By Faizan Mustafa
28 April 2017
The All India Muslim Personal Law Board has, in a recent meeting, decided on a code of conduct for divorce. In a major climb-down, it has conceded ground and resolved in favour of "one divorce." Therefore, instant triple divorce will no more be an option with a Muslim male.
GOING by the discussions on television channels it seems all Muslim women are getting instant triple divorce. But then facts are just opposite and speak for themselves. As per the 2011 Census, only 0.49 per cent Muslim women were divorcees and all of them have not been given triple divorce. Though fatwas are nothing more than opinions and do not have any legal sanctity yet they do give us some indication about the legal problems on which Muslims seek opinion of the clergy.
To find out prevalence of triple divorce, this author collected data from Darul Iftaa (institutions which issue Fatwas). The data from ten states revealed that that in last one year 340,206 Fatwas were sought. Of which only 6.50 per cent Fatwas were asked about triple divorce. The Supreme Court had refused to ban Darul Qaza (Sharia courts) rejecting the plea of them being parallel judicial forum. The apex court had rightly termed them as mere arbitration councils. Data from 33 such councils collected by this author too reveals that these councils never grant triple divorce and divorce is permitted only through one pronouncement preceded by efforts of reconciliation through arbitration. Such institutions are mostly used by the Muslim women for either getting divorce or annulment or cancellation of marriage as getting settlements from such forums is speedier and cost-effective.
Similarly, a wrong impression has been created that most Muslim women are getting triple divorces through phone, email and via SMS. Even according to Bhartiya Muslim Mahila Andolan’s (BMAA) case study on triple divorce only one divorce out of 117 was given in this manner. As per BMMA's own findings, only 0.2 per cent got divorces on phone, just 0.6 per cent received divorce through email. Similarly, in another survey by BMMA, out of 521divorces, only one woman got triple divorce via SMS that is, only 0.19 per cent. Thus the problem is not as serious as is made out by the Narendra Modi and Yogi Adityanath governments.
The current case in the apex court was originally about the denial of inheritance right to Hindu women under the 2005 amendment. This lady had won the case against her brothers in the high court but she lost in the Supreme Court. At the end of judgment, strangely the bench of Justice Dave and Justice Goel ordered that Muslim law is discriminatory and ordered on its own the filing of Public Interest Litigation. Thus the current PIL by Shayra Bano to get triple divorce declared as unconstitutional.
The case has taken an interesting twist because her husband who had given her triple divorce has filed a case for the restitution of conjugal rights. It was she who had left the matrimonial home.
As per the current law laid down by the apex court in 2002, Muslim divorce has to be for a reasonable cause and must be preceded by efforts of reconciliation through arbitration. The Supreme Court has also held that three pronouncements will be counted as only one revocable divorce. Thus instant triple divorce no more dissolves marriage, except in cases of divorce by mutual consent and divorce at the initiative of the wife or exercise of right to divorce by her where such a right has been delegated to her by the husband at the time of marriage.
The position of All India Muslim Personal Board (AIMPB) on this issue has been quite regressive, rigid and unyielding. It has been consistently asserting that though instant triple divorce is undesirable and sinful yet nevertheless valid. It had the audacity to assert in the Supreme Court that if triple divorce is not permitted, husbands may kill their wives and therefore triple divorce is in the interests of wives. What is the reason of this inflexible stand? Law making is indeed a private enterprise in Islam. Jurists intervene between God and State. Muslim Personal Law is based on the interpretations given by various jurists. Since earlier jurists with the exceptions of few did opine that instant triple divorce does dissolve marriage, due to doctrine of Taqleed (imitation of earlier juristic view), Ulema of Hanafi school (followers of Abu Hanifa) of the Sunni sect who dominate board feel constrained by the views of early leaders of this school.
In this context, on 15-16 April, 2017, the unanimous decision of the AIMPLB therefore is a huge climb-down. The Board has softened its rigid stand and has issued detailed eight-step instructions on how divorce will henceforth take place among Indian Muslims. (See box)
Thus the Board has fully incorporated the elaborate process of divorce given in the Quran and has also complied with the law laid down by the Supreme Court in the Shamim Ara case. The result of this historic decision is that instant triple divorce will no more be an option with a Muslim male. The Indian media which has very low level of trustworthiness did not report this decision in the right perspective. It criticised the board for not punishing the person who will still give instant triple divorce. Television anchors at the top of their voice criticised that mere social boycott will not suffice.
