Personal laws in India
The proceedings of the judgment
Islamic practice of instant divorce “triple talaq” has represented a stifling oppression and a reason worth fighting for to Muslim women living in India in the last decades1. Indian Islamic Women’s rights activists have progressively focused their objectives on issues regarding Muslim personal laws2, including the arbitrary and unilateral rule of triple talaq, through which a man can obtain a legal divorce by uttering this word three times. Moreover, following India’s Supreme Court judgment on instantaneous divorce, 2017 appeared to be a successful year for Muslim women fighting for gender equality, since on 22 August triple talaq was finally ruled unconstitutional. The verdict was a coherent decision in line with the Constitutional principles declared in its preamble3, according to which justice, liberty and equality4 should be guaranteed to all citizens, and to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which was ratified by India on July 9, 19935. Prime Minister Narendra Modi evaluated the decision of the Court as an “historic” judgment and a considerable victory for Muslim women’s rights6 and activists, who predicted a brighter future not only for the women but also for the children. All India Muslim Personal Law Board (AIWPB) advocate Chandra Rajan claimed that the banning of the practice “will change the entire landscape of Muslim families” and that the decision of the Court “could not have been better”7.
Nevertheless, several issues have arisen from the judgment, concerning not only the decisions that were granted by the Judges involved, but also the compliance with the verdict. In fact, around 100 cases of triple talaq were reported only five months later8. Through a critical analysis of the judgment, this essay seeks to address the following questions: is the decision of the Court a move towards achieving compliance with CEDAW’s positive affirmations and India’s constitutional principles? Does it truly represent a victory for women’s rights? In the pages that follow, it will be firstly illustrated the complex legal system of India, in which personal laws are applied to specific religious groups and communities. Thereafter, the paper will focus on the course of the sentence and finally, it will critically take into consideration various contradictions arisen from the Court’s discussions and conclusions.
Personal laws in India
Religious laws are one of the implications of colonialism that have continued up to the present day as part of the Indian legal framework9. Although the independence of the Country prompted a lot of issues and debates concerning personal laws in the aftermath of the new Constitution, the Supreme Court refused to declare these specific religious-legal systems unconstitutional in order not to be in violation with fundamental rights such as freedom of religion10. However, the latter has always adopted an ambiguous conduct as regards personal laws11, which in some circumstances have been declared void12, but overall their legitimacy has been consistently safeguarded13: recalling India’s commitment to ratify CEDAW, a reservation on Art. 2914 and two declarations on Art. 515 and 1616 were submitted in order to comply with minority groups’ laws17. India’s approach to international treaties has oftentimes been marked by its policy for reservations18. More specifically, the country declared its willingness to not interfere with any religious groups’ personal regulations19, therefore its position aimed at achieving gender equality through customised approaches20. On the other hand, several contradictions arose from these statements, since Art. 44 of the Constitution pledges a uniform civil code to put an end to legal pluralism and hence, to personal laws21.
The discourse on bringing Indian communities together in one state started with the Hindu Rights movement in 192522, which represents one of the greatest nationalist movements in the country during the 1900’s: being the largest religious community in India23, Hindus engaged themselves in launching a manifesto to achieve self-determination and safeguard their cultural uniqueness24, in addition to attempt to re-evaluate the coexistence of religious and secular laws25. The initial demand for the unification of the various personal laws in force26, whose legal subjects typically concern issues such as marriage or divorce27, was followed by Shah Bano’s renowned case28, which initiated the process of the creation of a proper Uniform Civil Code (UCC)29 in accordance with Art. 44 of the Indian Constitution30. However, the Court was curbed by Muslim opponents who stressed that Shari’a law cannot be altered -being a Divine and unchangeable statute- and the same dissentients turned their discontent into protests and denunciations31, eventually considering the implementation of a Uniform Civil Code as a threat32 to religious minorities in India33.
Personal laws hinder international treaties’ attempts to promote gender equality and women’s empowerment, in addition to run counter to the principles of the Constitution34: as a matter of facts, art.14 guarantees equality, and discrimination is prohibited by Art.1535. In addition to this, India’s commitment to international treaties obligations turned out to be contradictory and failing several times: the ratification of the Convention on the Elimination of all Forms of Discrimination against Women treaty (CEDAW)36, far from representing a significant step forward, as already contested above, it contributed to strengthen personal laws’ position, and subsequently, the situation remained unchanged. Furthermore, India’s efforts to protect women’s rights also concern the adoption of international treaties such as the International Covenant on Civil and Political Rights (1966) and the Convention on the Political Rights of Women in 195437 to prohibit any form of discrimination against women, or the United Nations Convention on the Rights of the Child (UNCRC), which protects young women by classifying them as children until they reach the age of 18 years. More recently, the Country even enacted the Protection of Women from Domestic Violence Act in 200538 and a few years earlier, the Parliament declared its intentions to achieve gender equality by focusing on a new National Policy on Women’s Empowerment39. According to the 2017 National report submitted to Human Rights Council, India is furthering its efforts to eliminate violence and discrimination against women40. However, as already confirmed, these attempts to promote human rights have failed41, and besides the evident endeavour, statistics recorded around 338,000 crimes against women in 201642. Furthermore, the authorities repeatedly refused to ban marital rape as the decision would “destabilize the institution of marriage”.43
Overall, India has still to face many challenges. Because laws regarding marriage, property and divorce are governed by Muslim religious laws since 193744, triple talaq remained in force under Muslim personal law until 2017, although the Qur’an, which is the Primary source of Islamic law together with the Sunnah, does not even mention explicitly this practice of arbitrary divorce45. In Islamic societies where talaq is permitted, marriage dissolution by husband can occur in any manner, without limitation and, above all, without the consent or even the knowledge of the wife. However, as mentioned previously, on 22 August 2017 the Supreme Court of India declared instantaneous divorce unconstitutional and expunged a real threat to women’s right not to suffer discrimination, although court went rather more complex than expected.
