By Faizan Mustafa
May 30, 2017
The marathon arguments on the subject of triple Talaq before the five-judge bench of the Supreme Court have ended. While most Muslim women petitioners wanted nothing more than just implementation of the Quranic procedure of divorce and an end to arbitrary and instant divorce, the Attorney General said that the government could bring in a comprehensive law should the court strike down triple Talaq.
Should the court or the government compel Muslim women to mandatorily use the expensive, slow and formal judicial system to get a divorce? Should the wider and more liberal right of divorce of Muslim women be taken away for the sake of judicial oversight of divorces?
It is wrong to say that Muslim women can get a divorce only through courts under the Dissolution of Muslim Marriages Act, 1939. The Act in no way takes away a Muslim woman’s right to divorce outside the formal judicial system. Since the Act was to permit courts to extend the benefit of liberal provision of Maliki and Shafii schools to Hanafis, it cannot be said to take away women’s rights under the Maliki and Shafii schools. The Act was passed because British courts were hesitant to apply Maliki law where parties were Hanafis.
A Study and Options
A Muslim wife is certainly entitled to divorce her husband without taking recourse to the 1939 Act. What are the options available to a Muslim woman to dissolve her marriage?
First, Muslim women can seek divorce through a court under the law of Fasakh (annulment of marriage) on certain grounds — i.e. the whereabouts of her husband are not known for four years; non-payment of maintenance for two years; imprisonment of her husband for seven years; non-performance of marital obligations; impotency; insanity or suffering from diseases such as leprosy or venereal diseases; cruelty which includes the husband taking on a second wife.
My study of 74 Darul Qaza (arbitration councils) run by the Muslim Personal Law Board too reveals that 69.70% of women resort to this outside the court forum to resolve their disputes. Out of 74 Darul Qaza, in 90% of cases women approached as many as 49 Darul Qaza for annulment of marriage. In 16 Darul Qaza, 70% women came for this purpose.
Second, a Muslim woman is entitled to Talaq-e-Tafwid, i.e. delegated divorce which gives her an identical right to divorce on a par with men. The Orissa Mohammedan Marriage & Divorce Registration Act, 1949 does provide for the registration of such a divorce. In Moharam Ali v. Ayesha Khatun (1915), the Calcutta High Court upheld this kind of agreement under which wife was authorised to divorce her husband in case he married any other woman.
Khula, the third type of divorce, is the unconditional and absolute right of the Muslim wife, is on a par with the husband’s right to Talaq, and is not subject to his consent. Several State laws such as in Odisha, Bihar, Assam and West Bengal do provide for the registration of Khula. It is wrong to presume that she must necessarily surrender her Mehar (dower) for getting Khula because the Koran discourages men to take back the gifts given to their wives and the dower is indeed a free gift. The moment she decides to divorce her husband under Khula, the husband has no right to oppose it. My study showed that more than 70% women get Khula through Darul Qaza.
Fourth, a Muslim wife is also entitled to divorce with mutual consent (Mubaraat) which too is mentioned as a distinct form of divorce in the Shariat Act of 1937. Unlike Khula, here both parties agree to dissolve their marriage outside court.
Fifth, Muslim law goes out of its way to protect the character of the wife. Thus when the husband indulges in slandering his wife’s character by alleging adultery and has no proof of it, she is entitled to divorce. This divorce, at the instance of wife, is called lian and is specifically mentioned as a distinct form of divorce in the Shariat Act, 1937.
Sixth, if a Muslim wife was married by her guardian when she was a child, on attaining maturity, she has a right to walk out of this marriage under doctrine of Khyar-ul-Bulugh (option at puberty).
Thus, Muslim women are not without remedy if they want to put an end to their marital ties. Let our courts not be further burdened with the additional load of Muslim divorces. Let Muslim women continue to use these liberal out-of-court divorce provisions. Alternative methods of dispute resolution such as arbitration and mediation are an integral part of our legal system.
Faizan Mustafa is Vice-Chancellor, NALSAR University of Law, Hyderabad