A healthy, stable and functional family is the most basic and integral part of a well-functioning society; and healthy societies develop to create a healthy nation. In India where spirituality and air can be placed at almost analogous positions; religion, beliefs and the power to have a say in religious matters are very vital and sensitive issues.
India is the most, and if not most then, probably one of the most culturally diverse country in the world. While there is a lot to cherish about this diversity in India, it also raises certain concerns when it comes to converge of equal treatment, fundamental rights and freedom of religion. For a welfare and a progressive state guaranteeing basic human right as well as ensuring freedom of religion can be a tenacious task. What comes with this diversity is the responsibility to ensure that the equilibrium between rights and the right to profess religion is maintained. In India, most of the aspects related to religion are governed by personal laws. We have a superfluity of personal laws which are governed by Ancient texts and other primary sources. A ground for discrimination and differentiation arises when the pedestal, at which women are placed, in these texts, is taken into consideration.
When it comes to the conflict between personal laws and the modern concepts of rights, Triple talaqis the unfortunate crown jewel in the conflicts, where there have been several cases which are decided and are still pending before various court in this regards.A petition questioning the constitutional validity of the triple talaq and halala marriage among other things is pending before the Hon’ble Supreme Court. A recent judgment in which the Hon’ble Allahabad High Court made certain observations related to the status of triple talaq made its way in the news.
Personal Lawsand Rights – Interface
There was a recent wave where several progressive and forward looking judgments were given by various courts in relation of personal laws which have gone redundant and by means of such judgments, rights of women were recognized in the areas which were specifically prohibited by their respective personal laws.
The history of most of the religions show that dissolution of marriages is always unwanted and a process which is generally sought to be avoided and it was with only slow and gradual legislative intervention that separation is adopted and acknowledged as a concept. The Indian society still perceives divorce or talaqas a social taboo, as there is a very slow reckoning with the fact that not all the marriages work, moreover with the fact that if they do not work people can move forward with individual lives instead of trying to carry that non-working and burdensome relationship forward.
The case which came in from of the Hon’ble Allahabad High Court was a writ petition. Whether the challenge of unconstitutionality in respect of a personal law can be sustained in the court of law is also a moot question. Prof. Faizan Mustafa puts it in the following way, a writ court can declare a ‘law’ unconstitutional, but the question is whether the Muslim Personal Law (which is without legislative interference) comes under the meaning of Article 13 of the Constitution of India. Only a ‘law’ can be challenged in a court of law, and the power of judicial review can be used if the ‘law’ is in contravention of fundamental rights. Explicit abolition of untouchability under Article 17 indicates that the framers of the constitution intended to exclude personal laws from the definition and ambit ‘law’ under Article 13. [See More, Prof. Faizan Mustafa, Live Law,TripleTalaq: Constitutionality & Banning, 16/12/2016]
Muslim Laws – Concept of Divorce
The word talaqis derived from Arabic and means ‘freeing or undoing the knot.’ Unlike other beliefs, in Muslim Community dissolution of the marriage had a very liberal approach from the very onset of the religion. The religion emphasized on individual freedoms and provided for exits from the marriages by means of talaq, to bring an end to painful relationships. This is majorly because of the reason that the marriages amongst Muslims are more of civil contracts in nature than a sacrament. Such marriages in legal essence remain a contract, but it can undoubtedly be said that such a contact has spiritual and moral overtones and undertones attached to it. The right to seek divorce is at the option of both male and female.Talaq is though kept as a matter of last resort when all the possible attempts of arbitration and conciliation between the parties have came to an end and no possible remedy which can help the marriage sustain is available. However, the concept of triple talaq comes to be seen as a peculiar and oppressive practice where men unilaterally enjoy the right to divorce his wife without any chance of reconciliation or arbitration.
On the other hand, it is claimed that the pronouncement of triple talaq in one sitting should be deemed as one talaq and it was dismissed by the Prophet himself, and even the Holy Qur’an does not permit it. [Mohammad Azeemullah, The Wire, Islam Does Not Sanction Triple Talaq in One Sitting, 20/10/2016]
The Judgment and Aftermath – A Comment
The Hon’ble Allahabad High Court in the case of Hina and Another v. State of U.P and Ors.,made certain observations. The factual matrix of the case was, the petitioner was the second wife who sought protection from the constant harassment of the police as well as from the mother of the first wife of her husband. Her husband, also one of the petitioners, had divorced his first wife just to marry another time, the divorce was given to marry one other time. The court dismissed the petition and made certain remarks about the cruel and inappropriate nature of triple talaq. It also noted that the personal laws cannot claim supremacy over the rights granted by the constitution although, at the same time,refrained from recording thefindings in the judgment and left the questions related to the validity of marriage and divorce open.
