By Faizan Mustafa
May 11, 2017
A man issued a matrimonial advertisement seeking an extremely beautiful bride who should be tall, highly educated and from a reputed family. North Indians will be preferred, girls from the North-East and South India need not respond, it said. Hundreds of profiles were received, but he married someone who had not even responded and was an illiterate, ugly-looking, short and poor girl, whose father was from the North-East and mother from Madras. A PIL is filed in the apex court, challenging the constitutionality of this marriage with prayers for the annulment of a marriage which was based on the arbitrary and instant decision of this man. The PIL seeks the declaration of such marriages as a punishable crime.
The triple divorce case challenging its constitutionality is somewhat similar to the above situation, particularly in terms of the remedy being sought. The concept of constitutionality is intimately related to state action. The constitutionality of a law can be tested only on two grounds. First, on the issue of the competence of the legislature. Secondly, the law in question should not be in contravention of fundamental rights. It is difficult to say to what extent we can strike down private, personal decisions between husband and wife as unconstitutional.
Article 15 permits discrimination on the basis of religion, race and caste when it comes to the use of private wells, tanks and bathing Ghats, which are not maintained out of state funds or are not dedicated to the general public. Thus, a Brahmin may exclude Dalits from his private well and we cannot challenge the constitutionality of his discriminatory private action.
What is the effect of something being declared unconstitutional? What can one say of private citizens; even governments do not care about things being held unconstitutional by the courts. Re-promulgation of ordinances has been held by the apex court to be not only unconstitutional but a fraud on the Constitution, yet the Narendra Modi government has re-promulgated land and enemy property ordinances. Men will continue to give triple divorce and women willing to continue in such bad relationships will be able to get a verdict of non-dissolution of marriage only after years of costly and time-consuming legal battles.
A husband and wife cannot be and should not be forced to love each other. Holding a husband liable for maintenance is one thing but compelling him to continue in marriage against his will is another. In most cases, what to say of husbands, even wives who have been given triple divorce would not be willing to live with such husbands; yet, the courts will force them too to suffer a failed marriage. Polygamy is a serious crime for Hindus, yet many Hindus do practice bigamy. Thus, outlawing polygamy too is not a pragmatic solution.
Muslim marriage is, after all, a civil contract, though a sacrosanct one. On Tuesday, the Allahabad High Court made a few unnecessary observations when the apex court is seized of the matter. In any case, the court is wrong in saying that marriage being a contract cannot be unilaterally terminated. All contracts can be terminated unilaterally; of course, one has to pay damages as per the contractual terms.
The marriage contract or Nikahnama (prenuptial contracts) is the easy solution to the problems at hand — polygamy, triple divorce and Halala. The historian Shireen Moosvi has collected several marriage contracts of the Mughal period which demonstrate a uniform pattern of the conditions of Nikahnama. These bar domestic violence, prohibit the husband from marrying another woman and bar him from leaving the wife for long periods. Any violation of any of these conditions entitled the wife to divorce the husband or get the marriage annulled. Most marriage contracts also included the stringent condition that prohibited a husband from keeping a slave girl. But, if the husband did keep a slave girl, the wife had the right to take her away, or sell her and keep the proceeds.
These conditions were so common that there were Nikahnamas which simply mention that marriage is subject to the four well-known conditions. The Supreme Court may make inclusion of the first three conditions mentioned above, mandatory in every Nikahnama. Since slavery is no longer valid, the prohibition of instant triple divorce could be the fourth condition.
Such contracts were routinely enforced by British judges in India though under classical British law, pre-nuptial agreements were considered against public policy. The Poonoo Bibi v. Puex Push case (1875) gives us a glimpse of progressive marriage contracts. In this case, at the time of marriage the husband had said: “I shall never give trouble in feeding and clothing you; I shall make over to you and nobody else whatever I shall draw from employment; I shall never exercise any violence on you; I shall not take you away from your home; I shall not marry or make Nikah without your permission; I shall do nothing without your permission; If I do anything without your permission, you will be at liberty to divorce me and realise from me the amount of dower forthwith and this Nikah will then be null and void.” But Poono was deserted. She got the contract enforced in spite of her husband’s assertion that the contract reduced him to the status of a slave despite the abolition of slavery, and so it was void.
Let the prohibition on polygamy and triple divorce be included in the Nikahnama and once triple divorce goes, Halala too will automatically go as in revocable divorces, parties can remarry without Halala.
Faizan Mustafa is Vice-Chancellor, NALSAR University of Law, Hyderabad