Triple Talaq: Behind the veil of Personal Law

This article has been written by Raina Mahapatra. Raina is currently pursuing her undergraduate course from Symbiosis Law School, Pune.

Triple, instantaneous, verbal talaq: an institution under Islamic religion where the husband reserves to himself the exclusive right to grant irrevocable talaq to his wife without the necessity of a single reason. Such an institution is repugnant to the spirit of Islam and more importantly, to the very spirit of humanity. The fact that a Muslim man can render his wife a stranger by one stroke of his tongue as opposed to the deliberately lengthy procedure of ‘khula’ a Muslim woman has to undergo in order to liberate herself from a cruel husband has been lamented time and over.

Islamic nations including Saudi Arabia, Iraq and Pakistan have either restricted or abolished this practice. Iran, Tunisia and Indonesia require that all divorces must go through a court and hence do not recognise triple talaq at all.

Why is it then that the Indian judiciary system, the institution whose creation rests on the necessity of safeguarding our rights, shies away in a dark corner whenever this topic stares it right in the face?

In State of Bombay v. Narasu Appa Mali[1], our very own Supreme Court held that Personal Law cannot be brought under the critical scrutiny of Article 13, an article which deals with laws inconsistent with or in derogation of fundamental rights.

With reference to this, one must note that the expression “laws in force”, a phrase which the Supreme Court has held  not inclusive of ‘Personal law’, has also been used by Article 372 of the Constitution. It authorises the continuance in force of the existing laws even after the commencement of the Constitution. If pre-constitution Personal laws are not “laws in force”, they should have ceased to operate after the commencement of the Indian Constitution. The wording used in defining the expression “laws in force” under Article 13(3)(b) and Article 372 is identical. It is a clear pointer that the framers of the Constitution did not exclude Personal law from the operation of fundamental rights.

It is also pertinent to know that the Supreme Court in Builders Supply Corporation v. Union of India[2] has now clarified that the expression “laws in force” used in Article 372 includes not only statutory law but also custom, usage and even common law in England. The principles applied by the Supreme Court in giving liberal interpretation to Article 372 ipso facto apply to the interpretation of Article 13(3)(b).

In order to be able to hold Muslim Personal Law violative of our fundamental rights, it is necessary to bring it under the ambit of Article 13 of the Indian Constitution.

The Supreme Court in Sant Ram v. Labha Singh[3] stated:

“…custom or usage having in the territory of India the force of law must be held to be contemplated by the expression ‘all laws in force’…to hold otherwise would restrict the operation of the first clause in such a way that none of the things mentioned in the first definition would be affected by the fundamental rights.”

Personal laws falling outside the scope of fundamental rights is a policy and not a legalistic approach, a policy which is based on the assumption that the community governed by the given personal law itself forms a recognised class. When this very class of people dismisses its provisions as tyrannical and redundant, the personal law ceases to uphold its own integrity.

Further, in many areas, Sharia happens to be the personal law of Muslims because enactments like Shariat Act, 1937 recognise it as such. These enactments aren’t clothed with the immunity claimed by personal law. It would appear that when a person is governed by Sharia by virtue of the Shariat Act, the provisions are open to judicial scrutiny as regards their constitutionality.

A sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is one’s religious faith and belief. If religious practices run counter to public order, morality, health or policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole.

“Equality is one of the most significant corner-stones of our democracy.”[4] It is therefore highly ironic that the most abominable aspect of triple talaq is its prima facie inequality. The explicit power of irrevocable talaq given to a Muslim husband is solely based on the fact that he is a man and absolutely no other rational basis. The plight of the Muslim women at the hands of the unscrupulous misinterpretations of the Quranic Shariah, particularly with respect to their right to divorce, has been constantly brought out.

Article 15(1) specifically prohibits gender discrimination and thus, no ground referable to any custom, usage or personal laws, contrary to equality principle enshrined in the Constitution should be enforced, more particularly, in relation to secular matters.[5]

More importantly, it has been contested that the institution of triple talaq is grossly violative of Right to Life as provided under Article 21 of the Constitution. This right has constantly evolved and has now come to be liberally interpreted as something more than mere survival and animal existence. It includes finer graces of human dignity, culture and civilisation. One must live with dignity, free from exploitation.

