Need and Legal
possibility of Abrogation of Instant Triple Talaq vis-à-vis Skepticism on
Practical Possibility of Uniform Civil Code in India
Instant Triple Talaq (Talaq-ul-Biddat) encompasses both social
and legal issues. Right to freedom of religion enshrined in the Article
25(1) of the Constitution is circumscribed by the considerations of public
order, morality and health and to the other provisions of the Part 111 thereof
(ie other fundamental rights viz. equality, non-arbitrariness, non-discrimination,
dignity, gender justice etc). Assuming that Instant Triple Talaq finds sanction in
Islamic Sharia Law and further validated by the Muslim Personal Law (Shariat)
Application Act, 1937, nevertheless, being a lesser right will have to give way
to aforesaid constitutional right(s). Moreover, the Article 25(2) fully
empowers the State to make any law providing for social welfare and reform.
It is no gainsaid to emphasize that Triple Talaq is an archaic &
retrogressive practice and a social vice grossly violating the dignity of
women. If the State does away with this by
enacting a law, any challenge to such measure of social welfare and reform on
the premise that it impinges upon the religious freedom of any section may not
survive in view of the said Article 25(2). (Note: Somewhat similar contentions
may also be put-forth qua polygamy and Nikah Halala. Nikah Halala: If the woman
after being divorced and after observing her waiting period (Iddat period)
wished to marry another man, she can do so. This second husband by total
coincidence and on his own accord also divorced her or died after having sexual
intercourse with her, then after observing the full waiting period, she can
remarry her first husband).
However,
idea of Uniform Civil Code in India per se is highly intricate and debatable
issue. In India, we have different set of laws for various
religious communities relating to personal matters like marriage, divorce,
adoption, maintenance and property known as personal laws. UNIFORM CIVIL
CODE is the proposal to replace the PERSONAL LAWS of each religious community in India with a common
set governing every citizen
irrespective of religion. Article 44 of the Constitution exhorts the
State to endeavor to secure for the citizens a UNIFORM CIVIL CODE throughout
the territory of India. However, even a cursory glance through the Hindu Law-mostly codified (applicable on about 81% Indian population) and Mohammedan Law-mostly uncodified (applicable on
largest minority i.e. Muslims constituting about 15% of Indian population)
reveals that these laws vary in myriad ways both in theory and practice as
applicable on people belonging to different caste, race, sects etc within a
religious community.
Notwithstanding having
codified enacted Hindu laws (on inheritance, succession, adoption, marriage,
divorce etc), customs/usages having force of law (as saved by said laws) govern
different castes among Hindus as discernible from some examples given below:
1. The
Section 3 (g) of Hindu Marriage Act, 1955 enumerating the “Degree of Prohibited
Relationship” prohibits the marriage with a widowed bhabhi. However, Kareva
marriage (also known as लत्ता/चादर उढ़ाना, चूड़ी
पहनाना, हाथ रखना ) is prevalent in certain
castes among Hindus and same has been saved by Section 5(iv) of HMA, 1955 (ie
giving primacy to liberal custom/usage). The legal position qua Hindu Marriage may be
summed up as “stricter enacted law gives way to liberal customs”.
2. Section
29(2) of HMA, 1955 saves customary divorce prevalent in certain castes.
3. Under
Mitakshara Law a son (although now daughter also) can ask for partition of
ancestral/HUF property from the father during his lifetime. However,
customary law in agriculturist communities among Hindus in northern India does
not recognize such right of a son.
4. Conditions
governing adopted child and adoptive person as prescribed by Sections 10 &
11 of the Hindu Adoption and Maintenance Act, 1956 are subject to customs or
usages applicable to parties.
Likewise, the Sunni and
the Shia schools of Mohammedan Law do have important points of
differences on the matters of Marriage, Talaq, Dower, Maternity,
Guardianship, Maintenance, Gift, Waqf, Pre-emption, Wills, Inheritance e.g.
1. Among
the Shias temporary marriage (Muta) is lawful but not so among the Sunnis.
2. The
Sunni law prescribes the presence of two male witnesses at the time of marriage
which the Shia law does not deem it a necessary condition.
3. Talaq
under Sunni laws may be effected orally or by a written document. Under
Shia law a Talaq must be pronounced orally in the presence of two witnesses and
a Talaq communicated in writing is not valid unless the husband is physically
incapacitated. Most importantly, Shia Law does not recognize Talaq-ul-Biddat
(Instant Triple Talaq).
