There are several provisions under Muslim personal law that discriminate against women and do not give them the rights women of other religions enjoy.
The BJP has stirred a hornet’s nest by reigniting the debate on a uniform civil code (UCC) in India. The government has requested the Law Commission to examine the issue and make relevant recommendations. On the other hand, the practices of triple talaq, halala (bar against remarrying a former husband unless you have married another man in between) and polygamy have been challenged before the Supreme Court in Shayara Bano vs Union of India, with the demand that they be deemed unconstitutional. The All India Muslim Personal Law Board (AIMPLB) has opposed the implementation of a UCC in an affidavit filed before the Supreme Court.
Amidst all the hoopla surrounding the UCC, many Muslim women in India remain unsure on which side they stand. On the one hand, Muslim personal law ordains certain practices that have proved to be derogatory for the rights of women; on the other hand, the ruling party has not been able to instil confidence in India’s Muslim population. However, one thing is clear: gender justice cannot be achieved through personal laws, especially in the case of Muslim women. Muslim personal law, as followed in India, is inherently biased against women and many times leads to their exploitation. Moreover, because of the application of personal law in the matters of marriage, divorce, maintenance, inheritance and the like, Muslim women are precluded from enjoying the benefits accrued to them through secular law, which their counterparts from other religious communities enjoy.
The best example to understand the predicament that surrounds the rights of women under Muslim personal law is maintenance. The Shah Bano case and its aftermath very aptly illustrated the problem arising due to the lack of a UCC in India. The question before the court in Shah Bano was whether a Muslim woman is entitled to claim maintenance under section 125 of the Criminal Penal Code (or secular law) from her former husband even after the period of iddat has expired. The husband claimed that he did not need to pay maintenance any longer as Muslim law stipulates that maintenance must only be paid during the period of iddat and not beyond it. The court, taking a secular view, allowed Shah Bano to claim maintenance even after this period.
The Shah Bano judgment was seen as a blow to Muslim personal law and, under pressure from the religious orthodoxy, the government was forced to pass the Muslim Woman (Protection of Rights on Divorce) Act, 1986. The Act specifies that a reasonable amount of maintenance is to be paid to a divorced wife within the iddat period by her former husband. The validity of this Act was challenged before the Supreme Court in Danial Latifi. The court, though upholding the validity of the Act, held that the duty of a Muslim man to his divorced wife is not confined to the iddat period and that a reasonable and fair provision extending beyond that must be made by the former husband within the iddat period.
Had the Supreme Court not acted as a saviour in cases where former husbands refused to pay maintenance, thousands of Muslim women would have been divorced and forced to live without any support. It is only due to the decision of the Supreme Court in Danial Latifi that Muslim women are able to enjoy the fruits of Section 125 of the Criminal Penal Code in the same manner that Hindu and Christian women do.
Although the question of maintenance to Muslim women has been settled by the Supreme Court, the judicial decisions came through long-drawn litigation process, cumbersome legislations and political chaos. From Shah Bano to Danial Latifi, it took 15 years for Muslim women to get where they are today. Things would have been much easier for them had a UCC been in place.
The archaic practice of triple talaq is not only anti-women, it is also anti-Islam. It has already been abrogated in more than 20 countries, including Pakistan and Bangladesh. A triple talaq divorce is valid even if the husband says “talaq” three times on the phone, in a letter or even on WhatsApp.
The AIMPLB has, time and again, opposed the abolition of triple talaq in India by arguing that it is based on sharia law. However, the Quran does not mention triple talaq as a method for divorce. According to the Quran, the correct way to get a divorce is to pronounce it three times on three different occasions, following a three-month waiting period wherein there is ample opportunity for the couple to reconcile. Another method the Quran prescribes for talaq is to pronounce it during two successive periods of purity (tuhr), during which the talaq remains revocable. If the talaq is not revoked and is pronounced a third time, it becomes irrevocable.
Even if the AIMPLB agrees to abolish triple talaq and replace it with the Quranic form of talaq described above, the right to talaq as well as the right to revoke it stays with the husband. Some Islamic scholars argue that Islam also gives a woman the right to divorce her husband in the form of khula (a wife separating from her husband after returning a payment). However, khula and talaq cannot be equated because a woman can only seek khula from her husband at the cost of returning her mehr (dower) to him.
Halala is the procedure prescribed for remarrying a divorced spouse. It entails the (former) wife marrying another man, consummating the marriage and subsequently getting a divorce using the same elaborate procedure. Only after that is she eligible to marry her first husband again. While Muslim scholars rightly argue that halala should not be seen as a procedure to legalise the reunion, problems regarding the validity of a marriage arise in case a husband remarries his wife without observing halala.
This issue came before the Bombay high court when singer Adnan Sami challenged the validity of his marriage. He married his wife in 2001, divorced her in 2004 and then remarried her in 2007. Since halala was not performed by the parties, the family court held the second marriage to be invalid. The Bombay high court, however, held that a wife is not obliged to perform halala before remarrying the same husband if she is divorced by khula or talaq-e-ahsan (the prescribed mode under the Quran) methods. Halala is mandatory only if the couple divorced using triple talaq, the court said.
Imagine the plight of a woman who has been divorced by her husband using triple talaq in a fit of anger or in a drunken state. They both want to be married again. The wife has two choices – she can either marry another man, consummate the marriage and hope that the second husband also divorces her so that she can remarry her first husband, or she can marry the first husband without performing halala (against the tenets of Islam) and lose all her matrimonial rights in the marriage because the validity of the second marriage will become questionable. She will find no court to enforce her matrimonial rights because as soon as tries, her husband will claim that the second marriage between them was void.
A UCC is urgently needed to do away with the practice of halala, which violates the basic rights and dignity of a woman.
There are various reasons given by Muslim scholars to justify polygamy. The Quran is often cited to show that polygamy is allowed only under certain special circumstances, that it is not a rule but only an exception and that Islam actually limited the number of wives a man can have to four. But the focus of this debate shouldn’t be the limits Islam puts on polygamy; it should be whether polygamy as a practice is at all acceptable in the 21st century. If the wife of a Hindu or a Christian man has the right to bring criminal charges against her husband for bigamy, why should a Muslim wife be deprived of this right?
An oft-cited argument to justify polygamy is that if a woman is ill or unable to bear children, her husband can marry another woman to procreate instead of divorcing her and sending her away. However, given the progress society has made in the field of medical sciences and the number of options available for childless couples, this argument has become increasingly redundant.
Contrary to popular belief, a UCC will not take away all the personal entitlements of an Indian Muslim; it will only make those entitlements unenforceable in a court of law. Parties will still be free to practice their religion as they like, though the legal enforceability attached to these practices will be extinguished. For example, a divorced Muslim woman can marry anyone after her divorce, and if her second husband also divorces her, she is free to remarry her first husband. The law does not limit a woman’s choice – she is free to practice halala if that is what she wants. However, if a wife chooses not to do so and still remarries her first husband, he will not be allowed to claim before any court that such the marriage is void because of the non-performance of halala.
Of course it is true that a UCC has its own pros and cons, and that political parties promoting a UCC may have ulterior motives. But for Muslim women, a UCC will definitely be a boon – it will bring more gender equality to personal laws and expand their rights when it comes to marriage, divorce, inheritance, guardianship and other personal matters.
Bushra Tariq is a research scholar at South Asian University, New Delhi.