Like most matters involving Constitution Benches, what will endure is the political context of the debate in which the triple talaq case was spawned, and how the arguments in the Supreme Court impacted that context. It is now 31 years to Shah Bano, which is the last time that matters related to the matrimony of a Muslim woman made it to party political manifestos. The Supreme Court verdict in the case, on the question of the amount of maintenance to be provided to a divorced Muslim woman, was overturned by Parliament through enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. In the eighties, “Shah Bano” became code for the BJP’s argument against undue state protection for Indian Muslims (read Muslim men). While the Hindu Code Bill and a series of laws passed in the 50s had put restrictions on Hindu men, Muslims were seen to continue to enjoy the right to marry more than once, and divorce in ways that were deemed easier. That Muslim men “had it better” was the political slogan for the ranks, along with “Shah Bano”, “appeasement” and “Babri Masjid”. The three decades since then, before a two-judge Bench pushed the triple talaq matter back into national consciousness (Prakash and Ors versus Phulavati and Ors, 2015), have seen much change and ferment. Rising literacy has impacted all sections of society, huge changes in communication technology have allowed the Quran to be read on mobile phones, Muslim women have sought to reconcile feminism with Islam, ideas such as parity in wages have gained ground, and progressive legislation such as The Protection of Women from Domestic Violence Act, 2005, have left a deep mark on the Muslim community. As dissatisfaction with family courts (Dar-ul-Qaza) grew, a Muslim Women’s Personal Law Board came into being in 2005, even as the women in the All India Muslim Personal Law Board became increasingly visible. The courts, meanwhile, kept chipping away at the acceptability of instant talaq — in the Shamim Ara case in 2003, the Supreme Court said divorce would not be valid unless the husband could satisfy the court, through “oral, documentary, circumstantial evidence”, that the procedure for divorce laid down in the Quran had been followed. In 2008, Justice Badar Durrez Ahmed of the Delhi High Court ruled in Masood Ahmed that three divorces at one go counted as just a single talaq. The present case cannot be divorced from its context. Muslim organisations have been willing to raise issues of gender parity, but have found it difficult to believe that the interests of the ascendant BJP end at merely ensuring gender parity. Unlike when NDA-I was in power, the BJP today appears far more keen to push through the courts its “core agenda” on Ayodhya, Uniform Civil Code and Kashmir. Thus, Article 35A is facing a fresh challenge in the Supreme Court, while the triple talaq case has been widely seen as proxy for a Uniform (Hindu) Civil Code for all. The roots of the debate are deep. The attempts at reforming and codifying Hindu law by Pandit Jawaharlal Nehru and Dr B R Ambedkar faced vociferous opposition from the Hindu Right led by Dr Syama Prasad Mookerjee, and contributed to Babasaheb’s resignation from the cabinet. While Nehru went about completing the business of codifying Hindu law, the job of persuading the minorities, and of enabling more progressive and vigorous reform from within, did not go far in the face of dominant conservative opinion. Tuesday’s five-judge verdict gives an important opportunity to the Muslim community to seize the day on what it agrees must indeed happen: meaningful and robust progressive reform. The majority verdict has struck down instant triple talaq as illegal and “arbitrary”, but not as unconstitutional — careful, perhaps, to not open the Pandora’s box of practices such as those pertaining to personal law in Himachal Pradesh (which is at variance with the rest of the country), and among Parsis (where decisions are made by a panchayat) and Christians (where a Church tribunal decides). Among Hindus, customs contrary to the Hindu Marriage Act, 1955, have been specifically protected by Section 29 (2) of the Act, and the Act’s Section 2 makes it inapplicable to the Scheduled Tribes. By calling out a social evil for what it is, by striking it down and yet not ruffling feathers about how one religion is fundamentally more or less ‘progressive’ than the other, the court has opened a golden window for all communities to push for progressive reform in personal laws that impact all women, men and children. seema.chishti@expressindia.com
