SCO Daily: Instant Divorce Still Prevails After Ban on Triple Talaq?

Transcript

Once again, the Supreme Court finds itself embroiled in a debate about gender equality and religious freedom. This time, the Muslim divorce practices of Talaq-e-Kinaya and Talaq-e-Bain are at the center of the debate. 

Justices Abdul Nazeer and J.B. Pardiwala issued notice on a petition challenging the constitutionality of unilateral and out-of-court divorces in Islam today. The petition was filed by Syeda Ambreena, a Karnataka based doctor. Dr. Ambreena argues that unilateral and instant divorce, codified in the Muslim Personal Law Shariat (Application) Act and the Dissolution of Muslim Marriage Act, denies Muslim women the dignity of life and liberty.  Speaking from her personal experience, she states that these practices make Muslim women vulnerable to mental and physical harassment, often in relation to dowry demands. 

In 2017 the Supreme Court declared the practice of triple talaq unconstitutional by a slim majority in a 3-2 split verdict. Similar to the practices challenged today, triple talaq is instant, devoid of any legal process, and does not require the wife’s consent. In Court today, Justice Nazeer expressed surprise that practices similar to triple talaq continued to be prevalent in India. 

The cause of gender equality, however, must grapple with religious protections in this case. Articles 25 and 26 of the Constitution protect certain religious practices from legal intervention, to allow religious communities to protect their diverse beliefs. In the triple talaq Judgment, the dissenting Judges stated that the practice is protected by the right to religion. The Court has repeatedly found itself balancing religious protections with other fundamental rights, most recently in the Hijab Ban challenges. 

Dr. Ambreena’s petition asks the Court to take the lead in forming a Uniform Civil Code as well. This Code imagines replacing the diverse personal law codes that govern marriage, divorce, succession and adoption among different religious communities with a uniform law. Ex-BJP spokesperson Ashwini Kumar Upadhyay has made similar demands of the Court through a group of petitions. His Uniform Civil Code cases remain pending at the Court. 

Now that the Court has given notice, the Union government must file a response, stating its stance on unilateral divorce in Muslim personal law. 

How will the Court engage with the Uniform Civil Code question in this case? Stay tuned to find out.