Khojas and Cutchi Memons Muslims are governed in the matters of inheritance and succession by old Hindu Law.
The Articles 371A and 371G further provide that no parliamentary law- dealing with religious or social practices of Nagas/Mizos, Naga/Mizo customary law and procedure, administration of civil and criminal justice involving decisions according to Naga/Mizo customary law- unless the Legislative Assemblies of Nagaland and Mizoram by resolutions so decide.
Uniform Civil Code may indeed be a good proposition. Nonetheless, it's immensely pertinent to mention herein that The Hindu Marriage Act, 1955 clearly enumerates the persons who are out of bounds in the form of ‘sapinda relationship’ and 'degree of prohibited relationship' for the purposes of marriage. At the same time it does not prohibit the same gotra marriage in toto. Marriage with a person placed beyond the third generation in the line of ascent through the mother, and the fifth generation in the line of ascent through the father is valid and legal.However, ultra sensitive disposition of certain people among Hindus especially in northern India over the issue of same gotra/same village/bhaichara/ghwand marriages sometimes even leading to bloodshed (Honour Killings) although Hindu Marriage Act, 1955 unequivocally permitting such marriages since 1955 shows that every good idea is not necessarily practicable and acceptable to all.
Khojas and Cutchi Memons Muslims are governed in the matters of inheritance and succession by old Hindu Law.
The Articles 371A and 371G further provide that no parliamentary law- dealing with religious or social practices of Nagas/Mizos, Naga/Mizo customary law and procedure, administration of civil and criminal justice involving decisions according to Naga/Mizo customary law- unless the Legislative Assemblies of Nagaland and Mizoram by resolutions so decide.
Uniform Civil Code may indeed be a good proposition. Nonetheless, it's immensely pertinent to mention herein that The Hindu Marriage Act, 1955 clearly enumerates the persons who are out of bounds in the form of ‘sapinda relationship’ and 'degree of prohibited relationship' for the purposes of marriage. At the same time it does not prohibit the same gotra marriage in toto. Marriage with a person placed beyond the third generation in the line of ascent through the mother, and the fifth generation in the line of ascent through the father is valid and legal.However, ultra sensitive disposition of certain people among Hindus especially in northern India over the issue of same gotra/same village/bhaichara/ghwand marriages sometimes even leading to bloodshed (Honour Killings) although Hindu Marriage Act, 1955 unequivocally permitting such marriages since 1955 shows that every good idea is not necessarily practicable and acceptable to all.
Hence, instead of chasing
after an elusive and politically loaded notion of UNIFORM CIVIL CODE, need of
hour is to remove the social vices (gender discrimination, archaic &
retrogressive practices etc) from the different personal laws governing the
different religious communities and to modernize (reform) them in sync with the
demand and challenges of the modern age to attain UNIFORMITY OF RIGHTS/EQUALITY OF LAWS (distinguishable from uniformity of laws) as far as possible in tune with fundamental rights enshrined in part 111 of the Constitution.
NOTE:
NOTE:
1. Personal law is not included in the expression
"laws in force" used in Articles 13(1) and 372(1) - Bombay High Court in the
State Of Bombay vs Narasu Appa Mali, 1951; Supreme Court in the Ahmedabad Women
Action Group vs Union Of India, 1997.
3. (i) The Special Marriage Act, 1954 providing for a special form of
marriage (vide S. 12 (2) the marriage may be solemnized in any form which the
parties may choose to adopt subject to the conditions enumerated in the proviso
thereto), for registration of such and certain other marriages and for divorce
may be availed of by all citizens of India (except Jammu and Kashmir)
irrespective of religion, ethnicity and linguistic affiliation. Moreover, vide
S. 22 succession to the property of any person whose marriage is solemnized
under said Act and to the issue of such marriage shall be regulated by the
provisions of the Indian Succession Act, 1925. However, the Section 21A
(inserted by Act 68 of 1976 in the said Act of 1954) has exempted the Hindu,
Buddhist, Sikh, Jaina inter alia from the effects of section 21. (ii) The
Indian Succession Act, 1925 and The Guardian and Wards Act, 1890 dealing with
intestate and testamentary succession, and guardianship respectively applies to
all citizens to varying degree
4. The Goa
Uniform Civil Code (Goa Family
Law):
(Source: https://en.wikipedia.org/wiki/Goa_civil_code)
It is a set of civil laws that governs the residents of the Indian state
of Goa irrespective
of religion, ethnicity or linguistic affiliation. The Goa civil
code is largely based on the Portuguese Civil Code of 1867, which was introduced in Goa
in 1870. Later, the code saw some modifications via the Portuguese
Gentile Hindu Usages Decrees of 1880, the Portuguese Decrees on Marriage
and Divorce of 1910, the Portuguese Decrees on Canonical Marriages of 1946. The
civil code was retained in Goa after its merger with the Indian Union in 1961. In 1981,
the Government of India appointed a Personal Law Committee to determine if the
non-uniform laws of the Union could be extended to Goa. The Goa Muslim Shariah Organization
supported the move, but it was met with stiff resistance from the Muslim Youth
Welfare Association and the Goa Muslim Women's Associations.
