In a significant decision, the Supreme Court allowed a single mother, who happened to be Christian, the right to apply for sole guardianship of her young son without needing the consent of his biological father. It spoke of the relative disadvantage of Christian unwed mothers, who are not presumed to be the natural guardians of their children by the Guardians and Wards Act that governs these matters. The Court also observed that the Uniform Civil Code envisioned in the Constitution's Directive Principles remains an unaddressed expectation. This is a welcome ruling, one that comes down on the side of personal freedom and equal rights of citizenship. Like a similar judgment in 2014 when the Supreme Court gave religious minorities the right to legally adopt children even if personal law contradicted it, this judgment expands freedom in the familial domain. It shows the way forward even as political debate on the Uniform Civil Code remains struck in old arguments between right-wing voices that want to use it as a weapon to efface minority personal laws now that the Hindu Code has had to fall in line, and minorities who see it as an attempt to ride roughshod over their right to protect their religious tenets and cultural distinctiveness. Either way, this situation hurts women from minority communities.
Given that much family law effectively hinges on the control and conduct of women, their rights to property, and matters of marriage, divorce, maintenance, etc., abiding wholly by personal law often means depriving them of constitutionally guaranteed equality before the law. Political parties that claim to be sensitive to minority rights also end up bolstering the patriarchs and elders of the community, rather than listening to what the women want and respecting the dues of equal citizenship. On the other hand, any attempt by the ruling BJP to push a Uniform Civil Code will be fiercely resisted, because in other contexts it stands for a barely disguised majoritarian triumphalism. Given political stalemate on the larger issue, courts are right to use every opportunity to affirm modern values. By holding up the rights of an unwed mother to be the only custodian of her child's well-being, the Supreme Court has made a clear point - claims of family and community do not weigh more than an individual's rights.
[Based on an article published in "The Times of India" dated 08th July, 2015 (Wednesday)]
High Court: Under Muslim Law, marriage can't be terminated unilaterally: Referring to the practice of triple talaq, the Allahabad High Court has observed that under the Muslim law, marriage is a contract which cannot be rescinded unilaterally. The High Court made this observation while dismissing a petition by Aaqil Jamil, whose wife has filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq. The order was uploaded on the High Court's website on 09th May, 2017, two days before the Supreme Court begins hearing a clutch of petitions challenging the validity of triple talaq.
Justice Surya Prakash Kesarwani observed that personal law or the Constitution does not entitle a husband to rescind the contract of marriage orally or by giving a notice or by ex parte decision. "Hence, such a practice is unsustainable and bad in the eyes of law", the Judge said.
Rights can't be infringed in the garb of personal law: The Court said all forms of discrimination on the grounds of gender violate fundamental freedoms and human rights. "The human rights of women and of girls are an inalienable, integral and indivisible part of universal human rights", the Court said. Hence talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Article. 14 (Right to Equality) of the Constitution, it added.
The Court also made an important observation on the practice of 'nikah halala', an Islamic marriage ritual which involves a woman divorcee marrying someone else, consummating the marriage and then getting a divorce in order to make it permissible to remarry her previous husband.
"No lady can be compelled to marry some other person, in case she wants to marry her husband again after talaq. This condition to marry another person before marriage with earlier husband is humiliating and against the dignity of a lady protected by Article. 21 of the Constitution of India", the Judge said. Kesarwani further said: "All citizens including Muslim women have fundamental rights guaranteed by the Constitution. Under the garb of personal law, rights of the citizens protected by the Constitution cannot be infringed", Jamil had filed the petition asking for the quashing of his wife's complaint maintaining that he had given triple talaq to her in 2015.
Thereafter, he obtained a fatwa from the city Mufti of Agra, in which the latter affirmed the talaqnama and pronounced that her former wife, after being divorced, has become impure (haraam) for the petitioner.
[Based on a news item written by Rajesh Kumar Pandey, published in The Times of India dated 10th May, 2017 (Wednesday)].
