On Thursday, the Allahabad High Court delivered another judgment remarking on triple talaq, in a spate of what is going to be a never ending spiral of opinions on divorce under Muslim Personal Law. In Hina and Anr versus State of Uttar Pradesh and Ors (“Hina”) — the pertinent judgment that is under consideration, the court took up the opportunity to provide its unwarranted opinion on triple talaq and sympathised with 'Muslim wives suffering tyranny' of their personal laws. Even as we wonder what brought about this sudden surge of sympathy by the court in a petition that was merely seeking a direction of the court to ensure 'safety and security' of the petitioners, it appears to be a good opportunity to reflect on the prevailing over-enthusiasm in conflating issues of gender equality with the rigidity of personal laws of select religions.
The issue for consideration in the petition was limited. In Hina, the first petitioner was married to the second petitioner after divorcing his first wife in accordance with the requirements of Muslim Personal Law, by pronouncing triple talaq. The petitioners alleged that on account of such divorce, and the subsequent marriage of the petitioners, they were now harassed by the respondent police and the third respondent, who was the mother of the first wife. The court dismissed the petition. Even as it refused to decide on the question of constitutionality of triple talaq — consequently, on the validity of the marriage between petitioners — it went on an unrelated tangent to make observations on range of issues, beginning with cruelty of personal laws and ending in the patriarchy's oppression of women. Unfortunately, the court was not dealing with the question of the validity of the marriage between the petitioners or the divorce of the first petitioner directly or incidentally. Thus, this judgment was no legitimate space for the discussion of merits and demerits of Muslim Personal Law. Further, assuming that the high court could not forego the temptation to look into triple talaq, there was no productive engagement with useful precedents on the point either.
The bare text of the judgment and the rapidity with which the media picked up the decision, paying threadbare attention to the substantive issues, leaves one perplexed. To clarify an essential fact at the outset, the Allahabad High Court did not declare triple talaq unconstitutional. On the contrary, it explicitly desisted from taking up the question of constitutionality as the matter was before the Supreme Court. It must be recalled that in a recent petition by a West Bengal-based Muslim woman before the Supreme Court, she, along with several other petitioners, contended that certain practices of divorce under Muslim law are unconstitutional as they violate the Fundamental Rights guaranteed under the Constitution and amount to gender discrimination.
The judgment in Hina draws our attention to several disconcerting truths about intemperate judicial opinions and reckless media reporting of legal issues. In this decision, the court declined relief to the petitioners and dismissed the petition. All else in the text of the judgment was irrelevant and completely besides the point. However, all day long, the digital media was bombarded with headlines that the Allahabad High Court had in fact declared triple talaq to be unconstitutional.
While some of us did patiently wait for a copy of the order, most others took this opportunity to revisit the problematic and hackneyed idea of Muslim Personal Law being particularly rigid and oppressive to women.
Several impassioned arguments for a Uniform Civil Code followed in tow as usual. Admittedly, the judicial formulation of the issue was no different. Even though the operative part of the decision was limited to a sentence, the judge invoked the amorphous entity of 'judicial conscience' that could not stand the 'monstrosity' of triple talaq. Apart from leaving the reader befuddled as to what constitutes a 'judicial conscience' and where in the Constitution one can locate the etymology of the term, the observations by the court on, gender, religion based discrimination and remit of personal laws does little to correct the concerns raised in the decision. The most it does, is to grudgingly acknowledge that “(P)ersonal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the constitution.”
This judgment truly is neither about religion nor uniform code; nor does it accurately examine the deep rooted prejudices and gender discrimination prevailing in our laws. Muslim Personal Law has been a popular fall guy for most 'progressive judgments' since Shah Bano in 1986. Even as scant attempts have been made to reform Muslim law on marriage and divorce internally, or the general social and structural changes with respect to gender more generically, it so appears that the courts have taken every opportunity to make tangential observations on the unreasonable nature of personal laws.
It is surprising that there is no direct engagement with constitutional arguments pivoted around Article 25 that guarantees religious freedom or Article 15 that prohibits discrimination based on sex. Just as legality of personal laws are buried in chaotic judicial opinions, the origins of these laws, the embedded diversity and host of other factors, providing them context and tempering their realities, are getting increasingly sidelined. For instance, this author cannot recall the last time she had an opportunity to hear a court provide its guided opinion on types of triple talaq, situations in which they are effected, the strict dicta before and during pronouncement of triple talaq, the mandatory presence of witnesses, observance of rituals as prescribed in Hedaya et al.
One can safely assume that this is not the first time triple talaq has come before the courts for judicial adjudication. Nor is this going to be the last.
There is no novelty in either the arguments made against triple talaq or those made for leaving the personal laws untouched. The impossibility of challenging these opinions on their legal reasoning, or the lack of it, is in itself a testimony for the painfully cliched nature of debates around constitutionality of triple talaq and the reach of personal laws. This debate is not about gender oppression. If that were the case, then there are ample provisions within personal laws of other religions and even within secular laws, like the Indian Penal Code, for the courts to opine on.
Further, this is not even about Uniform Civil Code because personal laws of every religion are as diverse and unfathomable as the Muslim law. Merely willing it away and putting a uniform code in place will not do away with centuries of structural oppression faced by women. Instead, an important take away lesson would be that there is an immediate need for both the judiciary and the media, reporting judgments, to be self-reflexive and self-restrained on their engagement with triple talaq. As long as we have a Supreme Court telling us when and how to sing our National Anthem and other high courts deciding dress codes for women entering temples, we will not need any more amusing reflections from the altars of justice.
The author is a research fellow at the Vidhi Centre for Legal Policy, New Delhi. The views expressed are personal.
Updated Date: Dec 09, 2016 14:08 PM