Personal Law

A nuanced judgment

Print edition : September 15, 2017

Noorjehan Saphia Niaz (centre) and other women celebrating the Supreme Court judgment on triple talaq at the BMMA’s office in Mumbai on August 22. Photo: Arunangsu Roy Chowdhury

February 1947: Begum Hamid Ali representing India on the U.N. Commission on the status of women. Photo: Photo Courtesy: United Nations

There is a history of Muslim women fighting for their rights within Muslim law. Justice Kurian Joseph’s judgment recognises this female interpretative authority, allowing Muslim women in India to enjoy both their right to equality and their right to faith under the Indian Constitution.

The Supreme Court of India gave three judgments when asked to consider the constitutional validity of the practice of talaq-e-bidat , or instant triple talaq. The judgments of Justices Rohinton F. Nariman and U.U. Lalit, which find the practice violative of the Indian Constitution, have been widely praised, while that of Chief Justice J.S. Khehar and Justice Abdul Nazeer, holding that personal laws are protected from constitutional scrutiny, has been criticised.

However, the judgement of Justice Kurian Joseph, who cast the deciding vote making talaq-e-bidat illegal, has caused uneasiness because he bases his decision on the argument that the practice of talaq is violative of the Shariat rather than the Constitution. Commentators have expressed concern at this failure to uphold individual rights, condemned it for lack of clarity, or been dismayed at judicial theology. Such a reading does great disservice to the brave petitioners in the case, the careful judgment of Justice Joseph and to the cause of pluralism in a democracy.

Shayara Bano in her petition prays that talaq-e-bidat be held illegal, ineffective and having no force in law. She specifically does not seek it to be declared as unconstitutional. In fact, she argues that if one finds the practice to be illegal, the question of the constitutionality of Muslim Personal Law does not arise and cites precedents to say that if a case can be decided on other grounds, questions of constitutionality need not be addressed. This stand was supported by the intervening petition of the Bharatiya Muslim Mahila Andolan (BMMA).

In their submission the petitioners draw upon a range of authorities to support their proposition that this specific form of divorce in one sitting is illegal and is not recognised by the Quran. They argue that it is a spiritual offence to the Quran, which requires time to be given for reconsideration and reconciliation in a talaq.

It is worth noting that the authorities cited include the Quran and the hadiths, the works of leading Islamic scholars such as Maulana Muhammad Ali, leading secular academics like Prof. Tahir Mahmood, Sunnis, Shias and Dawoodi Bohra scholars, judgments from Indian High Courts and the work done by the All India Muslim Women’s Personal Law Board. This recognition of religious, secular and female interpretative authority is itself a radical act, challenging both the ability of the state or a religious leader to be the sole spokesman for Islamic law.

In doing so, these women follow the footsteps of generations of Indian women who have been relentless in pursuit of rights, carving out spaces of freedom in a restrictive society and framing their claims in multiple ways. Mughal historians have shown how Hindu women who were denied property rights under customary law sought to appeal to Qazi courts to apply Shariat law to them to ensure their control over property. Since the early 20th century, Muslim women have been campaigning for reform of Muslim family law and were instrumental in mobilising support for the Dissolution of Muslim Marriages Act of 1939 and the Shariat Act of 1937.

Radical disobedience

The codification of Muslim law gave Muslim women the right to property and the right to sue for divorce almost two decades before their Hindu sisters won their rights. Article 2 of the Shariat Act of 1937, which holds that “the rule in questions affecting talaq will be Muslim personal law”, was brought in to specifically challenge Muslim communities that followed customary rules of succession and excluded women from inheritance.

The Dissolution of Muslim Marriages Act, 1939, the most far-reaching legislative change in Muslim law in South Asia, was the result of the actions of individual Muslim women fighting to leave unhappy marriages. In the absence of a provision where Hanafi women could ask for a divorce, several women became apostates from Islam for a brief period, dissolving all legal bonds. Alarmed by this act of radical disobedience, and recognising the miseries that women were subjected to, both ulema and secular leaders worked together with women’s groups, using a little used principle called takkayur , or borrowing, and introduced a law that would allow secular judges to grant Muslim women a divorce on various grounds well before their Hindu or Christian counterparts got such rights. Both pieces of legislation established precedents for an elected multireligious legislatures deciding questions of Muslim law.

The lead-up to Partition and the marginalisation of Muslims in Indian political life slowed the pace of reform and made Muslim women make difficult choices. Could they continue to be publicly critical of their community leaders when the community itself faced marginalisation?

