By Tahir Mahmood
06 July 2016
“We are straightaway not jumping to any conclusion. It has to be seen if there is a need for any further consideration of law by the Constitution Bench. If this issue has already been settled, we may not have to examine it any further but if there are other issues, we will have to decide if it would require a consideration by a larger Bench.”
This is what the Supreme Court of India reportedly observed on June 29, 2016 during a hearing of the “triple Talaq” cases.
While a number of individuals and organisations have sought intervention in the matter to support or oppose the archaic practice, its latest victim to seek redress from the court is Gulshan Parveen, a young postgraduate woman of Rampur whose three-year old marriage has hit rough weather. As she refused to receive the customary divorce-letter sent by her husband, he approached the city’s family court for a declaratory order pronouncing that the marriage stands dissolved. Outsmarting him, she has knocked at the doors of the apex court. That some other women are already before the court seeking similar relief is now widely known through the media and must have emboldened her to follow suit.
The Supreme Court’s mid-hearing observation is quite meaningful and indicates the concerned judges’ thought process on the issue. Their refusal to straight away jump to any conclusion may have disappointed the overzealous and pretentious feminists but is perfectly in accord with the well-established judicial norms of equity, justice and good conscience. Their words – “if this issue has already been settled…” – implicitly allude to a number of decisions different benches of the court have pronounced during the last 14 years on the true Islamic process for divorce. Only after examining those decisions, the learned judges have said, they will make up their mind on whether there really are “other issues” requiring consideration by a larger bench.
Divorce as an Afterthought
In the Muslim society divorce is often resorted to by married men as an afterthought to defeat their estranged wives’ claims of legal dues. Whenever a forsaken wife, after long years of waiting for better days, seeks legal remedy of separate maintenance or restitution of conjugal rights, the husband tries to defeat her claim by pretending to have divorced her sometime in the past. It is this abominable practice on which the Supreme Court put the brakes in the Shamim Ara case of 2002, reiterating the legal principle established by it in several later cases. These admirable decisions settle the law that just saying “I divorced her in the past” by a husband, orally or in writing, will not be acceptable to the courts for treating his marriage as dissolved so as to absolve him of the legal liability to maintain his wife.
In regard to women’s maintenance right, recognising or not recognising a Talaq, however, does not mean much, as a divorced woman is also now legally entitled to receive maintenance from her former husband both under the Code of Criminal Procedure 1973 and the Muslim Women (Protection of Rights on Divorce) Act 1986, both of which have been liberally interpreted and used by the courts to award lavish grants to divorced women. The real issue is if married Muslim women, young and old, must live their entire married life under the threat of the sword of Damocles called “triple Talaq” hanging over them.
Careful Judicial Attention
The issue merits careful judicial attention as in most cases of triple divorce both parties desperately want to stay in marital relationship but the fatwa-givers –which even petty religious functionaries are seen as – and fatwa-enforcers which all men known to the parties believe they are, will not let them do that. The only way to stop this tyranny is to recognise that the so-called “triple Talaq” formula will neither instantly dissolve the marriage foreclosing the man’s right to revoke it during the Iddat or waiting period (next three months) nor put a ban on direct remarriage between the parties after the expiry of that cooling off period. This will be eminently in conformity with the true Islamic law. Elsewhere this issue has been resolved by legislation. In India, no such possibility being in sight, it is begging for judicial reform.
In Parveen Akhtar (2003), the Madras High Court seemingly said that the issue of triple Talaq had already been resolved by the Supreme Court through its Shamim Ara judgment of the preceding year. Such an extended view of Shamim Ara requires apex court’s affirmation. The High Courts of Allahabad and Delhi have ruled, in Marium Alam (1979) and Masroor Ahmad (2008) respectively, that every Talaq (including a triple Talaq) will remain revocable during the Iddat period. These rulings need to be upheld by the Supreme Court through a clarification of Shamim Ara to that effect.
Tahir Mahmood is Professor of Law, former Chair of Minorities Commission and ex-Member, Law Commission of India