A Fine And Liberating Balance

 

- Flavia Agnes

THROUGH its historic ruling delivered by a five-judge bench, the Supreme Court liberated Muslim women from the perpetual fear of arbitrary and whimsical divorce. That it is a carefully crafted and delicately balanced judgement is evident by the fact that though the issue was extremely contentious, the warring fractions situated across the divide have hailed it as a balanced judgement. It was not easy to please all parties—individual Muslim women, Muslim women’s groups, experts of Islamic law, the government, political parties of different hues and the religious clerics. It allows everyone to cherry-pick from the verdict as per their ideological moorings.

The judgement is poised between two constitutional guarantees—women’s rights against arbitrary and instant triple talaq, on the one end, and the fundamental rights of minorities guaranteed by Articles 25 and 26 of the Constitution of India, on the other. It has steered clear of the binaries of majority versus minority, gender versus community and uniform civil code versus reform from within, focusing only on the issue that was fra med—whether instant triple talaq (talaq-ebiddat) forms the core of Islamic religious belief and practice in India, and whether it can be struck down by our courts. The three different verdicts, with three different focal points, form a kaleidoscope of patterns that can be mixed and matched to bring out different ‘majority’ opinions.

It was obvious that arbitrary triple talaq had to go. No one was going to declare it the most desirable mode of dissolving a Muslim marriage. What was under contest was the most appropriate manner in which it could be done—through legislature, the courts or the religious leadership. On this critical issue, the verdict split.