TRIPLE TALAQ – GENDER CONCERNS AND MINORITY SAFEGUARDS WITHIN A COMMUNITY
In a environment like this , the sound “neutral, secular, liberal and progressive” of Muslim women who claim justice against the “beard, misogynist and patriarchal” Muslim clerics, which provides a subtle expression of views to Muslim women space. The current debate on the triple Talaq and imposes an artificial identity. Hyderabad comparative academic literature B. S. Sherin explained his concerns:
“It is truly shamefull that the acknowledgement of Muslim women isstressed, especially after the Shah Bano case.” . By privilage of the public the reform issues raised by the individual and community legal restrictions, the largest postponed the impact of the culture, class, and region of the Muslim women living in India.
Females themselves have alot of opposition to the current Talaq triple movement, the most urgent need is training and education. But their voices did not reach a towards the public. A recent expression of clear practiced Muslim women challenge “sound progress” behavior has been dismissed as “motivated by patriarchal forces.
When and how to deal with the lack of rights of Muslim women according to their personal law? Why does not media advertising during the last three decades of income of Muslim women by procedures? For too much emphasis on the triple Talaq today to the exclusion of all other genres? Sex is a neutral area, which is separated from the contemporary political reality of it? Against the rights of the community and extreme environments gender differentiation, there is no simple solution, in order to guarantee the dignity and protection of Muslim women and to ensure that what is the most viable strategy for their economic rights are? When I discuss triple talaq controversial issues, these are some of the key issues in this article will be undone.
In this article, I attempt to analyze the recent evolution of food for populism by clearing up some of the rights misunderstandings of Muslim women under the Muslim personal law system. The first section offers a basic litigation. The second part offers the main points of the discussion, and the questions raised at the end of the hearing, President of the Supreme Court of India in the background, nikahnama on the triple conditional restrictions of Talaq and its impact. The third section analyzes the complex terrain of personal law in India. The fourth part, in the context of Talaq triple polemic, examines the rise of Hindu fundamentalism in the country. In the fifth part, the historical trial was not reported, Danial Latifi v. Union of India (‘Danial Latifi’), question 2 and produced. In the sixth part, the analysis made ShayaraBano v. Union of India v. 3 and Shamim Ara Uttar Pradesh (‘Shamim Ara’) legal precedent 4. Part VII summarizes the various arguments put forward by the Supreme Court. Finally, in the last part, I return to discuss a conditional nikahnama if there is sufficient protection clause could be written about whether the direction of progress of the current stalemate situation. Finally, I made a controversial issue – groups of women against the triple movement Talaq if the necessary means for the government of the right, and the agenda against the Muslims for their provisions, to develop a regulation, changing its basic characteristics. Muslim community personal law is considered a symbol of their identity.
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Basic hurdles in Banning Triple Talaq
The traditional practices of religious groups interfering with the prohibition of the sanctification of Islamic Sharia interfere with the religious aspects of minorities.
The court should basically decide two things:
o If personal law may be bound by the Constitution
o How to treat the relationship between Triple Talaq and Muslim personal law
U. U. Lalit and AbdulNazeer during the summer vacations from May 11 to 18, 2017. Professor Tahir Mahmood, an elite on Islamic law issues, acknoledged the plan of placing four community minority judges in five sets of judges. He commented that the problem was the color of the majority due to the undisciplined debates of the media. So you need to do this. – Minority battles. In the same spirit, the bank also refused to revise polygamy and severely limited the issue of this argument: whether the immediate triple Talaq constitutes the core belief of Hindu Sunni Hanafi followers.
The first reference requests written and multiple interventions, including Muslim women, Muslim women, Islamic law Muslim RashtrawaddyMahila Sang (AIMPLB) and allies of other organizations, including the organization of Islamic scholars, indigenous women.
The Court has raised considerable public concern and the Court is very concerned about the Court as a summer vacation and a very common case. This is not surprising, since the case has been widely publicized since the first appearance of the phone line two years ago. The Hindu Muslim Popular Party, Maharaja Andra, interviewed 4,710 women at a press conference and issued a statement. the press. This is a major issue for several times that we smoke. Not only do Muslim polygamous women participate in research, but they are also concerned about Muslim women in India, which focus on illiteracy, poverty and marginalization.
According to Abusaleh Shariff and Syed Khalid, the problem is surpassed only by the outlawing of most of the Indians, and the issue of the Triple Talaq affects a small number of Muslims. A recent survey conducted by the Center for Debate Research and Development (CRDDP) in New Delhi showed that about a quarter of the 331 divorced women and men were made through interventions by religious institutions. As a qazi and darulqaza, only one respondent or a total of 0.3% of the study group reported an oral disposable talaq, immediate “three in one”.
