It is time the All India Muslim Personal Law Board takes a cue from the reforms of other Muslim countries where triple talaq is banned
By Nayantara Roy
In response to a petition by a woman, Ishrat Jahan, that triple talaq is unconstitutional and violative of a woman’s fundamental rights, the All India Muslim Personal Law Board (AIMPLB) has said that courts cannot interfere with personal laws.
According to news reports, AIMPLB’s reply to Jahan’s petition justifies triple talaq saying that
time-consuming legal proceeding and the expenses incurred thereon may lead the husband to take recourse to illegal methods of getting rid of his wife by murdering her or burning her alive!
Ishrat Jahan is the mother of four children ranging from 7 years to 12. In addition to pronouncing triple talaq and leaving Jahan without maintenance, her husband took the children away from her and has not permitted them to have any contact with her. According to some reports, he has married again.
Earlier, another woman, Shayara Bano, who was also divorced by triple talaq, had filed a case against this unilateral and instantaneous divorce procedure.
Triple talaq, or talaq-e-bidat, is banned in several countries with a Muslim majority population, including Pakistan. Journalist Ajaz Ashraf writes in Scroll in an article titled, If Pakistan and 21 Other Countries have banned Triple Talaq why can’t India? that in Pakistan, triple talaq was banned on the recommendations made by the Commission on Marriage and Family Laws in 1956. It recommended that for a talaq to be effective, it should be pronounced after three successive tuhrs (i.e. period between menses). This gives time for reconciliation and discussions between the couple. Abolition of triple talaq by the Muslim Family Law ordinance, 1961, was upheld by the Pakistan Supreme Court. This remains the position till date. Bangladesh inherited this law when it broke away from Pakistan in 1971 and, therefore, does not recognize talaq-e-bidat.
Tunisia and Algeria provide for divorce only in the courts of law where an attempt to reconcile the couple is made. Divorce is granted only after proper investigation. Turkey and Cyprus have a non-religious code of civil law with only legal proceedings for divorce available.
The AIMPLB has reportedly also defended polygamy, saying that it prevents illicit sex! Turkey has abolished polygamy, as has Tunisia. In countries like Iran and Pakistan, a man is required to take permission from his first wife before marrying again. Malaysian laws are stricter. In order to take a second wife, a man needs permission from both his first wife and from the government’s religious authority.
CHALLENGED BY COURTS
In 2015, the Supreme Court passed a judgment upholding the action of the UP government in sacking a Muslim employee who had married for a second time. This case is relevant to answer AIMPLB’s charges that personal laws cannot be challenged by courts. It was pointed out in that case that while Article 25 of the constitution protects the right to propagate and practice religion, it also says that this right must not infringe public order, health or morality.
Jahan’s petition says that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 (See Box) is unconstitutional as it violates the fundamental rights guaranteed under Articles 14 (equality), 15 (prohibition of discrimination on grounds of religion, race, caste, sex, place of birth), 21 (life) and 25 (freedom to profess and practice religion) of the constitution. In the chapter on Personal Laws and the Constitution of India in the book Islamic Law in Modern India, (Ed T Mahmood) published by the Indian Law Institute, Mohammed Ghouse clarifies that certain activities do not fall under the head of profession and practice of faith but are social customs, albeit customs which find mention in religious texts.
He goes on to say: “Does the replacement or the reform of Muslim personal law violate religious and cultural rights of the Muslims? Article 25 (1) guarantees, besides freedom of conscience, the right to profess, practice and propagate religion, subject to the limitations specified in that article. A Muslim, who wants to take plural wives or to divorce his wife unilaterally for no reason or any reason, or does not want to maintain his divorced wife, is engaged neither in professing and practicing nor in promoting or propagating his religion. He cannot, therefore, complain of denial of the right to profess, practice or propagate religion, if the state imposes monogamy on him, takes away his unilateral right to divorce his wife, or compels him to maintain the wife he has divorced. Though the basic source of the Muslim law was the Quran and the Sunna, the relations it regulates are, from no standpoint, religious. They are, on the contrary, social relations, well within the province of the state.”
Ashraf cites Delhi High Court in the 2008 case, Masroor Ahmed vs State which ruled that triple talaq should be regarded as a single revocable talaq, i.e., the first of the three required utterances. In Jiauddin Ahmed vs Anwara Begum, the Gauhati High Court held that talaq must be for a reasonable cause. The Court also set out what appears to be a world-wide trend that an attempt at re-conciliation must be made by the parties.
A Muslim, who wants to take plural wives or to divorce his wife unilaterally for no reason or any reason, or does not want to maintain his divorced wife, is engaged neither in professing and practicing nor in promoting or propagating his religion.
–Mohammed Ghouse in Personal Laws and the Constitution of India
Regarding the claim by the AIMPLB that courts cannot interfere in personal law, the Supreme Court said in Khursheed Ahmad Khan vs State of UP while citing an earlier 2003 judgment—Javed vs State of
Haryana—that Article 25 protects “the religious faith and not a practice which may run counter to public order, health or morality. Polygamy was not an integral part of religion and monogamy was a reform within the power of the State under Article 25. This Court upheld the views of the Bombay, Gujarat and Allahabad High Courts to this effect. This Court also upheld the view of the Allahabad High Court upholding such a conduct rule. It was observed that a practice did not acquire sanction of religion simply because it was permitted. Such a practice could be regulated by law without violating Article 25.” The Court also said that “Gujarat High Court held that a religious practice ordinarily connotes a mandate which a faithful must carry out. What is permissive under the scripture cannot be equated with a mandate which may amount to a religious practice.”
Triple talaq is banned in Pakistan. Tunisia and Algeria provide for divorce only in courts while Turkey and Cyprus have a non-religious code of civil law.
Interestingly, the Court also cited the 1957 case of Ram Prasad Seth vs State of UP AIR (1957) All 411 in which it was held “that the act of performing a second marriage during the lifetime of one’s wife cannot be regarded as an integral part of Hindu religion nor could it be regarded as practicing or professing or propagating Hindu religion. Even if bigamy be regarded as an integral part of Hindu religion, Rule 27 of the UP Government Servants’ Conduct Rules requiring permission of the Government before contracting such marriage must be held to come under the protection of Article 25(2) (b) of the Constitution.”
Reform of Hindu law was hotly debated during the formulation of the Hindu Code Bill reforming various Hindu laws in the fifties. Despite objections from many quarters, many reforms were made, resulting in the Hindu Marriage Act, 1953 and the Hindu Succession Act, 1956. These brought in reforms such as banning polygamy and making succession more egalitarian and less male-centered than it used to be.
These laws apply to a “Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; as well as to any person who is a Buddhist, Jaina or Sikh by religion, and to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.”
While these reforms do not interfere with religious practice, they have brought about some changes in law relating to divorce, to inheritance, etc. To that limited extent, these laws act as a uniform code for different religious groups which come under its purview.
As Ashraf says, Pakistan and 21 other countries have banned triple talaq. Perhaps AIMPLB should take a cue from the reforms made by predominantly Muslim countries and the movement against triple talaq taking place outside India. If our neighbors who come from the same cultural stock can be more progressive than us in this matter, surely it is time for the AIMPLB to divest itself of its ostrich-like stance.
Lead picture: A mass marriage ceremony organized by Hussaini Vaqf Committee in Ahmedabad. Photo: UNI