Instant talaq is banned, not personal law

The Supreme Court’s ruling that the practice of talaq-e-biddat or instant triple talaq is illegal and unconstitutional is a welcome assertion of equality, gender justice and the fundamental rights of citizens. The cruel and unjust nature of instant talaq, by which a Muslim male could pronounce unilateral and irrevocable divorce on his wife, has been self-evident. It has now failed the test of its validity at the highest judicial level. Though the Supreme Court has criticised it in the past and high courts have held it illegal, it is only now that a final judicial view has been taken on it. The majority view of the five-judge bench has held that instant talaq is not an essential part of Islamic religious practice and that it violated the right to equality and equal protection of the law. Most Islamic countries do not follow the practice. It should also be noted that the dissenting view in the judgement, which held that it was part of the personal law, also wanted a law to be passed to ban the practice.

The crux of the judgement is that instant talaq is “arbitrary in the sense that the marital tie can be broken capriciously and whimsically without any attempt at reconciliation so as to save it”. It is the arbitrariness and unequal treatment of men and women that has made the practice wrong before the law. The judges have reached the conclusion through different arguments. While it was held that fundamental rights of citizens have precedence over privileges and practices, it was also noted that the provision for instant talaq is a colonial-era legacy. Although the government had asked for a ban on all forms of talaq, the court has banned only instant talaq, and not other forms where the decision is not instantaneous.

The judgement is not a rejection of the personal laws or a call for their total reform. The court has only held that an unjust practice, which should not be considered a part of the personal law, is unconstitutional. The judgement was on the basis of petitions filed by aggrieved women who were victims of injustice. Changes in social practices and customs and the laws governing them should emerge naturally from the experiences and wishes of persons affected by them. It is not known whether the government will go ahead with legislation on the matter. Any such law should be strictly within the framework of the judgement and based on wide consultations. It should not go beyond the consensus which already exists on the matter. It would also be wrong to politicise the judgement and the debate about it.