Brig Anil Gupta
In a historic judgement the Supreme Court of India through a majority judgement has pronounced the controversial Triple Talaq prevalent amongst a sect of Muslims in India as unconstitutional. The judgement has been widely welcome including by the members of the Muslim community. The Supreme Court is due to hear another controversial issue, i.e., Article 35A of the Constitution of India and all eyes are on the constitutional bench that is due to hear the arguments and pronounce its judgement. The anticipated Supreme Court judgement is going to affect many lives as in the instant case. The readers may be wondering as to what is common between the two? The commonalities are many. First and foremost, both smacked of gender inequality. India is one of a handful of countries in the world where a Muslim man can divorce his wife in minutes by saying the word talaq (divorce) three times- and not necessarily consecutively, but at any time, and by any medium including telephone, text message or social media post. Many affected Muslim women and activists say the practice is “discriminatory”. Interestingly, most Islamic countries, more than 20, including Pakistan, Iran, Morocco, Algeria, Tunisia, Indonesia, Afghanistan ,Bangladesh, Turkey, Cyprus, Sarawak (Malaysia), Sri Lanka, Jordan, UAE, Qatar, Sudan, Egypt, Iraq, Brunei, Kuwait, Yemen and Saudi Arabia have banned triple talaq, but it thrives in India having second largest Muslim population in the world.
If triple talaq (instant divorce) is discriminatory against the Muslim daughters of India, Article 35A discriminates against the daughters of the soil of Jammu & Kashmir state. It facilitates the violation of the right of women to ‘marry a man of their choice’ by not giving the heirs any right to property, if the woman marries a man not holding PRC. Therefore, her children are not given Permanent Resident Certificate and thereby considering them unfit for inheritance – not given any right to such a woman’s property even if she is a permanent resident. If a male permanent resident of J&K marries anywhere outside the state including Pakistan, his wife gets the permanent residency automatically and their children also get the same privilege. But if a daughter of the soil decides to choose a life partner from any other state of the country her permanent residency was cancelled till 2002 when in Susheela Sawhney case the High Court of J&K gave adverse decision against this practice. The Court ruled, “In view of the majority opinion, we hold that a daughter of a permanent resident marrying a non-permanent resident will not lose the status of permanent resident of the state of Jammu & Kashmir.” The decision was widely welcome but both the regional parties (prompted by the Hurriyat) opposed it and delayed its implementation. When in power these parties rather than honouring the court judgement tried to adopt the legislative route to amend the definition of permanent resident by introducing Permanent Resident (Disqualification) Bill which could not see the light of the day due to stiff opposition from Jammu region. But the issue still remains to be resolved fully as the children out of this marriage are not deemed as permanent residents until and unless a female child born out of this marriage is married to a permanent resident of the state, once again violating her right of “marrying a man of own choice.”
Other similarities include that in both cases the doors of the Supreme Court have been knocked by the affected women indicating the awareness among them as well as their quest for gender equality. Readers would also be surprised to note that both are not supported by the relevant religious or legislative provisions. Even though it has been practised for decades, the unilateral instant “triple talaq” divorce finds no mention in Sharia or the Koran. Islamic scholars say the Koran clearly spells out how to issue a divorce – it has to be spread over three months which allows a couple time for reflection and reconciliation. While triple talaq is not included in the Sharia, gender discrimination also does not form part either of the State Subject Law 1927 promulgated by the Maharaja or the J&K Constitution whose part III deals with the Permanent Residents. Note III of the 1927 law has been ruled as inapplicable by the High Court to the daughters of the soil and said that it was applicable only to those wives or widows who acquired the State Subject by virtue of their marriage to a State Subject and decide to reside outside the state thereafter. In fact, even during Maharaja’s time in 1939, the state subject of Mrs. Ghulam Kabra and her right to inherit property was challenged in the State High Court on the ground that though a State Subject by birth, she had lost that status by marrying a non-state subject. The Court then held that Ghulam Kabra was legal heir of the property which she could inherit on the plea that there was no provision in the State Subject Law to cancel a state subject once granted. Similarly, the provision made in rule 8 of the Jammu and Kashmir Grant of Permanent Resident Certificate (Procedure) Rules 1968 does not provide any ground for cancellation; not to speak of disqualifying specially women on any ground.
To quote Balraj Puri, an eminent writer of J&K, “It was in mid -sixties when the then Revenue Minister issued an executive order directing all deputy commissioners to issue certificate of permanent resident to women with the proviso “valid till marriage”. Even this order which lacked the force of law was differently interpreted. When daughter of a senior bureaucrat of the state, SAS Qadri married, Mehmood-ul-Rehman, an IAS officer from outside the state, in 1973, her status as a permanent resident of the state and her right to inherit property of her father under that was declared valid by the Revenue Minister on the ground that “the constitution of Jammu and Kashmir or any other law does not provide for deprivation of a permanent resident of the state of his or her status.” The provision of the Act, thus has been used selectively, arbitrarily and discriminatorily by Kashmiri politicians. Like the triple talaq, this also does not have any legal or moral sanctity.
Both have also been marred in controversies. While a section of the Muslim society, particularly the Muslim Personal Law Board and the clergy vehemently opposed dragging the issue of triple talaq to the Supreme Court on the pretext that it was a matter of faith and personal law and courts do not have the jurisdiction to interfere in the same, the activists termed it as exploitation of the women and wanted it to be prohibited. Similarly, the Kashmiri power brokers, whose tunnel vision is confined to the Kashmir Valley and their handful of party cadre in the other two regions of the state, vehemently oppose any tampering with Article 35A, terming it as a guarantee of their ‘special status’; the majority population in Jammu & Ladakh hopes that the Supreme Court will strike down or amend the provisions of the article in its present form as it is highly discriminatory and gender biased. The triple talaq judgement has set India on the path of achieving the dream of New India- an India free of terror, hate and discrimination. Hopefully, the verdict on 35A will take the nation a step closer to the same.
(The author is a Jammu based political commentator, columnist, security and strategic analyst.)
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