Islamic laws on divorce are misinterpreted to give unbridled authority to men but inflict “tyranny” and suffering on women, the Allahabad high court observed on Thursday, reigniting the debate on one of India’s most contentious religious issues.
But court refused to comment on the legality of the practice of triple talaq – under which a man can divorce a woman by uttering the word “talaq” thrice – and said any community’s personal laws cannot override an individual’s constitutional rights.
Justice Suneet Kumar said a view that Muslim men enjoyed “arbitrary and unilateral power” to inflict instant divorce didn’t match with Islamic law.
“Should Muslim wives suffer this tyranny for all time? Should their personal law remain so cruel towards these unfortunate wives? Can the personal law can be amended suitably to alleviate their sufferings?” Kumar asked.
Islamic personal laws that govern marriage, divorce and inheritance are among India’s most controversial codes and face a barrage of legal challenge in the Supreme Court by Muslim women.
The influential All India Muslim personal law board – an advocacy organisation for Islamic personal laws -- has defended the practice and said community practices are immune to judicial challenge. The debate has also snowballed into a major political issue in poll-bound Uttar Pradesh, where a large Muslim community decides the electoral outcome in around 100 seats.
Kumar’s observations came while dismissing a plea by a 53-year-old man and a 23-year-old woman who wanted immunity from police action after the man divorced his first wife using the triple talaq practice. The judge condemned this, saying the judicial conscience was disturbed at the monstrosity.
“It is a popular fallacy that a Muslim male enjoys, under the Quranic law, unbridled authority to liquidate the marriage. The Quran expressly forbids a man to seek pretext for divorcing his wife so long as she remains faithful and obedient to him,” Kumar said.
“In the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law.”
The judge said the Quran-ordained law on divorce mandated a reasonable cause and reconciliation attempts by two arbiters – one from the wife’s family and the other from the husband’s family.
“If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously,” the court said quoting Islamic scriptures.
India has separate sets of personal laws for each religion governing marriage, divorce and succession. While Hindu law overhaul began in the 1950s and continues, activists have long argued that Muslim personal law has remained mostly unchanged.
Islamic personal laws were pitchforked to the national limelight earlier this year after the law commission circulated a questionnaire with queries on triple talaq and a possible nationwide uniform civil code.
The move alarmed the Muslim personal law board and many opposition parties, which alleged the BJP-led central government was dabbling in Islamic codes for electoral benefit.