Justice Markandey Katju-
The Muslim Women’s ( Protection of Rights on Marriage ) Bill, 2019 criminalizing triple talaq among Muslims has been passed by both Houses of the Indian Parliament and has received the assent of the President of India. The Bill became necessary since despite the Supreme Court’s verdict in Shayarabano’s case the archaic and regressive practice of triple talaq was continuing, and so a strong step was required to stamp it out.
The Bill is being hailed as a great victory for Muslim women. However, what is overlooked is ( 1 ) polygamy is still legally permitted to Muslim men ( 2 ) Oral talaq in the form of talaq al ahsan is still legally permitted to Muslim men, and ( 3 ) Muta marriage is permitted among Shias. Unless these are abolished, along with the barbaric practice of nikah halala, it will be an incomplete victory, in fact hardly any victory at all.
( 1 ) Muslim law permits a Muslim male to marry up to 4 wives. So even if triple talaq is abolished a Muslim husband can marry a second wife without divorcing the first. So without abolishing polygamy how will mere abolition of triple talaq help the wife?
It may be mentioned that monogamy represents equality between men and women, and this is the age of equality. In fact, when polygamy was abolished among Hindus by the Hindu Marriage Act 1955 at the same time it should have been abolished among Muslims too, but perhaps the Congress did not do so fearing losing its Muslim vote bank.
( 2 ) Oral talaq among Muslims are basically of 2 kinds : ( 1 ) triple talaq or talaq ul biddat, i.e. talaq at one sitting ( or even by saying talaq thrice by telephone, in a letter, email or WhatsApp ) ( 2 ) talaq al ahsan, in which the word ‘talaq’ is said once, then a second time after a month, and a third time after another month. On saying it the third time the divorce is complete. This too can be said by phone, letters, emails or WhatsApp. Talaq al ahsan is still legal, and so if a husband wants to get rid of his wife he can resort to talaq al ahsan. Unlike a divorce among Hindus or Christians, where a ground for divorce such as adultery, cruelty, desertion etc has to be alleged and proved in a court of law, there is no such requirement for a talaq al ahsan. So a Muslim husband can get such a divorce without going to court for any reason whatsoever e.g. that the wife has not brought sufficient dowry, that she has produced only female children, or does not cook well, or does not satisfy her husband’s sexual desires adequately, etc. In fact, he may not specify any ground at all.
( 3 ) Muta or temporary marriage ( the word ‘muta’ means pleasure ) is permitted among Shia Muslims. This too is still legally permissible and needs to be banned.
Apart from the above, the time has come now to have a Uniform Civil Code in India, as in most modern countries. The sharia was made in 7th century Arabia according to the customs prevailing there at that time. How can it be applied in the 21st century when society has totally changed?
In ancient and medieval times law was not made by a legislature. In fact, there was no legislature in those days. Law at that time was all customary law. In other words, the customary rules were recorded in writing by someone, and this was recognized as the law. Thus, the Manusmriti and Yagyavalkya Smriti were simply the customary rules prevailing in parts of India about 2000 years ago, which were written down in Sanskrit, and recognized as the law among Hindus. Similarly, the sharia law was simply the customary rules prevailing in Arabia in the 7th century. It is wrong to say that it was created by Allah, or that it is something divine.
Law must change as society changes. How can we have a 7th-century law in the 21st century? Can we have Manusmriti today ? In fact much of sharia had already been abolished by our British rulers long back. For instance, the sharia criminal law was abolished entirely by the Indian Penal Code of 1861. The law relating to inheritance in rural landed property became common to all communities e.g. by the UP Revenue Act, 1939 ( followed by the UP Zamindari Abolition Act 1951 ).
By abolishing sharia Islam will not be abolished. The old (non-statutory) Hindu law was almost entirely abolished by the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956 etc but thereby Hinduism was not abolished.
The Uniform Civil Code which we should have will really deal with two main subjects, viz, divorce and inheritance. It will not deal with marriage, which can be solemnized according to the customary religious rites of each community e.g. ‘pheras’ around a fire among Hindus, and nikah ceremony among Muslims ( unless the parties want a civil marriage ). However, polygamy and polyandry must be prohibited, as must nikah halala and muta ( temporary ) marriages
Regarding divorce, the grounds for divorce can be as mentioned in chapter 6 of the Special Marriage Act which deals with civil marriages.
Regarding inheritance, sons and daughters must get equal shares. The sharia law giving daughters only half what sons get must be abolished.
Indian Muslims, particularly the Muslim youth, should realize how backward most of them have been kept by the so called ‘secular’ Indian politicians who were hand in glove with the reactionary Muslim clerics ( maulanas ). The whole game was that these feudal clerics, who had a grip on the mindsets of most Muslims, would get votes for the so-called ‘secular’ politicians, and in return, these crafty politicians would give some benefits to the clerics. But as a result of this unholy alliance of clerics and ‘secular’ politicians, most Muslims were kept poor and backward, as the Justice Sachar Committee Report said.
Now the time has come for Indian Muslims to break the mental shackles and fetters put on them by the unholy alliance of clerics and ‘secular’ politicians, and follow the path shown by the great Turkish leader Mustafa Kemal who in the 1920s overthrew the feudal reactionary Sultan and Khalifa, abolished sharia, burqa, and madarsas, and modernized Turkey. That is the only way for their salvation and progress.
[Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India. The views expressed are his own]