By Madhavi Diwan
January 11, 2017
Last month, Justice Ruma Pal, former judge of the Supreme Court, was invited by a Delhi-based think-tank to deliver a public lecture on the contentious subject of the Uniform Civil Code. While opposing the idea of a common civil code for all communities and emphasising the importance of preserving plural cultures, Justice Pal said that practices prevalent within communities ought to be modified in a manner that achieves gender equality. In other words, she rejected uniformity of laws across communities but made a pitch for intra-community reform to achieve equality of the genders. Therefore, in her view, if multiple marriages are permissible for Muslim men, that right ought to be extended to women as well, allowing them the right to take up to four husbands. Likewise, if men can divorce women by uttering talaq three times, so should women be permitted to divorce their husbands in the very same manner. This correction, Justice Pal felt, would make such practices compatible with the constitutional guarantee of equality.
While gender equality is an important constitutional goal, it is doubtful whether extending similar rights to women will solve the social challenge that the continued prevalence of practices like triple talaq or polygamy present in contemporary society. The difficulty with these practices, which were given legitimacy centuries ago in a very different social milieu, is that not only are they grossly gender unjust, they are also inherently incompatible with contemporary constitutional morality. Merely introducing reform to give a woman the same rights against her husband does not address the problem. It only compounds the arbitrariness in ways that would deeply damage the institution of marriage. The problem with triple talaq is that it is premised on the presumption that the man calls the shots in the relationship and can take a unilateral decision to opt out of the marriage without giving his wife the opportunity to approach a court, arbitrator or mediator. Extending the same right to a woman against her husband is of little help. Given her financial and social dependence on her husband, she is unlikely to be in a position to exercise that right. Even if she is, it is equally unfair that a husband should find himself divorced at the whim of his wife, without opportunity for reconciliation or recourse to a court of law. Such arbitrary methods of dissolving a marriage whether at the instance of a man or a woman if she were to be granted that right, are incompatible with the expectation of reasonableness and reconciliation inherent in the institution of marriage. Therefore, if gender justice is the goal, it would be better achieved by doing away with such practices altogether, rather than extending the same arbitrary rights to a woman.
Likewise, the argument that if Muslim men are allowed to be polygamous, so should women be permitted to be polyandrous is also deeply flawed for the same reason. This is not about gender equality for the sake of gender equality. Practically, a man is hardly likely to marry a woman who already has a husband. Besides, even equality for equality’s sake is hardly likely to be achieved unless a woman in a polygamous marriage also acquires multiple husbands. What enormous social pandemonium would follow if all men and all women were to be in multiple marriages! Who would live with whom? Who would be parents to children born from multiple marriages? Which set of parents would be responsible for whose children? It would be the end of the institution of family as we understand it. This is a surer recipe for social anarchy rather than for gender equality. In his piece titled ‘Multiple Ways to Equality’, published on October 28, 2016 in The Indian Express, Faizan Mustafa advocates “treating marriage as a private limited company” where “equal say is to be given to all members, including wives, in entry or exit of any member with rights and liabilities clearly laid down.” He argues, somewhat astonishingly, that polygamy cannot be eradicated and therefore, restricted polygamy should be extended to all communities!
One difficulty with some of the most progressive views from the Muslim intelligentsia is that they oppose triple talaq on the ground that it is “unqoranic”, that is to say that the Quran never legitimised such a practice, not so much because it is so inherently unequal and unconstitutional. To determine the constitutionality of a practice with reference to a sacred text rather than on its compatibility with fundamental rights can be deeply problematic. There are many cruel practices across religious affiliations that would acquire immediate immunity and legitimacy if we were to permit their continuance only because they find place in a religious document. Ancient Hindu texts recognise many such outdated patriarchal practices including wife-beating in certain circumstances: “If she (the wife) does not willingly yield her body to him (her husband), he should buy her with presents. If she is still unyielding, he should beat her with a stick or with his hand and overcome her.”
(Brihadranyak Upanishad 6/4/7)
So does the Holy Quran ~ “Righteous wives are devout and guard what God would have them guard in the husbands’ absence. If you fear high-handedness from your wives, remind them [of the teaching of God], then ignore them when you go to bed, then hit them”.
Polygamy is also sanctioned under some conditions. So for the very reason that the progressives reject triple talaq i.e. that it is “unqoranic” they will have to accept polygamy as legitimate. As also the right of a husband to beat a disobedient wife. In a secular country, if we are to allow religious texts, any or all of them, to override the fundamental right to equality and a life of dignity, then even the secular law which punishes domestic violence against women of all communities would fall foul of personal law. So should we cast away the Protection of Women Against Domestic Violence Act 2005 or make it selectively applicable?
For India to thrive as a vibrant multicultural society, cultures must be preserved for that is the very essence of India. But patriarchy cannot be perpetuated in the name of multiculturalism. It is time we recognised that there exist age-old religious and cultural practices that are fundamentally incompatible with the Constitution that we the people of India gave ourselves and with the principle of contemporary constitutional morality.
Madhavi Diwan is a Supreme Court advocate and has appeared for government in the Triple Talaq case.