Not saffron but secular: The banning of instant triple talaq is a crucial first step towards Uniform Civil Code
After the great Indian revolt of 1857-58, while the British left various personal laws unchanged, the Indian Marriage Act of 1864, which later became the Indian Christian Marriage Act of 1872, the Indian Divorce Act of 1869, the Married Women’s Property Act of 1923 and 1937, the Hindu Inheritance (Removal of Disabilities) Act of 1928, the Special Marriage Act of 1923 and subsequently 1954, the Parsi Marriage and Divorce Act of 1936, and eventually, the Hindu Marriage Act of 1955, were enacted to codify personal laws of various communities, pertaining to issues of marriage, succession, guardianship and maintenance.
The Muslim radicals, however, resisted changes to their personal laws — leading to the Shariat Act of 1937.
However, Sharia was never codified, and hence, its legal standing is tantamount to nothing, despite the hullabaloo by the All India Muslim Personal Law Board (AIMPLB), which, in any case is simply another NGO with no legal sanctity, set up under the aegis of the late Indira Gandhi, in 1973, for minority appeasement.
Also, the AIMPLB is only a Sunni Muslim body primarily and does not represent Shias, Bohras or Ahmadiyya Muslims — hence, what it says is hardly representative of broader Muslim opinion. The Dissolution of Muslim Marriages Act of 1939, in India, which gave recourse to legal help to Muslim women, too remained a non-starter, thanks to many self-seeking ulamas and maulvis, who wilfully wanted to subjugate Muslim women by misinterpreting the Sharia for their vested interests.
Ancient India’s civil codes have progressively evolved over centuries from the Vedas (form of divinely ordained laws) and ‘Manu Smriti’, which is a comprehensive set of sermons and smritis by Manu, Bhrigu, Yajnavalkaya and Narada, on human duties, rights, laws, virtues, inheritance and other aspects of ethics, as applied to various sections of Hindu society. Regressive traditions — such as polygamy, sati, child marriage, dowry and female infanticide — stopped having legal or moral sanction in India or in Hindu customs, aeons back. A moot point to note here is that most Hindu laws have also been applied to Jains, Buddhists and Sikhs, with the exception of Scheduled Tribes, over many decades.
To cut a long story short, while other communities, ethnic and religious groups realised the omnipotence of the Indian Constitution and the Indian Penal Code (IPC) in the post-colonial period, patriarchal Muslim men were the only ones who refused to change with changing times — under the garb of an 8th century-old Islamic Sharia.
Much of the Sharia today owes its allegiance to radical schools of thought, such as Hanbali, Maliki, Shafi‘i, and Hanafi, which was the governing diktat between 1664-1672 for the likes of Emperor Aurangzeb, and many bloodthirsty Muslim invaders thereafter too.
Needless to add, therefore, that the Supreme Court declared instant Triple Talaq as unconstitutional on August 22, 2017.
The Narendra Modi government’s righteous efforts to make instant Triple Talaq a punishable crime as per provisions of the Muslim Women (Protection of Rights on Marriage) Act, 2018 were stalled by the Opposition in the Rajya Sabha last year on January 3, 2018, then August 10 and again, repeatedly in the Winter Session of Parliament in December on flimsy grounds, to my mind, showcasing the hypocrisy of Congress matriarch Sonia Gandhi and her son, Congress president Rahul Gandhi, who have evidently treated scores of Indian Muslim women as vote banks — and nothing more.
In the given circumstances, the Modi government’s momentous decision to bring an ordinance on September 19, 2018, to declare instant Triple Talaq, which defies the very basis of gender justice, human dignity and equality, a punishable offence, is nothing short of historic, in every sense of the word.
Decades back, in 1985, ex-Prime Minister Rajiv Gandhi destroyed the confidence and psyche of India’s Muslim women by overturning the Supreme Court’s 1985 verdict and denying Shah Bano, a hapless Muslim divorcee, a mere monthly alimony of Rs 179.
The wrongs by the Indian National Congress, and its late leader, Rajiv Gandhi, in 1985, were finally corrected, after 33 long years, by the current BJP-led dispensation, under the astute leadership of Prime Minister Narendra Modi. Naysayers from the Congress would do well to recall the 70 ordinances promulgated under Nehru, 77 under Indira Gandhi, and 61 under Manmohan Singh, before criticising the Modi government for opting for the ordinance route to end instant Triple Talaq.
