Himanshu Guru & Shabiha Nur Khatoon
While it is expedient that the state frames uniform laws for all its citizens, we may not outright reject the rights of different communities to practice their personal laws. Constitutional experts agree that triple talaq discriminates against women and is a repressive custom. But at the same time they contend that the right to freedom of religion as enshrined in the Constitution can, under no circumstances, be subverted. Judicial interventions seeking to correct discriminatory practices of religions are welcome, but it should be incumbent on authorities to ensure that those interventions do not alienate the minority communities. The fight for gender justice, it appears, will indeed be a long and fierce one….
Women of all religions should be given equal rights in every field as enshrined in the Constitution, but this should be provided keeping in mind that they don’t undermine a citizen’s freedom of religion. Women cannot be treated as “secondary citizens in India”. It is indeed unfortunate that a majority of women in India are still tortured and dehumanised. The All India Muslim Personal Law Board (AIMPLB) publication admits that triple talaq is an innovation and bad in religion. So the insistence on the retention of triple talaq is not just a question of wrong interpretation, it is also an attempt to consolidate a rule that is repulsive both in religious terms as well as personal morality. The Centre is opposed to the practice of triple talaq, and feels it “misplaced in a secular country”. The same issues were earlier discussed in the famous Shah Bano case in the apex court. In a 1985 landmark judgment, the Supreme Court granted the divorcee, Shah Bano, alimony for life. But following protests from Muslim leaders and others about the court being intrusive, the judgment was overturned. It is worth mentioning that women’s rights activists have long called for reform of Muslim personal law which, they say, discriminates against women. They want a well-defined law that criminalises polygamy, unilateral divorce and child marriage.
Pinky Mohapatra, law scholar and advocate
The parties in this debate are unlikely to be satisfied with a common verdict. I should not hurt anybody’s religious belief. The top decision-making body for the Muslim community in India, the All India Muslim Personal Law Board, says the court cannot interfere in the religious freedom of minorities and “rewrite personal laws in the name of social reform”. On the other hand, women’s rights activists are constantly fighting to bring reform in Muslim personal law which they say discriminates against women. Hence, a middle ground should be pursued. We should seek public opinion on the issue. The result of the opinion poll will convey what citizens and, in this case, womenfolk expect from the government and judiciary. I believe the expectation will be that they will want to uphold the law of the land and ensure the constitutional guarantee of equality before law and equal protection of the laws which includes equality in marital rights. Securing a Uniform Civil Code (UCC) for the citizens throughout the territory of India, is a constitutional principle, not enforceable by the courts but fundamental in the governance of the country. If the state is serious about carrying out this obligation, then we should work to find a common solution. The basic fact that needs to be ensured is that the law should not have any provision that prescribes a thing that is prohibited by any religion.
Durga Dash, activist
The big question is should a uniform civil code be introduced to address the triple talaq issue? What will be the repercussion of introduction of this code? It means Muslims and other minorities, like Christians and Parsis, would lose their existing right to apply their own civil code or laws for family matters including marriage, divorce and inheritance. But AIMPLB terms the code illegal. According to the board, any intervention in family law amounts to violation of the Muslim community’s fundamental rights. However, the government has pleaded in the court that triple talaq violates the rights of women as well as their dignity, and has no place in a secular country. This is a critical and sensitive issue. While it seems unjustified that a woman loses her marital status when her husband utters ‘talaq’ three times, we should not hurt religious feelings. I feel the matter should be solved with mutual agreement. All the parties involved should step forward to come out with a solution, and they should promise to abide by it.
Gobind Narayan Agrawal, advocate
In order to understand any legal provision, we always rely on its historical significance, the sole reason of how and why the particular provision of law came into force. For example, the concept of monogamy under Hindu law or the law which abrogates Sati. Earlier the act of sati wasn’t considered to be violative of a woman’s rights. Any society to be able to subsist peacefully needs to keep its law in pace with changes that the society itself goes through. The Supreme Court in its judgement allowing female entry to various temples/holy shrines where it was restricted reflects the growth of a society. Sabrimala is a place where women who were within the menstruating age weren’t allowed to enter. However, as society developed the concept of menstruation has attained more of a biological perspective rather than religious. And hence the women are no more considered to be impure during this span of age. Similarly the Muslim law which emerged as the most modern religion at that time was developed to protect and safeguard rights of women. That’s how the concept of ‘mehr’ comes up. In today’s parlance, it is very important for us to analyse the concept of triple talaq or ‘talaq ul biddat’, as we call it, from the point of view of society’s standards more than the point of view of religion. In today’s society we can’t expect a woman’s marital status to be determined at the will of her husband only and hence triple talaq should be abrogated.
Arushi Gupta, lawyer
The concept of uniform civil code is defined in Article 44 of the Constitution: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. In this code, court is imperative for both protection of the oppressed and promotion of national unity and integrity. If we talk about the problem today, many Hindus have changed their religion and have converted to Islam for the purpose of escaping the consequences of bigamy. But in the Sarla Mudgal case, the court held that marriage is illegal and the husband could be prosecuted under 494 IPC. Moreover, equity and justice require that the second marriage should not be allowed to take away the legal implication of the first marriage. We have different judgements protecting women’s rights; the Mohd Amjad Khan vs Shah Bano case being a prime example. However, uniform civil code requires all marriages should be registered in court and stipulates the consequences of non-registration. Talaq can be under Muslim personal law and there is the provision of statutory divorce, known as ‘Faskh’, where the wife has right to obtain divorce from the husband under the dissolution of marriage act 1939. Marriage is a sacrament and divorce is an inhuman act. Muslims consider it the most sinful form of ‘talaq ul biddat’ – triple talaq. Muslim personal laws need an overhaul. Use of triple talaq via digital media is valid but it is the most eerie form of divorce. Women fear that men can abandon their wives who Allah ordained are supposed to be respected and protected by their husbands. I am vehemently against triple talaq as it is not about dowry/’mehr’. It is the duty of the husband to take good care of his wife to ensure that her ethos and pathos are protected.
Ritesh Bindra, advocate
The All India Muslim Women Personal Law Board is an organisation constituted in 2005 to adopt strategies for the protection and continued applicability of Muslim Personal Law in India, with particular focus on women’s issues, including marriage, divorce, and other legal rights. AIWMPLB does not support the idea of a uniform civil code. We want that the laws relating to Muslim marriage and divorce are made according to the Shariyat and not based on a uniform civil code. The practice (triple talaq) should not be accepted in a flow; instead it should be said at an interval of at least a month. Like the Hindu Marriage Act, a Muslim marriage act should be implemented. The Holy Quran does not consider ‘iddat’ as a compulsion, neither does Sharia support it. If any Muslim priest says ‘iddat’ is compulsory, he should be punished. The Quran says there must be time for reconciliation between partners. It says when a man gives talaq he must pause and consult his wife. The day is not far when people will utter talaq on emails or Whatsapp and text messages.
Shaista Amber, president, All India Muslim Women Personal Law Board