The proceedings of the judgment
Petitioner Shayara Bano after being victim of triple talaq appealed to the Supreme Court supporting women’s right not to be harnessed in front of the law. The plaintiff sought justice claiming instantaneous divorce as a practice in violation of Art. 14, 15 and 21 of the Constitution46 and emphasising the fact that Shari’a does not accept nor mention arbitrary divorce in its sources of law.
Firstly, the Court, that was composed by five judges of different faith47, analysed the concept of talaq and recognised three ways in which it can be effective. “Talaq-e-Ahsan” and “Talaq-e-Hasan 48 ” were not taken into consideration for the judgment since the petitioner claimed that both types of divorce are valid according to the Qur’an 49. The latter consist in two forms of “most proper” and “proper” divorce50 that must occur during tuhr, which is the period between two menstrual cycles51. On the other hand, the petitioner advocated the necessity to ban the third kind of talaq, that is “Talaq-e-Biddat” or triple talaq as it is not mentioned in the Holy Book. The Court subsequently investigated the Qur’an in vivid detail in order to confirm the petitioner’s assumption, that was eventually confirmed52. Thereafter, the judgment focused on Islamic Countries in the world that have forbidden instantaneous divorce in their Constitutional texts53, both considering secular and theocratical states such as Egypt, Tunisia, Indonesia, Pakistan and Afghanistan.
1 A.C. Jaltson , India divorce: how “triple talaq” destroys lives, (2017), produced by Y. Limaye, available at: https://www.bbc.co.uk/news/av/world-asia-india-38528507/india-divorce-how-triple-talaq-destroys-lives, [accessed 8 Dec. 2018]
2 S. Vatuk, (2008) Islamic Feminism in India: Indian Muslim Women Activists and the Reform of Muslim Personal Law, in Modern Asian Studies, 42, p. 490
3 Dalal R. S. (2009), Fundamental Rights Enshrined in Indian Constitution: Provisions and Practices, in The Indian Journal of Political Science, 70:3, pp. 781
4 Constitution of India (1950), available at: https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf [accessed 8 Dec. 2018]
5 Subramanian N. (2008), Legal Change and Gender Inequality: Changes in Muslim Family Law in India, in Law & Social Enquiry, 33:3, p. 638
6 Triple Talaq: India court bans Islamic instant divorce (2017), available at: https://www.bbc.co.uk/news/world-asia-india-41008802 , [accessed 8 Dec. 2018]
8 100 cases of instant triple talaq in the country since the SC judgment (2017), available at: https://timesofindia.indiatimes.com/india/66-cases-of-triple-talaq-in-the-country-since-the-sc-judgement-law-minister/articleshow/62279519.cms [accessed 8 Dec.2018]
9 Galanter M. & Krishnan J. (2000 ), Personal Law and Human Rights in India and Israel, Articles by Maurer Faculty, Paper 419, p.106
10 A. Parashar, Religious personal laws as non-state laws: implications for gender justice, The Journal of Legal Pluralism and Unofficial Law, 45:1, cit., p.9
11 MacKinnon C. A. (2006), Sex Equality under the Constitution of India: problems, Prospects, and “Personal Laws”, in International Journal of Constitutional Law, 4:2,
14 “Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court”, Art. 29, Para 1, CEDAW
15 “To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”, Art. 5, (a), Op.cit.
16 “The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory”, Art. 16, Para 2, Op.cit.