Commenting on how the Prime Minister used this theme during the elections in Uttar Pradesh, based on the 2011 census data, the fact that the number of Hindu women leaving and living in difficult conditions exceeds you grow up that of divorced and abandoned Muslim women. This number is amazing: around 2 million of the 2.3 million separated and abandoned women are Hindus and 280,000 Muslims. However, even if the Prime Minister regrets the difficult situation of Muslim divorce, he has not noticed them. They also noted that despite the exaggerations, the divorce rate among Muslims is much lower than in most communities. However, they recognize that divorced and abandoned women face poverty, loss of rights and social stigma. However, this is not a unique problem in the Muslim community, but a more general social problem within the patriarchy.
CAN INSTANT TRIPLE TALAQ BE CONTROLLED THROUGH A CLAUSE IN THE NIKAH NAMA?
At the six-day marathon hearing, everyone, from the judge presiding over the court to the lawyer in the cramped courtroom to the journalist who won the exclusive byte, learned about the original Muslim law. Much information: Sahi Hadith For the false Hadith and to determine its grammar, the English translation of the Quran is a true and precise verse of the Quran that deals with the procedures of Talaq.It is as if they were all in an Arab peninsula that distorts time in the seventh century. The central problem of women in the modern Muslim faith in their community, the marginalized group and the inseparable part of the middle class, which go through the cracks.
Contrary to the polarization between the Sunni-Hanafi Ulama and the progressive Islamic scholars of AIMPLB, these extremists must submit the precise Islamic law and are the modernist approach of Attorney General Mukul Rohatgi. He believes that the only way to guarantee gender justice is to enact laws and place all Talaq (not just the Triple Talaq) under judicial review. He did not stop to reflect on the situation of Indian women compiled under Hindu law, because this is not a problem in court.
There was a surprise in the store. At the end of the marathon speech, the President of the Supreme Court asked Kapil Sibal, on behalf of the conservative AIMPLB, if it was possible to include a clause in the marriage contract (nikahnama) that would not allow the husband to pronounce any triple Tara and instruct to the committee to send a copy. An affidavit on this effect.
This helps to bring the debate to the present and highlights the progressive nature of Muslim marriage, which was seen as a contract from the beginning. Therefore, conditions can be incorporated into marriage contracts to guarantee the rights of women, and women are unequal partners in normative patriarchal marriages. Hindu women are not entitled to this right because, despite codification, Hindu marriage is still considered a sacrament
THE MULTIFARIOUS GROUND OF PERSONAL LAWS IN INDIA
Before continuing the discussion, it may be necessary to explain the complex terrain of Indian family law. Within the framework of the legal pluralism that prevails in India, the alternative civil matrimonial law coexists in harmony with the right of religious family and customary law. Article 44 of the Constitution stipulates the desire to introduce a unified and unified family law: “the state should strive to develop a unified civil code,” which is only the guiding principle of national policy. In contrast, there are two controversial claims of applicable and procedural fundamental rights: gender equality and non-discrimination (articles 14-15) and religious and cultural identity (articles 25-30). In the context of multiculturalism and legal pluralism, a complex terrain based on individual religious law (marriage management, divorce, parenting, custody, adoption, inheritance, etc.) often conflict with the concepts of secularism and equality of gender.
This dividing line between gender equality and religious freedom is a controversial Mohd decision. Ahmed Khan v. ShahbanoBegam (‘Shahbano’), 1985. Unreasonable comments on Islam and the Prophet and the call for the promulgation of the Uniform Civil Code (‘UCC’), while determining the rights of Muslim women in accordance with secular regulations, They led to strong opposition among Muslim conservative religious leaders. The government has reduced the pressure exerted by the Orthodox school and has promulgated the “Muslim Women’s Law” (“Office of Women’s Affairs”) to exclude Muslim women divorced from the maintenance of the secular law of the poor wife (article 125 of the Criminal Procedure Law).
The movement to enact this law was severely opposed, not only by Hindu right-wing parties but also by secular groups and women’s rights. As the debate progressed, the media predicted two isolated, mutually exclusive and polarized positions: those who oppose the new bill and support the requirements of the UCC are considered modern, secular and rational, while those that oppose the UCC are fundamentalists. , orthodox, macho, communist and obscure. This does not leave space to express gray shadows. In turn, Muslims mobilize as a threat to their fragile identity.32 The strict attitude of conservative Muslim religious leaders provides further impetus to Hindu anti-Muslim nationalist propaganda and leads to the strengthening of Muslims. Appeasement policy. Indian Government
However, certain political events that took place in the decades following Shahbano’s decision led to many secular rights-based groups to change their first UCC demands as a means of guaranteeing gender justice. In 1992, the 400-year-old Babri Masjid mosque was dismantled, despite claims against the Supreme Court and riots in various parts of India that led to the loss of life and property of Muslims. 3,000 Muslims were killed, attacking Christian churches in Dang (Gujarat 2005) and Kandhamal (Orissa-2008) tribes, riots in Muzaffarnagar (UP-2013), violence continues to rise. Kashmir has lost thousands since 2010 Tens of thousands of civilian lives, as well as right-wing parties, the use by the Indian People’s Party (PPP) of the UCC’s demands as a way to defeat Muslim minorities, are the main factors that must be reexamined for the previous appeals of the UCC. Instead of an all-encompassing Unicode, concepts such as “internal reforms” and “step-by-step approaches” have earned money as a viable strategy to guarantee gender justice.