Talking of Triple Talaq, the first and truly unsung heroes of the #MeToo movement in India are the five brave Muslim women — Shayara Bano, Gulshan Parveen, Aafreen Rehman, Ishrat Jahan and Atiya Sabri, who petitioned India’s apex court against 'talaq-e-biddat' or instant Triple Talaq, of which they were victims.
Despite their respective husbands using every trick in the book to harass them, from domestic violence to multiple forced abortions and relentless demands for dowry, nothing could break the spirit of these women as they finally won the war against a cruel and regressive practice. It is to the BJP-led Modi government’s credit that on December 27, 2018, it passed the historic Triple Talaq bill with a thumping majority in the Lok Sabha, though shenanigans by women-unfriendly political groups and vested interests disrupted proceedings on this issue in the Rajya Sabha.
Under Modi's second term too, the first Bill to be introduced in Parliament on June 21, 2019, via a division of votes, is the Triple Talaq Bill, with 186 people voting for it and 74 against. Criminalising instant Triple Talaq is essentially about eradicating gender inequality and gender disparity for Muslim women, who are denied their right to a life of dignity by their husbands and abandoned for utterly frivolous reasons, more often than not.
The flimsy argument by a decrepit Opposition — that the provision for punishing the ‘Muslim husband’ and convicting him, if found guilty under the Triple Talaq Bill, is aimed at targeting and demonising Muslim men — stands sans any substance.
All India Majlis-e-Ittehadul Muslimeen (AIMIM) chief Asaduddin Owaisi — who had his thunder stolen after the Modi government brought in the historic Triple Talaq ordinance in Modi's first term — has not once applauded the five brave Muslim women, who approached the apex court to rewrite the rules of this cruel and moribund practice. Well, Owaisi’s silence speaks volumes about his hypocrisy, if nothing else.
For example, under the Dowry Prohibition Act of 1961, if any person gives or takes, or abets the giving or taking of dowry, he or she shall be punishable with imprisonment for a term which shall not be less than five years, and with a fine, which shall not be less than fifteen thousand rupees, or the amount of the value of such dowry, whichever is more. Again, under Section 498A of the IPC, if the husband of a woman or his relatives are found guilty of subjecting the woman to cruelty, they shall be punished with imprisonment for a term, which may extend up to three years and shall also be liable to pay a fine.
The moot point is — anyone who breaks the law has to face relevant punishment under suitable legal provisions if convicted.
And Muslim men, therefore, have no business trying to mitigate the talaq-e-biddat practice as just a mundane civil matter, because blatantly flouting Article 21 of the Constitution, which guarantees the ‘Right to Life, Liberty and Security’ to one’s spouse, is not a small matter.
Hapless victims of the regressive instant Triple Talaq practice deserve justice — and justice is served when the perpetrators are penalised as per legally enabling provisions.
The case for archaic Muslim personal laws got diluted in a significant manner when the apex court, in a two-judge bench ruling in 2015, said that Muslim women are entitled to maintenance beyond the iddat (roughly three months) period while hearing a case. It also upheld a previous Allahabad High Court judgement, stating that “polygamy was not an integral part of religion”. Earlier too, it gave Muslim women the right to legally adopt children, even though this goes against their personal law.
The problem, however, in the absence of an UCC, is that justice has to be served on a case-by-case basis, which is both impractical and time-consuming, whereas having a common civil code would remove the need to look at each case on its individual merits or demerits — and ensure quicker justice. Also, very often, many victims from the minority community, or otherwise, have no access to lawyers and the courts, and having a uniform civil code will be a huge boon for such women who can expect and get justice as a matter of right because it is legally ordained, via a codified law under the UCC, without having to run to the courts each time to make a case for an individual plea where they have been wronged.
There are many who claim that UCC is not the solution and that change should come from within — but that is a hopelessly futile argument.
If indeed the change had to come from within, over 477 cases of talaq-e-biddat and maybe more, which were reported after the apex court had on August 22, 2017, in a majority judgement, already declared this practice as unconstitutional, would not have happened, to start with.
Hence, it is important and imperative to have legal deterrents in place as civilised societies work within legal frameworks — and not on flaky “goodness from within” assumptions.
True, in 2016, on Eid, the three-century-old Aishbagh Eidgah in Lucknow opened its doors to women to offer prayers for the first time in its history, but that welcome step cannot be a reason to not ban and outlaw the draconian instant Triple Talaq. In fact, an online petition by the Bharatiya Mahila Muslim Andolan demanding this ban had already attracted over 50,000 signatures by 2016 alone, reportedly going up to over two lakh signatures by November 2018.