Where does the dignity lie in the lives of the numerous women who speak of domestic violence, marital rape, mental torture, dowry demand or just a desire in remarriage in men culminating into talaq? Are they not entitled to enforcement of their rights merely because of their circumstantial birth into a Muslim family?

For a nation that preaches equality, justice and secularity, the level of hypocrisy in such pertinent issues merely translates into impotence and nothing else. Muslim Personal Law must be brought under the scrutiny of Article 13; Triple Talaq must be judged on its credentials and not allowed to hide behind the impenetrable veil of Personal law.

[1] AIR 1952 Bom 84

[2] 1965 AIR 1061

[3] 1965 AIR 166

[4] Indra Sawhney v. Union of India, AIR 1993 SC 477

[5] Haseena Mansoor v. State of Kerala ILR 2010(2) Ker at 891


The December book bucket

court-room-genius                    Learning the law.jpg                     legal-eagles


Uniform Civil Code and Secularism

This article has been written by Chirag Jindal. Chirag is a first-year student from National University of Advanced Legal Studies, Kochi.

 

 

The Law Commission of India has recently released a questionnaire on the matter of Uniform Civil Code. All the concerned citizens of our nation are expected to engage and provide their opinions as well as suggestions for the revision and reformation of family laws in India. As provided by the Law Commission, the object of undertaking this endeavour is “to address discrimination against vulnerable groups and harmonise the various cultural practices.” And the debate is now open to the general public on the issue of Uniform Civil Code.
The debate on “Whether to have a Uniform Civil Code in such a diverse nation with so many social, political, economic, religious and ethnic groups?” is not recent. Ever since the inception of our Constitution, the debate has continued and is still going on. Article 44 of Part III of the Constitution (i.e. The Directive Principles of State Policy) provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Although our Constitution lays down the Directive Principle for the Uniform Civil Code, it does not explicitly mention how to achieve this task. Therefore, this issue has been left to debate in public and it continues from the time when India became independent till the present day and is still going on.
Now let’s move further and try to analyse Uniform Civil Code from the view of the fundamental principle of Secularism in our nation. Although the word SECULAR in the Preamble of the Indian Constitution was added by the 42nd Amendment, India was a secular country from the day when the Constitution entered into force. The 42nd Amendment just made explicit what was implied from the Constitution. Before the 42nd Amendment, Secular spirit of India was implied under Articles 14, 15, 25, 26, 27, and 28. Though the addition of word SECULAR was a good initiative, the Amendment has left it open for debate, discussion and interpretation.
On one hand, the Constitution provides for the Secular nature of the country but, on the other hand, it also directs the State to endeavour for the Uniform Civil Code. So, is this contradiction a flaw in our Constitution? Well looking at this problem from the historical front, at the time of adoption and commencement of our Constitution there were so many religious minorities in India and they were so left behind in social, political and economic spheres of life that the Constitution-makers thought it fit to provide for their upliftment in all spheres of life. But as India is one country and we all are Indians, the Constitution makers also provided to endeavour for the Uniform Civil Code. Consequently, the question which arises next is, “Whether it is the right time to implement the Uniform Civil Code in our Country?”
As far as I am concerned, I don’t think that the time has come to implement Uniform Civil Code. There are mainly two reasons for this.
Firstly, till now, neither the legislature nor the judiciary has attempted to define the word SECULAR; what does it mean? There are concepts definitions of Secularism which are accepted in the world. The first is the neutrality concept which means that there should a separation of Sate and Religion and the State should not interfere in any way in the matters concerned with religion. This concept of Secularism prevails in the Western Countries. The second is the equality concept which means that State shall treat all religions equally and should not discriminate among them. Indian model is secularism is mainly based on the equality concept. The argument here is, although the Indian model is based on equality principle, still no satisfactory definition has come up. So, we cannot exactly set up what Secularism actually mean in Indian Context.
Secondly, due to so much diversity present in our nation, it won’t be easy to determine what provisions to be included in Uniform Civil Code. Including a principle in Code which is contradictory even to one of the religions or groups may create a sense of tensions among the people and is also against the spirit of Secularism in India.
Conclusively, it can be said that the time to have a Uniform Civil Code in our country has not yet arrived and the State should still endeavor to provide for the Uniform Civil Code.