Triple Talaq violation of basic rights: Allahabad High Court: No personal law is above Constitution and triple talaq is a violation of the fundamental rights given to citizens, the Allahabad High Court ruled on 09th May, 2017. The verdict comes amid the Centre's push for a ban on the contentious practice on grounds of gender equality and justice. The Court said the rights of any person, including Muslim women, cannot be violated in the name of personal law or on the basis of gender, adding that triple talaq cannot infringe upon a woman's fundamental rights given to her under the Constitution. Any fatwa that is against the law cannot be accepeted, the Court also said.
"A Muslim husband cannot give divorce in such a manner which would put a question mark on the woman's equal rights", the Court said. A single-judge bench of Justice Surya Prakash Kesarwani said that the human rights of women and of girls were an 'inalienable, integral and indivisible' part of universal human rights.
The Court was hearing the petition of a Varanasi woman who had accused her husband of torturing her for dowry and then divorcing her. The husband had approached the High Court against the complaint. The Court dismissed his petition. The husband has contended that he has divorced his wife and also procured a fatwa in this regard by the Darul Ifta Jama Masjid in Agra.
Fatwa against rights not valid, rules High Court: No personal law is above Constitution and triple talaq is a violation of the fundamental rights given to citizens, the Allahabad High Court ruled on 09th May, 2017. The verdict comes amid the Centre's push for a ban on the contentious practice on grounds of gender equality and justice. The Court said personal law can only be applicable under the provisions of Constitution, adding that any fatwa, which is contrary to the justice system or someone's rights, was not valid. The Supreme Court is hearing a clutch of petitions for a ban on triple talaq. The All India Muslim Personal Law Board has opposed a blanket ban on the practice, accusing Centre of trying to kill the country's plurality.
The NGO that oversees the application of Muslim Personal Law has said that it would end triple talaq within 18 months, but resisted any interference from the government.
[Based on a news item, written by Amita Verma, published in Deccan Chronicle dated 10th May, 2017 (Wednesday)].
A WAKE-UP CALL FOR THE MUSLIM CLERGY: It is indeed surprising that the operative part of the elaborate and complex ruling comprising of three different and diverse judicial opinions captured in 395 pages is just one line: "By a majority of 3:2 verdict the practice of talaq-e-biddat - triple talaq is set aside". Justice Kurien Joseph's opinion expressed in just 27 pages that clinched the issue. He concurred with Justices Rohinton Nariman and Uday Lalit that the practice of triple talaq does not form the core of the Sunni Muslim religion and helped it to acquire the status of a majority opinion. He also concurred with Chief Justice J.S. Khehar and Justice Nazeer that the personal laws of minorities are proected by the Constitution as fundamental rights, a clear statement against the enactment of a Uniform Civil Code, contained in Article. 44, which is a Directive Principle of State Policy.
It was obvious that arbitrary triple talaq had to go. No one had held it to be a desirable mode of dissolving a Muslim marriage, not even the AIMPLB. What was under contest was the most appropriate manner in which it could be done - through the Courts, the Legislature or through the Muslim clerics. On this critical issue, the verdict split. Justice Khehar held that though triple talaq is undesirable, since it is an integral part of the Sunni Hanafi faith - an unbroken tradition followed for 1,400 years - it was not possible for the courts to strike it down. But using the power under Article. 142 of the Constitution of India, the CJI gave a six-month window for Parliament to declare the law and issued an injunction restraining Muslim husbands from pronouncing triple talaq in the intervening period. A convoluted verdict, which creates more confusion than it solves. The sole Muslim Judge on the Bench Justice Nazeer, concurred with this view. But fortunately for us this has become the minority view and no longer applicable.
The three other judges on the bench gave a clerar verdict that triple talaq is invalid. But here again opinions differed regarding the grounds on which it was done. The judgment delivered by Justice Rohinton Nariman (for himself and Justice Uday Lalit) held that since the word 'talaq' is mentioned in the Sharia Application Act, 1937, it fomrs part of a statute and becomes 'law in force'. Hence, it is amenable for being declared as unconstitutional. However, the Sharia Application Act does not mention the word 'triple talaq' or 'talaq-e-biddat'. The views expressed by Islamic legal scholars is that a mere recognition of Muslim personal law by the Sharia Act does not give it a statutory status.
