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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?

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

It is also important to stop to wonder why this matter concerning a form of divorce being practiced for over 1,400 years acquired such urgency that it immediately came to be listed and heard during summer vacations. To put matters into perspective, two constitution bench matters were being pressed for an urgent hearing that summer. One concerned the legality of the Assam Accord and the legal status of refugees who came to India after escaping persecution in Bangladesh, and involved the question of what rights they have acquired by residing in India, in some cases for 40-50 years. The other concerned instantaneous triple talaq. The talaq matter came to be listed before a Constitution bench that sat specially during summer vacations, whereas the refugee matter has till date not seen the light of day. And yet, the NRC exercise was conducted in Assam by the Supreme Court under its own supervision and the controversial CAA was enacted, while the legal basis of both remains to be decided.

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One must also wonder why, after the Supreme Court declared that triple talaq does not have the effect of breaking the marital tie, the Parliament still thought it fit to set aside all other work and pass a legislation that criminalises repetition of the word talaq thrice by a husband, which in law no longer has any effect. And it is not just judicial and legislative priorities that change with changes in the power structure. The very understanding of what is ‘egalitarian’ itself undergoes change. This is most starkly seen by reading the debates in the Central Legislative Assembly at the time of the passing of the Muslim Personal Law (Shariat) Application Act, 1937 and comparing it with the Constituent Assembly debates on the Directive Principle now contained in Article 44 of our Constitution, which states that the State shall endeavour to secure a uniform civil code throughout India.

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

Muslims in India who had converted from other religions, had continued to be governed by practices concerning succession, marriage, divorce, etc. that were applicable to them prior their conversion, and the courts had been enforcing these practices as “customary law”. The 1937 law was the result of a campaign by Muslim women’s organisations, demanding that they be freed from these demeaning customary laws, aka Hindu Law, and that Muslim Personal Laws should be made applicable to them.

Divorce was at that time not permitted under Hindu Law. A widow acquired no rights in the property of her dead husband and merely obtained a right to reside in the property during her lifetime, which she would lose upon remarriage. Since the law concerned only Muslims, it was moved by Muslim members of the Legislative Assembly and only they were entitled to vote on it (a practice that makes so much sense if you think about it). The debates reflect pride in the egalitarian nature of Muslim Law and reflect a certain condescension expressed by Muslim members at the regressive nature of Hindu Law. Abdul Qaiyum, a lawyer and member of the Assembly from the North-West Frontier Province, said, “I submit that it is high time that we got rid of this dead hand of custom… I hope, Sir, the day is not far-off when other communities will also bring similar measures and when in India, women and men will be treated equally in the eyes of the law in the matter of property, political rights, social rights and in all other respects.” G.V. Deshmukh, a legislator from Bombay and an advocate of women’s rights, speaking in favour of the bill expressed hope that Hindu society would follow the example being set by the Muslim community and look to reform their personal laws.

When the arguments are more forward looking, Muslims are spoken of as being unwilling to adapt to changing times and standing in the way of progress.

Contrast this just a decade later with debates in the same Assembly, now sitting as the Constituent Assembly in 1948. Muslim members of the Constituent Assembly opposed inclusion of uniform civil code as a Directive Principle, expressing fears that the “tyranny of the majority” would ride rough-shod over the rights of minorities. The arguments made in support of the Directive Principle degenerate at times to the level of ‘Do Muslim countries hold the personal law of each minority above Civil Law? Then why should we?’ and ‘Where were the rights of minorities when Shariat was forced down the throats of communities converted from the Hindu faith who wanted to stick to their old customs?’ You will note that this latter is the exact converse of what was the narrative when this was done in 1937. When the arguments are more forward looking, Muslims are spoken of as being unwilling to adapt to cha­nging times and standing in the way of progress. The taunts too are reversed. As early as in the Constituent Asse­m­bly, Muslims were accu­sed of standing in the way of nation-building, with K.M. Munshi having taunted, “There is one important consideration which we have to bear in mind—and I want my Muslim friends to realise this—that the sooner we forget this isolationist outlook on life, it will be better for the country.”

So what changed between 1937 and 1948? One thing that certainly did not change was the personal law of either the Muslims or the Hindus. The Hindu Marriage Act, reforming Hindu law, was not passed till 1956, and Hindus at that time were still governed by that “dead hand of custom” spoken of earlier. What did however change was the bargaining position. The Partition brought a rise in communal sentiment and an alienation of the Muslims who chose to stay behind. Muslims lost their numerical strength along with most of their leaders, and those who remained, acquired a certain diffidence. Instead of the forward-looking leaders who took pride in their religious beliefs, spoke of women’s rights and invited other communities to follow their lead in the emancipation of women, we see a community and its leadership guiltily retreating into its shell, pursued by taunts directed at their belief system.

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Today, talaq-e-hasan and talaq-e-ahsan, the remaining forms of talaq that involve due notice to the wife and an opportunity for mediation and reconciliation, are being examined by the Supreme Court to see if unilateral divorce is contrary to our constitutional ethos. We need to introspect why the system of divorce under the Hindu Marriage Act, 1956, or the Special Marriage Act, 1954, is more egalitarian, where a person stuck in a marriage they no longer wish to be in must prove cruelty or infidelity or impotence in a prolonged courtroom battle before they can be rid of the relationship? Under Muslim Law, women are entitled to unilateral dissolution of marriage through khula and men through talaq. Is this not an infinitely more mature system, which recognises that once one party is done with a relationship, nothing survives, and all that remains to be done is to give it a dignified burial?

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In our country, maintenance and alimony are governed by Section 125 of the Criminal Procedure Code, 1973, a ‘secular’ law applicable to all, and child custody is decided by the courts based on ‘best interests of the child’. A divorced wife has a right to be provided residential accommodation of the same comfort as she enjoyed during marriage under the Domestic Violence Act, 2005. Then why does our legal morality treat marriage between two people as some sort of social welfare institution, in whose continuance society at large has a stake? Is it not incongruous that the right to choose to be in a relationship has been given by our legal system to same-sex couples but the right to choose not to be in a relationship is still denied to married heterosexual ones?

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The truth is that our legal morality still carries the notion that saptapadi (rite during Hindu marriage) binds two people into a holy union for seven lifetimes and we are not willing to allow that union to be broken, unless evidence is led before a judge appointed by us proving extraordinary circumstances for an exception to be made. The Islamic idea of marriage as a contractual arrangement between two willing partners that subsists as long as the willingness lasts and can end unilaterally at the instance of either without giving any reason, is abhorrent to Hindu society, as it offends their religious morality. This is not a case of Hindu Law being more egalitarian. It is simply a case of Hindus being more numerous and Hindutva being an increasingly aggressive political ideology.

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(This appeared in the print edition as "The Divorce Debacle")

(Views expressed are personal)

Nizam Pasha is a Delhi-based lawyer

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