(i) SOME WAYS IN WHICH THE GOA CIVIL CODE IS DIFFERENT FROM
OTHER INDIAN LAWS INCLUDE: A married couple jointly holds ownership of all the
assets owned (before the marriage) or acquired (after the marriage) by each spouse. In
case of a divorce,
each spouse is entitled to a half share of the assets. However, the law also
allows ante-nuptial agreements, which may state a
different division of assets in case of a divorce. These agreements also allow
the spouses to hold the assets acquired before marriage separately. Such
agreements cannot be changed or revoked. A married person cannot sell the
property without the consent of his/her spouse.The parents cannot disinherit their
children entirely. At least half of their property has to be passed on to the
children compulsorily. This inherited property must be shared equally among the
children. Muslim men,
who have their marriages registered in Goa, cannot practice polygamy.
Also, there is no provision for a verbal
divorce.
(ii) THE GOA CIVIL CODE IS NOT STRICTLY A UNIFORM CIVIL CODE, AS IT HAS SPECIFIC
PROVISIONS FOR CERTAIN COMMUNITIES. FOR EXAMPLE: The Hindu men
have the right to bigamy under specific circumstances mentioned in Codes
of Usages and Customs of Gentile Hindus of Goa (if the wife fails to
deliver a child by the age of 25, or if she fails to deliver a male child by
the age of 30). For other communities, the law prohibits bigamy. The Roman
Catholics can solemnize their marriages in church after
obtaining a No Objection Certificate from the Civil Registrar. For others, only
a civil registration of the marriage is accepted as a proof of marriage. The
Catholics marrying in the church are excluded from divorce provisions under the
civil law. For Hindus, the divorce is permitted only on the grounds
of adultery by
the wife. The law has
inequalities in case of adopted and illegitimate children.
.
Posts
14 comments:
Triple talaq unconstitutional, violates rights of Muslim women: Allahabad HC
The Allahabad High Court said, "Triple talaq is unconstitutional, it violates the rights of Muslim women. No personal law board is above the Constitution."
The Allahabad High Court (Justice Suneel Kumar) on Thursday (8/12/2016) said that the practice of triple talaq among Muslims is unconstitutional and it violates the rights of women. The high court said that no personal law board is above the Constitution. It said, “Triple talaq is unconstitutional, it violates the rights of Muslim women. No personal law board is above the Constitution.”
The high court’s order deals with the plea by a Muslim man and his second wife seeking protection against police action. The court didn’t pronounce on legality of triple talaq saying that the Supreme Court is seized of matter but observed that the practice of triple talaq is cruel and demeaning. However, the court left the issues of divorce to the first wife through triple talaq as well as second marriage open andn simply dismissed the man’s plea of protection.
Several political parties reacted to the High Court’s say, with both the BJP and the Congress hailing the court’s observation. Muslim Law board, AIMPLB, said that its legal committee will study the verdict and observation after which it will file its appeal against the said verdict. Appreciating the court’s say, social activist Zakiya Soman said, “I welcome the verdict of Allahabad HC, its true that triple talaq is not constitutional and it must be abolished.”
The triple talaq refers to pronouncement of the word ‘talaq’ thrice in one go by Muslim men to divorce their wives.
Earlier this week, Islamic organisation Jamiat Ulema-i-Hind told the Supreme Court there is no scope for interference with the Muslim Personal Law in which triple talaq is deeply rooted. In the argument that it forwarded, the Jamiat stated that the Muslim Personal Law has an element of certainty and is not local or regional in operation.