17 CEDAW (2006), Declarations, reservations, objections and notifications of withdrawal of reservations relating to the Convention on the Elimination of All Forms of Discrimination against Women, p.14
18 Lahiri D. (2008), International Human Rights Standards: How Does India Measure Up?, in ORF Issue Brief, 13, p.3
19 Rao B. (2016), Reservations Based on Personal Laws to CEDAW: a Study of the Effect on the Status of Equality of Women in India by Comparing it with Afghanistan, in Indian Law Institute Law Review, Winter Issue 2016, p.49
20 Op.cit., p. 63
22 The Hindu Right is a political movement which strives for the creation of a Hindu State (Hindu Rashtra)
23 T. Sarkar (1999), Pragmatics of the Hindu Right: Politics of Women’s Organisations, in Economic and Political Weekly, 34:31, p.2161
24 A. Emon, M. Ellis & N. Glahn (2012), Islamic Law and International Human Rights: Searching for Common Ground, Oxford University Press, p.281
26 Garg P. K. (2015), Muslim Personal Law, Uniform Civil Code and Judicial Activism- A Critical Study, Thesis submitted to the University of Lucknow, India, Faculty of Law, p.14
27 Op. cit. p.282
28 Mohd. Ahmed Khan v. Shah Bano Begum, available at: https://indiankanoon.org/doc/823221/, [accessed 22 Dec 2018]
29 L. Seth, A Uniform Civil Code: towards Gender Justice, India International Centre Quarterly, 31:4, 2005, p.44
30 “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”, Art. 44, Constitution of India
31 A. Philips, Sharia and Shah Bano: Multiculturalism and Women's Rights, Anthropologica, 53:2, 2011, p.282
32 Larson G. J. (2001), Religion and Personal Law in Secular India: A Call to Judgment, Indiana University Press
33 P. Kumar Gang, Muslim Personal Law, Uniform Civil Code and Judicial Activism- A Critical Study, Thesis submitted to the University of Lucknow, India, Faculty of Law, 2015, p.2
34 B. Radhika, R. Sagarika; Triple talaq: predomination over Muslim women, in Journal of Contemporary Issues of Law, 2017, 3:1, p.1
35 “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”, Art.15, Constitution of India
36 Adopted by the United Nations General Assembly in 1979
37 Gender Justice and India’s Obligations Under International Conventions, 2013, available at: https://clpr.org.in/blog/gender-justice-and-indias-obligations-under-international-conventions/ , [accessed 23 Dec 2018]
39 National Policy for the Empowerment of Women (2001), available at: http://wcd.nic.in/womendevelopment/national-policy-women-empowerment , [accessed 23 Dec 2018]
40 Human Rights Council, Twenty-seventh session (2017), National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21*, India, p.17
41 Amnesty International (2014 ), Submission to the UN Committee on the Elimination of Discrimination Against Women: India, 58th Session, June 2014, [online] available at: https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/Ind/INT_CEDAW_NGO_Ind_17515_E.pdf [accessed 23 Dec. 2018]
42 Amnesty International’s Report (2017/2018), The State Of The World’s Human Rights 2017/18: India, [online] available at: https://amnesty.org.in/publications/amnesty-international-report-2017-2018-india/ [accessed 23 Dec. 2018]
44 The Muslim Personal Law (Shariat) Application Act, (1937), available at: https://indiacode.nic.in/bitstream/123456789/2303/1/A1937-26.pdf , [accessed 23 Dec 2018]
45 A. Yadav, Rights of Muslim women: An Analysis of Indian Muslim personal Law, Rights of Muslim Women: an Analysis of Indian Muslim Personal laws, in Affirmative Action; Women & Law, p.5
46 Shayara Bano v. Union of India & Others, available at: https://www.juridice.ro/wp-content/uploads/2017/08/Triple-Talaq-Judgment-Supreme-Court.pdf , p.3, [accessed 23 Dec 2018]
47 Triple talaq case: Meet the judges of the SC Constitution bench, (2017), available at: https://timesofindia.indiatimes.com/india/triple-talaq-case-meet-the-judges-of-the-sc-constitution-bench/articleshow/60171775.cms , [accessed 23 Dec 2018]
48 P. Deshpande , India: Triple Talaq, Judgment Of Hon'ble Supreme Court And The Most Anticipated Triple Talaq Bill, (2018) available at: http://www.mondaq.com/india/x/670318/divorce/Triple+Talaq+Judgment+Of+Honble+Supreme+Court+And+The+Most+Anticipated+Triple+Talaq+Bill , [accessed 23 Dec 2018]
49 Shayara Bano v. Union of India & Others, available at: https://www.juridice.ro/wp-content/uploads/2017/08/Triple-Talaq-Judgment-Supreme-Court.pdf , p.10, cit. , [accessed 23 Dec 2018]
50 Bhatt M. & Poddar S. (2018), An Overview of Triple Talaq: Situation of the Muslim Women during Talaq, in Journal on Contemporary Issues of Law, 4:6, p.27
51 P. Deshpande, (2018) India: Triple Talaq, Judgment Of Hon'ble Supreme Court And The Most Anticipated Triple Talaq Bill,, available at: http://www.mondaq.com/india/x/670318/divorce/Triple+Talaq+Judgment+Of+Honble+Supreme+Court+And+The+Most+Anticipated+Triple+Talaq+Bill , [accessed 23 Dec 2018]
52 Shayara Bano v. Union of India & Others, available at: https://www.juridice.ro/wp-content/uploads/2017/08/Triple-Talaq-Judgment-Supreme-Court.pdf , p.27, cit. , [accessed 23 Dec 2018]
53 Op. cit., p.33
- Quote paper
- Francesca Ceserani (Author), 2019, Evaluating India's Supreme Court judgment on the instant divorce "triple talaq". Did the verdict build a real momentum for gender equality?, Munich, GRIN Verlag, https://www.grin.com/document/584842