Madhavi Divan
Madhavi Divan

"The idea is not to start putting people in jail. It is deterrence", ASG Madhavi Divan on criminalisation of Triple Talaq after Shayara Bano

During a webinar organised by the SC Women Lawyers' Association, ASG Divan reminisced on her experiences in assisting the Union of India in the Shayara Bano case that annulled the practice of instantaneous Triple Talaq.

The Supreme Court’s Women Lawyers Association (SCWLA) on Sunday hosted a discussion on “Law and Life after Triple Talaq – A Reality Check” featuring Additional Solicitor-General Madhavi Goradia Divan as the keynote speaker.

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ASG Divan reminisced on her experiences assisting the Union of India with its arguments in the Shayara Bano case that ultimately resulted in the striking down the practice of Talaq-e-Biddat as unconstitutional.

The Talaq-e-Biddat or instantaneous ‘Triple Talaq’ is a practice followed by adherents of certain schools of Islam that allows a man to divorce his wife, irrevocably, after uttering the word “Talaq” three times.

Advocate Priyanka Mathur and Senior Advocate Mahalakshmi Pavani delivered introductory remarks, followed by Advocate Prerna Kumari’s introduction of Senior Advocate Divan and her work on the case.

Advocate Maheravish Rein gave a background to the subject of discussion, explaining the modalities of the practice of Talaq-e-biddat in the larger context of divorce law as well as in the Shayara Bano case.

During the discussion, ASG Divan opined that the striking down of the practice of instantaneous Triple Talaq, while historic, is still a "baby step" towards doing-away with unjust practices.

She added that there were other modes of marriage dissolution in Muslim law that were also unilateral and problematic, although they were more reasonable since they allow for reconciliation.

"I must confess, I hadn’t been a family lawyer or a divorce lawyer…my original training was in commercial law", ASG Divan said, as she commenced her address on her experience while appearing in the Shayara Bano case.

ASG Divan speaking during the webinar
ASG Divan speaking during the webinar

ASG Divan narrated that anticipating the verdict was the “most challenging” part of her role in the case. She recounted that when the then Chief Justice Khehar began reading out his opinion upholding the constitutionality of the practice, most lawyers in the “packed” courtroom, including herself, believed the challenge to have failed.

"When I heard the first judgment being pronounced by (Chief) Justice Khehar I think I really had my heart in my mouth”, ASG Divan remarked, recalling the tenor of the Courtroom on August 22, 2017, when the Shayara Bano opinions were pronounced.

She described her experience on the case as “chastening” while explaining how it was difficult to challenge the status quo despite the practice in question being “so manifestly gender unjust.

The Senior Advocate highlighted that the Supreme Court’s ruling in Shayara Bano, contrary to public opinion, did not strike down Triple Talaq citing gender injustice.

While Justice Kurian Joseph voided the practice on theological grounds, Justice Rohinton Fali Nariman (with Justice UU Lalit concurring) found the practice to be “manifestly arbitrary” and struck it down on this count. Justice Nariman, she pointed out, struck down the provision on a narrower ground than discrimination.

Notably, ASG Divan pointed out that the practice was struck down from the “standpoint of the matrimonial bond” rather than its propensity to be discriminatory.

Senior Advocate Divan hazarded an opinion that gender equality was possibly not spelt out as a reason for nullifying the practice as it might have raised queries about other gender discriminatory practices across religions and customs.

She also noted that initially, the practices of polygamy and nikah halala (divorce after consummation of a second marriage to marry the first spouse) in Muslim Personal Law were also under challenge in the Shayara Bano case. However, the Court eventually only confined to deciding on the constitutionality of Triple Talaq.

ASG Divan went on to observe that the judgment was delivered from within the “contours of faith” and that it involved the interpretation of religious practices and explanations of what the “holy scriptures” meant.

She opined that Judges could never be arbiters of what constitutes essential religious practices since this is the prerogative of theologians. Positing that a Judge should rule on fundamental rights and the laws, she spoke of the Narasu Appa Mali case of 1951 that challenged the practice of polygamy in various religions.

In that case, the Bombay High Court infamously declared personal law as not being "law" in terms of Article 13 (the provision defines ‘law’ for the purpose of applying fundamental rights). The dictum in the case was overruled in the Supreme Court's Sabarimala Judgment, she said.

Interestingly, in the context of personal laws, the Advocate expressed that in her opinion, laws were far more liberal for Muslim Women prior to India’s independence than after.

During the discussion, she also defended the move to introduce an Act to criminalise the practice of instantaneous Triple Talaq after the Supreme Court had struck it down as unconstitutional.

Countering the detractors of the Muslim Women (Protection of Rights on Marriage) Act, 2019, Divan said, "What does a woman do when she encounters a situation where her husband, despite the law being declared by the Supreme Court, still issues a triple talaq? Where does she go? How does she enforce the judgment?"

She further commented that punishing the practice is necessary to signify the State’s “zero tolerance” for such a practice.

Quoting Blackstone, Senior Advocate Divan iterated his definition of a criminal wrong being a wrong that was against the public. Because of their implications on societal values, acts such as dowry harassment, cruelty, and bigamy have also been made punishable under penal laws, she explained.

Continuing on this theme, Senior Advocate Divan stated that, more often than not, it is the fear of a talaq being pronounced upon a woman rather than the utterance itself that is the problem. A fear of a talaq pronouncement hangs over a woman “like a sword”, compelling her to follow her husband’s dictates, stay within his “Lakshman Rekha”, she elaborated.

This persisting fear serves to demonstrate inherent societal inequality, enunciated the ASG. She went on to explain, "The idea is deterrence. The idea is that the man should never pronounce triple talaq. I don't think the object of a law is to send him (a husband) to jail."

"The idea is not to start putting people in jail, that is one thing we need to remember. The idea is deterrence. The idea is to send out that message ... that there is a message of zero tolerance to such practices."
ASG Divan on the criminalisation of Triple Talaq
“It’s often said if you empower a man you empower him alone, but if you empower a woman you empower families. The implications of Shayara Bano transcend what is just immediately obvious to us as it’s very intrinsically entwined with the social status of women and…when women are able to help themselves and lift themselves in society there will be an immediate impact on their families, their children, and generally on the community”, said Senior Advocate Divan, concluding her key note address.

During the Q & A Session that followed, Divan also opined that there was a need for a common denominator of basic human rights while answering a question on the Uniform Civil Code.

If communities are too far apart on basic human rights, then over time they would move in very different paces and create divisions, which can be problematic, said Divan. She added that before undertaking the exercise, it is important to define "what exactly we mean by a Uniform Civil Code."

Divan also had occasion to speak on her experience as a woman in law. She explained that for the longest time, her gender was always a hurdle, in some way or the other. Despite repeated setbacks one just had to “keep pushing", she added. Thereafter, a woman will get more importance because there are fewer women higher up in the profession presently, she observed.

"You will just have to hang in there. There is no choice… You will face setbacks, but if you make it through those 10-12 years, and you take yourself very seriously, and you project that seriousness, there are many gains to be had because the higher you go in the profession, there are fewer women there."
ASG Divan on Women in Law

At the end of the webinar, Senior Advocate Mahalakshmi Pavani thanked the ASG for being a part of the event. The webinar drew to a close after SCWLA’s Advocate Mansa Singh rendered the vote of thanks.

Watch SCWLA's stream of the webinar here:

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