Faizan Mustafa on India’s triple talaq ruling

Legal expert Faizan Mustafa says the verdict is progressive but that court judgements don’t create social change.

In a 3:2 verdict, India's Supreme Court ruled that 'triple talaq' is unconstitutional [Prakash Singh/AFP/Getty Images]

India’s Supreme Court has ruled that triple talaq, the process of instant divorce practised by some Muslim men, is unconstitutional.

It is a verdict that has been praised by activists and described as “historic” by the country’s prime minister, Narendra Modi, who tweeted that the ruling “grants equality to Muslim women and is a powerful measure for women[‘s] empowerment”.

The judges said the law violated Article 14 and 21 of the Constitution, which are related to equality, and protection of life and personal liberty respectively.

Muslims in India are governed by Muslim Personal Laws. India has a provision for personal laws for all religious communities. Personal laws cover marriage, divorce, succession, inheritance, maintenance, custody of children and adoption. Civil laws, by contrast, are applicable to all faiths.

So what will ending the law that allows Muslim men to divorce their wives by uttering the word “talaq” three times mean for Muslim women?

Al Jazeera asked Faizan Mustafa, the vice-chancellor of NALSAR University of Law in Hyderabad and a leading expert on constitutional law.

Al Jazeera: What do you think of the court’s judgement?

Faizan Mustafa: The judgement is progressive.

Two judges held it unconstitutional [and] in violation of the right to equality [Article 14 of the constitution]. They said that they were not going into the question of whether triple talaq is Islamic or un-Islamic since it was arbitrary and gave too much power to the husband.

One judge said it is not part of Islam [and] thus not protected by the freedom of religion. Judge Kurian Joseph said that since triple talaq is contrary to the Quran, it won’t be allowed.

While the other two judges said it [triple talaq] has been an essential part of Islam for 1,400 years, [and is] therefore protected by the freedom of religion.

Al Jazeera: The judgement suggested the government consider appropriate legislation. What does that mean?

Mustafa: This suggestion has no meaning since there is a majority judgement [with three out of the five judges ruling against the law]. The judgement says triple talaq is bad and [therefore] it goes.

Al Jazeera: What will be the impact of the judgment?

Mustafa: Court judgments do not bring about social reforms. Now the only thing is if a Muslim male does triple talaq and if the wife goes to the court, the court won’t recognise the divorce. Now, will the girl go back [into the marriage]?

In this case, the leading petitioner in the current case, Shayara Bano, just told NDTV network that she is not going back to her husband because he has taken another wife even though the divorce has been held unconstitutional or invalid in law. Marriage is a relationship of love; the courts cannot force you to love each other. That’s why I say in these matters courts have a limited role.

Al Jazeera: Should those elements of the personal laws of all the different faiths that are seen as regressive also face the same fate? And should there be one uniform law in India rather than different personal laws for different faiths?

Mustafa: I have been saying, since I teach constitutional law and my commitment is to constitutional provisions and constitutional morality, that there should be reforms in personal laws. Now the question is how are these reforms to be made? I think it cannot be done in a top down manner. It should be done internally [within communities], only then there will be a better impact. My opinion is that the Muslim community should take this initiative and start reforming their laws.

We should not be going for a uniform law because uniformity, in my opinion, is not of great value but we should get a just code. All laws must be just.

Source: Al Jazeera