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THE EXPANDING GESTURE OF HINDU FUNDAMENTALISM
Hindu fundamentalism has risen to a new level, as the NDA coalition government led by the Bharatiya Janata Party overthrew the initial UPA alliance led by the National Assembly of India (considered by the minority as a more secular party). and inclusive in 2014). The far right wing Rashtriya Swayamsevak Sangh (‘RSS’) provided the current regime with ideological moorings to establish the Hindu Rashtra (country). Within this political framework, Muslims have gained confidence by breaking the state of the Indian nation, the projections of terrorism and enemies and the secular structure of the country. The power of communism has spread widely, even taking root in the middle and lower classes. The recent election of Uttar Pradesh (2017) promoted further development of the party as it gained power, most of which expelled the Samajwadi party, which gave the Muslims a voice. The election of RSS members as prime minister and publicly declared the Muslim enemy Yogi Adityanath highlights the extent to which the majority of votes are mobilized around the anti-Muslim agenda. It is worth noting that the Popular Party did not send a Muslim candidate. The number of Muslims in the state legislature decreased from 74 in 2012 to 24 in 2017.
It seems that under the current regime, Muslims are no longer important as a political identity. The Muslim population of some 200 million people is going through one of the most difficult stages. A large number of poor, uneducated and deeply religious communities have seen a large number of long anti-Muslim forms in the form of love jihad, Galva Passi and cow surveillance. The ban on meat and the recent ban on the slaughter of livestock have caused the loss of trade and the livelihoods of the majority of Muslims. The advantage of the sacred cow that enters the political arena has already caused the cow to be alert. The Gaurakshak team roams the countryside and poses a serious threat to the lives of ordinary Muslims. In September 2015, a group of 100 hectares of rakshaks a few kilometers from the capital, Mohammed Akhlaq, a 50-year lynching of Dadri in Uttar Pradesh, and the Prime Minister refused to issue a public statement condemning these turbulent rebels of the acute criticism of the secular world. Since then, several other mafia massacres have taken place in different states of northern India. The latest news is that on June 22, 2017, during the sacred month of Ramzan, a 15-year-old boy was stabbed in a local train in Mathura, Delhi.
These brutal murders committed by violent Muslim mobs did not interrupt the daily affairs of our legislature. They did not provoke a collective social and political consciousness of a society designed to be governed by the rule of law. According to activist and human rights advocate Apoorv Anand, the fact is that Indian lawmakers and legislators seem to have abandoned Muslims in the country. However, after a recent series of murders, secular and human rights organizations in most of the major Indian cities have organized spontaneous protests under the slogan, not on my behalf.
It is in this political context that Muslims have been pushed to the status of second-class citizens. We must examine the exaggerated interest of the media in the issue of the Triple Talaq and the desire of the government to reform the Muslim personal law. Although the lynching of the Muslims did not awaken the conscience of the public, the triple Talak, who also had a headline at the same time, witnessed an unprecedented propaganda in the media. This raises doubts about whether lynching and high propaganda are not given to the three sides of the same coin that form the three Talaq, treating Muslims as “others” and then incorporating them into the global phenomenon of Islamophobi
HISTORIC CASE – DANIALLATIFI
At this point, I have to go back to the controversial Muslim Women’s Law (‘MWA’) in response to Shahbano’s ruling. Despite its negative predictions, the law has great historical significance because it is part of India’s first attempt to compile Muslim personal law. But the position of crossing the abyss is so rigid that there is no room to reflect on this milestone. Because it was promulgated in protests by women’s rights groups and progressive social organizations, it was suspect. Therefore, the first reaction of the protest group was to question its constitutionality, not to verify its feasibility.
However, although the petitions filed by these groups were pending in the Supreme Court, the controversial bills began to begin in the lower courts. When a Muslim woman filed a claim with the court under §125Cr.PC, the usual measure was taken by the husband’s lawyer was to attach a talaqnama (divorce contract) and a response to the petition on the grounds that it was wrong. The new law raises the responsibility of the husband to pay maintenance to the divorced wife during the iddat period. However, in a strange transition of roles, the court began to provide a single compensation to the divorced wife in accordance with the provisions of the new law
The first important order was a judge in Lucknow in January 1988, and Rekha Dixit granted Fahmida Sardar 85,000 rupees (including the amount of mehr and 30,000 rupees during the maintenance of iddat as “reasonable and fair terms” according to the new bill ). This is a big leap in a small amount of INR 179, according to §125Cr.PC, Shahbano received a monthly maintenance fee.
Since 1988, the High Court has maintained a large number of unique agreements granted to the wife by the court of the first instance. Under the dissatisfaction of these orders, the spouses began to appeal to the Supreme Court and demanded that these orders be revoked. Curiously, these appeals began to accumulate in the Supreme Court, with the allegations of secular organizations that took the decree as an unconstitutional act.
