Divorce Divorce Divorce

An Indian Muslim male can legally have four wives at the same time. Not only that, he may divorce any of them at any time by simply saying “talaq talaq talaq”. Some Muslim women in India have experienced instant dissolution of their marriage via a letter, Facebook, twitter, SMS or WhatsApp. Last year, Shayara Bano received a letter from her husband notifying her she was a divorcee. She filed a petition in India’s Supreme Court challenging the Muslim Personal Law. This week, a five judge bench concluded listening to both the sides. However, the court has “reserved” its verdict, meaning it hesitates to rule on religious matters. Since the court won’t, I offer here my views and verdict.

Shah Bano and Shayara Bano

In 1978, Shah Bano, a 62 year old Muslim lady, was dumped by her husband. They had been married for 46 years, and had five children. Her husband, an affluent lawyer, had another wife, a much younger woman. He refused to pay Shah Bano any maintenance beyond 90 days. That’s what the Muslim Personal Law requires. (It must be noted that the five children were thrown out of the house along with their mother after the divorce). Shah Bano courageously fought in the courts. The Supreme Court’s verdict, given seven years after the divorce, was in her favour. Her ex-husband was directed to pay Rs 179.20 (15 dollars then) a month to Shah Bano. The Ulemas (custodians of Islamic law) were incensed. How dare the Supreme Court interfere with their Personal Law? They appealed to Rajiv Gandhi, India’s then prime minister. Rajiv had a record majority in parliament based on the sympathy vote generated by his mother’s assassination. Using that majority, Rajiv Gandhi passed a new law sardonically named Muslim Women (Protection of Rights on Divorce) Act, 1986, and overturned the court’s decision. Sharia won, Shah Bano lost. Politics won, core moral values and decency were debauched.     

Thirty years later, Shayara Bano was similarly discarded by her husband. She had been married for 13 years. Her petition pleads the court to abolish (a) Polygamy (b) Triple talaq and (c) Nikah Halala.

Polygamy

In Prophet Muhammad’s time, the world in general and Muslims in particular were perennially engaged in wars. Constant wars increased the male mortality rate, leaving thousands of young widows. This was the logic behind allowing Muslim men to take multiple wives. (Muhammad himself had 13 wives).

In India, female foeticide, better treatment of sons over daughters and absence of any major war have resulted into a skewed male-female ratio. (940 f/1000 m). If multiple spouses must be allowed, polyandry – a woman marrying many husbands- is the mathematical need of the time.

For Hindus, polygamy was abolished in 1955. One may still occasionally find bigamist Hindus (or Christians). If wives are happy to share a husband, an outsider can’t launch a case against a bigamist. Only one of the wives can. An aggrieved Hindu wife can go to the court, get an illegal second marriage annulled, and the husband punished. An Indian Muslim wife doesn’t have that choice. Her husband doesn’t require her consent when marrying the second, third or fourth time.  

Triple talaq

Triple talaq was not intended to be instant noodles, but a cunning patriarchal community twisted a 1400-year old text to suit its convenience.

The original concept of triple talaq involved a process of separation, negotiation, cooling down and a possible reconciliation. Many months were supposed to pass between the man uttering the first and third talaq. Only if both parties understood the marriage was irreconcilable, the man would utter ‘talaq’ the third time. The divorce was then irrevocable.

In today’s high-speed world, that process has been shortened to the minimum. The Muslim males and mullahs base Sharia rigidly on the Quran, but in a grand display of hypocrisy ignore that Facebook, Twitter, SMS and WhatsApp didn’t exist in the time of the Prophet.  

An ordinary employment contract requires a few months’ notice before an employee leaves or is asked to leave a company. It reduces the shock, allows tying up loose ends, parting with dignity. In triple talaq, a man can divorce, even evict his wife and children in a flash.

Nikah Halala

The third point in Shayara Bano’s petition refers to a bizarre Nikah (marriage) practice. As we saw above, once Talaq has been pronounced three times, the marriage is over, irreversibly finished. Now, if the husband regrets his decision or the couple wishes to start anew, India’s Muslim Personal Law doesn’t allow it- except under one condition. The divorced wife must marry another man, have sex with him, and then wait for that marriage to end in a divorce or husband’s death.  Only as a divorcee or widow of another man, she can come back to her former husband.

There have been cases of men asking friends to rape divorced wives to fulfil the Nikah Halala condition. Certain commercial websites offer Nikah Halala as a product.  Men offer to marry a wronged woman, sleep with her and then divorce her, all for a specified sum (not cheap).

Ancient British Laws

Religious partition happened during British rule. (Blame it on the British). To fuel the “divide and rule” political strategy, different civil laws were enacted for different religions. The Sharia-based Muslim Personal Law (Shariat) Application Act, 1937 still governs the civil affairs of the Indian Muslims. Parsi Marriage and divorce act, 1936 exists and is applicable. India’s criminal code, the Indian Penal Code, was enacted in 1860. Though it’s not as ancient as the Quran, and has undergone several amendments, a major overhaul is needed.

Homosexuality is still a crime, at least on paper (Sec. 377). Any Indian man can be sent to prison for 5 years for having an affair with a married woman (unless it is with her husband’s express consent) (Sec. 497). Indian men, well-versed in the law, make sure their mistresses are unmarried. An Indian woman’s adultery is not a crime, irrespective of her or her lover’s marital status. Because as one Supreme Court judge (ancient in age and attitude) said: “only men can seduce, women can’t.”  

