June 06, 2020
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How To Court The Personal

Everyone wants personal laws reformed, but the triple talaq verdict would decide how it happens

How To Court The Personal
Beyond Politics
Muslim women seek equality in family laws
Photograph by Sanjay Rawat
How To Court The Personal

As the triple talaq hearing progresses in the Supreme Court, everyone seems to be arguing for the same reform. That reform is inevitable is clear to all parties, but who will reach the finish line first is something only the Supreme Court’s judgement, when it comes, can tell. Going by the comments of the jud­ges hearing the arguments, the bench appears to be trying to work out the correct constitutional scheme in which it can pass an iron-clad judgement.

Talaq-e-bidat (instant divorce, better known as triple talaq) enables the husband to play both petitioner and judge and terminate the marriage merely by uttering the word for divorce thrice in quick succession—much like a judge in a Bollywood courtroom drama bangs the gavel and says, “Order! Order! Order!”

The triple talaq verdict, when it comes, is likely to be a historic judgement by the the five-judge constitution bench under Chief Justice of India (CJI) J.S. Khehar, who retires this August. As the bench has been hearing the case through the court vacation, some senior counsel reporte­dly had to cancel their holiday plans and stay back in Delhi. And after six days of listening to submissions by lawyers for Uttarakhand-based petitioner Shayara Bano, the Centre and Muslim organisations led by the All India Muslim Personal Law Board (AIMPLB) on May 18, the bench reserved the order.

It was in 2015, while hearing a case on the Hindu Succession Act, that Justi­ces Anil Dave and Adarsh Kumar Goel noted Muslim women had no safeguard against arbitrary, unilateral divorce by their husbands. A suo motu notice to the attorney-general (A-G) opened the floodgates for many Muslim organisations and women, starting with Shayara Bano, who had been challenging  the custom protected by personal law, citing gender- and religion-based discrimination. Earlier, in 2012, triple talaq was one of the customs prevalent among Indian Muslims that drew sharp criticism at a meeting of the Bharatiya Muslim Mah­ila Andolan (BMMA) attended by nearly 500 Muslim women.

Putting across the Centre’s position,  A-G Mukul Rohatgi told the SC bench on May 15, “If the practice of instant divorce is struck down by the court, then the Centre will bring a law to regulate marriage and divorce among the Muslim community.” The bench, in turn, asked why the Centre had failed to pass a law in 60 years. When the CJI said the Centre should introduce legislation irrespective of the verdict, Rohatgi said he could not speculate on its fate in Parliament.

Photograph by Jitender Gupta and Sanjay Rawat

Justice Khehar, above, suggested a nikahnama clause to empower women. ­A-G Rohatgi, above right, said a verdict could be followed by legislation. Sibal spoke of the need for internal reform.

Two years ago, BMMA had submitted a draft Muslim family law to the PM and his cabinet. Convenor Zakia Soman hopes it has impacted the Centre’s idea of the kind of legislation that Muslim women need. “The draft is based on our survey, in which very many women told us that there should be a law that conforms to the Quran as well as democratic values—in other words, a codified Muslim family law such as the marriage, succession and adoption laws for Hindus,” says Soman. “It was the government’s constitutional obligation to have gone into it before the Supreme Court did.”

There have also been campaigns for a Uniform Civil Code, applicable in matters such as marriage, divorce and succession irrespective of the religions of the parties involved. The Law Commission had conducted a survey and taken suggestions from the public, but on May 16, there were media reports that the panel would “go slow” on its report and first wait for the SC’s triple talaq verdict.

If triple talaq is struck down, the Centre would have to issue guidelines to fill the vacuum until Parliament enacts a new law. So far, the government has not commented on other forms of divorce among Muslims. “If the SC scraps the practice, there shouldn’t be a switch to Quranic talaq,” says Syed Tanveer Nasreen, head of women’s studies at Burdwan University. “Ideally, there should be a single law for registration and dissolution of all marriages. That would encourage Muslim women to demand more rights. Hindu law has been through a process of reform, but Muslim women still do not have equal rights with men. The AIMPLB has taken a patriarchal stand, using religion as a tool. How can you practise secularism in public spaces, but opt for patriarchy in private spaces?”

Not only is the AIMPLB on the backfoot in the SC, many feel its views, both in court and outside, have come across as misogynistic. Thus cornered, the board wants to initiate reforms on its own terms. Calling it a practice with a history of 1,400 years, the board’s counsel, former law minister Kapil Sibal, told the court, “Give us time. Do not dictate reforms to us; we are considering them.”

The AIMPLB also said it would educate Muslim men so the custom isn’t misused. Past experience, though, does not inspire much hope. During the mid-1980s, when an SC verdict in favour of alimony to Shah Bano was overturned by a legislation, sections of the community had ganged up against her.

“Ninety-five per cent of the Muslim women we surveyed said they have not heard of the AIMPLB and giving it too much importance will validate a self-­appointed body that the ordinary Muslim doesn’t support,” says Soman. “The AIMPLB had expected the same kind of response as in 1986 (post-Shah Bano case) and is trying the same thing by making the process more complex. But people do not trust their claim of being in favour of reforms from within.”

In the court, Sibal argued that practices related to birth, marriage and death are based on social norms adopted by families and are matters of personal law that could not be tested through “constitutional morality”. “If faith of Hindus about Ram’s birth at Ayodhya cannot be questioned, then triple talaq too is a matter of faith for Muslims and cannot be questioned,” said Sibal, prompting Justice Kurien Joseph to point out that Muslim women had approached the court for reform after 1,400 years of deprivation, while regressive Hindu customs such as sati and infanticide had been nixed through legislation.

Sibal also said Muslim marriage is a contract between consenting adults and divorce is the dissolution of the contract. But many have argued that triple talaq is not consensual as only a Muslim man has the power to use it for terminating a marriage unilaterally. CJI Khehar suggested that the nikahnama (wedding contract) form could have a clause asking a Muslim woman if she would accept triple talaq. This has also been submitted by senior advocate Raju Ramachandran, counsel for the Jamiat Ulema-i-Hind, who said one could opt out of triple talaq.

In 2008, Justice B.D. Ahmad, then a Delhi High Court judge, had ruled that triple talaq is “sinful”. “It was depreca­ted by Prophet Mohammed,” Justice Ahmad had written. “It is definitely not recommended or even approved by any school.… It is an innovation that may have served a purpose at a particular point of time in history but, if it is roo­ted out, such a move would not be contrary to any basic tenet of Islam or the Quran or any ruling of the Prophet Mohammed.” With the principles of natural justice too stacked against it, the Centre has found it possible to insist that the controversy over triple talaq is not about ‘minority’ and ‘majority’.

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