Justice Kurien Joseph, too, differed with this view and held that triple could not be tested against the touchstone of fundamental rights. He preferred to stay within the realm of Islamic law and examined whether instant triple talaq forms an essential and core religious practice. Since Shamim Ara (2002) had already declared instant triple talaq invalid, and had laid down the procedure for pronouncing talaq, he had no hesitation in concluding that triple talaq is not an essential core of Islamic law in India and hence invalid.
This position has been repeatedly advanced by me and hence today I stand vindicated. Since there was no media hype, the kind we have witnessed during the last two years since the Bharatiya Muslim Mahila Andholan (BMMA) flagged this issue and since the Narendra Modi government at the Centre, and its various chief ministers in states, as well as the ideologues of the RSS had not awakened to the plight of Muslim women as political capital, the historical ruling delivered by Justice Lahoti (who went on to become Chief Justice of India) went unnoticed. So, Muslim women and their supporters ignored it in their pursuit to get a decisive verdict from the Supreme Court. But beyond the hype, we have not advanced an inch from the earlier position which had held triple talaq invalid.
Again, it is Justice Kurien's concurrence of CJI's opinion on freedom of religion that renders it a majority opinion today. According to Prof. Faizan Mustafa, Justice Khehar's detailed judgment is a major milestone in the history of freedom of religion in India. For the first time in Indian judicial history, it is decalred that personal laws are an integral part of freedom of religion guaranteed under Articles. 25 and 26 which the courts are duty-bound to protect.
This hallowed status awarded to the Muslim personal law has warmed the hearts of the All Indian Muslim Personal Law Board (AIMPLB). The mandate of bringing reforms is today squarely in their court. The board had earlier issued and advisory that triple talaq is sinful and had declared the correct procedure for pronouncing talaq. Upon a directive from the CJI, the office bearers of the AIMPLB had filed an affidavit in court that a provision will be included in the nikahnama (marriage contract) whereby the husband binds himself against pronouncing instant triple talaq. But they were not willing to walk the last mile and declare it invalid. The need for Muslim husbands to bind themselves against this practice through a model nikahnama continues to be relevant.
Unless the Board gives a clear signal that it has accepted the verdict of the Supreme Court regarding triple talaq, there is bound to be confusion within the community. This may provide an opportunity for Muslim-bashing by the Modi government, which has rejoiced over the verdict as though it is an anti-minority one, to usher in legislative reforms, a situation which the Board wishes to avoid at all costs. However, in the absence of a clear stand and prompt action from the Board, Muslim women's groups such as the All India Muslim Women's Personal Law Board and BMMA will be well within their rights to lobby with the government to enact a law to bring in clarity within the Muslim Personal Law.
When this happens, the Board will find its back pushed against the wall. So now is the time to act.
[Based on an article written by Flavia Agnes, a women' rights lawyer and an authority on family laws. The article was published in Deccan Chronicle, dated 25th August, 2017, Oped p. 11].
[Based on an article published in "The Times of India" dated 08th July, 2015 (Wednesday)]
High Court: Under Muslim Law, marriage can't be terminated unilaterally: Referring to the practice of triple talaq, the Allahabad High Court has observed that under the Muslim law, marriage is a contract which cannot be rescinded unilaterally. The High Court made this observation while dismissing a petition by Aaqil Jamil, whose wife has filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq. The order was uploaded on the High Court's website on 09th May, 2017, two days before the Supreme Court begins hearing a clutch of petitions challenging the validity of triple talaq.
Justice Surya Prakash Kesarwani observed that personal law or the Constitution does not entitle a husband to rescind the contract of marriage orally or by giving a notice or by ex parte decision. "Hence, such a practice is unsustainable and bad in the eyes of law", the Judge said.
Rights can't be infringed in the garb of personal law: The Court said all forms of discrimination on the grounds of gender violate fundamental freedoms and human rights. "The human rights of women and of girls are an inalienable, integral and indivisible part of universal human rights", the Court said. Hence talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Article. 14 (Right to Equality) of the Constitution, it added.
