Muslim Personal Law and the Shayara Banu case : the entire story
The recent debate on the reform of Muslim Personal Law has been spurred by the issue of notice by the Supreme Court in the case of Shayara Banu v Union of India. In this case the wife was not only arbitrarily divorced through Talaq-i-biddat (commonly known as Triple Talaq) by her husband but also was administered drugs which affected her memory and other forms of cruelty during the duration of the marriage. Shayara Banu decided to not take this lying and challenged the constitutionality of three archaic practices under Muslim Law namely: (i) Talaq-i-biddat (ii) Nikah Halala (iii) Polygamy.
Talaq-i-biddat is a form of divorce where the Muslim man can instantly divorce his wife by uttering the word ‘talaq’ thrice. Instantly here means utterance during any period of time in a single tuhr (period between two menstrual cycles of the wife). After such an utterance, the divorce becomes final and binding. There has been a narrative in the media for the past few days that this form of divorce is only valid for Sunni Muslims and that too Hanafi Sunni Muslims. Even if one is to take this argument on merits, it is pertinent to point out that Hanafi Sunni Muslims are almost 80% of the total Muslim population in India.
Hence such an argument to not debate on the legality of Talaq-i-biddat is not only redundant but also absurd. This form of divorce being a paragon of inequality in its original form itself has attained heights of absurdity in the recent past where the men have been divorcing their wives through skype, WhatsApp, SMS etc. It is only reasonable in such context that Supreme Court has issued notice on this practice.
The Supreme Court about a decade ago in 2003 had referred to this form of divorce in the celebrated case of Shamim Ara vs State Of U.P. This case has been cited in several news reports recently as the case in which Talaq-i-biddat was declared unconstitutional. Nothing can be further from the truth and only a cursory reading of the judgment of the case will dispel such a misconception. In Shamim Ara the point of contention was the method of Talaq-i-biddat. The husband had contended that he had a right to divorce even during the judicial proceedings and even in the absence of his wife. Such a method was declared unconstitutional and not Talaq-i-biddat per se.
The second and I believe the more horrendous practice of Niakh Halala has also been challenged in Shayara Banu’s petition [pdf link]. This practice means that when a husband divorces his wife, both of them are forbidden to marry each other again; unless the divorced wife marries another man and consummates that marriage (has sexual intercourse with the new husband) and the new husband also agrees to divorce her. An example of such a practice can be found in the case of Nagma Bibi wherein she was divorced by her husband in the state of intoxication but the next day the husband himself wanted to annul it. But Muslim community leaders sent Nagma to her home and pressurized her to marry another man before remarrying her husband. This practice makes a woman pay for the deeds of her husband by forcing a sexual intercourse upon her if she just wishes to remain with her husband. This is equivalent to treating women like chattel and property.
The third demand in the petition of Shayara Banu is abolition of Polygamy. The petition says that this practice is as abhorrent as sati. This is so because the Muslim personal law allows a man to have multiple wives, the number is limited to four in India. On the other hand, the practice of polyandry i.e. a woman having multiple husbands is completely forbidden and is considered anti-Islamic.
Opposition of the civil society should not be limited to Talaq-i-biddat, Halala, Polygamy etc. because even other forms of divorce also create a superiority of men over women. Under Mulsim personal law it is the man only who is empowered to divorce. The woman can demand a ‘khula’ which can be granted by the man but can also be refused by the man. Another argument is that woman have a form of talaq in their favour called Talaq-i-tafweez. Again, nothing can be farther from the truth. The expression ‘Talaq-i-Tafweez’ literally means Talaq through delegation. Under Muslim law the husband is also empowered to delegate his power to divorce his wife to anyone which includes his wife. But again, it is up to the husband whether he chooses to delegate this power to his wife or not. In fact, this is a very dangerous practice, because the husband may choose anyone to irrevocably divorce his wife. This chosen person can affect a divorce between a husband and wife without either of them wanting it.
The opposition to these practices has also voiced an argument that these practices are also un-Quranic and find no sanction from the Holy Quran. Such an opposition usually leads to a debate on the interpretation of Islamic religious scriptures which is devoid of any modern jurisprudence. Instead it is more reasonable to oppose these practices in terms of the established global practices of Human Rights Law and laws pertaining to civil and political rights.
These practices are completely opposed to the Jurisprudential notion of Right to Equality. This right has been incorporated under Article 14 of the Indian Constitution. The Universal Declaration of Human Rights (UDHR) also guarantees Right to equality as the foremost Human Right by the virtue of the fact that this right has been mentioned in the very first and second Articles of the document. Article 1 says: “All human beings are born free and equal in dignity and rights….”. Article 2 also in the same vein says “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex……”.
It can’t be a coincidence that a lot of Muslim majority countries including Saudia Arabia, which is considered the fountainhead of Wahabi Islamic Jurisprudence, have neither signed nor are a party to the UDHR. These practices violate the UDHR and the Indian Constitution because of the fact that they create two classes of citizens in the form of Muslim men and Muslim women. One class i.e. Muslim men has a dominion over the other class i.e. Muslim women.
Indian Constitution guarantees under Art 14 “Equality before law and equal protection of laws”. The archaic practices of Muslim personal law violate Art 14 on both of its senses. Equality before law means that the Law should accord equal respect and dignity to all its subjects when they are addressed by the state, which is not the case because a Muslim man is accorded more respect than a Muslim woman. Also, an “equal protection of laws” is also not accorded to Muslim woman.
In this context, it is incumbent upon the Supreme Court to utilise the opportunity in the Shayara Banu case to accord Muslim women the full extent of their constitutional right to equality. More importantly the government should also take it upon itself to reform the Muslim personal law through legislation, like it did for the Hindu personal law in 1950s.