The concept of a dissoluble contractual marriage is the contribution of Islamic law to the world.
Now that the dust has settled on the marathon hearing of the triple talaq case, it is time to examine the various strands of arguments advanced before the Supreme Court and ponder upon the core concerns.
The first argument, as we all know was put forward by attorney-general Mukul Rohatgi. He advocated a ban on all talaq, not just instant triple talaq. When asked how will Muslim husbands divorce their wives, the AG said: “You ban it today, and we will bring in a new law tomorrow.”
Mr Rohatgi argued that it was not a majority-minority issue but of intra-community gender equality which will bring Muslim women on par with the women of other communities. There was not a word about gender discrimination under the Hindu law!
The lone supporter of this position was Bebaak, a recently-formed, loosely-affiliated collective of a particular brand of feminist groups, represented by the well-known proponent of gender equality, senior counsel Indira Jaising, who pleaded that all personal laws must be tested against the touchstone of fundamental rights and that it is not a Muslim issue but the concern of 50 per cent of the Indian population.
The second position advanced by various Muslim women’s groups was to declare triple talaq as one pronouncement, as held by the Delhi high court in 2008 in the Masroor Ahmed case. They also pleaded the point, which I have advanced since Shayara Bano filed her petition about a year ago, that the Supreme Court ruling of 2002 in Shamim Ara had already laid down the procedure for pronouncement of talaq and the same must be affirmed.
Several lawyers, including Arif Mohammed Khan and Salman Khurshid, experts on the pristine Muslim law as well as those representing Bharatiya Muslim Mahila Andolan (BMMA), which had spearheaded the campaign for a ban on triple talaq, put forward their views. What is bad in theology can never be a good law and cannot be considered as an essential practice of Muslims in India, they argued. However, they advanced a cautious approach of minimalist intervention and argued that as several courts in the country had already laid down the law, the test of constitutionality was unwarranted.
The third was the elaborate argument advanced by Kapil Sibal for the All India Muslim Personal Law Board (AIMPLB), who pleaded that matters of faith and belief cannot be tested against Articles 14 and 15 (equality and non-discrimination) of the Constitution as they are protected under Articles 25 and 26, which are also fundamental rights. Mr Sibal argued that when instances of arbitrary utterances of triple talaq are rare, what was the need for a suo moto reference and pointed out that the AIMPLB had already come out with an eight- point procedure for talaq.
What was most intriguing was that the core concern of the entire litigation — protection of economic rights of women — did not get foregrounded in the marathon discourse. Women’s rights of residence, maintenance, custody of children and a lumpsum provision for the future did not find a place in the entire debate. There was a presumption even among those espousing the feminist cause that the fundamental rights of women under Article 21, the right to a life with dignity, will be protected if the violent and abusive marriage lingers on until a civil divorce on fault grounds is secured.
Only those not familiar with the ground realities of litigation in trial courts would have been naïve enough to advance the argument that all Muslim divorces must occur only under judicial scrutiny and that alone will ensure gender justice, a situation nonexistent even under the codified Hindu law which permits customary divorces.
It is indeed ironic that every single petitioner who approached the Supreme Court with a complaint against instantaneous talaq pleaded a long history of domestic violence. In all judgments that were relied upon, including Shamim Ara, the core concern for the women was maintenance. During these proceedings, the husband’s lawyer had produced a talaqnama drawn by him under the erroneous presumption that this would absolve his client from the obligation of paying maintenance under the Muslim Women’s Act (MWA) of 1986 (following the controversial Shah Bano ruling in 1985).
In each case, the courts had upheld the woman’s right to maintenance and invalidated the sham divorce through talaqnama.
The point that after the MWA, a divorced woman is entitled to a fair and reasonable maintenance for her future was completely missed out.
None of the women who had come before the court on the plea of instant divorce had availed of this remedy, nor were they even aware of it. When this point was raised earlier with representatives of the BMMA, which was spearheading the campaign, the response was that Muslim women are too poor to go to court to claim this remedy.
Yet before the Constitution Bench, it was pleaded by Bebaak that the courts alone can protect women’s rights since all community practices are unjust to women, a position similar to the one advanced by the AG on behalf of the government.
Even more shocking, the secular-feminist arguments rested on the premise that marriage is a status and a right against the world at large (right in rem), and not just contractual obligations between the concerned parties.
The concept of a dissoluble contractual marriage is the contribution of Islamic law to the world. From its inception in the seventh century, a Muslim marriage was based on the theory of consent and contract, concepts that were alien to other matrimonial jurisdictions.
Any move to change the essential character of the Muslim law from its conceptual contractual moorings will be a retrograde step.
While the world is moving from a status-based sacramental and indissoluble marriage to a contractual marriage, which can be dissolved not just by mutual consent but also on the grounds of irretrievable breakdown, it was strange to hear the arguments advanced on behalf of those who claim to be non-conformist, endorse open marriages and live-in relationships to make Muslim marriages more difficult to dissolve, under the guise of protecting women’s rights.
Even if triple talaq is stuck down, will it be possible to enforce conjugality upon an unwilling husband? Such a move will only result in an increase in the number of Muslim women being deserted. As per the 2011 census, the number of deserted Hindu women was 19 lakhs as against six lakh divorcees. These deserted women live in limbo, not married not divorced and lack the resources to approach the courts for even the minimum of maintenance. By making divorce difficult, we should not force a similar fate upon Muslim women.
If the marriage has broken down irretrievably, it is not in the interest of the wife to continue in such a marriage as it violates her dignity.
Even if the court strikes down instant and arbitrary talaq, and lays down a mandatory three months of iddat period to explore reconciliation, if the husband is adamant that the marriage had broken down irretrievably, it might not bring about a great change in the ground reality of Muslim women.
What needs protection is the woman’s right to live in safety and dignity, her rights over her children and her right to a provision of a lumpsum settlement for her future, remedies which already have statutory protection.