This article has been written by Raina Mahapatra. Raina is currently pursuing her undergraduate course from Symbiosis Law School, Pune.

Triple, instantaneous, verbal talaq: an institution under Islamic religion where the husband reserves to himself the exclusive right to grant irrevocable talaq to his wife without the necessity of a single reason. Such an institution is repugnant to the spirit of Islam and more importantly, to the very spirit of humanity. The fact that a Muslim man can render his wife a stranger by one stroke of his tongue as opposed to the deliberately lengthy procedure of ‘khula’ a Muslim woman has to undergo in order to liberate herself from a cruel husband has been lamented time and over.

Islamic nations including Saudi Arabia, Iraq and Pakistan have either restricted or abolished this practice. Iran, Tunisia and Indonesia require that all divorces must go through a court and hence do not recognise triple talaq at all.

Why is it then that the Indian judiciary system, the institution whose creation rests on the necessity of safeguarding our rights, shies away in a dark corner whenever this topic stares it right in the face?

In State of Bombay v. Narasu Appa Mali[1], our very own Supreme Court held that Personal Law cannot be brought under the critical scrutiny of Article 13, an article which deals with laws inconsistent with or in derogation of fundamental rights.

With reference to this, one must note that the expression “laws in force”, a phrase which the Supreme Court has held  not inclusive of ‘Personal law’, has also been used by Article 372 of the Constitution. It authorises the continuance in force of the existing laws even after the commencement of the Constitution. If pre-constitution Personal laws are not “laws in force”, they should have ceased to operate after the commencement of the Indian Constitution. The wording used in defining the expression “laws in force” under Article 13(3)(b) and Article 372 is identical. It is a clear pointer that the framers of the Constitution did not exclude Personal law from the operation of fundamental rights.

It is also pertinent to know that the Supreme Court in Builders Supply Corporation v. Union of India[2] has now clarified that the expression “laws in force” used in Article 372 includes not only statutory law but also custom, usage and even common law in England. The principles applied by the Supreme Court in giving liberal interpretation to Article 372 ipso facto apply to the interpretation of Article 13(3)(b).

In order to be able to hold Muslim Personal Law violative of our fundamental rights, it is necessary to bring it under the ambit of Article 13 of the Indian Constitution.

The Supreme Court in Sant Ram v. Labha Singh[3] stated:

“…custom or usage having in the territory of India the force of law must be held to be contemplated by the expression ‘all laws in force’…to hold otherwise would restrict the operation of the first clause in such a way that none of the things mentioned in the first definition would be affected by the fundamental rights.”

Personal laws falling outside the scope of fundamental rights is a policy and not a legalistic approach, a policy which is based on the assumption that the community governed by the given personal law itself forms a recognised class. When this very class of people dismisses its provisions as tyrannical and redundant, the personal law ceases to uphold its own integrity.

Further, in many areas, Sharia happens to be the personal law of Muslims because enactments like Shariat Act, 1937 recognise it as such. These enactments aren’t clothed with the immunity claimed by personal law. It would appear that when a person is governed by Sharia by virtue of the Shariat Act, the provisions are open to judicial scrutiny as regards their constitutionality.

A sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is one’s religious faith and belief. If religious practices run counter to public order, morality, health or policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole.

“Equality is one of the most significant corner-stones of our democracy.”[4] It is therefore highly ironic that the most abominable aspect of triple talaq is its prima facie inequality. The explicit power of irrevocable talaq given to a Muslim husband is solely based on the fact that he is a man and absolutely no other rational basis. The plight of the Muslim women at the hands of the unscrupulous misinterpretations of the Quranic Shariah, particularly with respect to their right to divorce, has been constantly brought out.

Article 15(1) specifically prohibits gender discrimination and thus, no ground referable to any custom, usage or personal laws, contrary to equality principle enshrined in the Constitution should be enforced, more particularly, in relation to secular matters.[5]

More importantly, it has been contested that the institution of triple talaq is grossly violative of Right to Life as provided under Article 21 of the Constitution. This right has constantly evolved and has now come to be liberally interpreted as something more than mere survival and animal existence. It includes finer graces of human dignity, culture and civilisation. One must live with dignity, free from exploitation.

Where does the dignity lie in the lives of the numerous women who speak of domestic violence, marital rape, mental torture, dowry demand or just a desire in remarriage in men culminating into talaq? Are they not entitled to enforcement of their rights merely because of their circumstantial birth into a Muslim family?

For a nation that preaches equality, justice and secularity, the level of hypocrisy in such pertinent issues merely translates into impotence and nothing else. Muslim Personal Law must be brought under the scrutiny of Article 13; Triple Talaq must be judged on its credentials and not allowed to hide behind the impenetrable veil of Personal law.

[1] AIR 1952 Bom 84

[2] 1965 AIR 1061

[3] 1965 AIR 166

[4] Indra Sawhney v. Union of India, AIR 1993 SC 477

[5] Haseena Mansoor v. State of Kerala ILR 2010(2) Ker at 891

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