On August 22, 2017, the Supreme Court of India in a majority 3:2 judgment, set aside instant Talaq. It’s important here to focus on the word “Instant Talaq”. For the sake of understanding, Instant Talaq is a talaq where the husband divorces his wife by saying talaq word three times in one go, or without following the time duration (which runs into months) before he can divorce his wife. After the Supreme Court judgement, Instant Talaq is illegal. Hence although a muslim man can still be able to divorce his wife by saying Talaq a couple of times, he will not be able to do so without following the prescribed time duration. If he does so and tries to make an instant talaq just like some instant fast food, then that will be illegal.
The court found it manifestly arbitrary, as it leaves the wife at the whims and fancies, composure of the husband.
We must see the decision on its illegality and not on its Constitutionality. As it has made Instant Talaq illegal.
Whether the decision was historic or not, will depend on how we see it.
If seen from the Muslim women in a marriage performed on the basis of religious canon, the judgement comes as a big respite. It will usher a new empowerment for such women, as contrary to common perception, their religious canon gives much rights (or equitable rights) to the women folk. Instant Triple Talaq was one of the few major inequalities harped on by the Muslim patriarchy. Now that this instant talaq has been made illegal, it will usher in a big empowerment among educated Muslim women first, quickly followed by women in lower and less educated strata of society. It’s here important to understand that when it is about challenging the religious leaders on the question of religion, then Muslims give considerable liberty to women. To summarize the point, you will rarely see a deserted Hindu poor illiterate woman question religion and demand rights for her. But among Muslim women, it’s a common practice to question their religious leaders. Now that a big psychological weapon used against them is made illegal, you will find them taking jobs, making more vocal decisions and living more empowered lives.
Thus this decision will have manifestations beyond the narrow views of — an end of polygamy, less number of children, lesser divorces etc. among Muslims. It’s logical to call the above as narrow thinking, because they are not that widely prevalent among Muslims, as we’re made to believe.
Lets conclude the write-up with an observation made by one of the panel judges, Justice Kurian . He said,
“What is banned in Quran cannot be good in Shariat. What is banned in theology cannot be good in law,”
The observation is important from a particular perspective.
On April 19, 2017, the Supreme Court of India indicated that it will refer the Sabarimala temple entry restriction on women of a certain age to a Constitution Bench. It said the main issue to be decided is whether the multitude of worshippers of Swami Ayyappa visiting the famous shrine in Kerala form a separate “denomination”, and if so, should their privilege to manage their religious affairs yield to the fundamental rights of women to practise religion freely.
It will be interesting to know what decision the Supreme Court Constitution Bench takes on the temple entry restriction case. Will it give weight to the — What is banned in theology cannot be good in law. Or will it go with Chief Justice Khehar’s observation in the Instant Talaq case, that just because a practice has been around for 1,400 years does not make it eligible for protection under Article 25 of the Constitution.
Because unlike the Muslim Theology, it will be a task for the Court to probe into a religion(Hinduism), whose practitioners see its customs and practices as from times immemorial.