The Supreme Court while hearing the Triple Talaq matter observed that despite of its asking the parliament multiple times to legislate on the matter, no law has come up in this regard. One cannot argue in favour of the instant Triple Talaq, no matter which side of the political spectrum one comes from. For it is against the right to equality and right to life and dignity.
However, to say that Islamic Jurisprudence is totally arbitrary in matters of divorce would be overreaching.
In the other form of Triple Talaq ‘Talaq Hasan’ (which takes place over a period of 3 months) there is provision for mediation and reconciliation. In traditional societies this was often adopted as the method to resolve disputes, ensuring that both parties get a chance to put forward their arguments, and access counselling from the wise and experienced. This ensured fairness and speedy justice for both parties.
Another provision is that of Khula where a woman has the right to divorce her husband though often at the cost of her mehr (dower received from husband). While issues such as maintenance do arise, a woman is given the right to divorce her husband at will.
Furthermore, the Supreme Court raised an important question, asking the method of divorce that is suggested, post abolishment of the Triple Talaq.
The existing Hindu Law in this regard, as we have seen, has not been very successful in handing out speedy justice.
Our courts are overburdened with divorce litigation that take years to conclude, not only consuming precious time of the court but also impacting lives of both the parties and families involved.
We have recently seen the SC enlarging the scope of the law but still Hindu Divorce Laws remain extremely rigid, and some may even say, biased towards women.
Multiple instances of law misuse have been observed by the Honourable SC itself.
Women have also taken advantage of the DV Act and Dowry Laws for taking undue benefit during the trial, often leading to extreme harassment to the husband’s family (including old parents) and appropriation of property through unfair arguments.
The process of getting a divorce might stretch up to 10 years, draining the parties of their will and energy to rebuild their lives.
Often this leads to abandonment or bigamy which is forbidden by Hindu Law.
The Hindu Divorce Law has its own share of problems and needs to be overhauled in context of present day and time. Consequently, the SC and Law Commission recommended the provision of ‘irretrievable breakdown of marriage’ to section 13B of the HM Act which might, to an extent, provide a quick resolution in some of the cases.
I do not support an arbitrary imposition of the Uniform Civil Code. However, both the Hindu and Muslim Divorce Laws have been proved to be unfit for the 21st century India.
Perhaps this is where we can start from.
The Parliament must come up with a new secular law for Marriage and Divorce which gives every community the right to perform marriage rituals in their own way while embodying provisions which lay down the rights of both the parties to provide a fair and time bound procedure for the purpose of divorce.
Free and fair consent must be an essential requirement for every marriage, putting a plug to coerced marital practices. Also deterioration of a relationship to the extent where mutual trust and love has ceased to exist should be made a ground for ending an unhealthy marriage that has no scope of sustenance.
21st century India needs to empower her citizens to exercise their right of choice in matters of matrimony while also being assured of equal protection of law in case of divorce.