One of the ongoing debates in India is why the government is reluctant to bring Muslim marriages under the uniform civil code. Hindus, who constitute the majority, were brought under the Hindu Code in 1955. Prior to that, Hindu personal laws covered all matters relating to marriage, inheritance, and guardianship of children. The code faced strong opposition from religious leaders, who accused the government of discriminating against Hindus by bringing only them under the ambit of the code, and exempting Muslims, Parsis, and Christians.
In fact, by excluding Muslims and other religious denominations from the coverage of the code, a grave injustice has been done to these communities. Muslim women instead are bound by Muslim personal law, which is heavily loaded in favor of men. In particular, Muslim law allows men to divorce their wives on flimsy grounds, simply by invoking talaq (oral divorce) three times in one session. The matter has reached to such a ridiculous height that the Muslim men are increasingly taking to social media platforms such as Facebook, Twitter, WhatsApp, and even email, to divorce their spouses.
The practice has faced challenges before. In 1978, Shah Bano, a 60-year-old Muslim women, took her husband to court for divorcing her in an arbitrary manner, and also refusing to pay her alimony. The apex court of India, while upholding the judgment of the trial court and the high court, ruled the case in her favor, and directed her husband to pay alimony for the rest of her life, or until she remarried. The court relied on the Quran and came to the conclusion that the holy book imposed an obligation on a Muslim husband to make provisions for or to provide maintenance for the divorced wife.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
The All India Muslim Personal Law Board (AIMPLB), however, viewed the judgment as interference in the Sharia law of Islam, which according to them is not open to interpretation by any court of law. Muslims, enraged with the court order, took to the streets protesting against the verdict. The Indian government buckled under the pressure, as Muslims constituted a major vote bank for the ruling Congress party at the time. They, to assuage the feelings of Muslims, passed a law called “The Muslim Women (Protection of Rights on Divorce) Act, 1986” that nullified the Supreme Court’s judgment in the Shah Bano case, and limited the husband’s responsibility for supporting a divorced woman to the 90 day period of iddat (the waiting period of divorce).
The opposition parties in India accused the government of succumbing to pressure as they were not willing to offend the sentiments of Muslims for obvious political reasons. They also contended that when the majority community is bound by section 125 of the Criminal Procedure Code, which requires husbands to pay maintenance to their wives after divorce, but people belonging to other religious denominations were excluded from the uniform civil code.
In 2001, Shah Bano’s lawyer again approached the apex court to argue that their earlier decision was not being followed and, more importantly, that the Muslim Women Act should be declared as unconstitutional. The apex court, while ruling in favor of Muslim women, did not declare the Muslim Women (Protection and Right of Divorce) Act, 1986 as ultra vires. But unfortunately, Muslim personal law still continues to govern in the matter of divorce and maintenance.
Recently, a Muslim woman, backed by female activists, filed a public interest litigation in the Supreme Court of India, asking the court to declare triple talaq unconstitutional. She also urged the court to declare the Muslim Women (Protection and Rights) Act, 1986, which ironically discriminates against Muslim women, to be declared unconstitutional. Like in the Shah Bano case, the AIMPLB has filed an affidavit in response to the petition arguing that, as Sharia law grants husbands the right to divorce through triple talaq, as per the provisions enshrined in the Holy Quran, the matter is not open to interpretation by any court of law.
In their affidavit, the AIMPLB has taken a bizarre stance in defending the validity of triple talaq before the Supreme Court. At one point, the affidavit argues that if the practice is discontinued, a man might murder or burn his wife alive to get rid of her. The board also said that polygamy was a “social need” and a “blessing” for women because “an unlawful mistress is more harmful for social fabric than a lawful second wife.” The affidavit argued that since women outnumber men, not permitting polygamy would force women “into leading a spinster’s life.” The AIMPLB’s stand is totally out of sync with modern liberal values. The court has asked the Indian government to file its response.
Ironically, India is out of step with much of the Muslim world in allowing the practice to continue. As many as 21 other counties, including Pakistan and Bangladesh, have already abolished triple talaq either explicitly or implicitly. Other Islamic countries like Turkey, Tunisia, Syria, Egypt, Morocco, Iran, Iraq, Malaysia, and Indonesia have either reformed the law completely or involve legally stringent preventive measures in this area.
Pakistan introduced a Muslim Family Law Ordinance 1961, making it mandatory for the husband to give notice to the chairman of the union council regarding his intentions of divorce. Moreover, there is a cooling period of 90 days before giving effect to a divorce. Unlike India, divorce in Pakistan can’t be done in one session.
In view of the progressive measures taken by majority Muslim countries in protecting the rights of women, the Supreme Court should declare the pernicious practice of triple talaq as illegal and unconstitutional. The court should also direct the government to amend the Muslim Marriages Act so that divorce can be granted only when talaq is invoked in three different sessions over a period of three months, as is the case in other Muslim countries. The court, by relying on the reforms in Muslim countries, should dismiss the contention of AIMPLB that the triple talaq flows from the Sharia law of Islam and, therefore, can’t be adjudicated by any court of law.
It is to the credit of Muslim female activists that more and more women are raising their voice against injustice, gender inequality, and subjugation. It is time for reforms to protect their rights of Muslim women in view of changing societal values. Let us not allow fundamentalist forces to hold the country hostage.
K.S. Venkatachalam is an independent columnist and political commentator and writes a regular column for many newspapers.