The final moment of the liquidation was when the Constitutional Judge of 2001 (five judges) ruled that Danial Latifi resolved the dispute and declared that the bill was constitutionally effective, keeping the total of divorced Muslim women as a “fair and reasonable solution”. ” To the right Of her ex-husband.
In the final analysis, the two parties (the World Group claimed that the bill was considered unconstitutional and that the husband tried to revoke the order approved by the Superior Court) failed. Divorced Muslim women have fought ruthlessly to defend themselves.
The Supreme Court won the victory of the local court over the valuable economic power of the supreme power. Muslim women have the right to determine their economic rights and obtain a one-time reconciliation when they are divorced, which is a lack of rights in the marital laws of other communities.
However, the progress made by Muslim women divorced under the MWA has not caught the attention of the media in an uncontrollable environment in the prevailing community in the country. Regardless of the historical trials, the media continue to express the opinion that after the establishment of the Ministry of Women’s Affairs, Muslim women have no right to increase/resolve after divorce. Therefore, even academics, lawyers, feminists, and activists do not understand the significant benefits that Muslim women receive personally. This has done the most damage to the rights of Muslim women since lawyers continue to make recommendations to male clients, all they need to do is do a talaqnama and send it by mail when an empty wife filed a lawsuit in court. In most cases, not only the lawyer of the wife but even the presiding judge ignores the historical judgment that led to the loss of the rights of the victimized woman.
THE CASE OF SHAYARA BANO
Rizwan Ahmad (Husband) announced “Talaq, Talaq, Talaq” in front of two witnesses and gave “Talaqnama” to ShayaraBano (wife) on October 10, 2015. The wife questioned the same, praying for a writ to be issued by the SC alleging that the divorce was “void ab initio” because it violated their basic rights. Therefore, the validity of the Triple Talaq constitution was questioned before the bench of Judge of the Supreme Court, composed of five judges.
FRAMING OF ISSUES
The case has three Judgments on the case.This systematically lays down the issues in the case, but for the sake of briefness and better perceptive we merge the issues and reduce them, these are as follows:
Is Talaq-e-biddat Islamic in nature?
Regardless of whether the Muslim Personal Law (Shariat) Act, 1937 presents statutory status to the subjects controlled by it or is despite everything it secured under “Individual Law” or, in other words under Article 13 of the Constitution according to past the Supreme Court judgments?
Is it protected by Article 25 of the Constitution?
The issue I – Is Triple Talaq Islamic?
Talaq-e-Biddat is an irreversible form of Talaq or declaration of divorce, whether pronounced three times at a time or by a clear statement that “Irrevocably I leave Talaq.” A remarkable feature of this form of Talaq is that it has an immediate effect and is irrevocable. In addition, Triple Talaq can only be read by the husband to the wife and vice versa.
There are four sources of Islamic law, namely the Qur’an, the Sunnah, Ima, and Zias. According to addition to Hadith is Hadith, which is the tradition of the prophets; the other two are irrelevant. The main problem of the dispute has arisen because Triple Talaq is not mentioned in the Qur’an, which is justified by Hadith. The Qur’an expressed dissatisfaction with Talaq’s approach, but expressed dissatisfaction with the irrevocable and capricious form of divorce, because the husband was not required to present a reason for divorce, which was characterized by the fact that the couple had no reconciliation period. However, a similar reasoning is to prove the validity of Triple Talaq. The respondents believe that the Koran does not mention any form of Talaq, therefore, if it follows the logic of the petitioner’s argument, all forms of divorce should be declared non-marital, which will cause the married couple to marry. The remedy in disputes.
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Kurian J’s decision overcame the petitioner’s argument that Triple Talaq was not Islamic. This is particularly interesting because it does not detail the constitutionality of the Triple Talaq, but only if it is part of Islam. It could be argued that the issue was considered by Quran experts instead of a legal expert. However, Kurian J. tried to justify his position by citing the judgments of Shamim Ara, Masroor Ahmed and Ziauddin Khan v. Anwara Begum of Nazarul. Islam J.
In the absence of repeating the text of the aforementioned sentence, an attempt was made to answer this question using a non-judicial source.
Maulana Usmani describes the origins of Triple Talaq in his book, focusing on the Koran in 2: 229-30, which refers to the term “Al-talaqumarratan”, which means that divorce can be declared twice. Their reason is that a person can not visit a person’s house twice, unless there is a lapse of time between the two visits, in the same way, the word “twice” can not be interpreted as a quick continuation.