Triple Talaaq: Religious empowerment or unjust vindicament

This article has been written by Soma Sarkar. Soma is currently a second-year student at Chanakya National Law University.

 

At-talaaqu marrataan: fa-imsaakum-bima`-ruufin `aw tasriihum-bi-ihsaan. Wa la yahillu lakum `an-ta`khuzuu mimmaa`aatay-tumuuhunna shay-`an `illaaa.

Talaq, Talaq and Talaq!!! Speak the three words in and the civil contract in the garb of Nikah comes to an end. Isn’t it a strange divorce without any justification to the other party and no judicial process requires to be ensued. One spouse enjoins his right, the other mourns over it. One exercises his freedom right at the cost of paralyzing the other with pain and agony, financial crisis and compelling her to lead a dog’s life. In a country where law is the king of kings and vox populi is of paramount importance, it is in the very same country such vindicament being practiced inducing us to believe that there is no Messiah of the victims. No, no not even law.

Talaq-i-Bid’ah, the sinful form of divorce or the best to say the innovated one can be defined as a divorce which is pronounced thrice in one sitting when the wife is in the state of purity (tuhr), i.e., when man says: “I divorce you, I divorce you, I divorce you.”  “The Affair of the Necklace” is a very popular episode said to be dealing with this talaq. Aisha who was Prophet’s wife, as the story goes on her way to the city lost her precious pearl necklace. While as a bee she was in search of it in the desert bushes, the caravan went ahead leaving her all alone. In this hour of need she was escorted by a stranger to the city. Seventeenth century was the time period so peoples’ whispering about the incident would not make anyone to bat an eyelid. In order to uproot the rumors along with the character assassination attempts from the grass-root level, the Prophet made a ruling that whoever raising an allegation on Aisha must produce 4 eyewitnesses to the misconduct or face punishment. Credit goes to the mullahs to twist a pro-women ruling into a whip to be cracked on the women themselves. So, today the existence of Sharia brings into light the perverted version of the episode.

 The Apex Court decisions too has been ambigious on the matter in question. Where a writ petition was filed to declare Muslim Personal Law, which enmpowers a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void and offending Articles 13, 14 and 15 of the Constitution of India in the case of Ahmedabad Women’s Action Group (AWAG) and others v. Union of India[1]. The Court left the issue down in mouth on the ground that it involved State policies. So the remedy isn’t in form of judicial process that means it must be sought elsewhere. Simultaneously the efforts made by the court to inject some safeguards into the talaq process cannot be given cold shoulder. For a talaq to be effective, it must be pronounced. In Shamim Ara v. State of UP and another[2], a mere plea taken in a written statement of a divorce having been pronounced in the past was held not to be treated as effectuating a talaq. Instead, a talaq has to be ‘pronounced’, i.e. it has to be proclaimed, uttered formally and articulated. Therefore, the Court has introduced a condition precedent for the effectiveness of a divorce.

The approach of the Supreme Court in Danial Latifi v. Union of India[3] in the course of interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court upheld that the validity of the Act would be unconstitutional if not construed to mean that women should get a reasonable and fair provision and maintenance.

It has taken 60 years of independence to make us realize that our constitutional values cannot be segregated from our cultural inheritance. Presently it has become the job of the courts to enforce constitutional values. When all forms of gender injustice has been overpowered and captured then why should this stand as a pillar of muslim society? The laws in Egpyt, Iraq, Jordan, Kuwait, Morocco, the Philippines, Sudan, Syria, the UAE and Yemen have  put down their feet. Why should the All India Personal Law Board be allowed to paade these inhuman and illegal practices in the 21st century?