Begum Sharifa Hamid Ali, a founding member of the Indian women’s movement, exemplified this dilemma. In 1938, she found herself to be the sole Muslim woman in the National Planning Committee for Women, which was tasked with reviewing the status of women and suggesting measures for equality in free India. Increasingly frustrated when she attempted to explain Muslim law to her colleagues and finding them “ignorant of Islam, its law and practice”, she penned a note of protest which the Chairwoman dismissed saying “Begum Hamid Ali was thinking on communal lines”. Begum Hamid Ali, aware of the dangers posed by majoritarian law-making, sought solutions within Islamic law and commissioned A.A. Fyzee to write a model nikahnama (marriage contract) which sought to amplify women’s matrimonial rights, limiting polygamy and triple talaq.

The Pakistan experience

The breakthrough family law reforms in Pakistan were also the result of women’s organisations actively lobbying the state and utilising the resources within Muslim law. Under pressure from women’s groups, President Ayub Khan appointed the Commission on Marriage and Family Laws in 1955. Comprising three men, three women and one Muslim scholar, this commission also issued thousands of questionnaires in Bengali, Urdu and English which sought the opinion of the common people on legal changes. In their report, the six laypersons in the commission made it clear that they were not proposing changes to the Shariat but only to Fiqh , which deals with situations not anticipated in the Quran or Sunnah.

Anticipating the ferocious dissent of its sole theologian member, the commission argued that “law is ultimately related to life experiences which are not the monopoly of theologians alone”. It then went on recommend wide-ranging changes in Muslim family law, including the declaration of “tala-i-bedat” as un-Islamic and requiring all divorces to be registered before the court. By 1955, Egypt, Syria, Iraq, Sudan, Jordan and Morocco had all abolished “talaq-e-bidat”, and Tunisia, Algeria, Iraq, Iran, Malaysia and Singapore required judicial intervention in cases of Muslim divorce.

The commission was reflecting a consensus in the global Muslim world. The commission’s recommendations were, however, watered down in the final Muslim Family Law Ordinance in the face of religious opposition. While the power of triple talaq remained with the husband, it could only be exercised through a judicial process and an arbitration council. The commission’s restriction on polygamy and leeway for adoption were more successful and continue to be expanded upon judicially in Pakistan and Bangladesh. The framing of these changes within the logic and language of Muslim personal law meant that they remained in force even under General Zia-ul-Huq’s period of Islamisation of the state.

Justice Kurian Joseph does not, as is popularly believed, state that Shariat law, in any form, cannot be tested against the Constitution. He holds that talaq-e-bidat is not part of the Shariat, and therefore cannot be tested for constitutionality the way that the codified Shariat Act can. He makes the narrow case that the practice itself is illegal and follows through almost all the precedents cited by the parties against the un-Islamic nature of the practice. He rejects the argument of the All India Muslim Personal Law Board that the long history of the practice can validate the religious character of triple talaq. He is also scathing of Chief Justice Khehar’s request to Parliament to legislate, stating that the business of the court is to resolve the issue at hand.

Shadan Farasat and Warisha Farasat, advocates for the BMMA, have argued that future changes in Muslim personal law will not come through courts or an “uniform civil code” but through a political process that modernises Muslim law, keeping in mind global developments and bringing in all the stakeholders, particularly women.

When prioritising constitutional rights, Justices Nariman and Lalit found equality to outweigh religious freedom; Justices Khehar and Nazeer held that religious practices were protected from equality, but Justice Joseph attempted to reconcile both, an endeavour the petitioners actively sought.

How does the state bring about change in social circumstances? It can impose it by fiat, and it is necessary to do so when a disempowered group finds it impossible to overcome majority prejudice. However, where it is possible, it should empower the possibility of change from within, allowing Muslim women in India to enjoy both their right to equality and their right to faith under the Indian Constitution.

Justice Kurian Joseph’s decision, by respecting the authority of both religious and constitutional law, preserves the legitimacy of the forum. The power of constitutional courts and constitutionalism in India is what Pratap Bhanu Mehta has described as its promise of uncertainty. Both the state and the Muslim Personal Law Board appear before it as parties and recognise its authority. Muslim family law is shaped in the shadow of the Constitution. It is common, especially in family law, for social practice to be at wide divergence from state law, as evidenced by the existence of bigamy among Hindus and Christians. It is important for those who want equality, but not necessarily uniformity, to keep secular and religious institutions in conversation.

The landscape of personal laws today is a very different one from the 1980s. Old religious authorities are being challenged and state institutions are being pressured to respond by diverse women’s groups. In the coming year, the Supreme Court will decide on whether Parsi women can pass on their religion to their children, whether Hindu women can enter the Sabarimala temple and Muslim women access Haji Ali’s dargah. It is important to recognise that in all these cases, the women are not setting up secular identities against religious identities but are seeking to be equal participants in their faith, and one hopes the Supreme Court will continue to listen to the petitioners with the dexterousness and sensitivity that Justice has shown.

Rohit De is a lawyer and a historian at Yale University. His book The People’s Constitution: Litigious Citizens and the Making of India’s Democracy will be published in 2018. He is grateful to Shadan Farasat for his insights on the case.

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