“There is no scope for interference with the Muslim Personal Law, which is based on primarily the Holy Quran and the Sunnah of Prophet Muhammad, explained and applied by various scholars of great antiquity and authority after thorough research,” it said. “The protection of peculiarities in personal laws is necessary for securing freedom of religion and bringing uniformity by removing those peculiarities shall be enforcement of Uniform Civil Code by the judicial process, which shall be against the constitutional bar,” it said.
In November, the All India Muslim Personal Law Board (AIMPLB) decided to form a women’s wing to discuss the issues of talaq, among several others. AIMPLB passed a resolution in favour of triple talaq. The resolution passed at the AIMPLB’s three-day convention stated that the government was infringing into the personal laws of Muslims.
http://indianexpress.com/article/india/triple-talaq-unconstitutional-violates-rights-of-muslim-women-allahabad-hc-4416535/
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WRIT ¬ C No. ¬ 51421 of 2016
Petitioner :¬ Smt. Hina And Another Respondent :¬ State Of U.P. And 2 Others Counsel for Petitioner :- Sunil Kumar Dwivedi Counsel for Respondent :¬ C.S.C.
Hon'ble Suneet Kumar,J.
Petitioners claim to have married as per muslim custom under personal law. First petitioner, i.e. the lady is aged about 23 years, whereas, second petitioner is aged about 53 years; both are illiterate. The document in support of their age is the Aadhar card. Both the petitioners are present in the Court, and have been identified by their counsel. In para¬11 of the petition, it is averred that the second petitioner has contracted the present marriage after effecting instant talak (Triple Talaq) to his wife. The second petitioner admits before the Court that from his first marriage, he has two minor children, one residing with the wife and other with him. On a specific query as to when and why the instant divorce was effected, the second petitioner would state that to contract second marriage he has divorced his wife, no other reason is pleaded or stated before the Court. The petitioners seek a direction to restrain the respondent police authorities and the third respondent, who is
Bulandshahar, where she met the second petitioner and fell in love, thereafter, decided to marry. First petitioner left her family and joined the company of second petitioner, consequently, the second petitioner decided to get rid of his first wife by divorcing her by pronouncing instant talaq. The question which disturbs the Court is should muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Whether the personal law can be amended suitably to alleviate their sufferings? The judicial conscience is disturbed at this monstrosity. The first wife has to live life for no fault of her but for the reason that her husband got attracted to a lady half of her age which is the reason for being divorced. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. The whole Quoran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him. The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. 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. In other Islamic State, where the husband must satisfy the court about the reasons for divorce. However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates the law dealing with the wife's right to divorce. The divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'Talaq' or by 'Khola'. The statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" cannot be approved as the correct law. The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters– one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected. (Ref: Pathayi v. Moideen 1968 KLT 763; A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261; referred to with approval by the Supreme Court in Shamim Ara vs State Of U.P. & another : 2002 (7) SCC 518). The decision in Shamim Ara was rendered in 2002, wherein, the observation of the Division Bench judgment of the Kerala High Court was noticed and approved, which was rendered 20¬30 years before. Country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends.... "Law is dynamic and its meaning cannot be pedantic but purposeful." (Refer— Bai Tahira Vs. Ali Hussain AIR 1979 SC 362). The purpose of Law in a modern secular State based upon the Constitution is to bring about social change. The muslim community comprise a large percentage of Indian population, therefore, a large section of citizen, in particularly women, cannot be left to themselves to be governed by archaic customs and social practise under the garb of personal law purportedly having divine sanction. The women of the community continue to suffer bias, deprived of the protection, they
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should otherwise get through provisions in the Constitution that provide for equality and non discrimination. India is a nation in the making, geographical boundaries alone do not define a nation. It is to be adjudged, amongst others, on the parameter of overall human development and how the society in particular treat their women; leaving such a large population to the whims & fancy of personal law which perpetuate gender inequality and is regressive, is not in the interest of society and the country. It impedes and drags India from becoming a nation. The instant divorce (Triple Talaq) though has been deprecated and not followed by all sects of muslim community in the country, however, is a cruel and the most demeaning form of divorce practised by the muslim community at large. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quoran. Personal laws, of any community, cannot claim supremacy over the rights granted to the individuals by the Constitution. I WOULD NOT LIKE TO SAY ANYTHING FURTHER FOR THE REASON THAT THE SUPREME COURT IS SEIZED WITH THE MATTER. In Shamim Ara, a statement merely made in the pleadings “written statement” though unsubstantiated that the wife was divorced upon delivering copy of the written statement, was not accepted by the Supreme Court and the subsequent marriage contracted by the husband was held void. In the facts and circumstances of the present case, the petition stands dismissed. THE LEGALITY OF THE MARRIAGE/DIVORCE AND RIGHTS OF PARTIES IS KEPT OPEN. No cost. Order Date :¬ 5.11.2016 Mukesh Kr.
