The egregious practice that many Muslim men employ to divorce their wives instantaneously and without their consent, merely by uttering the word talaq thrice, was rendered legally invalid by the Shamim Ara vs State of UP judgment of 2002 and subsequent orders from various High Courts. But this has not stopped the practice; many Muslim women are unaware of the judgments or have had to accept such pronouncements owing to pressure from conservative sections. Many women have undergone severe trauma after being thrown out of their homes. Shayara Bano, one such victim of this arbitrary custom — not to speak of years of domestic violence — has filed a public interest litigation in the Supreme Court seeking a ban on the practice. The conservative All India Muslim Personal Law Board that seeks to wield influence on questions of Muslim personal law has, predictably, found it an occasion to air its regressive views on the issue. In a counter-affidavit, the Board has defended the practice in terms that are shocking even by its own standards. It claims that the custom is a way out to avoid long-running court proceedings and that, in the absence of triple talaq, a husband may resort to murdering or burning alive his wife because of the time-consuming legal proceedings that might otherwise be involved. It further claims that “Indian society is patriarchal”, and that “personal laws of all communities are aligned with the patriarchal notion”. It defends the right to grant divorce to the husband alone, “because men have greater power of decision making” and uses a dubious line of argument on gender ratio to justify the practice of polygamy.
The AIMPLB, a body with no legal status, has long argued that divorce under Islamic law is undesirable and that triple talaq is a sin; however, it maintains it is a valid and effective form of laying a marriage asunder. In truth, there is no sanction for the triple talaq in the Koran, which has laid down elaborate injunctions on divorce, in stark contrast to the immediate and irrevocable nature of the triple talaq. This practice has been either explicitly derecognised in Muslim-majority countries such as Indonesia, Iran and Tunisia or implicitly in countries such as Pakistan, which provides for a mandatory arbitration procedure after the pronouncement of talaq. The Supreme Court must not be swayed by the arguments put forth by the AIMPLB, which has held that “personal laws cannot be challenged”. Considering the clear and elaborately laid-down norms on marriage in the Koran that grant equal rights to the husband and wife to pursue divorce proceedings and the right to equality guaranteed in the Indian Constitution, it is high time that the Supreme Court ruled this practice as illegal.
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