Religion Vs Human Rights: India’s Supreme Court To Decide On “Triple Talaq”

India’s Supreme Court reserved its verdict on the constitutional validity of the practice of “triple talaq” among Indian Muslims. “Triple talaq” refers to the practice of Muslim men being able to instantly divorce their wives by saying “talaq” three times. This practice is banned in many Islamic countries, such as Pakistan, Bangladesh, Turkey, Algeria, and Iran. According to religious leaders, the words are meant to be said over an extended period, after having time to reflect and resolve issues between a couple.

The controversial practice is facing fierce opposition as some individuals have resorted to using text, fax, email, Facebook, or Whatsapp to initiate a divorce that is instant and unilateral. According to the Sydney Morning Herald, the “provocation can be trivial, such as putting on weight, greying or burning the dinner.” The practice is only legal for Muslim men, providing them leverage that is often misused. The practice also allows them to leave their spouse without any financial or emotional support.

While uncommon across India, the practice has come to public attention recently due to series of high-profile cases. The Sydney Morning Herald reported that the husband of national level netball champion Shumayala Javed, divorced her by uttering “talaq” because she gave birth to a baby girl. It comes as no surprise that the practice is being increasingly contested, and criticised by human rights, and women empowerment groups in India.

Muslim women have filed several petitions challenging the practice. As such, the Supreme Court decided to rule on the constitutional validity of “triple talaq,” instead of ruling on individual petitions. The Supreme Court decided to rule on the constitutional validity of “triple talaq” instead of ruling on the individual petitions. The Sydney Morning Herald also reported that “given the sensitivity of the subject – the right to practise one’s religion vs a woman’s human rights as guaranteed under the Indian constitution – the five Supreme Court judges have been chosen carefully. Each one comes from a different faith: a Muslim, Hindu, Christian, Parsi and Sikh.” The five-judge constitution bench heard the issue for six days, as both sides—including the central government, the All India Muslim Personal Law Board, and the All India Muslim Women Personal Law Board—received three days each to make their opposition or support for the practice clear.

The Bharatiya Muslim Mahila Andolan is a Muslim women’s rights group that campaigns to abolish the practice of “triple talaq.” India’s ruling party, the BJP, also opposes the practice. The party calls it a “sword that hands over a Muslim woman’s head every day.” Co-convener of the Muslim women’s rights group, Noor Jehan, added that the practice is “totally un-Koranic,” calling it an “expression of patriarchy, not religion.” “It is sanctioned not by scripture but by custom, and customs can be reformed,” she added.

A 2015 government report recommended banning the practice, as it made married Muslim women “extremely vulnerable and insecure regarding their marital status.” Lawyer Flavia Agnes added that the “triple talaq is a devastating tool used to oppress a woman and destroy her completely. Reforming it is pointless. It is unacceptable.” Attorney General Mukul Rohatgi said that this was “a case where it is an intra-community tussle between Muslim men and women. This time Muslim women have questioned the centuries-old hegemony suffered by them at the hands of their male counterparts.” The women’s rights group told the court, “Triple talaq was not integral to Islam, but was a gender issue within the Muslim community,” according to the Sydney Morning Herald. Their argument looked at the unconstitutionality of the practice and argued that individual rights should take priority over the right to religion.

Those in opposition to the ban claim that “triple talaq” is permitted under Sharia law and must be respected under their religious freedoms. “It is hateful, obnoxious for a man to abuse this right and we must discourage it but we cannot ban what is in the Koran, we cannot ban an Islamic law,” said Kamal Farooqui, a politician and founding member of the All India Muslim Personal Law Board in New Delhi. Such claims are disputed by many experts on the Quran. Instead, the board suggested reforming the practice by allowing women to “opt out of instant triple talaq” before marriage or by “stipulating that a husband can only say triple talaq in the presence of other individuals or in the presence of an arbitrator.” Another lawyer opposing the ban claimed that “if the secular Supreme Court decides to undertake suo motu (on its own) scrutiny of the issue, with the Centre seeking a ban, then the community may take a tough stand.” As such, many have asked the Court to protect and respect their personal laws, customs, and practices under the umbrella of religious freedom.

Some Muslim religious leaders have also supported the ban, calling for reforms in divorce laws that would protect women’s rights. The Supreme Court’s decision on the constitutionality has the potential to help thousands of women and to rectify an unfair and unequal religious practice. The decision could become a watershed moment in the debate between individual rights and religious freedoms in India.

Nishtha Sharma

About Nishtha Sharma

Nishtha Sharma is an undergraduate student of International and Global Studies at the University of Sydney majoring in Government and International Relations and American Studies. Her research interests include North America and Asia. As an International and Global Studies student, the OWP has provided her with a platform to research and produce articles and reports about issues of global importance. She is currently working as a correspondent in the Australian Division of the OWP.