Libertatem Magazine

Battle Of Laws: Equality For Muslim Women

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Way back in the past, when no law of the land had been defined, nor codified, customs were considered to be the law. With the changing times, society changed, and, therefore, laws had to be changed in accordance with the needs of the society. There was a time when our people used to cure diseases with leeches, but, with time, they found a better method, with the modernization of the medical field and technology replacing the ancient way.

In the olden days, women used to take a back seat at all times, as they were not considered to be the breadwinners of the family. Most of the family members wished for a son over a daughter as they saw him as an additional person to earn and carry on their legacy.

Even today, there is an ongoing battle for recognition of the rights of women. Malala Yousafzai fought for rights of the girls to who weren’t allowed to study. The Supreme Court, in the case of Haji Ali, put enough pressure on the trust members to allow women into the dargah. The case is still pending for allowing women of reproductive age to enter the Sabarimala Temple in Kerala.

Today once again the world watched, as the Muslim women fought for equality to have a say in divorce.

According to the Personal Law of Muslims, when a husband says “Talaq, Talaq, Talaq”, three times, it is considered that the divorce has been finalized. The will and wish of Muslim women are not considered, as they have “no say” in the divorce.

Background Of The Case

In the year 2015, the Court, while dealing with Prakash v. Phulavati, relating to the rights of Hindu daughters’ under Hindu Succession (Amendment) Act, 2005, had taken into consideration “the issue of gender discrimination against the Muslim women”. The Bench said that there is no safeguard against a divorce which is arbitrary and the concept of polygamy while the dignity and security of women are at stake.

Shayara Bano had filed a PIL before the Supreme Court to declare “Triple Talaq” as unconstitutional for which a five-judge constitutional bench had been set up.

Verdict Of The Court

After a long haul of arguments, the Court decided 3:2 that Triple Talaq is arbitrary and that it violates the constitutional provisions, and hence, it is unconstitutional.

The Hon’ble Justices observed that the very concept of instant Triple Talaq without any scope for reconciliation violates the constitutional provisions of Right to Equality, and is arbitrary. The question originating here is whether the concept of Triple Talaq has been included in the Shariat Application Act, 1937. The very reason that the Act had been enacted in 1937, was to curb the discrimination suffered by Muslim women from centuries.

Since the Act was enacted before the Constitution came into force, it falls within the ambit of Article 13, wherein any law which is inconsistent with the Constitution is void.

In Sarabhai V. Rabia Bai, the court held that “ it is good in law but bad in theology”.

Commenting on this ratio, Justice Joseph said, “what is bad in theology should also be held bad in law”.

Protection Under Article 25

The Omeyyade Monarchs had introduced talaq-ul-biddat in the second century of the Mohammedan Era. Over the period of time, it became more of a custom rather than a personal law.

Quran is considered to be the apex law for all Muslims, and it mentions a divorce with a chance for reconciliation so that it doesn’t affect the parties if they take any hasty decision. An alternative to the Quran is Hadith, which are a collection of traditions consisting of the sayings of the Prophet. Neither in the Quran nor in Hadith is there a concept of instant Triple Talaq, hence, it is not considered to be an essential part of the practice for Muslims.

India, being a secular country, while framing the Constitution, had given a very wide ambit to religious practices protected under Article 25 of the Constitution. The Courts have included an important caveat as to what practices are protected under the Article. They have observed that the practices essential to the religion are to be protected under the Article.

In the present case, it has been inferred that Triple Talaq is not an essential part of the practice for Muslims.

Equality Under Article 14

Most of the Muslim community, although accepting of the concept of Talaq-ul-biddat, considers it an illegal practice. Most of the major Muslim countries have done away with this concept. Taking into consideration that if the Muslim countries, which follow rites and traditions to the word of Quran have set aside the practice of instant Triple Talaq, then the time has come for India to act on the arbitrary practice curbing women ‘s dignity and final say in the matters of marriage.

Where the world is moving forward with an outlook where women should have equal rights in every aspect, the concept of instant Triple Talaq is a hurdle to it. It allows gender discrimination to still fall through for Muslim women.

According to Article 14 of the Indian Constitution, giving equal rights to all the citizens, instant Triple Talaq violates its provisions as it is arbitrary and unreasonable. It discriminates against all the Muslim women, as men have an ultimate authority to divorce without the women having a say.

The courts, in many judgments, have ruled that any law, which is arbitrary and discriminatory in nature, is considered to be violative of the basic “Rule of Law” concept.

In E.P. Royappa v. State of T.N., it was held, Equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies. One belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.”

The Hanafi Jurisprudence teaches that the Talaq-ul-biddat is considered a sinful practice, even though it is lawful. Quran clearly mentions that a chance for reconciliation should be given to husband and wife. Talaq-ul-biddat is instant and is irrevocable, thereby not giving any chance for reconciliation. Being so, it is considered to be an arbitrary practice, and hence, is violative of Article 14.


The fight started way back in 1966 when a social movement took place for equality to Muslim women. It has taken a lot of years and efforts by many people to bring the judgment everyone was waiting for. Though there are shortfalls in the judgment given by the apex court, it is still a stepping-stone towards a better future for Muslim women. Where the world is moving forward with a common agenda to curb discrimination against women, this decision by the Apex Court is a step towards that goal. The practice of Sati, though widely followed in the past, had been abolished because it was unreasonable on the part of a woman to die alongside their husbands, many such practices are now extinct which were considered to be sacred and followed as customs. Now, it is time for the Muslim women to soar to new heights as the instant Triple Talaq has been set aside and enjoy the freedom to have a say in the divorce.

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