What is “egalitarian” is more about who is in power or who has the upper hand in social discourse

The most important thing when considering the issue of personal laws is not to get carried away with the idea that you are doing a service to women in the Muslim community by pushing for the replacement of Muslim law with a regime. more “egalitarian” marriage and divorce. . What is considered more egalitarian is nothing more than a function of who is in power or who has the upper hand in social discourse. And our national priorities are no more than a reflection of mainstream politics.

Triple instant talaq or talaq-e-bidat was declared illegal by the Supreme Court in 2017 in Shayra Bano vs India Union. To understand our legislative and judicial priorities, it should be kept in mind that this was not a matter originally brought to court by a Muslim woman aggrieved by the practice. This case began in 2015 with a bench of judges Anil Dave and Adarsh ​​Goel hearing the case from Prakash vs. Phulvati it was a challenge to equal co-ownership rights for Hindu women introduced by the Congress government in 2005. Arguments in the case devolved into nonsense about Muslim law, a favorite subject of the Modi government then recently came to power. At the end of the judgment, the panel made entirely independent observations beginning with “an important issue of sex discrimination which, although not directly implicated in this appeal, has been raised by some of the eminent lawyers for the parties concerning the rights of Muslim women”. ”. The court then ordered the registration suo moto (i.e. on its own motion) of a PIL and presented it to the Chief Justice for benching. The case was originally registered as Suo Moto Write Petition No. 2 of 2015, but once he came to court, as usual with such questions, a variety of individuals rushed to court for various reasons, the first of which was by Shayra Bano, who has lent his name to the story.

One must also pause to wonder why this case concerning a form of divorce practiced for more than 1,400 years acquired such urgency that it immediately came to be listed and heard during the summer holidays. To put it into perspective, two constitution bench cases were pressed for an urgent hearing that summer. One concerned the legality of the Assam Accord and the legal status of refugees who came to India after escaping persecution in Bangladesh, and involved the question of the rights they acquired by residing in India, in some cases for 40 to 50 years. The other was for instant triple talaq. The talaq case was brought before a Constitution bench which sat especially during the summer holidays, while the refugee case has so far not seen the light of day. And yet, the NRC exercise was conducted in Assam by the Supreme Court under its own supervision and the controversial CAA was enacted, while the legal basis for both remains to be determined.

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We also have to wonder why, after the Supreme Court declared that the triple talaq does not have the effect of breaking the marital bond, Parliament still saw fit to set aside all other work and pass a law that criminalizes the repetition of the word talaq three times by a husband, which in law no longer has effect. And it’s not just judicial and legislative priorities that change with shifts in the power structure. The very understanding of what is “egalitarian” itself is undergoing change. This is most clearly seen by reading the debates of the Central Legislative Assembly at the time of the passing of the Muslim Personal Law Enforcement (Shariah) Act 1937 and comparing it to the debates of the Constituent Assembly on the guiding principle now contained in Section 44 of our Constitution, which states that the State shall strive for a uniform civil code throughout India.

Why does our legal morality treat marriage between two persons as an institution of social welfare in the continuity of which society as a whole has an interest?

Muslims in India who had converted to other religions continued to be governed by practices regarding inheritance, marriage, divorce, etc. which applied to them before their conversion, and the courts applied these practices as “customary law”. The 1937 law was the result of a campaign by Muslim women’s organizations, demanding that they be freed from these degrading customary laws, aka Hindu law, and that Muslim personal laws apply to them.

Divorce was not allowed at the time by Hindu law. A widow acquired no rights to her deceased husband’s property and merely gained the right to reside in the property during his lifetime, a right which she would lose upon remarrying. Since the law only affected Muslims, it was proposed by Muslim Members of the Legislative Assembly and only they had the right to vote (a practice that makes so much sense if you think about it). The debates reflect pride in the egalitarian nature of Muslim law and reflect some condescension expressed by Muslim members to the regressive nature of Hindu law. Abdul Qaiyum, a lawyer and member of the Assembly of the North West Frontier Province, said: “I submit that it is high time we got rid of this dead hand of custom… I hope, Sir, that the day is not far away- when other communities will also bring similar measures and in India women and men will be treated equally in the eyes of the law in matters of property, political rights , social rights and in all other respects. GV Deshmukh, a Bombay lawmaker and women’s rights advocate, speaking in support of the bill, expressed hope that Hindu society would follow the example set by the Muslim community and seek to reform its personal laws.