https://drive.google.com/file/d/0BzXilfcxe7yuS3BrNzRYUnJUcGc/view
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The constitutionality of triple divorce
Faizan Mustafa (Vice Chancellor of Nalsar University of Law, Hyderabad)
The Modi government has argued in the Supreme Court that triple divorce is not an essential aspect of Islam. What the government has failed to understand is that Article 26 gives religious freedom both to religious denomination as well as any sect thereof. Thus various sects have their own laws.
THE Allahabad High Court, while dismissing two petitions and refusing to give any relief, has made interesting observations on triple divorce. There was no “judgment” as was reported in the media as judgment determines rights and liabilities. In one case, the petitioner was the second wife who had sought protection from the police harassment as the mother of the divorced first wife was threatening her. Here, the contention was that since the husband gave instant triple divorce just to marry another woman, the first marriage has not dissolved.
Justice Suneet Kumar did not appreciate that as per existing law, bigamy is not an offence for Muslims and thus even if the first marriage subsists, the husband can take a second wife, of course if he can "do justice between the two wives" and the first wife would retain all rights of wife, including the right to residence and maintenance. In the second petition, the wife whose first husband was living in Dubai has married another man by asserting that her husband had divorced her on the telephone. The husband denied this but the lady insisted that her second marriage is valid as triple divorce on the phone has legally dissolved her first marriage.
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The learned judge refused to go into the validity of either divorce in the first case and marriage in the second but rightly noted that not only men but even women do take undue advantage of personal laws. In the process, the judge said that triple divorce is cruel, inhuman and unconstitutional. Now the question is, without recording a finding should a judge make such sweeping observations, particularly when the judge has recorded that the matter is pending before the apex court? The current debate even in the Supreme Court is unnecessary as in 2002 itself the apex court has held in the Shamimara case that triple divorce does not dissolve marriage. A writ court can declare a “law” as unconstitutional. But is Muslim Personal Law “law” within the meaning of Article 13 of the Constitution? Only a “law” can be challenged and courts would have power of judicial review if a “law” is in contravention of fundamental rights. “Custom and usages” are not personal laws but deviations from personal law. Had personal law been “law”, untouchability would have become void on its own. Its explicit abolition under Article 17 indicates that framers of the Constitution intended to exclude “personal laws” from the definition of “law”. Even “constitutional amendments” are not “laws” under Article 13 and cannot be challenged on the basis of fundamental rights. The limited challenge can be on the basis of the “basic structure” of the Constitution. “Judgments” of the Supreme Court too are also not “law” under Article13. However, parts of Muslim Personal Law which have been enacted by the Parliament are certainly “laws” such as the Shariat Act, 1937, Dissolution of Muslim Marriage Act, 1939 etc. If any of these laws are contrary to fundamental rights, the court would be free to strike them out as unconstitutional. Muslim Personal Law is largely based on juristic interpretation. Islamic law is given by the experts. Law making is indeed a private enterprise in Islam. Jurists intervene between God and State. Muslim Personal Law has not been passed by any legislature. It is based on the interpretations given by various jurists. Can courts declare the opinion of jurists who lived in 9th century and who considered triple divorce as valid unconstitutional?
religious denomination as well as any sect thereof. Thus various sects have their own laws. Moreover, the question of what is permissible (halal) and what is prohibited (haram) is the central to Islam. Islam does lay down what food is permissible, what clothes or metals one can wear and what relationship is valid. If some Muslim sects consider triple divorce as valid, sexual relations between the divorced couple would become haram or prohibited.
