The idea of gender justice is the substantive recognition of equality in its ethical syntactics, but it remains in a vacuum unless and until it is manifested in pragmatics in the lives of the women and girls. The gender justice is the target to achieve full equality with equity among women and girls and men and boys in all spheres of human development.

The gender justice is the result of men and women jointly defining and shaping the policies and structures on the anvil of equality in the civil society.  The gender justice confronts the discrimination against women and girls that have been affecting the lives of women since time immemorial and is the most widespread and acute human rights violations. Discrimination prevents women and girls from accomplishing their socio-political, eco-cultural and lego-institutional objectives ordained in all regions, all constitutions and based on the ordinary prudence of equity, equality and a clear conscience. The gender justice makes available to women equal rights with men in all spheres of human life including matrimonial relationships that has been an institution of gender abuse, women subjugation, and women exploitation to the hilt among the Muslim community in India. However, other religious communities in India also have the privilege to demean their wives in different departments of life but Muslims in the name of Islam have denied and deprived Muslim women from their lawful claims, entitlements, and rights provided in the Holy Quran particularly their rights in conjugal causes by limiting their ability to access Quranic model of dissolution of Muslim marriage that invokes religious syntactics in interpreting their rights.

The tyranny of Triple Talaq or Triple Divorce has been put in the ground for once and all on August 22, 2017, which was litigated before the highest judicial establishment of India. It is, indeed, a great occasion for an audacious assembly of Muslim women for winning their legitimate rights within the walls of the constitutional sanctity of Quranic idea of annulment of marriage. They have dauntlessly and successfully challenged the parochial, disgraceful and despicable practice of subjugation of Muslim women that too in the name of the un-Islamic orientation of Islam. The Supreme Court (SC) of India delivered a jolt to perpetrators of Triple Talaq practice who circumvented all standards of human civility, spousal equality, and the rule of law. The latest SC verdict in the Triple Talaq Case is capable of addressing the gender justice project across the religious denominations in India. In fact, the beginning of the social justice movement in India against the Triple Talaq initiated on 18 April 1966, in Maharashtra for protecting the Muslim women’s rights. In other parts of the world, for example, there are many countries in the Arab peninsula such as Algeria, Egypt, Iraq,  UAE, Kuwait, Jordan, Lebanon, Libya, Morocco, Sudan, Syria, Tunisia, and Yemen who have promulgated the laws against the practice of Triple Talaq. Thus, the Triple Talaq is not Islamic, and it is a departure and deviation from the tenets of the Holy Quran to undermine the Muslim women rights on divorce, and it has also been outlawed in many other countries including Pakistan.

Triple Talaq Wiles

Primarily, the Muslim women contended that the practice of Triple Talaq is unconstitutional and it has attained the ugliest form since Triple Divorce is being pronounced by the SMS Text, phone, email, and Whatapps, etc. The SC has viewed that the practice of Triple Talaq is the cruelest, vilest and undesirable form of Muslim marriage dissolution barring few exception of its recognition in some of the schools of Muslim law as observed and practiced in India. Many scholars and academic described the method of Triple Talaq detestable, repulsive, repugnant, and discriminatory to the core that deprives the constitutional right to equality and incompatible with the tenets of the Holy Quran. Therefore, no volume of advocacy can justify its retention. Even GOI had designated all forms of Talaq provided in the Holy Quran such as Talaq-e-Hasan and Talaq-e-Ahsan, as “unilateral” and “extrajudicial” inconsistent with the Constitution of India. However, Kapil Sibal argued on behalf of AIMPLB that the practice of Triple Talaq has been prevalent since 637 AD and cannot be said as un-Islamic and Muslims have been practicing it for the last 1400 years. Unfortunately, that makes it more dangerous and detrimental to the cause of Muslim women’s right to equality. The AIMPLB has behaved arrogantly and irresponsibly in this matter and did not come out with any credible proposal during marathon hearing of the case despite the fact there was opposition to this abhorrent practice in the Muslim community. Therefore, the SC put right a historical wrong that had demeaned the idea of gender equality and perpetuated discrimination based on patriarchal supremacy, bad in theology and sinful and reformed the miasma that was imposed upon the Muslim women.