[1] (1997) 3 SCC 573.

[2] (2002) 7 SCC 518.

[3] (2001) 7 SCC 740

 

Centre To Abolish Triple Talaq, Polygamy

This article has been written by Plash Mittal. Plash is a student of BCom LLB at University Institute of Legal Studies, Panjab University, Chandigarh.

Validity of practices like triple talaq and polygamy needs to be seen in the light of gender justice. They go against the principle of gender equality and are unfair, unreasonable and discriminatory. Taking a firm stand against the controversial Muslim custom of triple talaq and polygamy officially for the first time, the Centre has told the Supreme Court through an affidavit that the practices need to be abolished.

A large number of Muslim countries like Pakistan, Bangladesh, Afghanistan, Morocco, Tunisia, Turkey, Indonesia, Egypt, Sri Lanka, and Iran, where Islam is the state religion have undertaken reforms in this area and have regulated divorce law and polygamy. Why should India, a secular country, continue to deny Muslim women their rights under the Constitution? The fact that Muslim countries have undergone extensive reform and that the practices are not integral to the practice of Islam or essential religious practices. Under Muslim personal law based on the Sharia, a Muslim man can divorce his wife by pronouncing talaq thrice either consecutively or at three different stages in the presence of an elder male (Talaak-e-Bidat). Muslim men are also allowed to have four wives (polygamy).

The affidavit, drafted by advocate Madhavi Divan, recognized the essential role played by women in a country’s overall development and said it would not only be unconstitutional but a severe impediment in a nation’s development if women were denied equal rights in every sphere of life, including matrimony. It says:

 

  1. Issue of validity of triple talaq, nikah halala and polygamy needs to be considered in the light of principles of gender justice and the overriding principle of non-discrimination, dignity and equality.
  2. The fact that Muslim countries where Islam is the state religion have undergone extensive reform goes to establish that the practices in question cannot be regarded as integral to the practice of Islam or essential religious practices.
  3. Secularism being a hallmark of Indian democracy, no part of its citizenry ought to be denied access to fundamental rights; much less can any section of a secular society be worse off than its counterparts in theocratic countries, many of which have undergone reform.
  4. Gender equality and dignity of woman are non-negotiable, overarching constitutional values and can brook no compromise. These rights are necessary in letter and in spirit to realize aspirations.

These rights are necessary not only to realize the aspirations of every woman but also for the larger well-being of society and the progress of the nation, one-half of which is made up by women. Any practice (triple talaq and polygamy) which denudes the status of a citizen of India merely by virtue of the religion, she happens to profess is an impediment to that larger goal.

The Centre said triple talaq, nikah halala and polygamy could not be regarded as essential or integral part of religion and would not be included under the ambit of Article 25 of the Constitution which guarantees a citizen the right to practice and profess a religion of his/her choice. It picked on the affidavit filed by All India Muslim Personal Law Board, which had defended the practice as part of religion-sanctioned custom even while terming them as undesirable.

Gender equality and dignity of women are non-negotiable overarching constitutional values. One section of women in society could never be worse off than the other. The Modi government took a veiled dig at its predecessors for not moving to reform Muslim personal law. The same has not happened for over six-and-a half decades and women who comprise a very sizeable proportion of the said community remain extremely vulnerable, both socially as well as financially.  There is no legal bar against abolishing polygamy and triple talaq, given the march of time and the need for social reform. The Centre feared that such a practice would impact her confidence and dignity.

The All India Muslim Personal Law Board (AIMPLB) strongly batted in support of the unilateral right of Muslim men to pronounce oral divorce through triple talaq, saying that as men, they were better at controlling their emotions, unlike women. The Board has also said that polygamy prevents illicit sex and protects women.

It said “any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of men folk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution”. The government said Muslim women, merely by virtue of their religious identity and the religion they profess, cannot be relegated to a status more vulnerable than women of other religious faiths.

Behind the preservation of personal was the preservation of plurality and diversity among the people of India. The question arises as to whether the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to as citizens.

Bibliography:

Are We Ready?

