This Article is From Oct 10, 2016

How We Got To This Point In The Triple Talaq Debate

In  recent decades, the idea of uniformity and individual rights has been captured by Hindu nationalist groups such as the Vishwa Hindu Parishad and the RSS; the defence of personal law and group rights has been heralded by Muslim conservatives consolidated under the All India Muslim Personal Law Board. The monopolisation of these positions by predominantly male-dominated socially conservative organisations is precisely the reason why the binary opposition between individual and group rights become insufficient tools for analyses of family law. An acknowledgement of the controversial history of Article 44 will reveal that while people endorse a firm position on either uniform civil code or the preservation of religious personal laws, the remedy lies somewhere in between. 

In the 1930s, the codification of Anglo-Mohammedan law - the Shariat Application Act of 1937 and Dissolution of Muslims Marriages Act of 1939 - had preceded the initiatives for Hindu law reform. Post-independence, however, the period between the codification of Hindu law in 1950s and the Muslim Women's Act of 1986 is commonly looked at as a hiatus that lay between the reform of Hindu and Muslim personal law. Such a narrative overlooks the history of social movements and legislative attempts towards personal law reform which reveal how the AIMPLB became the self-appointed "representative" and foremost decision-making body of the Muslim community. It reveals further that what the Board defends is, in fact, the inviolability of the Anglo-Mohammedan codes of 1930s, rather than the tenets of Islam.

Immediately after the Hindu law was amended, Nehru had attempted a similar feat for the Muslim and Christian Personal laws through the Second Law Commission (1958-1961), which produced reports on Christian Marriage laws and Laws on rights of spouses in case one of the partners converted from one religion to another during a marriage. The latter triggered further the formation of a Committee on Muslim Personal Law in 1961. The correspondence between Nehru and a renowned jurist and activist AAA Fyzee reveals that the duo had pre-empted many of the controversies that emerged later in the 1980s. The failure of this Committee, owing to a last-minute intervention by the then Vice President Zakir Hussain, served to provoke many more civil society initiatives on the subject of personal law reform. The Muslim Satyashodhak Samaj and the Indian Secular Society operating from Bombay kept the agenda in public eye through the 1970s. It was these agitations together with the introduction of the Adoption Bill that hastened the formation of the AIMPLB in late 1972, as the Board argued for exemption of Muslims from the Adoption Bill. 

Then again, during the revision of the CrPC in 1973, the Board requested exemption from Section 125 relating to maintenance of wives, parents and children to suggest that for Muslims, this should not include divorced wives. However, in the early 1980s, the courts refused to accept such as exemption. Thus, while the Shah Bano case and the subsequent Muslim Women's Act 1986 are cited as landmark judgements, a similar tone had been taken in a number of preceding judgements which offered a wider interpretation of personal law itself instead of recommending a uniform code. The courts had historically been clandestinely (as in Bai Tahira and Fazlunbi Biwi cases) or overtly (as in Danial Latifi case) attaining uniformity through judgements. After 1986, the Muslim Women's Protection of Rights on Divorce Act has also been applied and interpreted by many courts in line with the "protection" that the Act promised. However, even these protections offered in sporadic judgements have proved to be insufficient. The Board's position was further consolidated as the issue of the Babri mosque was re-launched in the 1986-87, thereby making the expression of any differences within the Muslim community appear unwise and ill-timed.

The new women's movements of the late 1990s and early 2000s therefore began inching towards universal principles of equality and justice in interpretation of "religion" rather than hoping legislative changes or relief from courts alone. Founding members of BMMA, Noorjahan Safia Niaz and Zakia Soman declared that most of the practices propagated as "Islamic law" were divorced from the Holy Quran, and the movement positioned itself against triple-talaq and polygamy on purely religious grounds. This was echoed by other civil society initiatives such as Bebaak Collective and Awaaz-e-Niswan. 

These movements however have also received criticism as the Indian left began to assume a position of 'status-quo' on Muslim personal law or even offer a defence for bigamy, a position that had historically been endorsed by the Hindu Mahasabha and now the All India Muslim Personal Law Board. The key difference in stance on bigamy, however, was that the women's groups hoped to defend the rights of the "second wife" who the courts and community continued to view as dishonourable - a "concubine", "keep" or a "mistress" (D Velusamy v. D Patchaiammal), while the latter offer patronising arguments such as "better divorced than murdered'', or "better in a bigamous household than destitute". There remain contentions within the women's movement but the twenty-first century has highlighted both the uncertainty of uniformity and yet a strong desire for change. Such a dialogue has, in fact, produced a model of legal pluralism which has the potential of becoming instructive to rest of the world, if cultural rights and personal laws could indeed be reconciled with fundamental rights and freedoms.

By 2004, with the significant intervention of instituting the Sachar Committee for reviewing the status of Muslims in India, the fear of a wholesale abolition of personal laws was somewhat allayed. This was visible in the breaking of the AIMPLB consensus as in 2005, the Board split into Shia and Sunni groups; the All India Women's Personal Law Board was also founded in the same year. Thus, the last few years have witnessed a demand for codification and legal protections from within communities. These demands have not only served to fracture the monolithic idea of a "community" but also challenged who the nation has historically accepted as "representatives" of a community. 

In 2016, Shayara Bano alleged that her husband subjected her to much cruelty including taunts for inadequate dowry, forced abortions, and eventually an arbitrary unilateral divorce. Although the press poetically reported about the case as "From Shah Bano to Shayara Bano", the facts of the case share more with the lesser known Parveen Akhtar case of 1992, where the petitioner does not merely question "maintenance upon divorce" but rather what the "true" Islamic position on such type of divorce is. Talaq-e-bidat by its definition (bidat) indicates a "customary" or an "irregular" practice. The case argued that misinterpretation of Islamic laws deprived women of their right to "freedom of religion". Thus, revision or reform became more favourable options rather than a wholesale replacement of personal laws.

In 2015, while the BJP spoke of revision of personal laws through a uniform civil code, and in August 2016, an activist-turned-politician of the Congress Party, Husain Dalwai introduced a private members bill in Parliament specifically challenging triple-talaq. Thus, whether we are advocates of uniformity, equality or plurality, there appears to be an undeniable desire for change among all political parties and most social movements. A uniform civil code or a review of personal law will therefore serve a similar end through two distinct routes. The issue is now under consideration by the Law Commission of India which has, in its consultations thus far, shown remarkable sensitivity towards cultural diversity endeavouring to ensure that the cultural practices of no one community sets the template for family law reform. 

It is important therefore to bear in mind the longer history of Article 44 to arrive at a nuanced, realistic, and a democratic template of a common code that targets patriarchy rather than plurality. Once that agenda is established, codification or unification become merely matters of "method". Further, a consensus on acceptance of plurality, one can only hope, would encourage further dialogue about protecting inter-community marriages and rights of sexual minorities in the years to come.  

(Saumya Saxena is a PhD from the University of Cambridge, MSc. from University of Oxford specialising on Family Laws in India. She is a Consultant for the Law Commission of India, but the views expressed in this article are her own and do not represent the views of the Commission.)

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