The argument of these clerics — and the Left-Liberals who support them merely because the initiative for the legislation has been taken by the Narendra Modi Government — is that jailing the offender will cut off financial support to the wife wrongfully divorced. In the first place, all these years they couldn’t be less concerned about the plight of victims of triple divorce who were figuratively thrown on the streets and left to fend for themselves. Besides, these opponents refuse to heed provisions in the proposed law, The Muslim Women (Protection of Rights on Marriage) Bill, 2017, that the magistrate hearing the case will have the authority to determine the monetary allowance the offender has to pay to the victim. This is as it should be, given that the accused has to pay according to his financial status — the amount to be given by a daily wage earner cannot be the same as that to be paid by an established businessman.
The clerics and the like have a weak argument, and they know it. Which is why they are busy obfuscating the cause through deflections. For instance, they have been claiming that the Modi Government’s only purpose is to interfere with the personal laws of the minority community. One prominent leader who heads a political party which indulges in brazen Muslim vote-bank politics said the Union Government wanted to fill the country’s prisons with Muslim men! The second deserves no dignity that a response offers. But the first claim must be countered with facts.
Only a few months ago, the Supreme Court through a majority verdict held instant triple divorce among the Muslim community as unconstitutional. Three judges on a five-judge bench found no merit in the argument that such a form of divorce was a core part of Islamic practice and thus it fell within the ambit of personal laws which were guaranteed to the community by the Constitution of India. That said, the argument that the Modi regime was impinging upon the Muslim personal law stands demolished.
It is true that two judges, then Chief Justice J S Khehar and Justice S Abdul Nazeer, held that instant triple talaq was a “matter of personal law of Sunni Muslims belonging to the Hanafi school” and that it “constitutes a matter of faith” for them. They also added that the practice was inherent since 1,400 years. But this was a minority opinion. (Besides, even these judges asked the Government to frame a legislation that settled the matter once and for all. This the Union Government has done.) Instead of seizing upon a minority verdict, the clerics and their supporters should focus on the majority judgement which demolished the minority voice.
One of the judges, Justice Kurian Joseph, commented, “Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.” He drove another nail in the minority opinion by pointing out that the 1937 Muslim Personal Law (Shariat) Application Act had not codified either the grounds or the procedure for divorce.
Two other judges on the Bench, Justices R F Nariman and U U Lalit, established that instant triple divorce had no protection under Article 14 of the Constitution which provides for Fundamental Rights. Once they had pronounced that this form of talaq was not part of Islam, the argument that the rights of Muslim women, which were available through Article 14, were being violated, gained the upper hand. Justice Nariman put it succinctly: “The thread of reasonableness runs through the entire fundamental Rights chapter.” He added, “What is manifestly arbitrary is obviously unreasonable and being contrary to the law.”
Thus, contrary to the spin that is being given by Muslim clerics opposed to the anti-instant divorce legislation, the highest court of the country has held this form of divorce as arbitrary, unconstitutional and, more importantly, not part of the Muslim personal law. It is important to mention one objection that the opponents of the proposed legislation have been making: That imprisoning the offender shuts the door on any reconciliation between husband and wife. In the first place, the doors have not been shut; the couple can make use of the existing legal forums such as family courts to seek reconciliation. The clerics need to tell us what sort of reconciliation within the community had been happening in the decades gone by prior to the apex court’s verdict. Had the reconciliation mechanism that is driven by the clerics been successful, there would not have been a surfeit of victims approaching the Supreme Court for justice. From Shah Bano to Shayara Bano and Ishrat Jahan (not to be confused with the slain terrorist) — all faced ordeals because their community’s religious leaders failed to provide them justice. This fact became evident when the apex court’s bench noted that had been “no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded” the issuance of instant divorce through the utterance of the fearsome word thrice. Also, what happened to this much-touted reconciliation when, even after the apex court’s verdict, hundreds of cases of instant triple divorce got reported in the media?
Unlike in the Shah Bano case of the mid-1980s, this time around there has been a groundswell of support for Muslim women victims. Social activists both within and outside the community have been vocal in their opposition to instant triple divorce, and this has left the clerics and their band of supporters rattled. Worse may follow for them. Emboldened by the recent success after decades of humiliation, progressive sections among Muslim women are now setting their sights on another issue: That of tackling polygamy. A few voices have already begun to be heard for the need to abolish the practice of four wives for a Muslim man. Will this change come from within the community or will it need the court’s intervention? The coming months could offer an indication.
(The writer is Visiting Fellow at Vivekanand International Foundation. Views expressed here are personal).
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