In my opinion, the overwhelming dependence on the decision of Shamim Ara is illogical. Although several courts have cited the ruling as a land law, although the relevant parts of the judgment have been formed in proportion to the facts and not the proportions, the reasoning used in the Shamim Ara judgment can be separated from the conclusion that the Triple Talaq is unconstitutional. The reasoning and conclusions of Shamim Ara are also quoted in this judgment, stating that each Talaq must be reasonable and precede the attempt at reconciliation. The phrase “trying to reconcile” does not necessarily mean that this attempt should be made between the two statements of Talaq, or before the first announcement of Talaq. Furthermore, if the text of the Qur’an is to be read at the trial, the prophet condemns the husband’s volatility, and this judgment enforces the iddat period applied by both parties before the divorce is applied. Therefore, in my opinion, if it is based on Muslim scholars to directly interpret the Qur’an instead of relying on the previous judgment and affirming that it is the law of the land, the reasoning will lead to a better conclusion.
Issue II-Whether the 1937 Act confers a statutory status on its subjects?
Nariman J. Considering that Triple Talaq is unconstitutional on the basis of arbitrability, some of the inferences we can make from his judgment are:
By focusing on the arbitrability of the law instead of the gender equality of art. 15. As a basis for the announcement of the unconstitutionality of Triple Talaq, he deftly eliminated Talaq’s discussion as a tool that only offered attention to men instead of women, and avoided the difficulty of questioning the other two. The form of Talaq. This allowed him to concentrate only on Triple Talaq, which is different from other forms of Talaq.
By using the Muslim Shariat Application Act of 1937 as a legal regulation for Muslim divorce, he supported the reconsideration of NarasuAppa Mali’s decision against the Mumbai High Court, which was subsequently confirmed by the later Supreme Court. Judge
Nariman J. reiterating the approach that must be taken to explain the clause “not prohibited”, based on his interpretation of S.2 of the Law of 1937 , which is elaborated in Aswini Kumar Ghose v. Aurobindo Bose 1953 SCR 1 as given below;
“First you must determine
What is the formulation of this part?
Provide a fair word structure
According to natural and ordinary use.
Which means that the clause is nonetheless
Understood as put on hold
Anything that is no longer valid.
Inconsistent related laws
With the new formulation. “
The application of this rule to this part will only invalidate the customs and practices that are contrary to Shariat, however, other customs and practices that are not inconsistent with Shariat and that are not part of Shariat remain valid. The approximate use of this section does not provide us with sufficient evidence to infer in any way. This is a different point of view between Nariman J. and CJI Khehar. Although Nariman J. emphasized the purpose of the bill, which mentioned that Muslim personal law should apply to all parts of the country, CJI Khehar emphasized the legislative debate to understand the intent behind the project. Therefore, it was finally suggested that the differences between the drafting objectives of the bill led the judge to make such diverse and contradictory conclusions.
A seemingly less popular but huge impact in the trial of Nariman J. would be that his reasoning has exposed the entire Muslim individual law as a challenge in the third part of the Constitution. This can be a new door to litigation for withdrawals and oppressions that continue under Muslim personal legal protection, as it must now comply with the third party.
Issue III- Whether Triple Talaq is Protected by Article 25?
The answer to this question will be determined by the necessity test. The necessity test determines whether a particular practice is part of the religion. The judgment of some people and the majority deal with this problem and is based on different judgments to draw their conclusions. Relying on the case Sardar Syedna Taher Saifuddin Saheb 1962 AIR 853, CJI Khehar, citing whether an approach is essential should be decided from the perspective of community members. Nariman J. quoted that the Chief of Police c. Acharya JagdishwaranandaAvadhuta 2004 (12) SCC 770 pointed out that a basic approach is to establish a fundamental religious belief: to establish the cornerstone of the religious superstructure, without this basis, the basic characteristics of religion will be Change It is a permanent and important part of the religion and can not be subtracted or added in the future.
If the necessary tests were performed according to Nariman J., we found that there was no difficulty in declaring Triple Talaq beyond the scope of Article 25. However, after the tests prescribed by CJI Khehar, we began to question whether Triple Talaq is considered an important part of the Islamic community. This question can be answered negatively because Islam is made up of many communities, many of which do not follow Triple Talaq as an approach. However, if this test is repeated in the case of India, where a large part of the Islamic community are Hanafi Muslims, then the spirit of this part should be taken into account, be it the Hanafi community (mainly interested in the results ). Think Triple Talaq is an important part of religion. According to the comments submitted by the court (above) and subsequent discussions, this question also received a negative response. When the respondents themselves thought that although the Hanafi community believed that this practice was guilty and AMPLB approved the instructions to stop this practice, according to them, according to the community, sin is vital, which is absurd.
Injuncting Fundamental Rights under Article 25?
Although this is part of a minority ruling, the court remains a very bold and novel decision, sparking a debate about the limits of judicial activism that the court can appeal. Dr. R. Prakash studied too many cases and showed that the court was inconsistent in determining the restrictions of judicial activists set forth in Article 142. Mr. KK, the current Minister of Justice, Venugopal writes for Hindus and it also urges the power to curb the provisions of Article 142 for judicial justice. The case examined by Dr. Plakaschhighlights the conflict between article 142 and common law, in which they conclude that, in the case of certain restrictions, the law does not prohibit the exercise of power under the law. art. 142. However, the current debate questions whether the exercise of Article 142 can limit the enjoyment of Article 25 (constitutional right more than common). The following reasons deny this:
In accordance with the rules of harmonious construction, the unique provision of any legislative plan should not prevail over any other provision of the legislative plan, that is, all provisions are equally powerful. Therefore, art. 142 can not be explained in a way that limits artistic enjoyment. Article 25 of the Constitution.
