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Unconstitutional, but crime?

V T Veada Noopura Dec 30 2017, 0:58 IST

India is a diverse country, a melting pot of different religions, castes and sects, in which protection of women has always been a challenge. Despite numerous laws, like those against dowry and domestic violence, women continue to be treated as objects of pleasure and subject to the will and whims of men. In the process, the Indian woman has by and large been deprived of equal status in society and in her own family. But there are instances where women's rights have been given importance, taking cognisance of constitutional provisions like the Right to Equality.

The ongoing debate on 'triple talaq' and its constitutional validity has been thought-provoking. Arguments have been made both in courts and outside that interfering with the practice of triple talaq is unconstitutional because the Constitution grants Muslim citizens the right to manage marriage, divorce, adoption and inheritance under Islamic personal laws. This was one of the major objections resorted to by the All India Muslim Personal Law Board to keep the Supreme Court from giving a ruling on the matter.

The Constitution indeed grants 'Freedom of Religion' under Articles 25, 26, 27 and 28, and Article 25 upholds the freedom of conscience and free profession, practice and propagation of religion. That gives Hindus the right to practice and propagate Hindu religion and other beliefs associated with that religion, and the Muslims the right to practice and propagate their religion, including their religious texts like Quran and the Sharia (Islamic law). The same applies to other religions recognised under the Constitution. So, how could the Supreme Court consider triple talaq justiciable?

The Supreme Court answered the question by stating that the practice of triple talaq is not a basic feature of Islam. As something that evolved over time and does not have any status in Islam's original text, triple talaq cannot be considered to be an integral part of the religion and therefore is not constitutionally protected.

An important alternative debate against triple talaq that deserves attention is the feminist approach to the issue. Instantaneous triple talaq violates the rights of a married Muslim woman. A man pronouncing "talaq talaq talaq" suddenly leaves a woman who has lived in the marital home, borne him children and cared for the family for a number of years in a lurch, with no security or monetary assistance from him. Taking into consideration that such a woman is unable to defend her 'Right to Equality' and suffers for that, the Supreme Court held triple talaq unconstitutional.

Now, the question arises whether Muslim personal laws can be neglected when the Right to practice one's religion is guaranteed under Article 25 of Constitution? The answer is 'Yes'. Article 13 of the Constitution lays down that laws that are inconsistent or in derogation of the fundamental rights are null and void. As a result, triple talaq is a grave violation of fundamental rights like the Right to Live, Right against Exploitation, Right to Equality guaranteed to women under the Constitution.

Now, some people want a Uniform Civil Code established in India. While getting into the debate on Uniform Civil Code, it is essential to know that religious personal laws are followed when it comes to personal matters of an individual, such as marriage, divorce, adoption, maintenance and inheritance. But the Uniform Civil Code upholds the idea of following one uniform law on all civil matters by people of all religions, without any distinction.

A Uniform Civil Code may be convenient for the justice delivery mechanism, but it is important to understand the uniqueness of India and its belief in 'Unity in Diversity'. Retaining personal laws helps each of us to respect the practices of another's religion. It also saves us from a "one size fits all" legal structure.

A civil wrong

In Shayara Bano vs Union of India, famously known as the "Triple Talaq Case", a woman from Uttarakhand filed a public interest litigation (PIL) contesting the practice of triple talaq by Muslim men against their wives.

Her petition was supported by other petitions against the practice from different parts of the country, which brought into sharp focus the violation of Muslim women's rights with practices such as triple talaq, polygamy and Nikah Halala (a practice where a woman divorcee has to marry and consummate the marriage with another man if she wants to remarry her first husband). As a living example, Shayara Bano was a victim of triple talaq given by her husband, which ended their marriage of 14 years abruptly.

In the age of technology, there are even instances of men having pronounced triple talaq by SMS, on Skype and Whatsapp, further reducing the sanctity of marriage and the dignity of women in Islam.

But going beyond the Supreme Court's scrapping of triple talaq as unconstitutional, the Lok Sabha has passed a bill that makes the pronouncement of triple talaq a crime punishable with three years' imprisonment. And it's a non-bailable offence. The question arises, however, whether triple talaq fulfils the criteria of a 'crime' under the Indian criminal law. Triple talaq is a civil wrong committed against an individual or violation of a personal right, and not a wrong against society for it to be considered a 'crime'.

Meanwhile, we must appreciate that the Supreme Court's verdict in Shayara Bano v. Union of India is a landmark judgement, after Shah Bano's case in 1985, in favour of Muslim women's rights, including to maintenance after separation from husband.

(The writer is a Research Scholar, Department of Studies in Law, Bangalore University)

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