Once again, the judiciary ‘liberated’ Muslim women from the archaic practices of their men with the triple talaq judgment. Thus, as everyone says, it is a historic moment for the Muslim women in India in their journey towards freedom and a golden feather in the crown of the Supreme Court. But these statements don’t make any sense to me as one who experiences the crisis of being at the intersection of multiple identities as a Muslim woman and a legal researcher, who has learnt the nuanced meaning of judicial expressions (and their silences too). Hence, the Supreme Court verdict on triple talaq does not put forward any new avenues in its 395-page verdict, than just ‘setting aside’ the instantaneous triple talaq which has already been done by the same court in 2002 in the Shamim Ara case.

The petition of Shayara Bano and others along with the suo motu petition of the Supreme Court make the core of this claim to declare the instantaneous triple talaq unconstitutional. The other question regarding polygamy, nikah halala etc. also had been there to scrutinise in the petition but was left behind by the court to deal with on some other occasion. This is not the first time that we have heard this cry for Muslim women’s justice and equality, rather it has become a part of communal electoral politics to adjust the volume of this cry according to the socio-political situations in the country.  Interestingly, I have noticed that the right of Muslim women under Muslim Personal Law is a favourite topic of students and researchers of legal academia too. They get to imagine an easy-to-deal-with kind of legal situation there which a positivist law portrays. That is, there is a perfect chain of an oppressor (Muslim male with the support of religious texts replete with oppressive set of norms and principles), a subject (Muslim women who are a perfect subject historically ‘proven’ as voiceless and agencyless) and a saviour (a perfect secular justice system which emancipates women from all their ties of oppressive religious rules). At least now, it is time to shake this romanticised dream of our saviour analysing the extent to which this institution is obsessed with majoritarian rhetoric rather than the gender justice concerns for Muslim women, and to what extent the real claims of women gets silenced by it. For that not only the expressions of judiciary but the silences covered by its rhetoric also has to be taken into account.

The origin of the triple talaq judgment was from a suo motu petition ‘on the quest of Muslim women for justice’ about the discrimination Muslim women face from their husband’s hands within the practices of marriage, unilateral divorce etc. Legal academia rarely considers the text of a petition as a source of judicial discourse while relying on the text of judgments. But at least in this situation, it cannot be missed the nature of the suo motu petition which highlights the judicial worry about the status of Muslim women within their family. This petition itself is a glaring example of the judicial silence over rhetoric of discrimination faced by Muslim women. Because Justices Anil R. Dave and A K Goel  in Prakash v. Phulavati  held against a Hindu woman that she is not entitled to be a heir of her father as 2005 amendments to Hindu Succession Act which provides the equal right to women in Hindu coparcenary property only operates prospectively. This too was in rejection to the high court ruling that the amendment was a social legislation, hence to be operated retrospectively. To the utter surprise, at the end part of their judgment out of the blue, they also decided to rescue Muslim women by filing the suo motu petition covering the injustice to the Hindu woman who stood just in front of them.

The present judgment does not unconstitutionalise the practice of instantaneous triple talaq as only two out of five judges agreed to it, that too impliedly. Rather it illegalises the practice by 3:2 majority, which was already done in Shamim Ara case. Therefore, there is nothing this ‘historic’ judgment could do towards the cause of Muslim women’s justice than ‘again’ invalidating the talaq nama of Shayara Bano and others. Thereby, it also returns them to their abusive husbands without even mentioning the measures to secure their life there (that is not even asked in the petition by Shayara’s lawyer!!). She could have got the same invalidated before, even from a lower court without this much effort and expense relying on the Shamim Ara ruling. It has been already warned by a few even before the hearing of this case started, that this is what the Supreme Court could do maximum in this matter. Beyond this, there is no positive change which has come in the life of either Shayara or Afreen or any other Muslim women in the country by this judgment.

There comes the question as to why these women, even after the experiences of such brutal torture, wanted to go back to their husbands. An analysis of cases before the higher courts with respect to Muslim women’s claims related to their marital status speaks that none of these cases are filed directly challenging the husband’s right to divorce.  But majorly, they challenge the talaq at the instance of husband’s refusal to provide maintenance or other conjugal rights on the ground that they have divorced their wife already and therefore, they are not liable to maintain their wives anymore. This argument is totally based on the continued ignorance of Muslim population as well as the legal fraternity about existing law of the land on the maintenance of Muslim women, that is, the provisions of the Protection of Muslim Women’s Act. Therefore, the paramount question is not the reunion of a husband and wife, but the failure of ensuring a secure life to these women.

Then it should make us wonder why did the Supreme Court go for this marathon effort, just to direct the Central government to legislate on the issue? That too leaving a caution note to set aside the political gains while considering the measures of legislation. Thereby, Muslim women’s justice lies in safe hands now! There would be no doubt regarding the effort of the judiciary for Muslim women unless we get to notice the ignorance of the judiciary while dealing with the claims of Muslim women since its beginning.