The Court also made an important observation on the practice of 'nikah halala', an Islamic marriage ritual which involves a woman divorcee marrying someone else, consummating the marriage and then getting a divorce in order to make it permissible to remarry her previous husband.
"No lady can be compelled to marry some other person, in case she wants to marry her husband again after talaq. This condition to marry another person before marriage with earlier husband is humiliating and against the dignity of a lady protected by Article. 21 of the Constitution of India", the Judge said. Kesarwani further said: "All citizens including Muslim women have fundamental rights guaranteed by the Constitution. Under the garb of personal law, rights of the citizens protected by the Constitution cannot be infringed", Jamil had filed the petition asking for the quashing of his wife's complaint maintaining that he had given triple talaq to her in 2015.
Thereafter, he obtained a fatwa from the city Mufti of Agra, in which the latter affirmed the talaqnama and pronounced that her former wife, after being divorced, has become impure (haraam) for the petitioner.
[Based on a news item written by Rajesh Kumar Pandey, published in The Times of India dated 10th May, 2017 (Wednesday)].
Triple Talaq violation of basic rights: Allahabad High Court: No personal law is above Constitution and triple talaq is a violation of the fundamental rights given to citizens, the Allahabad High Court ruled on 09th May, 2017. The verdict comes amid the Centre's push for a ban on the contentious practice on grounds of gender equality and justice. The Court said the rights of any person, including Muslim women, cannot be violated in the name of personal law or on the basis of gender, adding that triple talaq cannot infringe upon a woman's fundamental rights given to her under the Constitution. Any fatwa that is against the law cannot be accepeted, the Court also said.
"A Muslim husband cannot give divorce in such a manner which would put a question mark on the woman's equal rights", the Court said. A single-judge bench of Justice Surya Prakash Kesarwani said that the human rights of women and of girls were an 'inalienable, integral and indivisible' part of universal human rights.
The Court was hearing the petition of a Varanasi woman who had accused her husband of torturing her for dowry and then divorcing her. The husband had approached the High Court against the complaint. The Court dismissed his petition. The husband has contended that he has divorced his wife and also procured a fatwa in this regard by the Darul Ifta Jama Masjid in Agra.
Fatwa against rights not valid, rules High Court: No personal law is above Constitution and triple talaq is a violation of the fundamental rights given to citizens, the Allahabad High Court ruled on 09th May, 2017. The verdict comes amid the Centre's push for a ban on the contentious practice on grounds of gender equality and justice. The Court said personal law can only be applicable under the provisions of Constitution, adding that any fatwa, which is contrary to the justice system or someone's rights, was not valid. The Supreme Court is hearing a clutch of petitions for a ban on triple talaq. The All India Muslim Personal Law Board has opposed a blanket ban on the practice, accusing Centre of trying to kill the country's plurality.
The NGO that oversees the application of Muslim Personal Law has said that it would end triple talaq within 18 months, but resisted any interference from the government.
[Based on a news item, written by Amita Verma, published in Deccan Chronicle dated 10th May, 2017 (Wednesday)].
A WAKE-UP CALL FOR THE MUSLIM CLERGY: It is indeed surprising that the operative part of the elaborate and complex ruling comprising of three different and diverse judicial opinions captured in 395 pages is just one line: "By a majority of 3:2 verdict the practice of talaq-e-biddat - triple talaq is set aside". Justice Kurien Joseph's opinion expressed in just 27 pages that clinched the issue. He concurred with Justices Rohinton Nariman and Uday Lalit that the practice of triple talaq does not form the core of the Sunni Muslim religion and helped it to acquire the status of a majority opinion. He also concurred with Chief Justice J.S. Khehar and Justice Nazeer that the personal laws of minorities are proected by the Constitution as fundamental rights, a clear statement against the enactment of a Uniform Civil Code, contained in Article. 44, which is a Directive Principle of State Policy.