Law is not a great agent of social control and we must accept its limitations in bringing about social change. Hindu law reforms have not fully succeeded in ensuring the empowerment of Hindu women. Similarly, demands of banning triple divorce are misplaced as "banning" would invariably mean "prohibiting" some conduct generally through the instrumentality of "criminal law". Strangely, even the senior officials of the Muslim Personal Law Board too are singing the tone of imprisonment for the one who gives triple divorce. Judiciary cannot create new crimes. We need an Act of Parliament to make an act criminal. This author is of the view that it is the duty of ulema to rise to the occasion and urge people to give divorce only as per the Quranic procedure if it is unilateral. That is, after making necessary efforts at reconciliation and arbitration with just one revocable pronouncement in a period of three months or alternatively have divorce by mutual consent which is a recognised mode of divorce in Islam. Pre-nuptial contract (nikahnama) with terms and conditions clearly laid down would be a much better solution.
http://www.tribuneindia.com/news/comment/the-constitutionality-of-triple-divorce/336325.html#
A Non-Discriminatory Uniform Civil Code May Be a Step Too Far for Hindus Too:BY JAYAKUMAR SELVARAJ ON 19/01/2017 One way to bypass the complication of introducing a uniform civil code for a country as diverse as ours is to alter the laws to achieve gender equity.A few months ago, the Centre asked the Law Commission, headed by retired Supreme Court Judge Balbir Singh Chauhan, to examine the implications of enacting a uniform civil code (UCC). Subsequently, the commission released a questionnaire, covering a gambit of issues, to seek comments from the public. Predictably, some minority organisations opposed it, saying that a UCC would impinge on their right to freedom of religion.
Currently, there are two primary reasons propounded for a uniform civil code. First, that a secular republic should have a common civil law for its citizens, irrespective of their religion. And second, to achieve gender justice, as the personal laws of almost all religions are discriminatory towards women. Though the second reason is grounded in logic, the first is suspect. A uniform criminal law is desirable for establishing the principal of equality before law. But applying the same principle in civil matters may not be the right thing to do as this might curtail individual choice and override perfectly legitimate religious practices. READ MORE AT
https://thewire.in/100520/need-for-a-non-discriminatory-uniform-civil-code/
CENTRE SUBMITS ISSUES IN SC, QUESTIONS PRACTICE OF TRIPLE TALAQ
The Centre on 16 FEB 2017 submitted in the Supreme Court a list of issues for adjudication including the question whether fundamental right to practice and propagate one's religion protected the practice of triple talaq, 'nikah halala' and polygamy among Muslims. The NDA government has, for the first time in India's constitutional history, opposed in the top court such prevalent practices among Muslims on grounds like gender equality, secularism and binding international covenants. A bench headed by Chief Justice J S Khehar perused the four questions framed by the Centre and said they were "constitutional" ones which need to be dealt with by a five¬judge bench. The first issue was whether the practices of triple talaq, 'nikah halala' and polygamy are protected under Article 25(1) of the Constitution. The Article says: "Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion." The government then raised the question whether the right to practice and propagate religion is subject to other equally important rights, that is right to equality (Article 14) and right to life (Article 21) of the Constitution. It then referred to Article 13 which provides that any law is void if it is not in conformity of the constitutional scheme and framed the issue whether the Muslim personal law amenable to this provision or not. The fourth issue, framed for the consideration of the apex court, said these practices are compatible with India's obligations under international treaties and covenants to which nation is a signatory. Earlier, the Centre, in its affidavit, had opposed these practices among Muslims by referring to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries. "It is submitted that the issue of validity of triple talaq, nikah halala and polygamy needs to be considered in the light of principles of gender justice and the over¬riding principle of non-discrimination, dignity and equality," it had said.
http://economictimes.indiatimes.com/news/politics-and-nation/centre-submits-issues-in-scquestions-practice-of-triple-talaq/articleshow/57187848.cms
https://scroll.in/latest/834274/personal-laws-such-as-triple-talaq-cannot-deny-muslim-women-their-rights-says-centre
Personal laws such as triple talaq cannot deny Muslim women their rights, says Centre
In an affidavit, it has urged the Supreme Court to examine whether practices such as nikah halala and polygamy were, indeed, an intrinsic part of Islam. The Centre on Monday urged the Supreme Court to declare the Islamic practices of triple talaq, nikah halala and polygamy inconsistent with Muslim women’s fundamental right to life and dignity. Emphasising that Muslim women cannot be denied their Constitutional right to equality, the government told the top judiciary that they had the authority to regulate the right to religion to ensure that practices did not go against modern day liberal values such as gender equality, according to The Economic Times.
