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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 173
January 9, 2003

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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.


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