By Tahir Mahmood
April 18, 2017
A constitution bench of the Supreme Court will soon begin hearing a host of petitions challenging the constitutional validity of the so-called triple Talaq. It is difficult to predict the outcome of this high-level judicial exercise, but will the apex court’s ruling one way or the other put an end to the tumult on the issue? Will the babel of voices condemning the scandalous practice or zealously defending status quo be silenced?
There are three issues before the court — triple Talaq, Halala and polygamy. The first two are interconnected — if a man wants to retain his triply divorced wife, this is allowed only after she is married to, and then divorced by, another man; faking such a drama is possible with the connivance of well-wishers. Triple divorce becomes a problem not for men who actually mean it and wish to instantly break their marriage for all time to come, but for hundreds of others who utter it mindlessly — perhaps in a state of extreme anger, sudden provocation or inebriation, only to repent later. The clerics insist that a mere utterance of the formula is enough to end a marriage, regardless of the man’s intention or remorse, and demand the couple in question take recourse to the disgraceful practice of Halala.
If triple Talaq is outlawed, Halala will also go, but what about a single divorce pronounced face to face or through a letter, an e-mail, a mobile phone or a WhatsApp message? If this practice, which is much in vogue, is left untouched, will declaring triple Talaq unconstitutional make much difference? What is overdue for reform is the law of unilateral divorce, at the man’s pleasure, in its entirety. As regards polygamy, in India, the practice does not mean two or more wives living with their common husband — as was the original concept and is the practice in Arab countries. In India, it means a man throwing out his wife, without divorcing her, and marrying another woman. This distortion of the 7th century Quranic law can make the life of the abandoned wife more miserable than a divorcee.
Be it triple divorce, Halala or polygamy, will the judicial verdict be accepted and faithfully followed by all concerned? In 1995, the apex court had outlawed the practice of married non-Muslims indulging in bigamy by sham conversion to Islam. Over a decade later, the deputy chief minister of a state and a law officer of the same state, both under oath to abide by the Constitution and law, resorted to this “device” in order to circumvent the mandate for monogamy under the modern Hindu law. In a TV debate, they claimed that they had done nothing illegal.
In a Law Commission report, written by me in 2008, the government was advised to translate the court verdict into a firm legislative provision incorporated into the Hindu Marriage Act. But this advice went unheeded and the judicially-settled law is still being observed in violations galore.
To spare Muslim wives the ordeal of triple divorce, Halala and polygamy, society needs more than sporadic judicial decisions. The personal law system is deep-rooted in society — all citizens are ordinarily governed by one or another community-specific law — and uprooting this system with a single stroke of legislation is neither feasible, nor necessary. Like all other family laws, Muslim law too should be codified and reformed. Strategic revision of existing legislation will be the answer to the problems of the day. There are on the statute book three enactments relating to Muslim family law: Muslim Personal Law (Shariat) Application Act 1937, Dissolution of Muslim Marriages Act 1939 and Muslim Women (Protection of Rights on Divorce) Act 1986. These can be tactfully developed into a Muslim Marriage and Divorce Act. Once adopted by Parliament, ways and means will have to be found for its uncompromising enforcement.
As regards polygamy, Sections 464-65 of the Indian Penal Code dealing with this have remained unchanged for over 150 years. Macaulay had kept its application confined to those whose religious law prohibited polygamy — which, at that time, meant only the Christians. Ninety-five years later, Hindus, Buddhists, Jains and Sikhs were brought into its purview by the Hindu Marriage Act; at present, only the Muslims and all tribal groups remain outside it. Dropping a few words from the IPC provisions can do away with these exceptions.
Family law traditions prevalent among the Muslims of India represent a distorted version of the original Islamic law. Legal reform for them in the true spirit of the Quran is advisable, and quite possible. As a condition precedent for achieving the target — if it is genuinely the target — the issue should be totally depoliticised and de-theologised. Ferocious debates on the idiot box are vitiating the cause and must be stopped. It is a social issue and must be tackled at an apolitical and juridical level.
Social issues as grave as triple Talaq cannot be resolved by political rhetoric or trial by media, both of which are being orchestrated in the country. Nor can it be tackled by an utopian scheme like a social boycott of wrong-doers, as the All India Muslim Personal Law Board reportedly decided in Lucknow on Sunday. How effective will be such a boycott and who will have the authority to enforce it? And how will the poor wife, whose life has been ruined, benefit from it?
The argument that triple divorce is bid’at (repugnant to true Islamic law) but it cannot be legally done away with does not stand to reason. The strange formula of “bad in theology but good in law” associated with triple Talaq — to which the British Indian courts adhered in the distant past — has no legs to stand on in a modern 21st century society which is, or must be, governed by the principles of law, and not theology.
Tahir Mahmood is former chairman of the National Minorities Commission and member of the Law Commission of India