “I have divorced him. If a man can divorce his wife that way, why can’t a woman? Don’t I have the same right? Am I less human than he is?” She added, “I want the supreme court to free Muslim women for ever from the fear of triple talaq.”

Countries like Turkey, Egypt, Cyprus, Pakistan, Algeria, Bangladesh, Sri Lanka, and Tunisia have already abolished this law.

Beef is banned in various Indian states including Maharashtra. The cow is considered sacred for Hindus. Questioning the secularism of India, the president of Indian Islamic organisation All India Majlis-e Ittihad al-Muslimin, Asaduddin Owaisi, said in October, “If you really believe in secularism […] why did you Modi [the Indian Prime Minister] impose beef ban in Maharashtra and why does your government want to construct a museum in the name of Ram in Ayodhya? Then why do you say state has no religion and the country has no religion?” In October, Owasi called the the Union government’s affidavit against triple talaq a joke. He added, “If you really want to help Muslim women, please help Zakia Jafri whose husband (former Congress lawmaker) Ehsan Jafri was killed in front of her eyes, cut into pieces and set on fire. She is waiting for justice”.

In May, Indian industrialist Adi Godrej said beef ban was affecting the Indian economy and he added, “There is nothing against beef in our [Hindu] religion. It is a practice that evolved over years of drought, and the elders said don’t slaughter cows, preserve them for milk for children. That has turned into a religious belief. This is ridiculous. Vedic Indians were beef-eaters.”

The “sati pratha” — a Hindu custom which violated equality rights of women, in which the wife immolates herself on her deceased husband’s pyre — was banned in India in the nineteenth century after activists like Raja Ram Mohan Roy fought against it, and later the Sati prevention Act in 1987 made aiding sati a criminal offense.