Round-up on Triple Ṭalāq

SUPREME COURT CASE: Shayara Bano v. Union of India, etc. (Supreme Court of India) 

In a 3-2 decision, the Supreme Court of India declared triple ṭalāq unconstitutional and gave India’s parliament six months “to consider legislation” for handling triple ṭalāq. In its opinion, the Court cited global advances in Islamic family law (in India, called Muslim personal law) in “even theocratic Islamic states” as evidence of the need for reform.  The Court also noted that the Muslim Personal Law (Shariat) Application Act of 1937, which protects the religious freedom of Muslims in India, does not constitutionally protect practices deemed “anti-Qur’anic.” Asserting that triple ṭalāq is such a practice, the Court held that it could not be protected under the Indian Constitution.

The decision

 


Scholarly Commentary: In Plain English and a Legislative Proposal

In Response to the Indian Supreme Court’s Recent Decision on Triple Ṭalāq: A Legislative Proposal

Author: Zubair Abbasi

In a 3-2 decision, the Supreme Court of India declared triple ṭalāq unconstitutional and gave India’s parliament six months “to consider legislation” for handling triple ṭalāq. In its opinion, the Court cited global advances in Islamic family law (in India, called Muslim personal law) in “even theocratic Islamic states” as evidence of the need for reform.  The Court also noted that the Muslim Personal Law (Shariat) Application Act of 1937, which protects the religious freedom of Muslims in India, does not constitutionally protect practices deemed “anti-Qur’anic.” Asserting that triple ṭalāq is such a practice, the Court held that it could not be protected under the Indian Constitution.

 

 


Related Cases and Commentaries that look at triple ṭalāq in India from other perspectives

 

Editor’s Comment: The tension between gender equity and a secular state:

CASE: Danial Latifi & Anr vs Union of India   

In Danial Latifi, the Indian Supreme Court found that the 1986 Muslim Women (Protection of Rights on Divorce) Act requires a Muslim husband to provide maintenance of a reasonable and fair amount needed to maintain his ex-wife for the rest of her life, but that he must pay this amount in total during the iddat period (three month post-divorce period).

COMMENTARY: The Danial Latifi Case and the Indian Supreme Court’s Balancing Act

Author: Akhila Kolisetty

The Danial Latifi illustrates the impact of communal tensions on the Supreme Court’s decision-making process, and the careful lines it attempts to draw in order to promote Muslim women’s gender equity while also limiting its intervention into Islamic personal law to avoid potential backlash.

Key issues: maintenance; iddat

 


Editor’s Comment: As a mechanism for the assertion of the modern Indian state:

CASE: Shamim Ara

The Indian Supreme Court held that for talaq (unilateral, male-initiated divorce) to be valid, there must be (1) a reasonable cause and (2) proof of an effort of reconciliation; a simple utterance of talaq, or the presentation of a written statement stating that the respondent had divorced the plaintiff sometime previously, was not sufficient to effect unilateral divorce.

COMMENTARY: Shamim Ara and the Divorce Politics of a Secular and Modern India

Author: Jeffrey A. Redding

In this piece, Jeffrey A. Redding argues that crucial aspects of the 2002 landmark Supreme Court of India opinion in Shamim Ara v. State of U.P. have largely been overlooked, with the consequence that this opinion’s broader significance for understanding the contemporary Indian state’s complicated self-conceptualization as secular and modern has been diminished.

Key issues: Muslim personal law; reform; secular state; modern administrative state

 


Editor’s Comment: Comparative law: state reform towards gender equality

CASE: Shayara Bano

COMMENTARY:

Women’s Right to Divorce under Islamic Law in Pakistan and India

Author: Zubair Abbasi

This Note explores the issue of the reform of Islamic divorce law in India and Pakistan. In both countries, judges of the superior courts led the reform efforts. Indian and Pakistani judges tried to ensure gender equality under Islamic divorce law, but adopted entirely different approaches. Whereas the Pakistani judges extended women’s limited right to divorce (khul‘), Indian judges restricted husband’s unlimited right to divorce (talaq).