LAW
in-depth
Triple
talaq, women's rights and Indian judicial responses
Saumya
Uma
Unlike
in Bangladesh, unilateral arbitrary divorce in one sitting,
popularly known as "triple talaq", continues
to be a valid form of divorce among Muslims in India.
This has been the focus of media attention and intense
discussion in the past few months in India. The backdrop
for the discussion was an announcement by the self-appointed
All India Muslim Personal Law Board that it would seek
to abolish the practice, and its retraction within a week
due to pressure from conservative and fundamentalist forces
within the country.
A
general agreement exists that a divorce should not be
pronounced in private, callously or in an arbitrary manner.
This Quranic mandate has now been upheld and elaborated
upon by several courts, including the Supreme Court. Most
of the cases have arisen in a situation of the woman trying
to obtain a maintenance order or to enforce such an order,
and the husband claiming in his written statement that
he had divorced her, in order to be exonerated of the
liability to pay maintenance.
Responses
of High Courts
The Bombay High Court's responses to this issue are an
example of the contradictory and confusing stands taken
by courts of law in the 1990s. Two single judges of Bombay
High Court held in two separate cases in the early 1990s
that the fact of talaq must be proved and that the Court
cannot accept that a valid talaq has taken place merely
on the basis of pleadings in the written statement. (Mehtabbi
vs Shaikh Sikandar, 1995; Shaikh Mobin vs State of Maharashtra,1996).
Subsequently, a Division Bench of this Court took a contrary
view. A few months later, without referring to the previous
Division Bench judgement, another Division Bench at Nagpur
held that the factum of divorce as stated in the written
statement was required to be proved (Saira Bano vs Mohamed
Aslam, 1999). The controversy was finally settled by a
Full Bench judgement of Bombay High Court in May 2002,
in Dagdu Pathan vs Rahimbi. Here, the court held that
a merely declaring his intentions or his acts of having
pronounced the talaq, or a mere pronouncement of talaq
by the husband are not sufficient and do not meet the
requirements of law; in every such exercise of right to
talaq the husband is required to satisfy the preconditions
of arbitration for reconciliation and reasons for talaq.
The
standpoints of other High Court has not been uniform either.
In 1993, a Division Bench of Gauhati High Court held that
a Muslim husband cannot divorce his wife at his whim or
caprice and divorce must be for a reasonable cause and
that it must be preceded by a pre-divorce conference to
arrive at a settlement (Zeenat Fatema Rashid vs Md. Iqbal
Anwar). In the subsequent years, Calcutta High Court (Moti-ur-Rahaman
vs Sabina Khatun, 1994) and Madras High Court (Saleem
Basha vs Mumtaz Begam, 1998) have held similarly. However,
the High Court of Orissa had held to the contrary. (Rashida
Khanum & another vs S.K.Salim, 1995)
Responses
of the Supreme Court
The Supreme Court, through a judgement dated 1 October
2002 in Shamim Ara vs State of U.P., has laid the issue
to rest by stating that talaq must be for a reasonable
cause, and that it must be proved. A summary of the principles
laid down by the judiciary with regard to husband's right
to unilateral arbitrary divorce are as follows:
Plea
taken in a reply to the maintenance claim filed by the
wife does not constitute divorce;
A mere statement in writing or in oral disposition before
the court regarding the talaq having been effected in
the past is not sufficient to prove the fact of divorce;
An oral talaq, to be effective, has to be pronounced;
It is mandatory to have a pre-divorce conference to arrive
at a settlement. This mediation should be in the presence
of two mediators, one chosen by the wife & the other
by the husband;
If wife disputes the fact of talaq before a court of law,
all the stages of conveying the reasons for divorce, appointment
of arbitrators, conciliation proceedings for reconciliation
between the parties by the arbitrators and failure of
such proceedings are required to be proved;
A Muslim husband cannot divorce his wife at his whims
and caprice; and
The husband must also prove that there was a valid ground
for divorcing the wife.
Some
recent efforts at the community level
It can thus be seen that the judiciary has taken efforts
to curb the practice of arbitrary, unilateral pronouncement
of divorce by Muslim husbands, and affirmed the right
of the woman to challenge such a divorce. There is no
doubt that Muslim women have recourse to the courts to
challenge arbitrary unilateral talaq, and hence arbitrary
talaq becomes a non-issue if recourse to law is taken.
However, many women are unable to take recourse to law
due to lack of awareness, poverty, illiteracy, financial
implications of litigation and community opposition against
such a move. How can the judgements impact women's lives,
when women themselves, and the communities they live in,
believe that they have been legally divorced? The challenge
then is to educate women living in communities about the
legal position and enable their access to law, as well
as to promote community awareness and acceptance of the
law as stated through judgements.
Some
recent efforts undertaken at the grassroots level by organisations
such as ours in this regard include:
Creating
awareness about and encourage registration of Muslim marriages
under Special Marriage Act, 1954; (this would mean that
the parties are governed by SMA a secular law under which
divorce will have to be obtained in a court of law)
Awareness-raising about progressive judgements by courts
of law;
Advocating and using a progressive nikahnama this includes
clauses such as a delegated right of divorce to women
(talaq-e-tafwiz), arbitration, maintenance, adequate mehr,
prevention of polygamy and penalty for triple talaq in
one sitting.
In
conclusion, while the judgements of Supreme Court and
other courts have provided some reprieve to Muslim women,
much more needs to be done to move towards a gender-just
Muslim matrimonial law. Muslim women in communities, and
women's organisations in India have been demanding reform
of discriminatory aspects of Muslim personal law for several
decades now. In particular, abolition of the practices
of triple talaq and polygamy have remained a consistent
demand. With the Hindutva forces projecting Muslim law
to be backward and barbaric, leaders of the Muslim community
have gone into a defensive mode and resisted changes in
Muslim personal law as a threat to their identity. Muslim
women's voices and articulation of their rights have been
subsumed by identity politics.
An
ideal Muslim matrimonial law should take into account
the experiences and demands of women from the Muslim community,
and be an integration of the most liberal interpretations
of Quranic verses, the most beneficial provisions of Muslim
as well as all other personal laws, and progressive judgements
by courts of law, situated within a larger framework of
women's human rights and fundamental rights guaranteed
by the Indian Constitution.
The
author is a women's rights advocate and Co-Director of
Women's Research & Action Group (WRAG), Mumbai.
