By Tahir Mahmood
December 5, 2017
Far back in 1986, Shah Bano had ended up with a Muslim Women (Protection of Rights on Divorce) Act. Three decades later, Shayara Bano is ending up with a Muslim Women (Protection of Rights on Marriage) Act. The former Act aimed at undoing a Supreme Court decision on Muslim husbands’ financial liability to their divorced wives. The latter, with the difference of just one word, proposes to implement a SC decision restraining Muslim husbands from divorcing their wives in an un-Islamic way. The former was meant to accommodate the stand of traditionalists. The latter means to translate rational voices on the issue into binding law. The former, going against the spirit of the Quranic sense of gender justice, represented a retrograde step. The latter is in accord with the letter of the Quranic divorce law. The former Act was ill-conceived, the latter or its like is a need of the hour. The continuing failure of religious leaders to discipline Muslim husbands in the matter of divorce as per Quranic teachings makes some state legislation in this direction inescapable.
The issue before the SC in Shah Bano was whether the speedy relief extended to divorced women under the new Criminal Procedure Code, 1973, applied to Muslims too. The constitution bench handling the case decided that it did. The bench should have stopped at that, asserting that a general secular statute ipso facto supersedes contrary provisions of community-specific laws. Chief Justice Y.V. Chandrachud, however, tried with the best of intentions to harmonise his decision with relevant Quranic texts. It was uncalled for, as Islamic law on divorcees’ rights, or its constitutional validity, was not the issue in the case. A great controversy followed, somehow convincing the government of the day that it should intervene. Hence was enacted the Muslim Women (Protection of Rights on Divorce on Divorce) Act. The title for the Act and the language of its provisions left room for a liberal pro-women interpretation. Yet, the learned Muslim lawyer whose research had formed the basis of the Shah Bano judgment lost no time in challenging it in the court for its constitutional invalidity. The court dilly-dallied and took the call 15 years later, after his demise. Justice Rajendra Babu decided in Danial Latifi (2001) that the Act was not unconstitutional since, far from superseding Shah Bano, it had the effect of enforcing the ratio decidendi of that sensible judgment.
Shayara Bano was different. Here, the practice of divorce by Muslim men instantly and irrevocably dissolving the marriage was claimed to be ultra vires the Constitution. Since the Constitution does protect essential religious practices and orthodox community leaders claimed the practice qualified for such protection, the court had to examine the issue from that angle. None of the five judges on the bench pronounced a verdict of unconstitutionality on triple divorce. The CJI, with the support of a Muslim judge, disapproved it but for putting an end to it threw the ball into the government’s court. The other three judges declared triple divorce to be arbitrary and illegal, for different reasons other than a head-on collision with the Constitution. As per law, the majority viewpoint prevailed and the court’s eventual order “set aside” triple divorce, leaving everybody wondering what this actually meant.
The government has not bothered to unearth meaning and implications of the setting aside order. Instead, it has taken the call of the minority judgment to enact a law preventing the practice of triple divorce. The bill prepared for this purpose reportedly includes both civil and penal provisions. According to media reports, it provides that triple divorce will not nullify the marriage, the man will be guilty of an offence punishable with imprisonment and fine, and will be liable to provide all necessary amenities to the wife and children. None of these provisions can indeed be regarded as un-Islamic.
Religious leaders have wasted precious time available for stopping by their own edict the “bad in theology good in law” practice of triple divorce. In my opinion, the object can be achieved better by enacting a law to insert new provisions into the two existing Muslim law statutes — the Dissolution of Muslim Marriages Act 1939 and the Muslim Women (Protection of Rights on Divorce) Act 1986. Their amended versions can be merged to form a Muslim Marriage and Divorce Act, which would be a more prudent, indeed more effective, way out to serve the interests of justice.