An argument often cited against UCC by Muslim religious fanatics is that the government should first do away with polygamy practised by some tribal communities, and tax exemptions that are availed by Hindu Undivided Families (HUFs). Well, the counter-argument is simply this — the government of the day has enough powers, under the Constitution, to decide what and how to legislate upon, in terms of priorities, and comparing tax exemptions to a section of society with a regressive social evil is as bizarre as it can get.
Abolition of instant Triple Talaq will not only uphold the principles of gender justice but will also eventually set the stage for the UCC, Uniform Civil Code, though the two issues are certainly not entirely and directly linked.
The UCC, in any case, has been provided for under Article 44 of the Directive Principles, but since these principles are not legally enforceable, a suitable law is long overdue. Those who oppose UCC, on the frivolous pretext that UCC will end India’s diversity and plurality, should know that personal laws can never outlaw or override the Constitution, which is India’s only 'Holy Grail' that is both legally tenable, and one that has and always will stand the test of time.
The case for UCC was amply demonstrated by Justice Kehar and Justice Chandrachud, when a Public Interest Litigation (PIL) by Catholic advocate Clarence Pais, who wanted divorce granted by ‘Church Courts’ to be held legally valid, was junked by the apex court in January 2017. The apex court categorically stated that despite Christian marriages being solemnised by a parish priest in the church, as per the 'Canon Law' (Christian Personal Law), when it came to divorce-related matters, only divorce granted by courts under the Indian Constitution and under the Indian Divorce Act of 1869 are legally valid — family laws or church courts have no place in a democratic society if such personal laws interfere with the basic tenets of the Indian Constitution, or relevant Parliamentary legislations contained therein.
The fact that personal laws run subservient to the Constitution, had, in any case, been decided way back in 1996, in the divorce battle between Molly Joseph and George Sebastian, and the 2017 judgement against Clarence Pais only reaffirmed the 1996 verdict.
Be it making Christian divorce laws 'gender equal' in 2001, or amending Hindu succession laws in 2005, if there can be a common criminal code, there is absolutely no reason why India should not have a common civil code too. In fact, in April 2015, Justices Vikramjit Sen and AM Sapre of the apex court, in response to a petition filed by Delhi based Christian, Albert Anthony, who claimed that the mandatory two years judicial separation for Christians before dissolution of marriage, versus only one year allowed to Hindus or Parsis, was 'hostile discrimination', accepted his argument, and the two-judge bench voiced its displeasure at the discriminatory two-year time frame.
It needs to be noted here that the provision for divorce by mutual consent in other statutes, such as Section 28 of The Special Marriage Act, 1954, Section 13-B of The Hindu Marriage Act, 1955, and Section 32 B of The Parsi Marriage and Divorce Act, 1936, prescribes the statutory period of separation as only one year. In May 2016, the BJP-led government had, in fact, informed the Lok Sabha about wanting to amend Section 10A (1) of the Christian Divorce Act of 1869, to curtail the two-year separation period for Christians, before grant of divorce, to one year, but Opposition parties played spoilsport, as was expected.
In the final analysis, it can be safely concluded that simply because the provision for a Uniform Civil Code found mention in the Directive Principles under Article 44 of the Constitution is no reason to negate its relevance. For the sake of purely an argument, if legal sanctity alone is the yardstick, by that logic, all those from the minority community who enjoy various privileges under Article 29 and Article 30 of the Constitution would do well to know that the word 'minority' itself has not been defined in the Constitution.
The Motilal Nehru Report (1928) showed a prominent desire to afford protection to minorities — but did not define the expression. The Sapru Report (1945) also proposed, inter alia, a Minorities Commission but did not define the term ‘minority’ and it was left to the wisdom of the courts to fill in this omission. However, despite a lack of a definition, the majority community has never grudged the minorities the array of benefits that they avail under Articles 29 and 30.
If the spirit of the Constitution is indeed paramount when it comes to executing Article 29 and 30, should it be any less relevant when it comes to implementing Article 44? Unfortunately, sans legal standing, Article 44 has been dismissed with arrogant impunity by the very set of people, who otherwise conveniently invoke Constitutional morality at every available opportunity. And that is precisely the singularly most important reason to give Article 44 legal sanctity.
Also, implementing the UCC has nothing to do with ‘saffronisation’ or a ‘majoritarian agenda’, as has been alleged by radical elements from the Muslim community.
The essence of secularism implies removing any trace of religion from family laws, and that being the case, UCC is an idea that now needs to be legally enforced and implemented, without ado, to keep India’s secular and richly diverse moral fabric intact, for good.