For the past few weeks, India has been deep in the debates regarding Uniform Civil Code (UCC) and Triple Talaq. In October, 2016, The Supreme Court gave the Centre four weeks to submit a reply to a number of petitions against Talaq-e-Bidat (instantaneous triple talaq), polygamy and nikah halala (prohibition on remarriage with the divorced husband without consummating marriage with another man). This issue is being deliberated upon at ministerial level, including Home Ministry and Ministry of Women and Child Development. In March 2016, the Supreme Court had asked the Centre to make a report on the status of women in India. In October 2016, the Centre filed an affidavit that emphasized that personal laws should be examined through the prism of gender equality and dignity of women, supporting Shayara Bano’s plea. The Law Commission sought public consultation on the issue of UCC. The All India Muslim Personal Law Board (AIMPLB) adamantly resisted any changes in their personal law, calling these steps the ruling party’s ‘Hindu Conspiracy’ and stating UCC to be ‘bad for the country’.
This debate is not, in fact new. The Constitutional Assembly, while forming the constitution in 1940s, was also divided over this issue. India is a secular nation, with Article 44 of its Constitution providing for a uniform civil code, i.e., for all citizens to be uniformly governed by one law. But, as a matter of fact, religions of this diverse country continue to be governed by their own personal laws.
Triple Talaq, it is argued, is unconstitutional. In India, this legal mechanism allows a man to simply say ‘talaq’ thrice in one sitting in order to divorce his wife. On the other hand, a woman would need to obtain her husband’s consent or approach the court with a cause of action under the Dissolution of Muslim Marriage Act. This is a form of discrimination on the basis of gender as it leaves women at a disadvantageous position. Twenty-two Muslim majority countries have banned triple talaq on the basis of interpretation of Quran. In Algeria, Pakistan and Bangladesh which like India, have a Sunni majority, only allows for divorce after attempts at reconciliation and the divorce is granted by courts.
Some Islamic scholars argue that Shafii was the only classical jurist who regarded this practice as legitimate, and that no other jurists recognized this practice as permissible, and are strongly opposed to the idea that instantaneous triple talaq is an essential part of Quran’s teachings and hence, regarded it as an "invented form of divorce" (thus, talaq-al-bidat, "bidat" meaning to invent).
In Shamim Ara v State of U.P. and Anr., a judgment of 2002, the Supreme Court invalidated arbitrary triple talaq and held that instantaneous triple talaq does not dissolve a marriage , nor end a husband’s liability to pay maintenance (nafaqah). This landmark ruling did not receive deserved media attention though it did become the basis of several high court rulings, like Dagdu Pathan v Rahimbi Pathan (2002) and Najmunbee v S.K. Sikander S.K. Rehman (2004) by the Bombay High Court, which held that a husband cannot repudiate the marriage at will. The ground reality is that most divorces occur outside the realm of the courts. As such, this judgment has not ended the practice of triple talaq on the ground. Not every woman can approach the court for justice, and invoke Shamim Ara Judgment. She must be aware of pro-women judgments and have the resources, social and financial, to potentially fight a long legal battle. For the same reasons, it has been argued that even if triple talaq is banned, it will not be possible for Muslim women to access justice through criminal proceedings after they have been instantly divorced. The desired change will require so much more than a judgment as - a change in law does not automatically translate into a change in society. Access to justice is still a barrier. A majority of women are probably not aware of the Shamim Ara Judgment. Interestingly, AIMPLB saw to that and directed Imams (priests) all over the country to create awareness among Muslim women through sermons every Friday.
What women say
A national study by Bharatiya Muslim Mahila Andolan, called ‘Seeking Justice within Family’ found that out of a sample of 4,710 women, 525 (i.e. 11%) have been divorced. Of these:
346 women were divorced orally,
40 women were sent a letter of divorce,
18 women were divorced on phone,
1 by SMS,
3 by email and;
117 through other methods.
