Triple talaq and nikah halala

Justice Markandey Katju-

 

The President of India, Ramnath Kovind, in an address to the joint meeting of members of both Houses of Parliament called for the eradication of the practice of triple talaq and nikah halala for ensuring equal rights for women and upholding women’s’ dignity.

Justice Markandey Katju

In Shayara Bano vs Union of India ( 2017 ) a 5 Judge bench of the Supreme Court had declared triple talaq illegal. This decision must be applauded, because triple talaq was a barbaric feudal practice which entitled a Muslim husband in India to divorce his wife orally ( or even by a letter ) and throw her out from the house for any rhyme or reason, even whimsically. Hundreds of young Muslim women had been treated like this, their lives being ruined thereby.

I remember when I was a judge of the Supreme Court a case came before a 3 Judge bench of which I was a member. The facts of that case were that a Muslim husband in Odisha, who had 3 small children, had pronounced triple talaq on his wife while intoxicated with liquor. However, this was done in a room where no one else was present. For about a month no one except the wife knew of it until one day she unwittingly mentioned this to a friend. That friend related it to someone else, and the information spread to others until it reached the ears of the local maulvi who said the two cannot be allowed to live together as they were no longer husband and wife. An incensed mob of Muslims collected in front of the house of the couple and demanded they separate. All the pleas of the wife that she had 3 small children and had nowhere to go were to no avail.

Public interest litigation was filed in the Orissa High Court which was dismissed, and then an appeal came before the Supreme Court. I said that this was a civilized country, and Muslims too must behave. How was it anyone’s business whether the couple lived together or not ? When a counsel referred to the sharia, I said the Indian Constitution prevails over the sharia. Having said so we directed the police to give protection to the couple and take strong action against those interfering with their lives.

Another incident I may mention was of a young Muslim woman whom I knew who was married to a Muslim youth living in England. The youth had come to India for the wedding ( which I attended ), and then went back to England saying he will make arrangements for her to move to England. But shortly thereafter she received a letter pronouncing triple talaq. On receiving this she almost committed suicide.

Hundreds of similar cases can be narrated, and therefore I have always been a strong votary of the abolition of triple talaq. The reactionary Muslim clerics, however, always opposed the abolition of this barbaric practice whenever proposed, and most of our politicians, having an eye on the Muslim vote bank, on which the clerics had a hold, acquiesced.

Thankfully, the Supreme Court in Shayara Bano’s case declared the practice illegal.

However, even after this judgment 229 cases of pronouncement of triple talaq were reported in India, as the Union Law Minister Ravi Shankar Prasad said, and so the Union Government has brought a Bill in Parliament to make triple talaq a criminal offense with upto 3 years jail sentence. Obviously, the Shayara Bano verdict was not proving effective, so some teeth had to be given to it by criminalizing triple talaq.

Most of the Opposition parties are opposing the Bill, obviously with an eye on the Muslim vote bank. I am no supporter of the BJP ( or of any party ) but I strongly support the Bill.

The argument given by the Opposition is that if a husband is sent to jail for pronouncing triple talaq who will provide for the wife when her husband is in jail? He remains the husband in view of Shayara Bano’s judgment, and hence she cannot remarry.

In my opinion, if this reasoning is accepted then no husband should ever be sent to jail, even if he has committed murder, rape, robbery, cheating, or any other offense, for then his wife and children will starve. If a man having a wife commits honor killing of his daughter for marrying outside the caste or religion or commits dowry death of his daughter in law, he should not be hanged or sent to jail, for then who will provide for his wife? If a married policeman commits a fake encounter or custodial death he should not be punished. The logic of the Opposition is specious.

To stamp out a feudal, backward and barbaric practice strong action by the state is required, even if there are some adverse consequences. India is passing through a transitional period in its history, and to move forward we must suppress backward, feudal, reactionary and barbaric practices. And when we hew wood, some chips will fly.

The practice of nikah halala is equally obnoxious. It prescribes that a divorced Muslim couple cannot remarry unless the wife marries another man, the second marriage is consummated, and then the second husband divorces the woman. There are reports of divorced Muslim women who want to be remarried to their husbands paying money to clerics for nikah halala. Can one imagine a more disgusting practice?

I therefore fully support the view of the Hon’ble President of India as well as the Triple Talaq Bill

 

[Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India. The views expressed are his own]

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