A Ode to Gender Justice


(Srashta Vani Kolli)

To any observant citizen in the country right now, the battle of Shayara Bano Vs. Union of India, may either seem Democratic, Constitutional, Righteous or any other opinion of his /her  own mind.

But to a Muslim Women in India, it is an act of sheer courage and bravery. SC’s path-breaking Judgment on the Triple Talaq issue the other day, gave a voice or moreover a plea of Justice to all the oppressed and culturally declassed women out there.

Though, it may not seem religiously appropriate to many Islamic bodies like The Jamiat Ulama-i Hind, who were openly against the verdict, gave their statement to be rather punished than to compromise and not follow the custom of instant Talaq.

The Supreme Court’s five-Judge bench belonging to different faiths and beliefs represented a diversified Indian Cult, who gave a hallmark Judgment on 22nd of this month, dismissing the exercise and disposition of Triple Talaq which, as the Court said, is to be considered retrograde and unworthy. The judgement may appear to be on a divided notion but the essence of it is almost the same and similar for all practical purposes.

Any Cultural practice or Custom becomes constitutionally unacceptable when it violates Societal Morality and may seem to cause injustice to a particular sect of people. It may not have been necessarily an existing or accepting principle of the past but as a futuristic thought, this is progress towards the society of near possibility. Vulnerable people are the most easy to fall a prey or get manipulated, in a fast changing-world certain things are to be left behind to avoid any such cases of non-defensive Frailness and Susceptibility.

We must be ashamed of ourselves to classify women as the oppressed part of the society, but that is today’s reality! Gender equality has been the issue of the past and unfortunately enough, it still is. We live in the largest Democracy of the World, which as per its Constitution safeguards people’s rights to the utmost, mainly of Women and Children under the Article 15(3), giving the state the wholesome rights to make laws for their welfare and good-being.

In terms of Law, a woman has as much right as that of a man to divorce or stay in marriage, according to the Article 15(1) of the Constitution, and the children resulting from their marriage are a responsibility and liability of both the parents and not just one, and the wife is subjected to receive an alimony for certain time for her children and herself, to support her financially post-divorce. Keeping circumstantial and incidental causes in the mind, it is necessary for mutual consent to end their marriage, if not it may lead to misuse and exploitation of holy matrimony.

Victims Shayara Bano, who was divorced through talaq written thrice on a Letter she received from her husband; Gulshan Parween who received the same from her husband on a 10-rupee stamp paper, abandoning her and her two-year old son to be homeless; Aafreen Rehman, who also received a letter from her husband pronouncing talaq after two years of marriage where she was mentally and physically harassed; Atiya Sabri, who was divorced in the same manner, received her divorce on a parchment leaving herself and her two daughters homeless and unsupported; Ishrat Jahan, suffered an even worse divorce which she received on a unsuspecting phone call from her husband abroad.

These are just a few of the many women who were the victim of this 1400-year old practise, who dared to come before the court of law seeking Justice towards the ill-treatment they received and the gender discrimination they suffered. As quoted by the prophet, Triple talaq is to be considered a way of keeping married men and women in control of their conscience and character but not as a way of divorce and the talaq is to be uttered thrice with a time-gap in between to correct themselves and improve their way of life.

Including Pakistan, with a population comprising 96% muslims individuals also eliminated the practise of triple talaq five-decades ago in the year 1961. Now, India is among the list of 22 countries that has officially declared the practise “invalid and unconstitutional”, that includes Pakistan, Bangladesh,Egypt, Turkey, Algeria, Sri Lanka, Iran, Iraq, Indonesia, UAE, Malaysia, to name a few.

The appellants won the case by the majority of 3:2 in the court, but this 3:2 majority has been commanded irrational by misinterpretation of the two Judges statement but in actuality their support was towards making a preventive law through the parliamentary course of procedure but the instinct of the Judgement of all the five Judges is against the practise of triple Talaq in which two Judges were very much particular about implementation mechanism and appropriate legislation. In the words of CJI Justice J.S.Khehar, “the court can’t interfere in personal laws which have the status of fundamental right under the constitution.” Both the Supreme Court Judges were of the view that the role of the parliament was required to Certify and Grant the Constitutional Protection against such an act of injustice.

Making, Amending or any other omission of Laws in the Constitution is beyond the boundaries of the Court and hence requires the participation of Parliament given under the Role and Functioning of the Legislature in the Constituition of India. Now, the court has asked the centre to come up with a law to govern Muslim marriage and divorce within six months, As quoted by Supreme Court Lawyer, Karuna Nundy “It is very important victory for gender justice. The court recognised the fact that even if one person is suffering from the violation or deprivation of a constitutional right, then the courts must step in.”

After the Apex court’s verdict, certain religious leaders condemned the result labelling it to be against their religious practices and therefore would continue it’s implementation by violating the Apex court’s order and thereby be committing a constitutional offence. And one such incident came into light, in Lucknow, ironically, an hour after the verdict, a pregnant women, resident of Mohalla Kamra Nawaban was given instant talaq by her husband of seven-years leaving her in a state of distraught and agony.

For any Court of Law, Serving Justice and Protecting the citizen’s Rights and to control and cross-check the governance is it’s utmost Duty and Responsibility. And the Apex Court’s Judgment of late once again proved it’s rightful cognition and Working of the legal procedure and restored our faith in the Judicial System. A law needs to come into existence that provides protection and also prevents the scope of susceptibility of the victim in the procedural Divorce. Now, it is the Legislature’s turn to uphold its duty and serve what is right!

(The author is a student of School of Legal Studies of Reva University, Bengaluru and can be reached pennykolli@gmail.com)