*At age 36, Shayara Bano is battling multiple ailments following multiple abortions. Her husband of 15 years sent her a talaqnama (divorce) by post while she was with her parents at their home in Kashipur, Uttarakhand.
* Ishrat Jahan is 30. Her husband uttered talaq three times over phone and allegedly took away her four children, leaving her at the mercy of her extended family in Howrah.
* The Bharatiya Muslim Mahila Andolan (BMMA) signed a letter containing a petition titled ‘Muslim Women’s Quest for Equality’. A two-judge bench of the Supreme Court took suo motu cognisance of the petition.
All three are petitioners in what is now called the triple talaq case. On Tuesday, a five-judge bench of the Supreme Court will give its ruling on a clutch of petitions which have challenged the practice of triple talaq as “unlawful and unconstitutional”.
The verdict by the bench comprising Chief Justice of India J S Khehar and Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer is to be pronounced at 10.30 am. The bench had reserved its verdict on May 18 after hearing it for six days starting May 11 during the summer recess.
Shayara Bano and her family are preparing to reach Delhi from Kashipur Tuesday morning. Hopes are high, says her brother Arshad Ali. “It is not just about my sister. It is about all my sisters across the country, it is about future generations,” Ali told The Indian Express over phone.
In the court, her lawyer had contended: “The Muslim husband’s right to ask for divorce by uttering talaq three times in a row is completely unilateral, unguided, absolute and has no rationale. It cannot be identified with Muslim culture and is not part of Muslim law. So it is not part of religion and, hence, not part of the right to practice or propagate religion and deserves no protection.”
Ishrat Jahan’s lawyer V K Biju said: “I did ask her to come, I do not know if she will be able to. She has been unreachable for some time. She lost her four children and her husband divorced her over phone. She fought back to prevent his second marriage. She was attacked and landed in the Calcutta Medical College.”
Zakia Soman of the BMMA said: “We are hopeful that the verdict will be in favour of women. Triple talaq should not have been allowed in the first place. It is high time that this huge anomaly that has gone on for seven decades be addressed. The legal process really is a small part of the much longer process of social reform but it will be a beginning. Our petition, Muslim Women’s Quest for Equality, was taken suo motu cognizance by the bench of Justice (Anil R) Dave and Justice (Adarsh Kumar) Goel and now we are one of the petitioners in the case. We have also submitted our triple talaq case studies to the court.”
In the court, the BMMA’s primary argument has been Quranic — that Allah said men and women are equal. “We have reproduced verses from the Quran about talaq, negotiations and how it should happen over a minimum period of 90 days. The second argument is about gender justice. There is no ambiguity in the Constitution of India about all citizens having equal rights,” Soman said.
Balaji Srinivasan and Divyesh Pratap Singh, lawyers of Gulshan Parween and Aafreen Rehman, said they too have not been able to contact the women. “But they will all be there at the court tomorrow. It is a big day, the glass ceiling will be broken,” Srinivasan said. Parween from Rampur, Rehman from Jaipur and Atiya Sabri from Saharanpur are the other petitioners in the case.
Former Union Minister Arif Mohd Khan, who quit the Rajiv Gandhi government in 1986 to protest its stand on the Shah Bano case, described the triple talaq practice as equivalent to burying alive Muslim women. Senior counsel Kapil Sibal, who appeared for the All India Muslim Personal Law Board, however, took the stand that triple talaq was a matter of faith and the court should not interfere.
Former Union Minister Salman Khurshid, who was allowed by the court to assist it as amicus curiae, told the bench that the system of instant triple talaq “cannot be justified or given legal validity”. He said the practice “was sinful but legal”, prompting one of the judges to wonder whether “something abhorred by religion can be made law by man”.
During the hearing, it was also pointed out to the court that many Islamic nations across the world, including Pakistan, Afghanistan, Egypt do not recognise the husband’s right to unilaterally divorce through triple talaq and that Sri Lanka was one of the non-Islamic countries to ban it. The court, however, wondered how Muslim men would divorce if it held all forms of talaq as unconstitutional.
The then Attorney General, Mukul Rohtagi, assured the court that the Centre will come up with a law to deal with any such situation. The Centre had taken the stand that triple talaq was “extra-judicious” and “discriminatory”.
Though CJI Khehar said that courts had limitations interpreting the tenets of a faith, Justice Nariman pointed out that this was why there was the “essential test”.
“That’s why the test of essential (whether the practice under challenge is essential to the practice of religion). All practices do not get protection,” he said.
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