On 22nd of August, 2017 Supreme Court of India gave verdict on split decision by 3:2 making instant divorce unconstitutional. There was a provision for such separation in the act passed in 1937. The ideal Talaq procedure is advised to span over at least 3 months (3 menstrual cycles of the wife).There have been many cases like were about rights of Muslim women regarding marital problems. Previously Shah Banu case in mid 80’s got Nationwide attention including famous speeches given by Saifuddin Chaudhury and Arif Muhammad Khan in Indian Parliament. But it failed to produce a significant result due to protest from All India Muslim Personal Law Board during ongoing Babri Masjid controversy.
Let’s have a check what was the point of the judges who objected the instant talaq.
Justice Joseph Kurian took examples from Qur’an to determine instant talaq is not only ‘unconstitutional’ but also contrary to Islam. In his words,
It is in that background that I make an attempt to see what the Quran states on talaq. There is reference to talaq in three Suras- in Sura II while dealing with social life of the community, in Sura IV while dealing with decencies of family life and in Sura LXV while dealing explicitly with talaq.
Justice J Rohinton Fali Nariman, discussing the case stated,
The question, therefore, posed before this Court is finally in a very narrow compass. Triple Talaq alone is the subject matter of challenge – other forms of Talaq are not.
Which may indicate that he didn’t object the whole provision and exclusiveness of Muslim community to have their own procedure for divorce. He also said,
There is something astonishingly modern about this – no public declaration is a condition precedent to the validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried out.
Justice Uday Umesh Lalit jointly stated with Justice Nariman. Justice S Abdul Nazeer and Chief Justice of India, Jagdish Singh Khehar refrained to set aside instant talaq as not matter under judiciary, forming the minority opinion.
In previous occasion in Inkilab, questioned about interference from court on marital matters when there are grudge over pending cases, costly legal struggle, disputed verdicts. There are still questions on if Instant talaq is UnIslamic and abrogated in most of Muslim majority countries, then why it was going on among Indian Muslims making gain for certain party which is known for hostility towards Muslims. What were the self-styled representatives of the community doing? Supreme Court has given Centre six months to get a new divorce law for Muslims. Muslims must take this as an opportunity to produce a better law to confront further intervention.