M R Shamshad

The Indian Express spoke to two lawyers, M R Shamshad and Anas Tanwir, on Tuesday’s triple talaq verdict. Shamshad is Advocate-on-Record in the Supreme Court of India. He appeared for the AIMPLB and assisted Kapil Sibal during the hearing of the triple talaq case. Tanwir practises in the Supreme Court of India. He is interested in Muslim Personal Law.

What is the most significant thing about the SC’s verdict?

Shamshad: Instant triple talaq is now illegal. The court, with a majority of three judges, has held that the freedom of religion under the Constitution of India is absolute. Justice Kurian Joseph has struck down this form of talaq because, he holds, it is not an integral part of Islam, and because sources other than the Holy Quran are only supplementary in nature. Thus, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. The most important outcome of the majority view of CJI J S Khehar, Justice Joseph and Justice S Abdul Nazeer is that personal laws, which are not statutory in nature, cannot be tested on the anvil of the right to equality under Article 14.  The judgment will have substantial bearing on legislation on the religious practices of Muslims or other religious groups. The majority of three judges could set aside instant triple talaq because one of these judges took the view that this method of talaq was sinful and inappropriate as per the religion itself.

Tanwir: Both the minority and majority opinions nip in the bud any future attempt by the state to take away the right to divorce from Muslim men, as was indicated by former Attorney General Mukul Rohatgi. The CJI has rejected the argument that when Hindu laws have undergone major reform qua the devdasi system, sati and polygamy, why should Muslim law remain unchanged — he has differentiated between these practices, and stated that these inhuman practices were abolished through legislation, not by the Supreme Court.

Will all personal laws be now decided in the courts?

Shamshad: Only talaq pronounced thrice in one sitting has been declared invalid. The other two forms of talaq — talaq hasan and ahsan — can continue to take place without a court decree. On other personal law-related issues, too, this judgment has nothing. The concepts of nikah, talaq, inheritance, custody, waqf etc., remain unaffected as far as requirement of a court decree is concerned.

Tanwir: By restricting itself to the constitutional validity of instant triple talaq, the SC has deflected any future challenge to other personal laws. However, the CJI recommended legislative intervention under Articles 25(2) and 44, read with Entry 5 of the Concurrent List, contained in the Seventh Schedule of the Constitution.

Where do Dar-ul-Qaza — family courts — stand after this verdict?

Shamshad: Dar-ul-Qaza is a forum for mediation. If the parties agree, it can act as a forum for arbitration, which has been spoken about in the Shamim Ara judgment and this judgment. After this judgment, irrespective of which school Islamic jurisprudence is followed by the parties, Dar-ul-Qaza shall not be able to give the opinion that talaq given in one sitting comes into effect instantaneously. If parties, with consent, approach Dar-ul-Qaza to act as a forum to facilitate amicable settlement or khula, it will have a role to play.

Tanwir: The court relied heavily on the submission that at least 20 Muslim nations have abolished instant triple talaq, and discussed how the power for declaration of divorce in these countries has been granted to Sharia courts, or Dar-ul-Qaza, as they are known in India. It, however, stopped short of devising a similar mechanism for Indian Muslims. It could have given Dar-ul-Qazas the power to allow divorce in cases of irretrievable breakdown of marriage. The principle of conciliation in matrimonial cases is both legal and Quranic. The family courts established under secular law will now not recognise talaq-ul-bidda’h as proper talaq.

Is this RULING in line with earlier rulings on instant talaq?

Shamshad: In Shamim Ara (2002), the Supreme Court held that talaq as ordained by the Holy Quran must be for a reasonable cause and be preceded by attempts at reconciliation by an arbiter each from the wife’s and husband’s families. Since, in general, instant triple talaq does not provide this opportunity, it shall not be correct. Three judges have held this to be a ground to declare instant triple talaq illegal.

Tanwir: The Supreme Court has had the opportunity to examine the constitutional validity of talaq-ul-bidda’h earlier. In Ahmedabad Women Action Group vs Union of India (1997), it declined to interfere as the matter pertained to state policy. In Maharshi Avadhesh v Union of India (1993), it declined to interfere stating the matter pertained to the legislative domain. The present case originated from an intervention in the judgment in Prakash and Ors versus Phulavati and Ors (2015) where the right of Hindu women in the Mitakshara school was in question.

Do most scholars see instant triple talaq as Islamic?

Shamshad: Islamic scholars of the Hanafi school, on the basis of religious texts and interpretations of Quranic injunctions, have understood it to be Islamic. Their stand has been that talaq pronounced thrice becomes binding, in one or separate sittings. Hanafi scholars have also supported the other two forms of talaq. Shamshad is Advocate-on-Record in the Supreme Court of India. He appeared for the AIMPLB and assisted Kapil Sibal during the hearing of the triple talaq case.

Tanwir: Most Islamic scholars have held that even though talaq-ul-bidda’h is un-Islamic, it is valid. Imam Hanifah and Imam Malik considered talaq-ul-bidda’h as bidah, even though instant triple talaq was valid and irrevocable. Imam Hanbal initially held the same view, but subsequently stated that instant triple talaq was revocable. Imam Taymiyyah regarded instant triple talaq invalid and revocable, a view that his disciple Ibn Qayyim, too, followed. There is no mention in the history of Islam about the practice of triple talaq in one sitting during the time of the Prophet. Tanwir practises in the Supreme Court of India. He is interested in Muslim Personal Law.

This article was published in The Indian Express on 23th August, 2017
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