The Allahabad High Court in its order said that triple talaq is 'unconstitutional' and its a grave injustice to women's right. The High Court also observed that triple talaq practice, under which men can divorce their wife by saying "Talaq" three times, is cruel to women and found it absurd.
The court said that personal law of any community is not superior to constitution.
Earlier, the central government also took a firm position against triple talaq and said to Supreme Court that it violates the fundamental rights of women.
Recent Triple Talaq Controversy
Concept of Triple Talaq :
The talaq is endorsed by several scholars of the Sunni theology, and some in the Zaydi theology.It consists of the husband saying the phrase "I divorce you" (in Arabic, talaq) to his wife, three times.
Shia and Sunnī have different rules to engage a talaq. The talaq has three steps:
Triple Talaq is a Muslim practice in which a Muslim man can legally divorce his wife almost instantaneously by uttering the Arabic word for divorce, talaq, three times in a row, or by indicating his intention to end the marriage in similar ways, for example, by saying “I reject you”. And presently supreme court of Indian is on process that whether to declare this practice unconstitutional or not. Supreme court asked government about its stand on triple talaq and government came out in support of the view that such practices should be abolished from a democratic state.Amid the ongoing debate over ‘Triple Talaq’,government’s stand is of the clear view that personal laws should be constitutionally compliant and in conformity with norms of gender equality and the right to live with dignity. And again many objections are being made against this view of the government and supreme court by orthodox set of the society. And their views are basically based on the presumption that the law written in their religious books can never be altered and amended. By citing this argument The All India Muslim Personal Law Board has filed an counter affidavit in the supreme court. And the whole matter is yet to be reached at a clear conclusion. Our founding fathers deemed constitution a supreme authority. And religious laws of any community can not be placed above the constitution. And the uniform civil code holds the true spirit of secularism which is a very essential part of a democratic nation. So the legislation of uniform civil code would be a big step in the direction of gender justice and equality in India which will only strengthen our democratic values.
In the backdrop of this, the Union Law Ministry has asked the Law Commission to examine in detail all issues pertaining to the Uniform Civil Code and submit a report to the government. The Legislative Department has made a reference to the Law Commission for an in-depth examination of “matters in relation to Uniform Civil Code”.
An emotive issue:
- The government’s request to the Law Commission for a report on the uniform civil code comes on the trail of many related developments over the past several years.
- Last year the Supreme Court had said that divorced Muslim women were legally entitled to maintenance from their former husbands under Indian law. The Supreme Court had also nudged the Centre, asking it to take a quick decision on the code.
- In 2011 the Delhi High Court had turned down a Muslim man’s appeal that he could not be compelled to pay maintenance to his former wife because the law in question did not apply to the Muslims.
- These developments are to be seen in the overall context of the Constitution’s Directive Principles of State Policy, which enjoin upon the State to have a uniform civil code (Article-44).
- When the Constitution came into force, while separate electorates were abolished in pursuance of the goal of national integration, enough safeguards were kept for protecting religious and linguistic minorities and their religious and cultural rights. With that in view, successive governments at the Centre remained aloof from this.
- Another thing to be kept in mind is that having the uniform civil code does not concern the largest minority, the Muslims, alone. There are other communities that have their own civil laws and customs on marriage, divorce, adoption, maintenance and succession.
- But now there are visible signs of change, with advocacy groups of religious communities asking for a uniform civil code. Bharatiya Muslim Mahila Andolan, a Muslim women’s advocacy group, has been campaigning against triple talaq.
- The government, however, should move cautiously in the matter because this is a touchy subject and so can be emotive.
Why India needs a uniform civil code?
- First, a secular republic needs a common law for all citizens rather than differentiated rules based on religious practices.
- There is a second reason why a uniform civil code is needed: gender justice. The rights of women are usually limited under religious law, be it Hindu or Muslim. The practice of triple talaq is a classic example.
- It is unfortunate that the demand for a uniform civil code has been framed in the context of communal politics. Too many well-meaning people see it as majoritarianism under the garb of social reform.
