Triple talaq: Will the custodians of the Constitution let custom triumph?

The ball now lies in the Supreme Court.

 |  5-minute read |   25-05-2017
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The Supreme Court hearing on triple talaq finally concluded on Thursday and a number of arguments were brought to the table. Even among those who "agree" that triple talaq should be declared invalid, many insist their agreement stems from different positions.

While the petitioners largely argued against the specific practice of triple talaq (talaq-ul-bidat), the counsel for the Government of India asserted that talaq-e-ahsan and talaq-e-hasan, which are often put forth as the more benign forms of divorce which take place over three months, are also extra-judicial and therefore anti-women.

The court, unsurprisingly, questioned that if all forms of talaq were to be struck down, what then would be the procedure in place for a Muslim man seeking divorce? The query was answered the following day when the counsel for the state assured that Parliament would indeed bring in legislation for the same - whether this would be a uniform civil code or an amendment to statutes relating to Muslim personal law remained uncertain.

The respondents, All India Muslim Personal Law Board and Jamaat-e-Ulema-e-Hind, latched on to precisely this statement to argue that if indeed Parliament was bringing in a law, why must the court pronounce on the matter at all? The court would, the Board argued, be treading on a "slippery slope", opening the door for all personal laws to be open to challenge.

The Board relied predominantly on just one central argument - historically, the courts have abstained from striking down personal laws and changes to these laws must stem from the legislature. However, in reality this has hardly been the case.

To the contrary, the court has rarely hesitated in intervening in matters of religion nor has it held back from offering "guidelines" in the absence of a statute, in many cases forcing Parliament to enact new laws.

The Vishakha judgment provoked the enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and even though the Act followed many years after the judgment, in the interim period, the Vishakha guidelines served as law. In the Arnesh Kumar case, the court laid down the guidelines for police investigation.

A number of laws in the country have time and again been brought into force because the court led the way in pointing out anomalies in different laws and customs. When the respondents argue that the problem is, in fact, not "triple talaq" but patriarchy, it must be remembered that social movements have historically relied on courts for provoking social change and challenged various forms of patriarchy or other prevailing structures of domination and discrimination through litigation.

In the decisions of Bai Tahira versus Ali Hussain Fissali Chothia and Fazlunbi versus Khader Vali cases, the court chose to grant maintenance to divorced Muslim women by subjecting Muslim law to a "broader" interpretation. Justice Krishna Iyer overlooked (and not for the first time) the Sharia provision for maintenance of wives, which is limited to the three-month iddat period.

Further, relying on a Guwahati High Court judgment, Iyer in the Fazlunbi versus Khader Vali case in 1980, cited Portia’s speech in Shakespeare’s Merchant of Venice, to emphasise a "merciful" reading of the provisions of Muslim law to extend greater protections to women. Therefore, one may locate this moment in the history of Indian feminism, when the women’s movement could not find a ready ally in Parliament, but found relief in sporadic court judgments.

The courts also laid down that mutual rights and obligations created by a monogamous marriage cannot be modified unilaterally by conversion of either spouse to another religion (Budansa Rowther and Anr. versus Fatma Bi and Robasa Khanum versus Khodadad Bomanji Irani).

In effect, the converted spouse could not claim the right to have more than one wife, so long as the first marriage under a monogamous law existed. The 18th law commission report, therefore, concluded that "it would, however, be advantageous to make the position clear by a statutory provision". Thus, the legislation was to follow the court’s decision.

sc_052517123205.jpgA number of laws in the country have time and again been brought into force because the court led the way in pointing out anomalies in laws and customs.

Even when judicial rulings abstained from striking down discriminatory provisions, in the Danial Latifi judgment, by altering the interpretation of the Muslim Women's Act 1986, the court set the precedent that religious law was also open to rephrasing and reinterpretation.

The court in one of its most creative rulings concluded that the word "mata", when translated from Arabic to English, suffered a change in meaning. It was meant to indicate not simply "maintenance" for the wife upon divorce that expired at the end of the three-month iddat period, but instead translated to "provision for maintenance", under which arrangements had to be made for maintenance to the divorced wife, including maintenance for children within three months.

Thus, while the Danial Latifi judgment technically upheld the validity of the Muslim Women's Act 1986, it significantly transformed the question of maintenance of Muslim women upon divorce.

Similarly, the court cannot reduce the question of triple talaq to the short period of "time" it takes to become effective or the spontaneity of it, without acknowledging that the central problem with such a form of divorce is that it is unilateral and arbitrary.

While Muslim women have to qualify their decision to get divorced or seek "khula" with one or more of the grounds listed in the Dissolution of Muslim Marriages Act, a Muslim man could divorce his wife without citing any grounds whatsoever.

The Latifi judgment reminds us that there are examples that not only prove the court’s intervention in personal laws but also those of the court spelling out guidelines in the absence of legislations. If the court willed, for an interim period the Dissolution of Muslim Marriages Act could also serve as a gender-neutral enactment applying to both men and women, or it could even lay down more specific procedures while it waits for legislative intervention.

Thus, if the court truly claims to be the custodian of the Constitution, it must decide whether in the name of protecting "difference" and "diversity", are we clandestinely beginning to accept discrimination? The ball now lies in the court’s court!

Also read: Truth behind UP CM Adityanath rooting for a ban on triple talaq

Writer

Saumya Saxena Saumya Saxena @saumyasaxena_

The writer is a PhD holder from the University of Cambridge, specialising in family law in India.

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