How a woman changed a legal system | Sunday Observer

How a woman changed a legal system

India has since time immemorial been famous as a country where patriarchy and male dominance prevailed. However, similar to many Asian countries, India too underwent a revolutionary phase where Human Rights and Equality of all citizens were appreciated.

The justice system has also taken numerous initiatives to amend Indian laws to cater to the needs of many individuals, communities and activist groups. The much debated “Triple Talaq” validity case was one of the most recent efforts of the Indian judiciary to uphold Fundamental Rights of Muslim women, as opposed to unfounded personal laws and practices.

Shayara Bano is a 35-year-old Indian woman from Kashipur, in the state of Uttarkhand who was married for 15 years before she was divorced by her husband by the instant Triple Talaq. After her husband pronounced the triple talaq in October 2015, Shayara Bano approached the Supreme Court in 2016, challenging the validity of the divorce practice followed by Muslim women. In her petition, Shayara asked the Supreme Court to declare talaq-e-bidat (Instantaneous divorce) polygamy and nikah halala (remarriage of women) illegal and unconstitutional on the grounds that they violate the rights guaranteed by the Constitution, specifically the Fundamental Rights of Equality before the Law (Article 14 of the Indian Constitution), Freedom from discrimination on grounds of religion, race, caste, sex or place of birth (Article 15), Right to life and personal liberty (Article 21) and Freedom of conscience (Article 25).

However, her husband opposed Shayara’s plea on the ground that they were governed by Muslim Personal Law under which all three practices are declared sacred. Ultimately, The Supreme Court, on August 22 2017, by a majority verdict of 3:2 declared that triple talaq was void, illegal and unconstitutional.

It was an intriguing coincidence that the five judges of the Constitutional bench before whom the case was heard belonged to five different faiths, namely, Sikh, Christian, Parsi, Hindu and Muslim.

The judges took into consideration several other petitions filed by seven Muslim women including Shayara Bano, where their husbands had divorced them merely by uttering the word “Talaq” thrice.

It was declared by the panel of judges that this practice was nothing but an illegal, retrograde and unworthy one.

Muslim women have always faced gender discrimination in the event of divorce or other marriages by their husbands. Especially, in a country like India where both human rights activism and archaic practices such as, “Sati Puja” still take place, it would be a Herculean task to implement this judgment within the society.

The step ahead

The All India Muslim Personal Law Board (AIMLPB) was an organization that had vehemently opposed the involvement of the judiciary in interpreting and adjudicating the Holy Quran and its teachings. But, soon after the judgment was released, the organization welcomed the decision, especially, with appreciation on its interpretation of the Freedom of Religion, as per the Indian Constitution.

Legal experts claim that the ramifications of the Supreme Court’s verdict will have a bearing on all pending cases in different courts where Muslim women have challenged their divorces under the instant divorce method and their marital status is likely to be restored.

This is a massive win for not only Muslim women, but also for every Indian woman, as the highest adjudicating authority of the country has granted them acceptance in the society as dignified human beings entitled to Fundamental Rights.

This judgment was widely appreciated by many institutions and individuals as a “victory of Indian Constitutional values”. PM Modi also in a twitter message stated that this historic judgment is a powerful measure for women empowerment.

The real challenge

The black letter law is now written. What is needed is the effective implementation of these laws. People might still be reluctant to accept the fact that it is time to disregard certain religious practices, but doing so does not mean that people should undermine their religion. Freedom of religion should prevail, as long as it does not trump the legitimate rights of the people.

Given that Triple Talaq is followed by Muslims who are very devoted to their faith, it has to be accepted that balancing rights and religion is an arduous task. What we should realize is that unless we accept that every human being is born equal and women are not second class citizens who are not entitled to certain prerogatives of society, we will thrive, not as one community or country, but as a whole human race. 

 

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