Majority of interviewed women demanded abolition of the un-Quranic practice that leaves them destitute in an instant, after being divorced without any reason or explanation, with no help to them or their children. Most women were traumatized from the shock and found it extremely difficult to recover from the shock that was served to them that changed their lives overnight. 92% of women interviewed called for a legal ban on instantaneous triple talaq. Questions have been raised about the scientific validity and reliability of the reports published by BMMA, but the fact that some discriminatory facets of personal laws need reform cannot be doubted.
The case of Shayara Bano against triple talaq echoes the same concerns. In her petition, she challenged this personal law practice, citing her Fundamental Rights under Articles 14, 15, 21 and 25 of Constitution. Though the effort is laudable, Flavia Agnes (Majlis), a lawyer with expertise on marital and divorce laws, and a known pioneer of gender equality, says that Shayra Bano’s petition to SC is futile as the Shamim Ara judgment has already invalidated instantaneous triple talaq, unless the husband can prove a reasonable cause or prior recollection. So do we need more laws? Flavia says that meaningful changes are those that come from within the community rather than being imposed from the outside. She also strongly objected to the motives of the UCC debate, questioning its skewed focus on Muslims by Hindus and ignoring the gender-discriminatory practices of other religions. Flavia’s call is different: "What we need is not a Uniform Civil Code but uniformity of rights across different religions”.
What is left to be seen now is how we achieve uniformity of rights.
Zakia Soman (Bharatiya Muslim Mahila Andolan), who is well-known for her work on issues of peace and justice, secularism, human rights, minority rights and rights of Muslim women, is strongly opposed to instantaneous triple talaq claiming that the reason this practice has survived is that Indian Muslims are poor and socially, financially and educationally backward. She also says that for Shamim Ara judgment to be practically applicable, women need to be aware of it, have knowledge that it is un-Quranic and that the neighbourhood cleric is wrong, and have the gumption to initiate and fight a long court case. The BMMA have put forward, as an alternative, a codified Muslim personal law with the hope of breaking through the domination and stranglehold of orthodox and patriarchal self appointed custodians of religion over ordinary lives. This draft was put together after several consultations with the community, lawyers, activists and religious groups. BMMA is in the process of gaining parliamentary support for its draft, which is currently in hands of the Prime Minister, and it remains to be seen what happens next.
Personal law in India
Muslim personal law might be the only personal law under the scrutiny right now, but many personal laws in India have been known to neglect women’s basic rights. For example:
A non-Parsi woman who is the wife or widow of a Parsi man cannot inherit, but her children can.
Children of a Parsi woman and a non-Parsi are not considered a part of the Parsi community. A Parsi woman is deemed to be converted to her husband’s religion after she marries a non-Parsi. Children of inter-religion marriages of women are not counted in the census as Parsis. It is peculiar that this religious code is not imposed on a Parsi man marrying outside his religion.
Under the Hindu Succession Act, when a childless married woman dies, her property is inherited by her husband’s heirs, not her own.
Hindu Minority and Guardianship Act, in its section 6(a), assumes the father as the natural guardian of a child, giving the mother only secondary importance. Thus, statutory recognition has been accorded to the objectionable proposition that the father is entitled to the custody of the minor child in preference to the mother.
General laws aren’t free from such loopholes either. Sexual intercourse with a girl below eighteen years of age is considered rape. But, as Prohibition of Child Marriage Act does not invalidate child marriages, a man can legally engage in intercourse with his minor wife, and as we know, the Indian Penal Code does not recognize marital rape.
Whether UCC can be achieved in a country as diverse as India is a debatable question, but if it is to be achieved, reforms like ban on triple talaq are just the beginning of a journey of a thousand miles. When it comes to gender equality, the fight does not end with the reforms in personal laws or implementation of UCC, as patriarchy has a home everywhere, irrespective of religion and the personal law applied to it.
This is Part 1 of our blog series on the Uniform Civil Code and Triple Talaq in India.