The term “complete justice”, regardless of its meaning, may include a prohibition of fundamental rights. It would be a ridiculous proposition if the court’s obligation to protect it would temporarily lapse into the “rights of complete justice.”
The Supreme Court of India announced on Tuesday that the practice of the Triple Talaq violated the majority system of 3: 2. The judges Kurian Joseph, UU Lalit, and RF Nariman issued a majority judgment. The president of the court Khehar and the judge Abdul Nazeer expressed their disagreement. Judge President Khehar, Judges Kurian Joseph and RF Nariman issued separate judgments.
Chief Justice khehar& Justice Abdul Nazeer (Minority Judgment – written by Justice khehar)
In view of the previous position, we are convinced that this is a case in which the Tribunal must exercise discretion and issue the appropriate instructions in accordance with Article 142 of the Constitution. Therefore, we ask the Union of India to consider appropriate legislation, especially with regard to the “talaq-e-biddat” legislation. We hope and hope that the expected legislation will also take into account the progress of the Muslim “individual law” – “Islamic law”, as well as legislation throughout the world, even if it is corrected by the theocratic Islamic State. When the British rulers of India passed legislation to provide relief to Muslims, and when the Muslim world took corrective measures, we believe that there is no reason for independent India to be left behind. Other religious factions have taken action (see Section: India’s reform of the “individual law” for in depth details), including in India, not for Muslims. Therefore, we will ask the legislature to give deep consideration to this crucial issue. We also require that different political parties consider taking the necessary legislative measures while maintaining the separation of personal political interests.
Until the legislation that took this issue into account, we are satisfied with the discovery of the Muslim husband’s behavior and we issue “talaq-e-biddat” as a means to cut off his marriage. The immediate ban must operate for six months first. If the legislative process begins before the expiration of the six-month period and a positive decision emerges, redefine ‘talaq-ebiddat’ (three statements’ talaq ‘at the same time) – as one, or if we decide With the abolition of’ talaq- e-biddat ‘completely, the ban will continue until the legislation is finally enacted. Otherwise, the ban will stop working.
Justice KurainJospeh [Majority]
The bad things in theology were once good in law, but after Shariat was declared a d in the Koran and not in Shariat. In this sense, the bad things in theology are also legally bad. personal law, the question to be considered in this case is whether the Koran is wrong in the law. Therefore, the simple question that must be answered in this case is whether the Triple Talaq has any legal sanctity. That is no longer integration of res. The court was held in Shamim Ara v.Uf of UP and Another, although not so much, but the triple Talaq lacked legal sanctity. Therefore, with regard to Article 141, Shamim Ara is a law applicable to India.
I find it difficult to agree that the President of the Supreme Court that I have studied believes that the practice of Triple Talaqshould be considered as part of the religious sect, and also his personal law.
Part of it the freedom of belief, practice and propaganda of the religion of their choice is the basic rights guaranteed by the Constitution of India. This is only subject to the following conditions: (1) public order, (2) health, (3) morality and (4) the third part of the other provisions on basic rights. According to article 25 (2) of the constitution of India, the state has the right to enact laws in two unforeseen circumstances, despite the freedoms provided for in article 25 (1). Article 25 (2) stands that”Obliterationin article 25 (2) section intendto affect the operation of any currentlaw or prevent the State from annunciate any law :-
(a) regulate or limit any economic, financial, political or other activity that may be relevant for her.
(b) Provide social welfare and reforms for all classes and parts of Hinduism or to open up to a Hindu public religious institution.
“In addition to the above, the religious freedom stipulated in the Constitution of India is absolute, and on this basis, I fully agree with the President of the Supreme Court who has studied.”
However, in the statement that Triple Talaq is a part inseparable from religious activities, respectfully I do not agree, just because an approach lasts a long time, if explicitly declared as not allowed, can not make it effective by itself The whole purpose of the 1937 Act was to declare Shariat the rule of decision and stop the anti-Shariat approach to the issues listed in Section 2, including the talaq. Therefore, in any case, after the introduction of the 1937 Act, the principle of violating the Qur’an is not allowed.
Therefore, there is no constitutional protection for this practice, therefore, I do not agree with the constitutional protection of Triple Talaq by the Presiding Judge. or under section 142, the exercise of basic rights may be prohibited. When the question of this nature becomes the most important issue, the discourse usually takes the form of opposing religion with other constitutional rights. I believe that reconciliation can be achieved in the same sense, but the process of coordinating different interests falls within the power of the legislature.
