SAHR is following the
Shayara Bano petition at the Indian Supreme Court to ban
triple-talaq (unilateral divorce pronounced in one sitting),
polygamy and nikah-halala in India.
In Part II of the post, we present the remaining arguments made by the petitioner. Read Part I here.
6. Earlier reforms have been sought to prohibit triple-talaq in India.
The petitioner submits that earlier reforms had been sought by the Muslim community in India to prohibit triple-talaq. The All India Muslim Women Personal Law Board was of the view that triple-talaq is against Islam and is not endorsed by the Holy Quran since this form of talaq lacks any attempt at reconciliation (¶ 17).
Further, in 2015 the Bhartiya Muslim Mahila Andolan had written to the Prime Minister of India seeking codification of the Muslim personal law wherein the organization had sought that triple-talaq and polygamy be declared illegal (¶ 18).
A high-level committee set up by the Union Government had in its report in 2015 recommended that the Dissolution of Muslim Marriages Act, 1939 must be amended to render triple-talaq and polygamy void (¶ 19).
7. The beliefs upon which triple-talaq is recognised are factually false, unscientific and violate the Muslim women’s right to practise and profess her religion
The petitioner argues that “the assumptions and beliefs upon which the talaq-e-bidat form of divorce is recognised are factually false, scientifically untenable and contrary to the spirit and provisions of the Constitution” and that triple-talaq “has been declared to be a spiritual offence in the Holy Quran and giving recognition to that form interferes with the Muslim women’s right to profess and practice her religion, inasmuch as it unleashes a spiritual offence on her…and is, thus, violative of Articles 14, 15, 21 and 25 of the Constitution”. The petitioner submits that the Muslim Personal Law (Shariat) Application Act, 1937 (which provides for the application of Muslim personal law to Muslims in matters relating to marriage) is unconstitutional and repugnant to the dignity of a woman to the extent that it validates triple-talaq, polygamy and nikah halala (¶¶ 20-21).
The petition states that marriage and succession laws are not part of religion and the law must change with time. The petitioner relies on the Supreme Court’s view in an earlier case that the SC needs to examine gender discrimination against Muslim women under Muslim personal laws, “specifically the lack of safeguards against arbitrary divorce and second marriage by a Muslim husband during currency of first marriage” despite the fundamental right to equality and non-discrimination (¶ 24).
8. Legal restrictions on polygamy and triple-talaq exist in Pakistan and Bangladesh.
The petition notes that Pakistan and Bangladesh have incorporated legal safeguards to protect the dignity of women including the requirement that notice of talaq must be in writing, prescribing a mandatory period of reconciliation for divorce to be effective, and empowering women to remarry their husband after divorce without the need for an intervening marriage with a third person. Similarly, the Pakistani and Bangladeshi laws provide for restrictions on polygamy by prescribing that “a married man may not enter into another marriage without just reasons for the proposed marriage, seeking the consent of existing wife or wives, and obtaining the approval of an Arbitration Council established by the law, which Arbitration Council must necessarily consult the existing wife or wives to consider whether the proposed marriage is necessary and just” (¶ 25).
9. International law recognises that polygamy undermines the dignity of women.
The petitioner relies on Article 3 & 7 of the Universal Declaration of Human Rights and states that women’s human rights are recognised as part of universal human rights. In 2000, the United Nations Human Rights Committee (UNHCR) considered polygamy a destruction of the International Covenant on Civil and Political Rights (ICCPR) on the basis that it violates the dignity of women and recommended that it be made illegal in all the countries; India acceded to the ICCPR in 1979 (¶ 27).
10. Non-discrimination and gender equality are central principles in human rights law.
Article 26 of the ICCPR provides for equality before the law and equal protection of the law. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) requires States to guarantee the exercise of the rights enunciated in the ICESCR without gender-based or religion-based discrimination. Failure to eliminate de jure (formal) and de facto (substantive) discrimination against women including by non- State actors, either directly or indirectly, violates the State’s obligations under the international treaties and covenants (¶¶ 28-29).
11. "The Constitution neither grants any absolute protection to the personal law of any community that is unjust, nor exempts personal laws from the jurisdiction of the Legislature or the Judiciary" (¶ 40).
12. "The Constitution does not preclude the State from introducing social reforms and enacting laws on subjects traditionally associated with religion, especially when such laws aim to secure public order, morality, health and the rights guaranteed by Part III of the Constitution" (¶ 42).
13. "The Constitution only protects religious faith and belief while the religious practices under challenge run counter to public order, morality, and health and must therefore yield to the basic human and fundamental right of Muslim women to live with dignity, under equal protection of laws, without any discrimination on the basis of gender or religion" (¶ 43).
14. "A complete ban on polygamy, nikah halala and unilateral triple-talaq is the need of the hour as it renders Muslim wives extremely insecure, vulnerable and infringes their fundamental rights" (¶ 45).