In an affidavit filed in the apex court, the Centre pointed out that no reforms had been brought in in the Muslim community for more than 65 years. It urged the bench to examine whether practices such as triple talaq were, indeed, an intrinsic part of Islam and hence protected under the Constitutional right to religion, as the All India Muslim Personal Law Board has maintained since the court began to hear petitions challenging the divorce practice.
The central government, once again, highlighted Muslim countries such as Bangladesh, Afghanistan, Pakistan, Tunisia, Turkey, Morocco, Indonesia, Iran and Egypt where a number of reforms have been implemented and the practices of “instant triple talaq” or “automatic polygamy at will” are no longer allowed. /1
“The paradox is that Muslim women in India are more vulnerable in their social status because of the prevalence of such practices, even though they live in a secular country,” it said. “These practices...affect the social status and dignity of Muslim women and render them unequal and vulnerable qua men belonging to their own community, women belonging to other communities and also Muslim women outside India,” Hindustan Times reported.
The government also emphasised that women cannot be denied the status and gender equality Constitutionally entitled to on the pretext of preserving personal laws. To change this reality, it has called for personal laws to be brought under the ambit of Article 13 so any of them that violate the fundamental rights of citizens can be declared void.
The Centre had first taken an official stand against triple talaq, nikahl halala and polygamy on October 7, 2016, when it had told the top court that gender equality was non-negotiable. Its written submissions will be taken up from May 11 by a five-judge vacation bench of the Supreme Court, which has been hearing a number of petitions challenging the validity of the practices.
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Triple talaq — myths and misperceptions
Faizan Mustafa
The All India Muslim Personal Law Board has, in a recent meeting, decided on a code of conduct for divorce. In a major climbdown, it has conceded ground and resolved in favour of "one divorce." Therefore, instant triple divorce will no more be an option with a Muslim male.
http://www.tribuneindia.com/news/comment/triple-talaq-myths-and-misperceptions/398646.html
The eight-step code of conduct for talaq as given by AIMPLB
Firstly, if there are difference between spouses, they will try to resolve them amicably by talking to each other in the spirit of forgiveness and accommodation. The resolution said that if there are shortcomings in one person, the other person should overlook them as there must be several good or plus points as well.
Secondly, if above conversation does not give desired results, there may be temporary withdrawal of the company of the spouse while continuing to live in the same house.
Thirdly, in case of failure of first two steps if differences continue to persist, parties should try sincere reconciliation within family or by appointing one arbitrator from each side. No stone stone should be left unturned in making parties agree to reconciliation.
Fourthly, if arbitration does not yield positive results and there is no possibility of patch up and "irretrievable breakdown of marriage" has really taken place, only one divorce is to be pronounced by the husband.
Fifthly, this single pronouncement is to be compulsorily followed by the waiting period of three months or if the wife is pregnant till the delivery of the child.
Sixthly, if during this waiting period, parties change their mind and see value in living together, they need not do anything more and the divorce would automatically stand revoked.
Seventhly, if no express or implied revocation of divorce takes place within the waiting period, divorce would become complete at the end of three months or extended period due to pregnancy.
Finally, if after some time, parties again realise out of their free will that they want to yet again reunite, they need not do any intervening marriage (halala), just a fresh nikah with new terms and conditions and fresh meher (dower payment to wife) would suffice to revive their relationship.
http://www.tribuneindia.com/news/comment/triple-talaq-myths-and-misperceptions/398646.html
Law Commission of India's questionnaire on Uniform Civil Code
http://lawcommissionofindia.nic.in/questionnaire.pdf
Vide question no. 7 'Maitri karar' practised by Hindus in Gujarat also under lens
Maitri Karar (Friendship deed) : a married hindu man signs a friendship pact on stamp paper with other woman and brings her home to live together.
Q. No. 9 re 2 year period of wait for finalizing divorce based on mutual consent ( NOTE: in writ petition (c) 127/2015 (Albert Anthony vs UOI), the SC on 13/7/2015 had exhorted upon government to take a decision on amending the section 10A(1) of the Christian Divorce Act (prescribing 2 years) to reduce it to 1 year at par with germane provision of the other religious communities)
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