The Indian Express on June 18th, 2014 reported that the Bharatiya Muslim Mahila Andolan, or BMMA, have come out with a draft law called the Muslim Marriage and Divorce Act. Among the multifarious modalities, the most significant is the move to do away with oral divorce and polygamy. It states that only the Talaq-e-Ahsan method should be followed. In this method once the divorce is pronounced the couple waits for three months in what is seen as a period to sort out differences. This keeps the option of a reunion open and the husband can reverse the process of divorce if both parties agree. The draft also imposes heavy penalty on offenders, including cancelling of a qazi’s licence for repeat offences in failing to ensure fulfilment of conditions during marriage. It also calls for action under the Criminal Procedure Code for all those who fail to pay maintenance.
Seen from the prism of women’s rights, this move is nothing short of revolutionary and should be much welcomed. At present, Indian Muslims are governed by the Muslim Personal Law (Shariat) Application Act, 1936. This law makes the Shariat applicable on Muslims. However this law is not codified and is open to interpretations by local clergy. This serves as breeding grounds for festering conditions absolutely repugnant to Muslim women and their rights. Some of the present rules governing divorce can only be considered archaic and, indeed, draconian.
At present, under oral talaq, the husband may give talaq by mere words without any talaqnama or deed of divorce. Not only do wives have no such luxury, under the ruling of Rashid Khatan v. Anisa Khatoon, their presence is not even required to render the talaq valid. In contrast, the wife cannot call for divorce unless she has the consent of the husband.
Talaq-ul-biddat is what is known as popular parlance as the rule of “Talaq Talaq Talaq” or Triple Talaq. It was introduced by the Omeyyads in order to escape the strictness of law. Not recognized by the Shias, it is a recognized form of divorce amongst the hanafis. Under this law, in contrast to popular opinion, even a single pronouncement is enough for a divorce as long as the condition of irrevocability is clearly mentioned. Unsurprisingly, this form of divorce is open only to husbands. What is less known and more tragic is that a number of Islamic countries have banned this form of divorce. India, sadly, still allows it.
The law as it stands also allows a Muslim man to have a maximum of four wives. While under the initial Islamic law, polygamy was allowed only in very special circumstances, and was allowed with an express condition that the husband must treat all of his wives equally and equitably with no exceptions, over the years, it has been bastardized; and now, there are no conditions and pre-requisites to having more than one wife. In the past, there were instances of flagrant misuse of the law by men wanting to have more than one wife, wherein they would convert to Islam solely for the purpose of re-marriage. While that has been outlawed now, after the Sara Mudgal v. Union of India case ruling, the rankling conditions of inequality still exist.
To say that these laws make for an oppressed existence of women is to put it mildly. At the drop of a hat, a woman’s married life can be uprooted completely; at the mere whim of her husband, she might find herself divorced and helpless. The socio-economic conditions of India do not help the cause of these women. Their mere support in such cases has been a) the mehr they receive on marriage and b) the alimony and maintenance after divorce. Unfortunately, there have been devised ways to circumvent even these provisions, as the follow-up to the infamous Shah Bano case, wherein the Rajiv Gandhi government had overturned the Supreme Court’s judgment by enacting the Muslim Women (Proetection on Divorce) Act, 1985, shows. The new draft law by the BMMA seeks to place a floor on the value of mehr as well, seeing how husbands have got away with paying mehr as low as Rs. 786.
Thus, principally, there seems to be no opposition to these laws. While there have been cries of opposition from conservative groups, calling this an interference with the workings of Islam, the Constitution allows religious freedom only so far as it does not interfere and stomp on anyone’s rights. Furthermore, the Constitution allows for state interference to promote equality and other values enshrined in the Constitution. However, the logistics of granting such rights are slightly more complicated. When the government had granted coparcenary rights to Hindu women by birth in 2005, it had declined to give it a retrospective effect, believing that it might unfairly impact the lives of those who had been governed by the previous law. That had led to a lot of complaints by women who did not get such rights. A similar scenario might develop here. The state, if it passes this draft law, will have to tread carefully with who gets these rights and who does not.
This draft law also gives more fuel to a long-standing debate on the Uniform Civil Code. Enshrined in Article 44 of the Constitution of India as a directive principle of state policy, The term Uniform Civil Code encompasses a generic set of secular civil laws to govern all peoples irrespective of their religion, caste and tribe. The facets of law proposed to be administered and regulated under it are the Laws relating to marriage, divorce, adoption, inheritance and acquisition and administration of property. Far from being an umbrella under which various religions could congregate and be unified, it has been a bone of contention ever since it was conceived of, spawning fierce debates and disagreements and being a polarizing issue amongst various communities. It would not be incorrect to say that it has now become an albatross around the state’s neck.
However, the Supreme Court, especially of late, has very firmly been of the opinion that there needs to be a drive towards the legislators’ original intent to ultimately have one code for all civil matters of India. In Mohammed Ahmed Khan v. Shah Bano, the then CJI came out strongly in favour of a UCC, observing that it would help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies. Then, in Sarla Mudgal v. UoI, remarked that when more than 80% of citizens have already been brought under the codified personal law, there is no justification whatsoever to keep in abeyance the introduction of UCC for all Indian citizens. A similar sentiment was expressed in John Vallamattom v. Union of India.
Thus, adoption of this law will serve as a shot in the arm for the advancement of the Uniform Civil Code. While the conditions right now are certainly not utopian enough to envisage an immediate implementation of a Uniform Code in the way the framers of the Constitution envisaged it, every small step marks a small progress towards that ultimate goal. It is to be hoped that ultimately, India reaches that ideal state, and this step would be quite significant to reach that ideal.
About the Author
Mehul Kumar
Outspoken and endangered, Mehul is a law abiding maverick. Currently stationed at NALSAR as an apprentice, he hopes to create his magnum opus in the field of wrestling or law at least.
