Instead of developing jurisprudence based on the intersectionality of gender and religious identity, we are presented with a laboriously lengthy and impotent decision which reflects the judges’ lack of knowledge on feminist jurisprudence.
Five Muslim women brought a fundamental rights challenge to the practice of triple talaq that confers a right on Muslim men to instantaneously divorce their wives. Last week, the Supreme Court set aside the practice. However, somewhat paradoxically, Muslim husbands still retain the unilateral right to get rid of their wives by pronouncing talaq over a period of a few months. This leaves us wondering – wherein lies the much hailed victory?
The verdict could be considered significant as it is the first time that the court has held as unconstitutional a discriminatory practice in the intimate sphere. The striking down of this arbitrary practice is welcome; however, the claim by some that this decision adds to the gender justice jurisprudence of the Supreme Court is a somewhat spurious one. A close reading of the ruling reveals that the court has missed a historic opportunity to render an informed, clearly reasoned and potentially landmark decision on women’s rights. Instead, the 395-page rambling and unwieldy decision offers little sound jurisprudential grounds to advance women’s rights.
The petitioners, who are Muslim women, painstakingly steered the case in the direction of the right to gender equality while at the same time seeking to preserve their right to religious identity. However, throughout the judgment, they are repeatedly reduced to suffering victims, mute and/or without agency. There is a particularly egregious moment in the dissent where Chief Justice J.S. Khehar offers his interpretation of a line in the Quran that compares the relationship between a husband and wife to a man’s tilth or fertile soil. According to him, this verse refers to the solemnity of sex between a husband and wife. He opines that marital sex is tantamount to a man sowing his fields “in order to reap a harvest, by choosing his own time and mode of cultivation, by ensuring that he does not sow out of season, or cultivate in a manner which will injure or exhaust the soil”. Not only are such opinions unacceptable from the standpoint of feminist jurisprudence, they also reflect the court’s continued inability to comprehend women, Muslim and non-Muslim, as bearers of rights entitled to full equality as Indian citizens.
Women remain framed within a protectionist discourse to be recuperated through male or state protection. The implicit approval and interpretation of the chief justice that the Quran declares “men as protectors, and casts a duty on them to maintain their women’, sends a collective shiver down any feminist’s spine. This kind of paternalism is not an anomaly. It was on display in the case of Hadiya, decided by same court only days before the triple talaq ruling. The court failed to overturn a lower court’s annulment of the marriage of Hadiya, an adult woman who converted from Hinduism to Islam to enter into a consensual marital relationship with a Muslim man. Hadiya was ordered to return to and remain in her parent’s home. Her agency was completely negated in viewing her as a victim duped into a “sham” marriage by insidious elements, including the Islamic State.
The triple talaq decision begins somewhat oddly by inexplicably foregrounding the dissenting opinion of Chief Justice Khehar, with the concurrence of Justice S. Abdul Nazeer. In over 272 pages of dissent, the chief justice confirms that as the instant triple talaq has been in vogue for 1400 years, and is a component of the personal laws of the community, it has the protection of Article 25 (1), the freedom of religion clause, and does not in any way violate constitutional morality. There is no further elaboration of the reasoning or analysis of these views. Instead, the dissent simply sets out in agonising and unnecessary detail the verbatim legal arguments presented before the court.
Claims in favour of gender equality under Article 14 of the Indian constitution, as well as India’s international legal obligations to uphold women’s equality rights, are ultimately either shrugged off or simply not addressed by any of the five judges.
The concurring majority opinions set out by Justices Kurian Joseph, Rohinton Fali Nariman and Uday U. Lalit are similarly woefully inadequate on guidance on gender discrimination. Justice Kurian simply asserts that anything ‘bad in theology is bad in law’. Upon finding that the provisions of the Quran on triple talaq are unambiguous and that it is against the tenets of the holy text, he concludes that the practice violates the 1937 Shariat Act. Women’s claims to equality are relegated to the sidelines, and yet again, the moment to build a robust jurisprudence on gender is allowed to slip away without notice.
Justice Nariman’s opinion confines itself to the very narrow issue of the validity of instantaneous triple talaq. He not only rules that triple talaq is not a religious practice covered under Article 25, but also that the doctrine of arbitrariness can determine if a law or provision is violative of the equality clause. He concludes that the practice of instant triple talaq is arbitrary, but remains silent on the issue of gender. Justice Nariman’s implicit concern is not with women’s rights, but with the preservation of marriage. He asserts that the practice of instantaneous triple talaq enables the marital tie to be “broken capriciously and whimsically by a Muslim man without any attempt at reconciliation to save it”. Despite the ruling being noteworthy for referring to constitutional protections in the private arena, there is little effort to elaborate this as sound legal jurisprudence. Indeed, a good deal of Justice Nariman’s opinion is taken up in developing the doctrine of arbitrariness in relation to a case on the consumption of whiskey that he argued as a lead counsel, and lost. Justice Nariman declares that the case was wrongly decided.
A generous reading of the reluctance of the court to deliver a robust judgment on gender justice might be its reticence in appearing to strengthen the hand of the Hindu nationalists in furthering their ideological agenda of demonising Muslim men. However, with Muslim women as petitioners and at the helm of this case, a golden opportunity was lost to develop jurisprudence based on the intersectionality of gender and religious (as well as class, ethnic or racial) identity. Instead, we are presented with a laboriously lengthy and impotent decision which sadly reflects the judges’ lack of knowledge on feminist jurisprudence.
The utterly insipid ruling could have been adequately rendered through the simple pronouncement of the last two lines of the judgment: “In view of the different opinions recorded, by a majority of 3:2, the practice of talaq-e-biddat or triple talaq is set aside.”
Ratna Kapur is the author of the forthcoming novel Gender, Alterity and Human Rights: Freedom in a Fishbowl.