Of course, this power must be exercised within the scope of the Constitution, not to curb the religious freedom guaranteed by the Constitution of India. However, the court can not direct any legislation. Fortunately, the court has played a role in Shamim Ara. I expressly support and reiterate the law announced by Shamim Ara. It is considered bad in the Koran and not in Shariat. In this sense, the bad things in theology are also legally bad.
Justice RF Narimaan& Justice UU Lalit (Majority Judgment – written by Justice Nariman)
Since Triple Talaq is immediate and irrevocable, it is clear that any attempt at reconciliation between husband and wife by two arbiters in the family is essential to save the marriage and it is impossible. Furthermore, as understood by the Privy Council in Rashid Ahmad (see above), this Taraq triad is effective, even without any reasonable reason, according to the legal opinion of Shamim Ara (see above). It no longer applies. In this case, it is clear that this form of Talaq is obviously arbitrary because the Muslim man saved it without any reconciliation. Therefore, this form of Talaq must be
A Muslim is capricious and capricious, without any effort at reconciliation to save him. Therefore, this form of Talaq must violate the 393 basic rights contained in Article 14 of the Constitution of India. Therefore, we believe that the 1937 Act is within the meaning of the term “effective law” in Article 13 (1) within its scope for the recognition and enforcement of Triple Talaq and must be revoked within the scope of the disability. Recognize and implement Triple Talaq. Since we have declared that Article 2 of the 1937 Act is not valid in the strict sense above, we do not consider it necessary to discriminate in these cases, as we have learned from the Minister of Justice and those who support him.
This decision is a legitimate victory for Muslim women in India, many of whom have been suddenly abandoned by Talaq, sometimes even via Skype or WhatsApp.
Last year, ShayaraBano, a 35-year-old woman from UtTalaqhand, filed a petition with the Supreme Court to declare Talaq unconstitutional. Her husband, a real estate agent named Rizwan Ahmed, divorced Talaq last year.
“With triple Talaq, Indian men exploit women,” Barno said. “They spoke at their whim, full of anger.” The woman’s life has ended abruptly. This will not happen even in Muslim countries. It should also end in India.
His petition attracted other political parties and groups that had been demanding the banning of Talac practice. The Muslim women’s organization of India, Balatiya Muslim MahilaAndolan, stated in her affidavit that Muslim women “are excluded from education, economic and social exclusion due to government negligence, and in family and marriage. There is hardly a legal framework on the subject. “
A survey conducted by the organization found that 92% of Muslim women favor the banning of Talaq.
But Indian courts and governments have traditionally been concerned about the practice of interfering with what is considered part of a religious activity, known as the “individual law.” Therefore, Muslim women who are divorced regardless of means are not entitled to alimony before the law. Changed in 2001. Muslim men today are still allowed to have multiple wives.
Two dissenting judges said in Tuesday’s verdict that although Talaq “may be guilty”, courts should not interfere with an individual law because they are part of the fundamental rights of religious activities guaranteed by the Constitution.
When Prime Minister Narendra Modi became the first government in modern Indian history to oppose this practice, the campaign against Talaq was promoted. “The issue of the effectiveness of the triple Talaq must be considered in accordance with the principle of gender justice and the primary principle of non-discrimination, dignity, and equality,” the government’s lawyer told the court last year.
The All-India Muslim Personal Law Committee, a non-governmental organization that defends Muslim personal law, told the court that it does not support Talaq, calling it “terrible”, “guilty” and “untimely”. However, the Board also believes that the judiciary has not played a role in the development and elimination of these rules. In October of last year, a board official told the judge that this privilege belongs entirely to parliament.
The commission also importune that: ” The personal laws are not clear for reasons approved either formulated by the legislature or other competent authorities. The basic source of personal law is their respective deeds.”
Muslims who oppose Talaq pointed out that he did not receive sanctions in the Koran. Similarly, “polygamy has no religious sanctity and says it is a misunderstanding of religious doctrine,” said Zafarullah Khan, a lawyer who practices in the Madras High Court.
However, Mr. Khan pointed out that the elimination of Talaq must be part of a larger effort to reform individual laws and enact a unified civil law, a set of personal laws applicable to everyone, regardless of religious beliefs.
“How many people in most communities would appreciate the undivided family of Hindus being abandoned?” He asked, referring to the system of inheritance law applicable toHindu families. “The unified civil code must be legislated as a law”.
Chennai’s lawyer and politician, Badel Saeed, called the Talac system “a sword that the sword of Damocles hung over us”.
Ms. Sayeed said it would be difficult if the government pursued a unified civil code and all its political complexities. In the vacancy of such a code, “It is good to determine gender justice case blace without anyproblem”.
