A former Muslim woman legislator has asked the Supreme Court to bar clerics from validating triple talaq, the latest legal challenge to the divorce ritual that has increasingly come under attack for bias against women.
Bader Sayeed, who was also a senior legal officer of the Tamil Nadu government from 2005-06, wants the court to lay down guidelines till a law is framed asking Muslims to seek divorce through courts.
India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance. While Hindu law overhaul began in the 1950s and continues, activists have long argued that Muslim personal law, which has remained mostly unchanged, is tilted against women.
To end the confusion over personal laws, the court has been advocating a uniform civil code, a political hot potato. In October, it decided to examine the Muslim personal law to consider doing away with the provisions biased against women. A larger bench is looking into the matter.
Triple talaq, under which a Muslim man can repeat the word talaq three times to divorce his wife, violated women’s right to equality, Sayeed said in her petition. Kazis made the situation worse by issuing certificates validating triple talaq, she said.
A kazi is an Islamic legal scholar who also acts as a marriage officer. In India, nikahnamas, or marriage certificates, issued by kazis are admissible as evidence.
The kazis act, 1880, didn’t give them the power to issue such certificates, she said in her petition filed through advocate Rukhsana Choudhury.
“Mandatory granting of divorce through due intervention of courts established under law would protect the interests of both parties for resolving their marital disputes,” the former additional advocate general said.
The guidelines should be on the lines of the Vishakha judgment that provided relief to women facing sexual harassment at workplace in the absence of a law, Sayeed said.
Divorce among Muslims should be judged by Indian courts, she said, arguing the Constitution entitled all citizens to equal treatment before law and equal protection of laws within the territory of India.
Sayeed’s petition reflects the growing opposition to triple talaq and polygamy. More than 90% of Muslim women wanted the two practices banned, a survey found last year.
Recently, Uttarakhand-based Shyara Bano challenged the constitutional validity of the two along with nikah halala in the top court. Under nikah halala, a woman can remarry the divorced partner only after she consummates a marriage with someone else.
A section of the community is resisting reforms and has opposed the court’s move to look into the questions raised by Bano. They are also against examining gender bias in maintenance and inheritance, the two issues which have been raised unsuccessfully for decades.
The All India Muslim Personal Law Board has filed an affidavit in the court, opposing judicial intervention in religious practices of the community.