Gender Justice Law & Sensitization

The people with a preference for homosexuality, lesbianism, gay, transgenderism, and queer (LGBTQ) and cross dressings are illegal in many Muslim countries like Saudi Arab, UAE and a sizable section of Muslim community in India consider these orientations and punishable offensive with prison terms. Therefore, the issue of gender justice in Muslim Personal Law has not been attended sensitively, and it was always entwined with a controversial issue of Uniform Civil Code (UCC) that has deflected the larger issue of gender justice. The UCC has been floated as a plausible alternative to achieve the unachievable in the present circumstances. There is no attempt to decipher and define the contours of the UCC about marriage, divorce, maintenance, inheritance rights, matrimonial property rights and custody of children, etc. Presently, these are the contentious issues simmering in all the religious communities, and all communities consider their religious laws and practices inviolable and unimpeachable to the hilt. For example; the position of Hindu community is dicey and volatile on the dilution of HUF (Hindu Undivided Family) that brings them huge tax concessions and exemptions and other benefits. Therefore, there cannot be utopian UCC likely to be a launch pad for social reforms and gender justice in future. The women movements and organizations like AIDWA (All India Women’s Democratic Association) have been spearheading the cause of equal rights and equal laws for the women and girls to ensure gender parity in all communities in India. AIDWA has supported the significant movement led by Mary Roy for women’s inheritance rights of the Syrian Christian Women. However, a large section of the Christian clergy has started a campaign to demand that the Christian Personal Laws relating to marriage, divorce, and inheritance must be reformed while taking into global norms of gender justice. Among the Muslims, after the Triple Talaq, the practices of Halala, and polygamy must also be addressed with greater vehemence and vitality.

There are many relevant provisions of the Indian Penal Code (IPC), 1860 like Sections 294 [singing lewd songs and demanding sexual favours], 354 (A) [Making unwanted physical contact] (C) [Voyeurism] & (D) [Stalking], 503 [Criminal Threat], 499 [Morphing pictures of women], 509 [Making sexually coloured remarks against women], Section 67 [posting any obscene or defamatory material on online platforms] of the Information Technology Act, 2000,    There are some legislations enacted like Domestic Violence Act, 2005, Prohibition of Dowry Act, 1961, and the Sexual Harassment of the Women at Workplace-Prevention, Prohibition and Redressal-Act, 2013 and other laws and judicial guidelines against sexual harassment; rape and incidental offences laid down in the matter of Vishaka v. State of Rajasthan & Others that have been appreciated through the lenses of gender equality. The SC had perceived sexual harassment in the workplace as a social problem of considerable magnitude based on discriminatory tendencies against women. The court stated that “Gender equality embraces protection from sexual harassment and the right to work with dignity, which is a universally recognized fundamental human right.” In reality, it is the Libidinal Perversion Gratification (LPG) mindset of the menfolk that works against the women in the public space as well as on the internal walls. All these laws have been enacted under the mounting pressure, but there are many violations of these statutes than the compliance with their provisions. The implementation of these laws has become the biggest challenge in the wake of entrenched patriarchy in all the religious communities in India. The patriarchal mindset has seeped deep into the government and its instrumentalities resulting in the incremental incidences of crimes against women. Thus, it is time to implement these legislations without brooking an iota of discrimination and to establish India as a modern liberal democracy.    

Supreme Court of India

The constitution bench of five-judges of the Supreme Court (SC) of India has delivered the historical and unprecedented judgment and rightly banned and declared the practice of unilateral Triple Talaq (also known as Talaq-e-Biddat---Innovative Divorce) unconstitutional and ultra-vires of the Constitution of India. It is now unequivocally established that Triple Talaq is not fundamental to the religion of Islam in India that has often been misused whimsically against Muslim women contrary to gender jurisprudence evolved by the SC and principles of equality as ordained in the Constitution of India, international human rights law, and Holy Quran. The judgement has the guidance from Muslim Law in India and Abroad by Prof. Tahir Mahmood, and SC has identified as many as 19 countries including Egypt, Pakistan, and Turkey and other nation-states from Arab peninsula, South-East Asia, and South Asia that have abolished Triple Talaq and SC has consulted and cited the laws of these countries. This judgment is not against any individual or any institution, organization or religion of Islam rather the true meaning and spirit of the Holy Quran has been delineated on the idea of individual rights, the rule of law, and human rights enunciated in the Constitution of India.

The constitution bench consisted of judges from different religions---Hinduism, Islam, Sikhism, Christianity and Parsi headed by CJI Justice J.S. Khehar, and other Justices U.U. Lalit, S Abdul Nazeer, Kurian Joseph, and R.F. Nariman and they had examined a bunch of seven petitions including the five individual petitions filed by Muslim women challenging the practice of Triple Talaq in the Muslim community. The bench set aside the cruel practice of Triple Talaq by a 3-2 majority. Justice Nariman and Justice Lalit set it aside by terming it unconstitutional and contravening the Article 14 while Justice Joseph also set it aside on the ground of its being against the teachings of the Holy Quran. The CJI Mr. Justice J.S. Khehar and Justice Abdul Nazeer supported the Triple Talaq and recognized that the Triple Talaq was part of Muslim Personal Law and, thus, enjoys the status of fundamental rights.