- Even the courts have often said in their judgements that the government should move towards a uniform civil code. The judgement in the Shah Bano case is well known, but the courts have made the same point in several other major judgements.
- The government will have to work hard to build trust, but more importantly, make common cause with social reformers rather than religious conservatives.
- Rather than an omnibus approach, the government could bring separate aspects such as marriage, adoption, succession and maintenance into a uniform civil code in stages.
- The civil law in Goa derived from the Portuguese Civil Procedure Code of 1939—could be a useful starting point for a national debate. The coastal state continued with its practice of treating all communities alike even after its entry into the Indian Union.
- The government would also do well to complement the overdue move towards a uniform civil code with a comprehensive review of several other laws in the context of gender justice.
- The underlying principle should be that constitutional law will override religious law in a secular republic.
- It is now 66 years since the Constitution came into force. It is high time there was a decisive step towards a common civil code. If not now, then when?
Code and Effect
- India has separate sets of personal laws for each religion governing marriages, divorce, succession, adoption and maintenance.
- Hindu law was modernised in the 1950s, but those for Christians and Muslims are colonial-era relics.
- If a uniform civil code is enacted, all personal laws will cease to exist.
- It will do away with gender biases in Muslim law, Hindu law and Christian law that have been often challenged by women on the ground that they violate the right to equality.
- Polygamy, triple talaq and other such practices that are heavily biased against women will become history.
- Article 44 says the state shall work towards securing a uniform civil code across the country replacing personal laws of various religious communities.
- The provision is a part of the Directive Principles of State Policy that are not enforceable by any court.
- But according to Article 37, the government is dutybound to apply these principles in making laws.
The personal law:
- Most people believe that we do not have common civil laws in this country. The reality is, all civil laws are common, except one law, namely the personal law which varies with the religious groups. The personal law relates to marriage, divorce, succession and inheritance, maintenance, custody of children and adoption.
- By tradition, the personal law is treated as religious, though religion has nothing to do with it.
- One cannot deny the desirability of a uniform personal law consistent with human rights and the principles of equality, fairness and justice. In fact, these norms have to be observed in all human transactions in any civilized society.
- The question is of the appropriate method to be adopted for enacting the law.
- Child marriages, the absence of basic rights for deserted and divorced women and the status of fatherless and abandoned children among all religious communities including the prohibition of widow remarriage among vast sections of the Hindus even today is the burdensome baggage of human hardships that this country has to bear in the 21st century.
- As per Article 44 of the Constitution, the state shall “endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”.
- The direction, notably, is not for Parliament to enact such a code straight away but for all organs of the state to make efforts to “secure” uniformity in civil laws.
- The apex court of the country has repeatedly reminded the government of this policy directive but has always respected its nonjusticiable nature and refrained from issuing any direction.
- The note of caution in the apex court’s Sarla Mudgal judgment “the desirability of uniform civil code can be hardly doubted but it can concretise only when social climate is properly built by the elite of the society and the statesmen, instead of gaining personal mileage, rise above and awaken the masses to accept the change” merits serious thinking by all stakeholders.
- The triple talaq practised by Indian Muslims is no doubt not consistent with morality, rationality or human rights, and needs to be done away with as early as possible. Many Muslim countries have modified the provisions of the personal law prohibiting bigamy and divorce by voicing talaq, talaq, talaq. No doubt, Muslim women also have a similar right which is known as khulla; this practice comes with restrictions, and in an overall situation dominated by patriarchy, it is as good as ineffective.
- There is no doubt that all personal laws have to be just and equitable to both men and women and, hence, the good from all personal laws has to be accepted and the bad to be discarded.
- Hence the uniform code, if and when enacted, will have to be a different one from the personal laws of all religious communities. It will have to be framed by consensus among all the religious groups and will have to conform to the norms of modern values of freedom, equality, rationality, justice and humanism, for both men and women.
- It is true that if a rational common personal law is enacted, it will help eradicate many evil, unjust and irrational practices prevalent across the communities, and will also strengthen the unity and integrity of the country.