This article has been written by Abhipsa Upasana Dash. Abhipsa is a third-year student at Symbiosis Law School, Noida.

 

 

It’s not a term that rolls easily off the tongue or can be heard in the ongoing conversations around us. Yet, a ‘uniform civil code’, or more conveniently, UCC, has been gaining currency in recent months. Last week, the flurry of criticism rose again when the ruling government asked the Law Commission to appraise the feasibility of bringing about a UCC.

The actual concept of one nation, one law is more than a neat hashtag and goes back to the initial days of drafting of the Constitution, when the issue was hotly debated—while some members of the Constituent Assembly argued for a common personal law for marriage, divorce, inheritance and adoption, others believed that this was a goal to be gratified in stages. The directive principle—“shall endeavour to secure for citizens a uniform civil code”—was a compromise since the time was not right.The legal merits for desirability of Uniform or Common Civil Code for every Indian, regardless of his or her religious identity, are indubitable. In fact, it is one of the “Directives” to State as enshrined in Article 44 of the Constitution of India. This “Directive” does not come in conflict with Article 25 of the Constitution of India.

The time of incorporating UCC has never been right since the day we adopted the Constitution. Yet, a new wave seems to be riding the country. It’s a wave that is looking with considerable less tolerance and more understanding at existing gender gaps, particularly where personal laws and religion are concerned. As women increasingly start questioning the established stereotypes and notions, storming male-only mosques and “pure” temples, the courts prepare to look at existing inequities, has the time finally come?

Historically, two seemingly opposed constituencies- women’s rights groups and the right-wing parties and organizations- have been the brand ambassadors of the idea of a UCC. Despite, the first stage of reform of the personal laws of Hindus—giving women the right to choose or divorce their partners, some rights in the property of their fathers and husbands, abolishing bigamy—faced considerable opposition from the then Jana Sangh—the precursor of the BharatiyaJanata Party (BJP) as well as the RashtriyaSwayamsevakSangh (RSS) making it ironic that the push for a UCC now comes from the BJP.

But with congress’s track record in kind, the speculation is ripe that it will never live down the shame of pushing back the rights of Muslim women by passing the perversely named Muslim Women (Protection of Rights under Divorce) in 1986. The passage of the Act by the Rajiv Gandhi government effectively reversed a Supreme Court judgement that granted maintenance to divorced Muslim women.

Where do we go from here, and how do we move forward? Can we put aside past acrimonies and suspicions?

Several issues remain.

The first of these is the argument that it’s still not the right time. Muslims all over the world are under siege. Moreover, this government’s true intentions are always doubtful among the minorities in this country. Controversies over beef, saffronization of school and college curriculums, love jihad, and the silence emanating from the top leadership on these controversies have done little to instill a feeling of confidence. Can confidence be instilled again?

Second, while a UCC has remained a wonderful principle, nobody has actually spelt out what this common code will look like. What are the nuts and bolts of this law? Is it to take the ‘best’ practices from all religions and, if so, which ones? How would it deal with polygamy not just among Muslims but also Hindus and tribals? What will happen to the tax exemptions and breaks granted to the Hindu Undivided Family (HUF)?

One way forward is to look at the UCC in terms of gender reform, a line favoured by many, including myself. But there is a caveat here, too. Can you look at parity of law for all women without first looking at parity between men and women? For instance, says former additional solicitor-general Indira Jaising, will our law-makers consider a concept of shared labour in marriages that would necessarily mean an equal division of assets acquired in the life of a marriage in case of a divorce?

One argument in favour of a status quo and against a UCC is that secular laws are always given precedence over personal, religious codes. In the past 12 months alone, a two-judge bench ruled that Muslim women are entitled to maintenance beyond the iddat(roughly three months) period. It upheld a previous Allahabad high court judgement that “polygamy was not an integral part of religion”. It has questioned why Christian couples must wait for a two-year separation before filing for divorce when it is just one year for others. Earlier still, it gave Muslim women the right to legally adopt children even though this goes against their personal law. However, justice cannot be dealt on a case-by-case mode.