The Holy Quran & International Law

The Triple Talaq verdict has created a new space for gender justice, and the court treated the women’s rights as human rights under International Human Rights Law. Therefore, the court has recognized the Quranic injunctions on gender equality that Muslim women lacked for centuries. In the Holy Quran, the Triple Talaq is pronounced by a man with the word Talaq speaking thrice over the period of three months. In such a manner, a person may withdraw his word of Talaq twice before finally pronouncing it to end the spousal relationship. Therefore, the Marriage Dissolution under Quranic Mechanism has a justification to establish that a marital union does not conclude by uttering Talaq thrice in one go due to sudden provocation, intoxication, and anger. However, during the life of Prophet Muhammad (PBUH) three or more than three utterances of Talaq in one sitting were regarded as one statement. But, the second Caliph of Islam Hazrat Umar, the Great has taken a different view of Triple Talaq due to administrative reasons for a temporary period to bind Muslim men who rush into instant and final Talaq by uttering word Talaq three times in one go. However, the step of Second Caliph was against the principles of Holy Quran. Though, Caliph Umar had put off the impugned practice by flogging the man who resorted to the Triple Talaq. But, unfortunately, the practice of Triple Talaq got embedded into the Islamic Law based on the authoritarian analysis adjudicated by the later Imams particularly Imam Abu Hanifa and it has wrongly been presented to ordinary Muslims as the inalienable part of Islamic law.

India is a signatory to many international human rights instruments to endorse its global obligations and commitments and to address the gender justice matters in the absence of comprehensive and consolidated municipal laws. The court stated that India is a signatory to the CEDAW (UN Convention on the Elimination of All Forms of Discrimination against Women-1979) that prohibits discrimination at the workplace and laid down specific state obligations to eliminate all forms of discriminations:

  • To protect the right to work, the right to health and right to safety in the conditions at the workplace including the safeguarding of the function of reproduction under Article 11(1) (a) and (f) of the CEDAW;
  • To undertake the adoption of all necessary measures at the national level to achieve the full realization of the rights recognized in the Article 24 of CEDAW; and
  • To adhere to the General Recommendation No. 19 on the elimination of violence against women under the CEDAW.

Therefore, the Government of India has enacted the domestic legislation called the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act-2013 to adequately address sexual harassment in the workplace to achieve gender equality and non-discrimination as enshrined in the universal human rights norms and standards.

The Holy Quran & the Constitutional Law of India

The SC for the first time has made Articles 25 and 26 of the Constitution of India “absolute” despite their being subjected to restrictions. However, the Triple Talaq Judgment (TTJ) has not been a unanimous decision and two judges dissented including the CJI Justice J.S. Kehar who regarded the Triple Talaq inalienable part of Muslim personal law in India and opined that Triple Talaq does not contravene Articles 14, 15, and 21 of the Constitution of India while majority judgment held the view that instant Triple Talaq is an un-Islamic practice and Justice Kurien’s judicial construction of Shamim Ara Judgment as the decisive law of divorce in India that should have been followed. However, the dissenting judges have taken a cautious approach to balancing the whole gamut of Triple Talaq by outlining the fact the practice is not prevalent even in Muslim theocracies. Therefore, dissenting judges have directed the Government of India (GOI) to frame the appropriate law in this regard. The GOI must demonstrate the political will to come out with a concrete legislation to lay down the quantum of punishment that shall be meted out to the offenders otherwise this judgment would remain a pyrrhic victory. The TTJ has been welcomed as a milestone for unprecedented social change by every progressive section of the civil society institutions including Amnesty International India and international human rights organizations.

Conclusion 

Now, political discourse on Triple Talaq must be set at rest and ways must be rummaged to implement the SC decision in its letter and spirit without brooking any pressure from organizations like All India Muslim Personal Board (AIMPLB) who played the politics of procrastination on this issue for its political ends. The AIMPLB is a conglomerate of so-called Muslim leaders and does not represent diverse voices of the Indian Muslims. There are multiple religious practices and beliefs which Indian Muslims follow in their daily life. Among the Indian Muslims, there are 90% Sunni Hanafi and remaining 10% belong to Ahle-Hadees and Shafaiis and Shafaiis support the Hanafi stand on the validity of Triple Talaq in one go.  However, one sect called Ahle-Hadees does not subscribe to the practice of Triple Talaq. Moreover, TTJ has clarified that all personal laws must conform to the Constitution of India regarding marriage, divorce, property, and succession. It has rightly been contented by the GOI before the SC that it is not “majority community” v. minority community” discourse but an intra-Muslim community power struggle between fundamentalists and the subjugated Muslim women.

It is, now, evident that the political will of the highest order in the Government of India is needed to take necessary measures for enforcing the judicial dicta. August 22, 2017, would be regarded a defining moment and turning point in the legal history of India when gender equality attained its zenith in the lives of Muslim women. India’s Muslim women have achieved what was considered unattainable since independence. The latest SC decision has established the supremacy of constitutional guarantees in upholding the gender equilibrium in human relationships within the religious structures including of Islam. Now, the time has come to reform the unjust and obsolete religious practices under the new laws across the communities while expanding the horizons of gender justice. Therefore, progressive codification of Muslim Law must be commenced while taking into primacy of the jurisprudence expounded by the Supreme Court, Constitution of India and the Holy Quran for once and all.   

Dr. Nafees Ahmad

Ph. D., LL.M, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author teaches and writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law & Forced Migration Studies. He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com, drnafeesahmad[at]sau.ac.in

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