It was obvious that arbitrary triple talaq had to go. No one had held it to be a desirable mode of dissolving a Muslim marriage, not even the AIMPLB. What was under contest was the most appropriate manner in which it could be done - through the Courts, the Legislature or through the Muslim clerics. On this critical issue, the verdict split. Justice Khehar held that though triple talaq is undesirable, since it is an integral part of the Sunni Hanafi faith - an unbroken tradition followed for 1,400 years - it was not possible for the courts to strike it down. But using the power under Article. 142 of the Constitution of India, the CJI gave a six-month window for Parliament to declare the law and issued an injunction restraining Muslim husbands from pronouncing triple talaq in the intervening period. A convoluted verdict, which creates more confusion than it solves. The sole Muslim Judge on the Bench Justice Nazeer, concurred with this view. But fortunately for us this has become the minority view and no longer applicable.
The three other judges on the bench gave a clerar verdict that triple talaq is invalid. But here again opinions differed regarding the grounds on which it was done. The judgment delivered by Justice Rohinton Nariman (for himself and Justice Uday Lalit) held that since the word 'talaq' is mentioned in the Sharia Application Act, 1937, it fomrs part of a statute and becomes 'law in force'. Hence, it is amenable for being declared as unconstitutional. However, the Sharia Application Act does not mention the word 'triple talaq' or 'talaq-e-biddat'. The views expressed by Islamic legal scholars is that a mere recognition of Muslim personal law by the Sharia Act does not give it a statutory status.
Justice Kurien Joseph, too, differed with this view and held that triple could not be tested against the touchstone of fundamental rights. He preferred to stay within the realm of Islamic law and examined whether instant triple talaq forms an essential and core religious practice. Since Shamim Ara (2002) had already declared instant triple talaq invalid, and had laid down the procedure for pronouncing talaq, he had no hesitation in concluding that triple talaq is not an essential core of Islamic law in India and hence invalid.
This position has been repeatedly advanced by me and hence today I stand vindicated. Since there was no media hype, the kind we have witnessed during the last two years since the Bharatiya Muslim Mahila Andholan (BMMA) flagged this issue and since the Narendra Modi government at the Centre, and its various chief ministers in states, as well as the ideologues of the RSS had not awakened to the plight of Muslim women as political capital, the historical ruling delivered by Justice Lahoti (who went on to become Chief Justice of India) went unnoticed. So, Muslim women and their supporters ignored it in their pursuit to get a decisive verdict from the Supreme Court. But beyond the hype, we have not advanced an inch from the earlier position which had held triple talaq invalid.
Again, it is Justice Kurien's concurrence of CJI's opinion on freedom of religion that renders it a majority opinion today. According to Prof. Faizan Mustafa, Justice Khehar's detailed judgment is a major milestone in the history of freedom of religion in India. For the first time in Indian judicial history, it is decalred that personal laws are an integral part of freedom of religion guaranteed under Articles. 25 and 26 which the courts are duty-bound to protect.
This hallowed status awarded to the Muslim personal law has warmed the hearts of the All Indian Muslim Personal Law Board (AIMPLB). The mandate of bringing reforms is today squarely in their court. The board had earlier issued and advisory that triple talaq is sinful and had declared the correct procedure for pronouncing talaq. Upon a directive from the CJI, the office bearers of the AIMPLB had filed an affidavit in court that a provision will be included in the nikahnama (marriage contract) whereby the husband binds himself against pronouncing instant triple talaq. But they were not willing to walk the last mile and declare it invalid. The need for Muslim husbands to bind themselves against this practice through a model nikahnama continues to be relevant.
Unless the Board gives a clear signal that it has accepted the verdict of the Supreme Court regarding triple talaq, there is bound to be confusion within the community. This may provide an opportunity for Muslim-bashing by the Modi government, which has rejoiced over the verdict as though it is an anti-minority one, to usher in legislative reforms, a situation which the Board wishes to avoid at all costs. However, in the absence of a clear stand and prompt action from the Board, Muslim women's groups such as the All India Muslim Women's Personal Law Board and BMMA will be well within their rights to lobby with the government to enact a law to bring in clarity within the Muslim Personal Law.
When this happens, the Board will find its back pushed against the wall. So now is the time to act.
[Based on an article written by Flavia Agnes, a women' rights lawyer and an authority on family laws. The article was published in Deccan Chronicle, dated 25th August, 2017, Oped p. 11].
C.S. Chakravarthy
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