Observing that the judicial conscience is "disturbed", the Allahabad high court has held that triple talaq is "cruel" and raised a question whether the Muslim Personal law could be amended to alleviate the sufferings of Muslim women.
Coming down heavily on the practice, the court has held that this form of "instant divorce" is "most demeaning" which "impedes and drags India from becoming a nation".
"The question which disturbs the court is -- should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Whether the personal law can be amended suitably to alleviate their sufferings? The judicial conscience is disturbed at this monstrosity", a single judge bench of Justice Suneet Kumar said in a judgement passed last month.
"Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife's right to divorce", he said.
"The purpose of law in a modern, secular state.... is to bring about social change. The Muslim community comprise a large percentage of Indian population, therefore, a large section of citizens, in particular women, cannot be left to be governed by archaic customs and social practice under the garb of personal law purportedly having divine sanction", the court observed.
"India is a nation in the making, geographical boundaries alone do not define a nation. It is to be adjudged, amongst others, on the parameter of overall human development and how the society treats its women; leaving such a large population to the whims and fancies of a personal law which perpetuates gender inequality and is regressive, is not in the interest of the society and the country. It impedes and drags India from becoming a nation", the court remarked.
The court observed that "divorce is permissible in Islam only in case of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of marriage by Talaq or by Khola".
"The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions.It is a popular fallacy that a Muslim husband enjoys, under the Quranic Law, unbridled authority to liquidate the marriage.
"The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him", the court said in an order dated November 5.
"The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law", the court said.
The court made the observations while dismissing the petition of Hina, a 23-year-old woman, and her husband who was 30 years her senior and had married her "after effecting triple talaq to his wife".
The couple hailing from Bulandshahr district in western Uttar Pradesh had moved the court seeking a direction to the police and Hina's mother that they stop harassing the petitioners and their safety and security be ensured.
The court, however, made it clear that it was not disputing the contention of the petitioner's counsel that the couple "are adults and are at liberty to choose their own partner" and they "cannot be deprived of their right to life and personal liberty" as per the fundamental rights enshrined in the Constitution.
"Nor difference in age is an issue", the court said, adding, "What is disturbing is that the instrument of instant divorce (triple talaq) has been used for ulterior purpose (by the man) for divorcing his wife....first petitioner (the woman) left her family and joined the company of the second petitioner and consequently the second petitioner decided to get rid of his first wife".
"The question which disturbs the court is -- should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Whether the personal law can be amended suitably to alleviate their sufferings? The judicial conscience is disturbed at this monstrosity", the court noted with concern.
"Women cannot remain at the mercy of the patriarchal set up held under the clutches of sundry clerics having their own interpretation of the holy Quran. Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution", the court held.
Stating that it would "not like to say anything further for the reason that the Supreme Court is seized of the matter", the court added, while dismissing the petition, that "the legality of the marriage/divorce and rights of parties is kept open".
Government , women's law board welcome HC's observation
The government and the All India Muslim Women Personal Law Board hailed the observations of the court on triple talaq as a welcome step, but the All India Muslim Personal Law Board was dismissive, saying the Supreme Court will deliver the final verdict.
Shiv Sena chief Uddhav Thackeray cautioned that the issue of triple talaq should not go the way of Shah Bano case due to vote bank politics.
Welcoming the judgement, Information and Broadcasting Minister M Venkaiah Naidu said women should get justice and everyone agrees to it.
Shaista Ambar, chairperson of All India Muslim Women Personal Law Board, who had earlier expressed reservations over a uniform civil code, said the practice of triple talaq was "unjustified".
"It is an atrocity...no law of Allah tolerates atrocity," she said.
Amber hoped that Muslim women will get justice based on the Constitution as well as Islamic laws.
Minister of State for Women and Child Development Krishna Raj said, "Nobody understood the agony of women. Today, the high court has taken a welcome step. It will help boost the morale of women."
But the AIMPLB seemed dismissive of the high court's observations. Its member Kamal Farooqui said the matter of triple talaq is already before the Supreme Court. "So that will be the judgement."
He said the issue of triple talaq is not restricted to Muslims alone. "It is the question of all those religious entities who have been given guarantee under the Constitution to follow their own faith and religion," he said.
Thackeray said the observations should be respected. "It has a lot of importance for the country. Due to vote bank politics, the issue (of triple talaq) should not go the Shah Bano case way," he cautioned.
Hailing the Allahabad HC's observation on 'triple talaq', the Bharatiya Janata Party said its stand on the issue has been vindicated, and asked political parties supporting the practise to "desist from dividing the society in the name of religion".
Bharatiya Janata Party National Secretary Siddharth Nath Singh said, "BJP's ideology of gender equality stands vindicated by the court's observation which has termed triple talaq unconstitutional and violative of women rights. A progressive society cannot be subjected to a regressive religious practice.
"BJP welcomes the court's decision and also warns those political parties who have supported triple talaq for their political expediency. Time has come for them to desist from dividing the society in the name of religion. No personal law can claim supremacy over the rights granted to individuals by the Constitution," he added.
Expressing anguish over Muslim women being subjected to divorce over speed post, Skype and Facebook under the practice, he said it amounted to "disrespect towards women".
"India is one and the rights of women need to be one. Gender equality will be a major election issue, particularly in Uttar Pradesh, because time has come that people of India should know how these 'secular parties' have played with women rights through vote bank politics," Singh said.