Civil Law vs Criminal Law

Though there may be some overlap, civil law and criminal law have a different purpose. Civil law tries to resolve disputes (family, property) and give justice/compensation to the affected party (e.g. alimony to wife, restoring grabbed property etc). Criminal law punishes the guilty, sometimes imprisons them. In cases such as a murder or rape, resolving disputes or compensating the victim is not the aim, punishing the offender is. Because of the element of punishment, guilt needs to be proven “beyond reasonable doubt”. In civil cases, the standards are not so strict. The judge can decide the case based on probability. We all remember how O.J.Simpson was pronounced not guilty in the criminal case, but was declared a murderer and fined in the civil case.

Fortunately, India has one criminal law for all. Indian Muslims can’t be flogged for their crimes. For more than forty years, the All India Muslim Personal Law Board (AIMPLB) has been fighting to preserve Sharia for Indian Muslims. The courts are told not to interfere in the personal affairs of Muslims.

Is it not surprising AIMPLB doesn’t say a word about the Criminal Law that is common for all?

All India Muslim Personal Law Board (AIMPLB)

This is a private, self-appointed body made of Ulemas that claims to represent the 170 million Indian Muslims. In 1973, Indian govt had proposed a bill that would open the way for a uniform civil code. Feeling threatened, a select group of Ulemas and other Muslim leaders formed this board. Since then, they have successfully fought against all attempts to introduce one civil law for all Indians.

It is a national shame that this retrograde patriarchal bunch dictates the life of 85 million Muslim women in India. Look at some of the board’s thoughts officially presented in the latest affidavit filed in the Supreme Court.

AIMPLB says: “Polygamy is a social need and a blessing for women because an unlawful mistress is more harmful for social fabric than a lawful second wife. Polygamy ensures sexual purity and chastity and whenever polygamy has been banned, it emerges from history that illicit sex has raised its head.”

Justifying instant talaq it says: “Legal compulsions of time-consuming separation proceedings and expenses may deter him [the husband] from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive.”

AIMPLB admitted triple talaq is a sin, and a bad practice. However, an Indian Court has no right to ban it, because it’s a personal religious matter. Now the Muslim board has said it would “recommend” it can be excluded from a marriage contract, and that a man declaring triple talaq could be socially boycotted.

In theory, Indian Muslims can opt for a civil law and a secular appearance. A Muslim male can opt to be clean-shaven, not wear a skull cap; a Muslim woman can throw away her burqa. They can register and dissolve marriages in the govt courts if they wish to.

However, in practice, most Muslim women are little educated, oppressed by patriarchal indoctrination, given away in marriage very young, and financially dependent on males. This pitiable state accompanied by superstition is the source of the power of the Muslim Personal Law board. Using that power, the board makes sure Indian Muslims would remain backward in perpetuity.

Analysis: My view

Let’s keep aside all these points and look at some fundamental, universal truths.

First, a marriage contract is unique. Because it is the only contract between two parties that can produce many more parties. Children, brought to this world without their permission, are mostly helpless for a significant number of years. It is the parents’ moral duty to raise them. If parents divorce, children should be cared for to the best of parents’ ability anyway. Since society can’t trust the integrity of every parent, it must regulate the parents’ conduct through civil laws. Children, the most critical by-product of a marriage, must be protected by the civil laws. Divorce laws must ensure their continuous care.

Second, the law must be equitable between a man and a woman. Both in marriage and divorce, they must have equal rights. If a man can have four wives, a woman should be allowed to have four husbands as well. 

Third, the civil laws must acknowledge the gender difference. It’s the woman who carries the child in her womb, suffers delivery pains, breastfeeds the baby and teaches the child to speak (mother tongue). As a rule, a mother is the main parent in raising the child. It is maternal nature. This has nothing to do with religion or how advanced the society is. Any law regulating marriage or divorce must consider this additional burden women bear. In a family, a woman’s place is higher than a man’s.  

When you apply those three tests; child protection, equality and acknowledging a woman’s extra burdens; the Muslim Personal Law fails. In triple talaq, children are not protected, not even discussed. Polygamy, triple talaq and Nikah halala are not merely patriarchal. They demean women. Under Sharia, a woman’s testimony is worth half of that of a man. A marriage contract is between her male guardian and husband, she is just a product traded between two males. Sons are entitled to inherit twice the share of the daughters.

Uniform Civil Code

Each person comes out of a mother’s womb, breathes, toddles and then walks, eats and sleeps, unites with another to produce off-springs, becomes middle-aged, later old and dies. This is Nature’s law and it’s the same for absolutely everyone, a Christian, a Muslim, a Hindu or any other.

When Nature has uniform laws for everyone, why should Man have different laws?

Indian constitution (1950), in its article 44, expects India to have a Uniform Civil Code. Due to its sensitivity, it was called a ‘directive principle of state policy’ rather than a law. The Muslim Personal Law Board has used that wording to deny its enforceability.

The five SC judges for the Triple Talaq case are from five different communities- a Sikh, Christian, Parsee, Hindu and a Muslim. (Strangely, for such an important issue on justice for women, all five judges are men. SC’s only lady judge, R.Banumathi, should have been included). A similar panel should be formed to write the Uniform Civil Code so that minorities don’t perceive it as a Hindu Civil Code.

Uniform Civil Code doesn’t regulate customs; it regulates rights and responsibilities. The wedding functions of Hindus or Muslims will remain exactly the same as today. Religious rituals will be unchanged, and one can believe or not believe in any god of his choice. Responsibilities towards your partner and children must be governed by civil laws that are equitable, morally sound and recognise a woman’s role in the family.

This issue is for the government to legislate on, not for courts. Successive governments have lacked the courage to take up this issue. Govt cowardice has forced women like Shayara Bano to rush to the Supreme Court. This case presents an opportunity for the Indian government to implement a Uniform Civil Code. It is not a religious or secular but a moral obligation.

Seventy years after independence, we can no longer blame the British for the continuing uncivil practices in India.

Ravi