The AIMPLB is, of course, an NGO with a huge following among Muslims. As many as 4.8 crore Muslims have given signed petitions endorsing the Board's position on Muslim Personal Law. These petitions have now been submitted to the Law Commission. Thus the Board's social boycott may work as deterrent on ground. Though this author is not in favour of the power of social boycott or ex-communication being given to either clergy or Khap Panchayats and opposes the apex court verdict on this issue.
As law stands today, the Supreme Court did uphold such a power about Bohra Muslims in the SyednaTahir Saifuddin case. Tankhiya or ex-communication among Sikhs too is widely practised. Even President Zail Singh was ex-communicated on the issue of Operation Blue Star. Only Parliament has the power to create new crimes and provide punishments for such crimes. Thus even the Supreme Court cannot punish people for giving triple divorce but Parliament can certainly do so.
Slow Process of Reform
Personal law being religious law cannot be reformed in one go. We started the process of Hindu Law Reform in 1941, with the appointment of Hindu Law Reform Committee. After several compromises with the Hindu right, the Hindu Code Bill could be passed in 1955 with bifurcation into three separate Bills. A Hindu daughter could be made a coparcener with a right to inherit ancestral property only in 2005. The reform process is not yet over even after 76 years. Thus we must appreciate the AIMPLB in taking the first positive step in the direction of reforms. I see some light at the end of tunnel.
The reform process will indeed be painfully slow. When reforms come from within, there will be greater acceptability of reforms. We must realise that if the people in the family and neighbours consider that divorce has taken place, mere declaration by the Supreme Court that it has not taken place would not drastically change the ground situation.
Law is not a great agent of social control and we must accept its limitations in bringing about social change. Things which society considers illegal, law on its own cannot easily make them legal. Similarly, what society considers legal, law cannot make illegal. Poor implementation of dowry laws is a case in point.
Moreover, at times the wife herself may believe that triple divorce has irrevocably dissolved her marriage. In the Masroor Ahmad case, the wife had filed the case of rape against the husband who continued to have sexual relations with her even after giving her triple divorce. Of course, the Delhi High Court held that since three pronouncements are to be counted as one, she continued to be his wife and thus there was no rape. It is disgusting to note that India still does not recognise marital rape as rape.
AIMPLB has a major role to play in internal law reforms. If religious leaders, Ulema and imams under the control of the Board proactively preach in their Friday sermons the correct way of divorce as per the latest resolution, triple divorce will die a natural death. Divorce should neither be too difficult nor too easy. In fact, if married life has become hell, there is no point in forcing incompatible partners to bear everyday torture. In number of cases of Hindu law, the Supreme Court had to use its extraordinary power of doing complete justice under Article 142 to permit divorce even prior to the end of the statutorily mandated period of separation.
The Eight-Step Code of Conduct for Talaq As Given By AIMPLB
Firstly, if there are differences between spouses, they will try to resolve them amicably by talking to each other in the spirit of forgiveness and accommodation. The resolution said that if there are shortcomings in one person, the other person should overlook them as there must be several good or plus points as well.
Secondly, if above conversation does not give desired results; there may be temporary withdrawal of the company of the spouse while continuing to live in the same house.
Thirdly, in case of failure of first two steps if differences continue to persist, parties should try sincere reconciliation within family or by appointing one arbitrator from each side. No stone should be left unturned in making parties agree to reconciliation.
Fourthly, if arbitration does not yield positive results and there is no possibility of patch up and "irretrievable breakdown of marriage" has really taken place, only one divorce is to be pronounced by the husband.
Fifthly, this single pronouncement is to be compulsorily followed by the waiting period of three months or if the wife is pregnant till the delivery of the child.
Sixthly, if during this waiting period, parties change their mind and see value in living together, they need not do anything more and the divorce would automatically stand revoked.
Seventhly, if no express or implied revocation of divorce takes place within the waiting period, divorce would become complete at the end of three months or extended period due to pregnancy.
Finally, if after some time, parties again realise out of their free will that they want to yet again reunite, they need not do any intervening marriage (Halala), just a fresh Nikah with new terms and conditions and fresh Maher (dower payment to wife) would suffice to revive their relationship.
Data on Divorce
Darul Iftaa data from 10 states revealed that that in last one year 340,206 Fatwas were sought. Of which only 6.50 per cent Fatwas were asked about triple divorce.
According to Bhartiya Muslim Mahila Andolan’s (BMAA) case study on triple divorce, only one divorce out of 117 was given in this manner.
As per BMMA's findings, only 0.2 per cent got divorces on phone, just 0.6 per cent received divorce through email.
In another survey, out of 521 divorces only one woman got triple divorce via SMS that is only 0.19 per cent.
Faizan Mustafa is Vice Chancellor, NALSAR University of Law, Hyderabad.