Published: Sun, August 27, 2017
Economy | By Melissa Porter

Instant divorce unconstitutional, India's top court rules

Instant divorce unconstitutional, India's top court rules

"We, as a representative body, welcome the judgement of Supreme Court since it accords the protection to Muslim personal law and says that personal laws can not be tested on the grounds of violation of fundamental rights". With the support of two prominent women's rights group, the change to the law was pushed through.

The All India Muslim Personal Law Board (AIMPLB), the apex body of Muslim clerics that opposes the ban on triple talaq, welcomed Tuesday's Supreme Court judgement saying it "accords" protection to Muslim personal laws. It is the Muslim Personal Law (Shariat) Application Act of 1937 that gives legal sanction to this practice.

The Islamic "talaq" law allows Muslim men a divorce just by uttering the word "talaq" three times - the phrase even applied if said over Skype or even via text message! In April this year, it issued an eight-point code of conduct to prevent the "misuse" of the practice and other Islamic laws (Shariah) to pre-empt an adverse verdict from the apex court. Indian Prime Minister Narendra Modi praised the decision, declaring it a "powerful measure for women's empowerment". The notion that Muslim existence would be jeopardised if some sections of the Sharia'h, relating to the treatment of women are abandoned, is spurious. "Instant triple talaq is an offence and should be made punishable with substantive imprisonment to create deterrence", said Mufti Wajahat Qasmi of the MRM.

He also differed with the Chief Justice that triple talaq as a personal law is integral to religious belief. Chief Justice of India Jagdish Singh Khehar and Justice S Abdul Nazeer were in favour of putting on hold the practice for six months and asking the government to come out with a law. The bench held that the practice of triple talaq is not protected by Article 25 of the Constitution which guarantees Freedom of Religion. Justice Joseph pointed out that triple talaq is not recognized by Koran and as such the practice can not be defended on the plea of the right to religion. The Court has also noted that the legislature missed the opportunity to address the question of gender inequality in the Shah Bano case. In the Latifi case, it upheld the right of Muslim women to maintenance till re-marriage. Soon after the decision against triple talaq, she filed a fresh FIR with the Swaroop Nagar police against her husband and the others. Biddat pronouncing divorce in one go by the husband is irrevocable. As many as 22 Muslim countries - including Pakistan and Bangladesh - or their provinces have abolished triple talaq either explicitly or implicitly.

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