When arguments are more forward-looking, Muslims are said to be unwilling to adapt to changing times and stand in the way of progress.

Compare that just a decade later with the debates of the same Assembly, now sitting as the Constituent Assembly in 1948. Muslim members of the Constituent Assembly opposed the inclusion of a uniform civil code as a guiding principle , expressing fear that the “tyranny of the majority” will trample on the rights of minorities. The arguments put forward in support of the guiding principle sometimes degenerate to the level of “Do Muslim countries place the personal rights of each minority above civil rights? So why should we? and ‘Where were the rights of minorities when the Shariah was thrust down the throats of communities converted from the Hindu faith who wanted to stick to their old customs?’ You will notice that the latter is the exact reverse of what was the narrative when it was done in 1937. When the arguments are more forward looking, Muslims are depicted as being unwilling to adapt to changing times and hindering progress. Taunts are also reversed. Ever since the Constituent Assembly, Muslims have been accused of standing in the way of nation-building, with KM Munshi quipping: “There is an important consideration which we must keep in mind – and I want my Muslim friends realize it. – that the sooner we forget this isolationist view of life, the better for the country.

What changed between 1937 and 1948? One thing that certainly did not change was the personal law of Muslims or Hindus. The Hindu Marriage Act, reforming Hindu law, was not passed until 1956, and Hindus at that time were still ruled by that “dead hand of custom” discussed earlier. What has changed, however, is the negotiating position. The partition led to a rise in communal feeling and alienation from the Muslims who chose to remain. The Muslims lost their numerical strength as well as most of their leaders, and those who remained acquired a certain distrust. Instead of forward-looking leaders who were proud of their religious beliefs, spoke out about women’s rights and invited other communities to follow their lead in empowering women, we see a community and its leaders guiltily retreating into their shell, pursued by taunts directed at their belief system.

Today, talaq-e-hasan and talaq-e-ahsan, other forms of talaq which involve notice to the wife and the possibility of mediation and reconciliation, are being reviewed by the Supreme Court to determine whether unilateral divorce is contrary to our constitutional philosophy. We need to consider why the divorce system under the Hindu Marriage Act 1956 or the Special Marriage Act 1954 is more egalitarian, where a person stuck in a marriage they no longer wish to be in must prove their cruelty, infidelity or impotence. in a long legal battle before they can get rid of the relationship? Under Muslim law, women have the right to unilateral dissolution of marriage by khula and men through talak. Isn’t this an infinitely more mature system, which recognizes that once a party is done with a relationship, nothing survives, and all that remains is to give them a dignified burial?

In our country, maintenance and alimony are governed by article 125 of the Code of Criminal Procedure of 1973, a “secular” law applicable to all, and the custody of children is decided by the courts according to “the ‘best interest of the child’. A divorced woman has the right to be offered residential accommodation of the same comfort as she enjoyed during marriage under the Domestic Violence Act 2005. So why does our legal morality treat marriage between two people as some sort of social welfare institution, in keeping society as a whole has a stake? Is it not incongruous that the right to choose to be in a relationship has been granted by our legal system to same-sex couples, but that the right to choose not to be in a relationship is still denied to married heterosexuals?

The truth is that our legal morality still carries the notion that saptapadi (rite during Hindu marriage) binds two people in a holy union for seven lifetimes and we are not willing to allow this union to be severed unless evidence is presented before a judge appointed by us proving extraordinary circumstances for an exception is made. The Islamic idea of ​​marriage as a contractual arrangement between two consenting partners that lasts as long as the will lasts and can end unilaterally at the instigation of either without giving a reason, is abhorrent to the Hindu society because it offends their religious morality. This is not a case where Hindu law is more egalitarian. It’s just a case of more Hindus and Hindutva being an increasingly aggressive political ideology.

(This appeared in the print edition as “The Divorce Debacle”)

(The opinions expressed are personal)


Nizam Pasha is a Delhi-based lawyer

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