The marathon arguments before the five judge multi-religious bench of the Supreme Court have now ended. While most Muslim women petitioners wanted nothing more than just implementation of Quranic procedure of divorce and end of arbitrary and instant triple divorce, Attorney General asked the court to strike down all forms of Muslim divorces so that Modi government brings a comprehensive law.
The court has clearly delineated its scope in confining itself to just the question of whether triple divorce is fundamental feature of Islam. While there is disagreement on triple divorce being part of the core Islamic beliefs, there is unanimity amongst all schools that divorce must be preceded by arbitration. Should court or government compel Muslim women to mandatorily use costly and slow formal judicial system to get divorce? Should the wider and more liberal right of divorce of Muslim women be taken away for the sake of judicial oversight of divorces?
Some feminist lawyers favoured dissolution of Muslim marriage only through judicial order and strangely considered divorce as virtual death of the divorcee. This author disagrees with this kind of argument as it not only negates women’s power to move in the life on her own after a devastating marriage which ended in painful divorce but also tries to change the essential character of Muslim marriage from civil contract to sacrament or status. More Muslim girls today prefer not to marry which shows their self-confidence. Census figures from 2001 and 2011 show the percentage of Muslim women aged 20-39 who were never married nearly doubled over the decade. Moreover the insistence on judicial divorce is based on the erroneous belief that judicial forum is efficient, cost effective and absolutely gender just. Even Hindu Marriage Act, 1955 saves customary divorces out of court divorces.
Muslim women can get divorce only through courts under the Dissolution of Muslim Marriage Act, 1939 was another erroneous argument. The Act in no way takes away Muslim women’s right to divorce outside the formal judicial system. Since the Act was to permit the courts to extend the benefit of liberal provision of Maliki and Shafii schools to Hanafis, it cannot be said to take away the women’s rights under Maliki and Shafii schools. The Act was passed because courts were hesitant to apply Maliki law where parties were Hanafis. Triple divorce problem can also be similarly solved by borrowing from Ahl-e-Hadees and Shafii schools under which three divorces are to be counted as just one revocable pronouncement.
A Muslim wife is certainly entitled to divorce her husband without taking recourse to 1939 Act. Islamic law believes in the ‘breakdown theory’ and not in the ‘fault theory’ of divorce and thus causes of breakdown of marital tie are not subject to any scrutiny. If there is ‘irretrievable breakdown’ of marriage due to ‘incompatibility of spouses’, law provides for out of court divorce so that spouses part with grace and dignity. Even Shariat Act of 1937 explicitly recognizes these types of divorces by using different terms such as Khula, Mubarat and Lian for the divorce by wife.
What options are available today to a Muslim woman to dissolve her marriage? First, Muslim women can seek divorce through court under law of faskh (annulment of marriage) on certain grounds ie whereabouts of husband not known for four years; non -payment of maintenance for two years; imprisonment of husband for seven years; non-performance of marital obligations; impotency of husband; insanity or other diseases such as leprosy or venereal diseases; cruelty which includes taking of second wife by the husband. Quran itself recognizes this right of wife to annul marriage when it says- “If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement.” Prophet also said that “if a woman be prejudiced by a marriage, let it be broken off.”
RTI replies from the Family Courts in Muslim concentration districts demonstrate that very few Muslim women use judicial forum for getting their marriages annulled. They rather prefer non-formal forum of Darul Kaza(Arbitration Councils according to Supreme Court) which are speedier and cost effective. This author’s own study of 74 Darul Kaza run by the Muslim Personal Law Board too reveals that 69.70 per cent women resort to this outside the court forum for the resolution of their disputes. Out of 74 Darul Kaza, in as many as 49, in 90 per cent of cases women approached Darul kaza for the annulment of marriage. In 16 Darul Kaza, 70 per cent women came for this purpose.
Secondly a Muslim woman is entitled to Talak-e- Tafwid ie delegated divorce which gives her an identical right to divorce at par with men under which she can divorce her husband without going to any court by simply pronouncing divorce on herself.
This delegation may be either conditional or absolute. Educated and elitist Muslim women generally assert and get this right incorporated in their nikahnma itself. Even subsequently she can get such a right. The Orissa Mohammedan Marriage & Divorce Registration Act of 1949 does provide for the registration of such a divorce. In Maharan Ali v. Ayesha Khatun(1915), Calcutta High Court upheld this kind of agreement under which wife was authorised to divorce her husband in case he married any other woman. M.P. High Court in Noor Mohammad(1992) at length discussed this type of divorce and upheld the validity of such a divorce.
Khula is the third type of divorce which is unconditional and absolute right of the Muslim wife and is at par with husband’s right to talak and is not subject to his consent. Several state laws such as in Orissa, Bihar, Assam and West Bengal do provide for the registration of Khula. Prophet himself ordered khula to a lady from an extremely loving and caring husband just because she did not like his physical features. It is wrong to presume that she must necessarily surrender her mehar(dower) for getting Khula because Quran discourages men to take back the gifts given to their wives and dower is indeed a free gift to be paid to wife at the time of marriage as a mark of respect. Here also just like men, she is not to give any reasons for taking khula. Moreover the moment she decides to divorce her husband under Khula, husband has no right to oppose it. Khula like talak given by man can be either oral or in writing. My above mentioned study revealed that more than 70 per cent women get khula through Darul Kaza.
Fourthly a Muslim wife is also entitled to divorce with mutual consent( Mubaraat) which too is mentioned as a distinct form of divorce in the Shariat Act of 1937. Unlike Khula, here both the parties agree to dissolve their marriage outside the court.
Fifthly Muslim law goes out of way to protect the character of the wife. Thus when husband indulges in wife’s character assassination by alleging adultery by wife and has no proof of it, she is entitled to divorce. This divorce at the instance of wife is called lian and is specifically mentioned as a distinct form of divorce in the Shariat Act, 1937.
Sixthly if a Muslim wife was married by her guardian when she was a child, on attaining maturity, she has a right to walk out of this marriage under doctrine of khyar-ul- bulugh( option at puberty).
Thus Muslim women are not without remedy if they want to move out of marital tie. Judicial divorce under Hindu law at times caused such hardships that Supreme Court was compelled to use its extra-ordinary powers of doing complete justice under article 142 to grant an early divorce. Let our courts not be further burdened with the additional load of Muslim divorces. Let Muslim women continue to use these liberal out of court divorce provisions.