Need to abolish triple talaq
Source: By R D Sharma: Deccan Herald
At present, some of the contentious and controversial provisions of the Muslim Personal Law (MPL), notably the triple talaq and polygamy, are under challenge before the Supreme Court (SC) to consider doing away with them as they are biased and discriminatory to women. The government, in response to the SC's notice in this regard, supported the petitioners' plea in court for the abolition of such practices hurting gender equality and women's dignity. It also asked the National Law Commission (NLC) to examine afresh the entire gamut of issues involved in enacting the Uniform Civil Code.
However, several Muslim organisations, including the All India Muslim Personal Law Board (AIMPLB), have boycotted any such move by the NLC, considering it a gross interference with their personal law. They consider divorce, polygamy and other such practices as an intrinsic part of their religion and wish to retain them as it is. India has separate sets of personal laws for each religion. Just as Hindus, Jews, Christians and Parsis are governed by their own personal laws, so are the Muslims. The British Legislature had enacted the Shariat Act in 1937 covering matters pertaining to Muslim marriage, divorce, maintenance, inheritance and custody of children, which later came to be known as Muslim Personal Law.
Various provisions of the existing personal laws including the MPL, based on scriptures and customs of religious communities, are deemed as not only outdated and discriminatory to women, they are also seen to militate against the very essence of democracy, basic human rights and secularism at large. While Hindu family laws were overhauled long before despite stiff opposition from conservative sections of the community, the MPL mostly remained unchanged. The MPL prescribes different modes of talaq for the dissolution of marriage. But against all norms of justice and equity, Muslim males have adopted "talaq-ul-biddat" - unilateral dissolution of marriage - as the modus operandi for divorce. The husband simply pronounces the word 'talaq' thrice in one sitting and it results in irrevocable termination of marriage.
And there is no scope for any compromise or reconciliation even if it has been uttered out of sheer passion, momentary anger or drunkenness. Once divorced, the woman can't return to her husband without going through a difficult process. It requires that after the divorce, she should get married with another man, consummate the marriage and let her second husband divorce her to go back to join the former husband. This practice is called 'nikah halala' in common parlance. All Hanifi ulemas agree that instant divorce in one sitting is against the holy Quran and Sunnah (practice), and term it as later-day innovation. Yet, it is the most widely practiced form of divorce among Muslims.
Thanks to the advent of modern technology, the practice has become more rampant through telephone, email, SMS, Skype, Twitter and even Facebook, thereby denying women any say in the matter and leaving them and their children homeless and destitute overnight. Most eminent Islamic scholars agree that the preferred mode for divorce should be ' talaq-e-ehsan' in which a couple is given three months to separate if they wish. The separation period gives them a chance to patch up. The Quran clearly asks Muslims to try reconciliation and arbitration before giving talaq.
Many Muslim countries, including Pakistan, Tunisia and Indonesia have banned triple talaq and religiously follow the former. Hence, many argue that there is a case for a similar ban on this in India. While the Quranic principles and practices, originated in a particular context in the past, played a progressive role then, several such customs have become fossilised and are of no relevance to the world of today. For instance, seventh century Arabia, riven with tribal conflicts, saw decimation of menfolk, and the phenomenon of orphans, widows and girls without the prospects of grooms, was common.
Under those circumstances, the introduction of limited polygamy was considered to be a reform of high order to rehabilitate them. However, despite the non-existence of any such condition now, the practice of polygamy still prevails. Not only has polygamy outlived its historical necessity but has degenerated into an oppressive institution for women.
Matrimonial break-ups
Needless to say, it is the major cause of frequent matrimonial break-ups. Once the husband brings in another spouse, the first wife virtually loses her marital dignity. She can't question even the ill-treatment because it is too easy for a Muslim man to give her talaq. Polygamy, therefore, deserves to be abolished in the interest of gender justice. Many Islamic countries have by law restricted marriage to more than one woman at a time. It is beyond comprehension why India has not done so to ensure a better deal for Muslim women. The Hindu law was also reformed in the teeth of strong opposition from obscurantists but Hinduism did not collapse.
The practice of bigamy has been made a punishable offence. The Child Marriage Restraint Act, the Widow Remarriage Act and the law banning sati are some of the important examples of social reforms. In all fairness, the MPL should also be suitably reformed so as to keep it in tune with contemporary social needs of society. Laws can never be static. They grow and change with times. There should be equal rights and equal laws to all women irrespective of their caste, community and religion to ensure gender justice. While the judiciary's role in attempting to rectify gender and other biases that prevail in community-specific legislations is widely welcome, the legislature cannot escape its prime responsibility of law making and updating laws from time to time.
