Monday, Sep 26, 2022
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Opinion

The Divorce Debacle: What Is ‘Egalitarian’ Is More About Who Is In Power Or Has An Upper Hand In Social Discourse

Why does our legal morality treat marriage between two people as some social welfare institution in whose continuance society at large has a stake?

Sisterhood: Muslim women protest against the triple talaq act passed by Lok Sabha in 2018 Photo: Getty Images

The most important thing while examining the question of personal laws is to not get carried away by the idea that you are doing the women of the Muslim community any favour by pressing for replacement of Muslim law by a more ‘egalitarian’ regime of marriage and divorce. What is considered more egalitarian is nothing more than a function of who is in power or who has the upper hand in social discourse. And our national priorities are nothing more than a reflection of the dominant politics.

Instantaneous triple talaq or talaq-e-bidat was held by the Supreme Court to be unlawful in 2017 in Shayra Bano vs. Union of India. To understand our legislative and judicial priorities, it deserves to be borne in mind that this was not an issue originally brought to the court by a Muslim woman aggrieved by the practice. This case originated in 2015 with a bench of Justices Anil Dave and Adarsh Goel hearing the case of Prakash vs. Phulvati that involved a challenge to the equal coparcenary rights of Hindu women introduced by the Congress government in 2005. The arguments in the case degenerated into whataboutery concerning Muslim law, the favourite subject of the Modi government that had then recently come to power. At the end of the judgment, the bench made some completely unrelated observations beginning with “an important issue of gender discrimination which though not directly involved in this appeal, has been raised by some of the learned counsel for the parties which concerns rights of Muslim women”. The court went on to direct suo moto (meaning on its own motion) registration of a PIL and put it up before the Chief Justice for the constitution of a bench. The case was originally registered as Suo Moto Writ Petition No. 2 of 2015, but once it came to court, as is usual with such issues, a variety of individuals rushed to court for a variety of reasons, the first of them being by Shayra Bano, who lent her name to history.

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