SC’s referral of triple talaq to a Constitution Bench brings us back to the UCC debate

Discriminatory practices

At present, the Supreme Court is flooded with various petitions by the All India Muslim Personal Law Board (AIMPLB) and Jamiat-e-Ulema, who have defended the practice after Shayara Bano, a Muslim woman from Uttar Pradesh, stirred a hornet's nest after she moved the SC to challenge triple talaq under Muslim personal law.

What happened during the proceedings on 30 March was a simple adjournment after the matter was referred to a Constitution Bench (with a minimum of five judges) by a three-judge bench headed by the Chief Justice of India J S Khehar.

What makes this a significant move is that it would open the doors for the debate on UCC as it deals with gender equality and relates to three core issues: divorce, inheritance and custody of children.

UCC aims to achieve this as a non-Muslim cannot be compelled to perform ‘nikah’ (Muslim ritual of marriage) and likewise a Muslim cannot be compelled to perform saptapadi (the sacred seven steps, a Hindu marriage ritual of taking seven steps together) and a tribal cannot be compelled to marry in a particular manner outside his or her tribal custom. 

So, while marriage, professing, propagating and preaching a religion could be in accordance with one’s own religion, divorce, inheritance, especially property matters cannot be discriminatory to a gender.

‘Instant divorce’

The Centre’s stand before the apex court opposing the practice has come at a juncture when the Uniform Civil Code is still being debated. The Indian central government took the stand that talaq is “misplaced in a secular country.” 

It contended that in a “secular country” like India, “dignity of women” is “non-negotiable” and even several Islamic Nations have effected changes in the law. 

The practice of instant divorce has adapted with technology as well - there have been instances where women have been divorced via SMS, Facebook and WhatsApp among others. One case where WhatsApp was used is already pending before the Delhi High Court, but will likely reach the Constitution Bench.

Outside the realm of judiciary

The AIMPLB has made its position clear on the matter and contended that the courts cannot interfere in the religious freedom of minorities. 

However, the All India Muslim Women Personal Law Board (AIMWPLB) has argued that Muslim men who give the irrevocable triple talaq using social media or postcards and the like, should be punished as it is against the Holy Quran.

But neither the AIMPLB nor the AIMWPLB have any statutory standing.

Mediation and reconciliation

“Often when a man gives talaq in a fit of rage but regrets it later, the couple has no option of going back because the Maualana says divorce has been effected. We want to change this,” said Shaista Amber, president of the AIMWPLB.

She hastened to clarify that the AIMWPLB is not in favour of a uniform civil code either. Her argument is when there is sharia law for Muslim women,  it should be implemented properly. For example, the practice of nikah halala, on which a petition is being considered by the Supreme Court which involves the question of 'halala', stipulating that a divorced woman would go back to her husband only after she consummates her marriage with another man.

Another petitioner in the case, Zakia Soman, one of the founding members of the Bharatiya Muslim Mahila Andolan (BMMA), has said that the Shah Bano case from the mid-1980s might have changed some minds, but the practice “is not valid as per the Holy Quran which emphasises mediation and reconciliation before the decision to divorce”.

The Shah Bano case had taken the nation by storm and resulted in the resignation of the then union minister Arif Mohammad Khan from Rajiv Gandhi’s cabinet as he had opposed the amendment in the law as discriminatory against Muslim women.

Now whether the Shayara Bano case would result ina change is a question that is yet to be answered.  

The UCC debate

The Supreme Court has also clarified that as the matter is related to gender justice, it would examine whether Muslim women face gender discrimination due to this Muslim personal law.

But several parties involved with the case want a debate on UCC. The main issues that come to the forefront in the matter are:

1. Whether the practice of triple talaq, nikah halala and polygamy are violative of Article 25(1) of the Constitution of India, which guarantees all the Indian citizens the right to profess, practice, propagate and preach a religion of his/her choice.

2. Whether such right is subject to right to equality and right to life as enshrined under Articles 14 and 21 of the Constitution.

3. Whether the Muslim law is violative of Article 13 of the Constitution stipulating that any law is void if it not in conformity with the constitutional scheme.

4. The State shall not discriminate its citizens on the basis of region, religion, language and gender. 

5. The question that the only  Union of India has brought in is that whether such practices are inconsistent (incompatible) with India’s obligation under various international treaties and covenants to which the country is a signatory.