As already stated, in November 2015, Mr. Naidu relied extensively on a letter written by the founders of the BMMA ZakiaSoman and Noorjehan Niaz to support the request for the UCC broadcast (he mentioned that although the letter was limited to asking him to the Prime Minister The provisions of the Koran are compiled in the Individual Muslim Law, but as the “Ordinary Civil Code” (the term used by RSS) . The following is an excerpt:
“From Shah Bano to ShayaraBano, who recently presented the PIL to the Supreme Court, focuses on the reform of the individual law that respects gender. With the changes of the times, it is necessary to develop a” common civil law “for all citizens, regardless of their religious beliefs, to guarantee their basic elements. The constitutional rights and rights are protected. Although it is emphasized that the introduction of the common civil code will only further strengthen the basis of secularism, I would like remember the words of Mahatma Gandhi: “I do not want India to have my dream of developing a religion, I mean, it is completely Hindu or Christian completely or completely Muslim, but I hope it is completely tolerant and that the religion works side by side. While the government requests the advice of the Law Commission to review all aspects related to the harmonization of the Civil Code, it is time for the country to start debating the first consensus. “
In the context of the current political reality of the Muslim lynchings that takes place every two days, this tolerant indigenous message sounds empty. Neither Naidu nor any of the colleagues in his cabinet issued a clear statement condemning this act or preventing the spread of this poison and destroying the secular structure of the country.
As indicated in the article, shortly thereafter, to test the waters, the Law Commission of India submitted a questionnaire to seek the public response to the bill.The comments of UCC are not only criticized by Muslims, but also by other minorities, tribes, and secular groups. So the government withdrew a greater reading of this.
Since then, there seems to be no need to raise the controversial issue of UCC because the gender differences in Hindu law must be revised, because the letter to the Prime Minister has given the government the right to make reparation. Muslim religious law passed statutory reforms. Previously, it was thought that this could only be achieved by invoking the “constitutional” clause of Article 44: “the State should strive to establish a unified civil code”. Without this authorization, it would be difficult to avoid the minority provisions of article 25. Protection of the group. -26. Because, in any case, UCC’s fundamental motivation is to use it as a stick to defeat Muslims and achieve better goals by reforming Muslim personal laws. Since then, no BJP leader has raised the issue of UCC.
The comments of the Prime Minister, the Chief Minister of the UP and other ministers clearly demonstrate how the Popular Party can effectively use the issue of the Triple Talaq as a political agenda and can do so on the basis of conscience. They did not, the demand came from Muslim women, from the community.
Although the BMMA has weakened its position in court and has not carried out legal reforms, this change is not politically important because of the other two organizations, Mahila Sangh and the secular feminist Collectiva, affiliated with the Muslims of Rashtrawadi, although A place different to talk but to replace his position. In fact, Bebaak’s position is not only to reform the Muslim personal law but also the UCC gender, as Mr. Naidu said in his July 2016 article.
The judges mentioned in the PIL presented by Prakash and ShayaraBano are only to further advance the Popular Party’s agenda and keep the issue in a boiling state. It is interesting to read Mr. Naidu’s comments on the next date of the hearing, that is, if the Supreme Court does not hit the government of Triple Talaq, it will introduce the law. The Minister of said so. The government did not try to “intervene” in personal matters but tried to guarantee justice and equality of women before the law.
Therefore, all have become a pawn in the hands of the anti-Muslim government, which is a master plan for Muslim legislation in the name of gender justice.
It reminds me of Zakia Pathak and Rajeshwari Sunder Rajan, the famous document “Shahbano”, which demonstrates this strange and sinister statement that:
“The Indians are saving Muslim women from Muslim men” whereMuslim women will going to always be seen as lacking Rights along with lack of agentswhere as Muslim men aresupermodern, hypersensuality, bigamy and catachresis. Only this formulation provides a high moral level for the decoration of the anti-Muslim government Saving the “Muslim sisters”. It is this terrible expression that forced Shahbano to abandon his maintenance requirements in 1985 and defend his Muslim identity, not his claim to gender justice. Faced with a similar dilemma, anyone wonders how Muslim women wearing robes respond to this intervention on their behalf. Schelling (quoted above) summarizes the current dilemmas:
“A viable feminist approach can not rule out Muslim women in history as a transcendental subject of gender, denying their direct religious and political realities, gender is always accidental, in history, material and social. Muslim Muslims The reality that Muslim women’s fear of gender justice can not exclude Muslim men from being part of the community’s identity, nor can they be considered as equal participants in political destiny. That Muslims seek to protect is not a historical spirituality but an image of it, the sign of the continuous destruction and destruction of the spirituality of the modern nation-state.
When the government introduced the law, in addition to cattle surveillance, gharwapasi, love jihad, and private Muslims, there were other parties that deprived the community of its last pride, its personal law, as a proposition to defend the rights of women. The feminist lawyers, all that I am going to leave, is to say clearly, “not in my name”. So triple talaq according to me was the worst norm in the muslim law, this decision has a great impact on the muslim women and of course for the nation. As according to article 14 of Indian constitution it says equality before the law so it is important that the women and men should also enjoy the same right there should be no discrimination between them. So talaq should also be done with the conscent of both the parties.
1Deva Bhattacharya What are the basic hurdles in banning triple talaq,3rd September,22:08