Now the question is that whether without recording a finding should judge make such sweeping observations, particularly when the similar matter is pending before the Hon’ble Supreme Court for adjudication. [Prof. Faizan Mustafa, Live Law, Triple Divorce: Constitutionality & Banning, 16/12/2016]
Thus, in essence the scope and meaning of the observation of the court was radically different from what the media portrayed it to be. There was no judgment, as a judgment determines the rights and obligations of the parties.
After the said judgment the media went frenzy depicting it in a way that the court has held that triple talaq is unconstitutional.
The observation of the Court was both well received and criticized at equal fronts. The groups representing and demanding a more liberal and modern approach to religion welcomed it and deemed it an important step whereas the conservatives and All India Muslim Personal Law Board reacted by saying that talaq is a part of Sharia law so it should not be interfered with. According to them divine Sharia laws regarding marriage, divorce and adaptation cannot be modified or altered by any person or authority also they opposed the views of the government in regards of triple talaqand Uniform Civil Code. [RuchiDua, India Today, Allahabad High Court calls triple talaq unconstitutional, says no personal law board is above Constitution, 08/12/2016]
According to a survey conducted by the Bharatiya Muslim MahilaAndolan(BMMA) 92.1% of the respondents to the survey voted in support of invalidating the practice of triple talaq. [Prabhash K Dutta, India Today, Triple talaq: What is behind Allahabad High Court judgement, 08/12/2016].
Triple Talaq – International Perspective
Several countries throughout the world have very different set of laws with regard to triple talaq and other aspects of marriage and divorce related to Muslim Personal Laws. In countries like Turkey, Indonesia, Iraq, Iran and Bangladesh unilateral divorce which gave an arbitrary power to the men are banned legally whereas in places like Egypt, Sudan, Jordan, Tunisia, Morocco, Pakistan and Bangladesh the practice of triple talaq has been banned.
Moreover, women in several of these countries enjoy much better rights in terms of marriages and divorce than in India, like in Turkey and Iran both male and female enjoy similar rights for seeking divorce, and in Indonesia, Malaysia and Brunei even second marriages are banned.
These deviations clearly are inklings towards the fact that the interpretation of Shariat Laws can be changed, and they are not as static and constant as are claimed by some.
The recent uproar on the question of triple talaq poses various questions at the forefront. The first and foremost being the way it is ‘used’ or rather misused by the people, the case present before the Hon’ble Allahabad High Court is undoubtedly a glaring illustration. The other, and still significant questions are, firstly, the reactions from various corners of the society, and secondly the question is about the way information is portrayed by the media to the common masses, most of whom rely completely on the information provided in the newspapers or television shows.
The question to the first question seems convincingly answered through a catena of pronouncements from various courts, all of which take into account the biased nature of the institution of triple talaq. The Hon’ble Supreme Court has expressed its concerns towards the arbitrary nature as follows, “A divorce given unilaterally by the husband is especially peculiar to Mahomedan law. In no other law has the husband got a unilateral right to divorce his wife by a simple declaration”. At the same time there is a large number of judgments which makes it clear that an arbitrarily pronounced talaq would not be considered proper, and the proper method for talaq is that firstly a chance should be given to arbitration and reconciliation and when all such attempts fail then only talaq would be effected.
The second question seems to be pretty convincingly answered with the fact that, there cannot be a uniform reaction expected as the two extremes exist i.e. the liberals and conservatives, one of which is always going to be displeased, come what may.
The final question which though is not in effect related to the present case, is of a great significance, as the media has a very important role to play in the day to day life of a common man, these situations make it more clear that there is a need for media houses to first verify the degree of the claims they put forward, especially when they relate to legal field.
At last, while regulating fundamental rights and personal laws, which often claim immunity as they come under Right to Religion, it should always be kept in mind that the hegemony of personal laws is not allowed to trample with or supersede the fundamental rights, as expressed in the words of Dr. B.R. Ambedkar,“I personally do not understand why religion should be given this vast expansive jurisdiction so as to cover the whole of the life and to cover the legislature from encroaching upon them. After all what are we having this Liberty for? We are having this liberty in order to reform our social system. We are having this Liberty to bring about a cessation in the inequalities, discriminations and other things which conflict with our fundamental rights.”