There is nothing surprising about this attitude of the Indian judiciary towards Muslim woman, if we look at the language of the judiciary in its previous engagements with Muslim women’s causes. While the judiciary worried about the discrimination of Sharia providing a unique unilateral divorce right to men to the deprivation of women, a number of times it kept silent on Muslim women’s right to divorce granted by Sharia though they were there within the very ‘legal’ framework. There are different means of divorce granted exclusively to women by the Sharia as known as Faskh, Khula. When Faskh dissolves the marital tie arbitrating in the presence of a qazi, Khula doesn’t even ask to fulfil that requirement. A wife can repudiate her marriage with a man even on the ground that she is not attracted to him. This is what the Hadith says from instances of the Prophet’s time. But under the Hanafi school, which is prevalent in India, it can only be granted if the husband consents to it. There are two developments made within the very ‘legal’ framework to overcome this requirement of consent of the husband. Firstly, the Dissolution of Muslim Marriage Act, 1939 enables a woman to recourse to Khula procedure under section 2 (IX). This Act has to be understood as an attempt to reform within the Muslim community despite the differences on the consent of the husband element in the Khula. Second fact is that, Pakistan judiciary has developed their law of Khula to the benefit of women in Khurshid Bibi case[1] in which they held that consent of the husband is not necessary. It also underlines the ignorance of Indian judiciary towards selective foreign decisions. Despite these two important developments, Indian judiciary follows till date a Privy Council ruling on Khula which held that consent of the husband is necessary, hence it is a bargain to the benefit of the husband. This continued ignorance has deprived Muslim women of their right while we cry here that they are discriminated by their personal law.

The same case is of the other right to Faskh, because it demands dissolution by means of arbitration through a Qazi who is religious adjudicator. There are Muslim women who obtain divorce by way of Khula and Faskh through non-state adjudicative sites as in the form of the Qazi court. But a survey of Muslim women’s experience says that even after they managed to dissolve an undesired, mostly an abusive marital relationship by means of this non-state adjudicative forums, they find it difficult to enforce other rights associated with divorce, specifically property claims through secular civil courts. The current legal system makes it necessary for them to approach civil courts in order to obtain the above said maintenance rights after divorce because non-state dispute settlements in the form of Qazi courts have lost their enforcement capacity by the emergence of the State legal mechanism. Generally, the State judiciary not only grants the divorce by way of Khula or Faskh but also denies the women to take the benefit out of their rights which they already managed to procure through other means.

Clouding the right of Khula and applying strict conditions to restrict men from pronouncing Talaq, our judiciary acts more in the direction of reducing men’s right to divorce to the level of women’s right, who has to establish valid cause for divorce. Because a unilateral right to repudiate marriage is a unique form of the dissolution of marriage not familiar to other personal laws in India. What the Indian legal system emphasises here is fault-based divorce. The so-called Indian culture celebrates the notion that marriage is a sacrosanct institution which keeps the sexuality of women within the boundary of their family and culture. Therefore, divorce except on fault-based grounds is not very much appreciated by Indian courts. But Islamic understanding of the marriage more in a nature of a contract which permits both parties to dissolve the marriage at the instance both of them realise that they cannot move on together any more. In many cases, it can be seen that judges take the ground that unilateral form of divorce is not there in other personal laws to invalidate or to restrict the talaq pronounced by a husband.[2] This can be taken as a classic example of dealing with the “other” about whom the majoritarian judiciary is ignorant of. Hence it is not always the gender justice concerns but the unification mentality that is what operates behind restricting talaq. Hereby, it is not meant to say that such restrictions on arbitrary use of talaq are unnecessary. Rather this is pointed to the reluctance of our courts to open the gates of women’s right to divorce in equal footing with the men’s right and their ignorance to the actual claims of Muslim women.

The real claims of Muslim women is not an abolition of men’s right, rather their claim is for their right to life and secure property, during and after marriage. Instead of ensuring the rights of women on property, why should the legal discourse always climb on restraining men from their rights? Why? This question may take us to the double standards our judiciary has taken while they adjudicate upon the claim of women in their marital property as we have seen in the case of Khatoon Nisa from Allahabad. Despite the testimony of Khatoon Nisa and her father that she consented to the triple talaq, the court invalidated it though it was not a question before the court. But the court hurried to safeguard the interest of the state government to acquire the land of Khatoon Nisa which was transferred by her husband at the time of divorce. No legal effort of restraining men from their right is going to help women when the State is not ready to make space for entertaining women’s rights. And, moreover, women’s judicial experience shows that judiciary is less interested to listen to their real claims of security for life and property.

Restricting men from their rights helps to mask the women’s rights which are actually provided under the religious principles but unknown to a mainstream Indian society. As Indian judges find it at odds with the dominant Hindu culture, they made its benefits impossible to access for Muslim women in India. Therefore, before romanticising the role played by our judiciary to bring justice for Muslim women and to posit it as the ultimate saviour of Muslim women, it is good to go back to the language of the judiciary. We can see that majoritarian flavour in celebrated Shah Bano, even the Daniel Latifi case where judiciary used the lens of a ‘good wife’, ‘mother’ roles to be qualified for the maintenance rights of the Muslim women while these are not criteria in Islam to provide a woman her rights in her marital property and maintenance. In the same way, forgetting about the rights of women and trying to lower the quality of men’s right to divorce actually is an attempt to homogenise the rights of Muslims to that of majoritarian personal law. This has to be considered as part of the obsession of Indian legal system towards unification and standardisation of laws. It is necessary for the judiciary to look at the existing provisions of Muslim law regarding marriage and divorce after removing their biased lenses, which considers the personal laws to be backward and gender unfriendly. Also, it might be a healthy practice for the courts to stop constructing the Muslim women as a pitiful subject, according the prevailing majoritarian world view.

[1] Khurshid Bibi v. Baboo Muhammad Amin P.L.D. 1967 S.C. 97

[2] Zohara Khatoon v Mohd. Ibrahim A.I.R. 1981 S.C. 1243