There is another alternative—change from within. An end to practices such as triple talaq is already being demanded by social organizations. Law Board has not, so far, responded favourably even though an online petition by the BharatiyaMahila Muslim Andolan demanding a ban has already attracted over 50,000 signatures.

And yet, there can be no turning back, no drowning out of voices demanding justice. This Eid, the three-century old AishbaghEidgah in Lucknow opened its doors to women to offer prayers for the first time in its history. It was a tiny step towards what could be a new beginning.

Constitutional Scrutiny of Personal Laws

Constitution is the incomparable and central law of our nation is not only an archive constituting and constraining the Government, however, an epitome of the qualities and ethics of a democratic nation. It promises extraordinary security for the religious and social minorities present in the nation. Be that as it may, inside each of these groups there exist unfair practices that quandary individuals from that group. For instance, women and individuals from a lower caste are denied from entering certain Hindu sanctuaries. In addition Muslim men appreciate the privilege to divorce their wife by the method for “triple talak”, i.e. by only expressing “talak” thrice whereas Muslim women has no such right to confer. Muslim Personal law provides that Muslim men can have up to four spouses (however, they are committed to treating everyone of their wives similarly), though there is embargo restricting the number of husbands Muslim women should have.

At the point when there are two provisions, which are in apparent conflict with each other, they ought to be deciphered such that impact can be given to both and that construction which renders both of them out of inoperative and futile ought not to be received aside from in the final resort.

The subject of justiciability of Personal laws has drawn significant contemporary consideration in the light of Ms Shabnam Hashmi’s PIL thought of the Supreme Court testing the foreswearing of the right to legacy to inheritance to a child adopted by a Muslim guardian. The bench, held that Muslim Personal law is uncodified law and has neither limited the Muslim not to embrace a deserted, surrendered child nor forced to adopt one.

In the recent case, Dr Noorjehan Safia Niaz v. Condition of Maharashtra, the Bombay High Court lifts the prohibition on the Muslim women to enter the Haji Ali Daragh. A division bench of Justices V M Kanade and Revati Mohite Dere held that the prohibition was violative of the Fundamental Rights of the Petitioners as provided under Article 14 (Equality before law), Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them) and Article 25 (Freedom of conscience and free profession, practice and propagation of religion : Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion).

There is nothing in any of the verses in Quran which demonstrate that entry into a dargah/mosque, is prohibited. It cannot be said that the preclusion is a crucial and vital piece of Islam and essential to take after the religious belief, and taking without end that part of the practice would bring about a basic change in the character of that religion or its belief. The Haji Ali Dargah Trust is a public beneficent trust, open for all individuals everywhere throughout the world. Thus, cannot legitimise its choice exclusively taking into account a misreading of Article 26 (Freedom to manage religious affairs). The trust is dependably at liberty to find a way to counteract lewd behaviour against the women, not by banning their entrance in the sanctum sanctorum, however by making successful strides and arrangements for their well-being and security, as by having separate queues for men and ladies, as was done prior. Advocate Shoaib Memon, presented the case on the behalf of respondent, contended that Islam demoralises free blending amongst men and ladies and that the aim of the confinement is to keep this collaboration at an unobtrusive level which can also taken care of without the discriminatory provision of the Charitable Trust.

Article 13 of the Indian Constitution- Judicial Review says that any “law” that abuses a basic right (ensured by Part III of the Constitution) is void. This provision applies to both pre-Constitutional and post-Constitutional. The expression “law” “incorporates any statute, request, bye-law, principle, direction, warning, custom or notification having in the domain of India the power of law”. The fundamental reason of the contention consequently was that Muslim Personal law was void as it disregarded the privilege to uniformity. The Bombay High Court dismisses the prohibition in light of the fact that Muslim Personal laws void as it disregarded the privilege to uniformity. The forefathers of the Constitution had intended to get rid of the biased Personal laws straightaway. The presence of Article 44 infers that the drafters put upon the Parliament the onus of destroying such prejudicial religious practices by instituting a Uniform Civil Code.

 

AUTHOR

YashKriti Ratan