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Does Indian Constitution Permit Triple Talaq ?


Along with early summer scorching  heat there is another heated debate happening on the matter of Triple Talaq (TT). People from all strata of society are putting in their views in favour and against. One side is corroborating their arguments from legal perspective while other one is putting it under the carpet by providing religious justification. Some are taking potshots by calling it political agenda of the ruling party while others are directly linking it to gender equality and rights of the women. No matter whose viewpoint is considered the fact of the matter is that this is quite important and sensitive subject as it impact 18% of country population and in some way or another has a religious flavour. Based on petitions from many Muslim women Supreme Court (SC) has referred this matter to 5 judge constitutional bench and has fixed daily hearing between 11-19 May 2017 to decide the legality of the matter. By Understanding the importance of matter and listing it for daily hearing in the summer vacation is a commendable move and can serve as beacon of hope for our conglomerated  judicial system.
As promised, this is 2nd article in series of ‘Know your fundamental Rights’ and we recommend you to go through our first article (here) to understand the basics behind Fundamental Rights.

What is nature of Indian constitution?

Overall Indian constitution is  secular, means  from state (Centre/State/local govt ,Public sector units etc) viewpoint all religion are equal and no distinction shall be made in matter of governance between people. For example, if government come up with a policy then it can’t make separate provisions based on religion , law (criminal – explained later) is application to all persons equally across religion and for same kind of crime , same punishment will be given . Similarly in the matter of government jobs or opportunities no distinction can be made based on religion and everyone should have equal rights to grow.

So does law apply to all citizens equally irrespective of religion ?
Mainly, there are two kind of laws, Criminal and civil. In the matter of criminal laws everyone (irrespective of religion) is treated equally whereas same is not the case w.r.t civil laws. For example if someone commits  a crime (say murder) then he/she is tried under section 302 of Indian panel code (IPC) and quantum and type of punishment will stay same irrespective of who committed the crime. But same is not true with regards to marriage , divorce , inheritance , maintenance and adoption as these are matters of civil suites and are tackled based on which religion person belongs to. For Muslims these matters are dealt by All India Muslim Personal Law board (AIMPLB) based on sharia whereas for most of other  religions it is driven by various laws passed by parliament. For example for non Muslims the matter of marriage and divorced are dealt under ‘ Marriage Act’. In addition to this other acts like ‘Succession Act’ ,’Minority and Guardianship Act’  and ‘Adoption and Maintenance Act’  are applicable to all persons who is not a Muslim, Christian, Parsi or Jew by religion.

So is Triple Talaq  permitted under Indian Constitution ?
Indian constitution offer religious freedom but don’t explicitly offer any immunity to any specific religion. Under Indian constitution below section in part 3 ( Fundamental Rights) deals with ‘Rights to Freedom of Religion’ :
Article 25:All persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality and health.
Article 26
:Guarantees all religious denominations and sects, subject to public order, morality and health, to manage their own affairs in matters of religion, set up institutions of their own for charitable or religious purposes, and own, acquire and manage property in accordance with law
Article 27: Guarantees that no person can be compelled to pay taxes for the promotion of any particular religion or religious institution
Article 28 :Prohibits religious instruction in a wholly State-funded educational institution, and educational institutions receiving aid from the State cannot compel any of their members to receive religious instruction or attend religious worship without their (or their guardian’s) consent
So above articles clearly articulate that though there is a fair degree of religious freedom offered under constitution but it is not absolute and is subjected to other  conditions. In addition to this this particular section can’t be interpreted in the isolation and has to be read along with other Fundamental Rights.

Article 15: a) State shouldn’t discriminate against any citizen on the ground only of religion, race ,caste, sex or place of birth.b)No citizen shall be subjected to any disability ,liability , restriction or condition on grounds only of religion , race , caste , sex , or place of birth.
so it becomes quite evident that Indian constitution is very much secular in nature  and advocate equal rights for citizens irrespective of caste , creed or gender.

So will SC rule against TT ?
This will be too early to say anything on this matter as in addition to legal provisions court also has to look into  other circumstances and have to take a stance after evaluating legal and religious viewpoints, specially when there is no parliamentary law to govern civil matters of Muslim personal. But as final interpreter of the constitution and the guardian of  law of the land, we firmly believe that SC  will do justice by giving a sound ear to all sides.

Till 1955, there  were lot of orthodox customs like polygamy, gender discrimination and many other things  prevalent among majority of our population , our founding fathers felt the need of codifying the civil laws to bring masses out from drapers of religion and put everyone under the ambit of same law. At that time too, there were lot of opposition from the majority of the country against these laws but legislators stand firmed to their stand , held consultation with religious leaders , listened to people , addressed their concerns and were able to convince most of them that this is for their own good as it will empower the oppressed and will help the society to progress. They succeeded in that efforts of their and today same set of people take pride in those laws and happily defy orthodox customs. Though our politicians succeeded in this big endeavour but someone missed the then low hanging fruit of Uniform Civil Code out of some inexplicable compulsion or deliberation by leaving (then) 10-12 % of country population outside the purview of civil laws. Time wheel has spun again and seems to be back at that same old juncture , we as a nation has to make a choice and we hope that this time we will do it right.

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