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Monday, December 06, 2021

Beyond triple talaq

Central issue is not finality and manner of divorce, but inability of law, society to support women after it

Written by Kapil Sibal |
May 26, 2017 1:47:46 am
triple talaq, triple talaq supreme court, kapil sibal triple talaq, triple talaq defense, shariah law triple talaq law, india news, indian express news Raza Academy’s Mohammed Saeed Noori at the Supreme Court before a hearing on the constitutional validity of triple talaq in New Delhi. (Source: PTI Photo)

Triple talaq unilaterally pronounced in one sitting by the husband giving finality to the divorce is an emotive issue. This practice is not referred to in the Quran. Even Hadith, which legitimises this practice, says that it is sinful. It is referred to as valid in law, bad in theology. Now that the hearing in the Supreme Court is over and the judgment reserved, it would be inappropriate for me to comment on the merits of the issue.

What is of concern, however, is that there is no data available suggesting the frequency of triple talaqs pronounced in one sitting. IndiaSpend.org, quoting Census 2011 data, states that “among divorced Indian women, 68 per cent are Hindus whereas 23.3 per cent are Muslims”. Of the 23.3 per cent, we have no data to find out the percentage of Muslim women divorced because of the pronouncement of triple talaq in one sitting.

The census also puts the divorce rate among Muslims at 0.56 per cent as opposed to 0.76 per cent amongst Hindus. Neither the government nor the Law Commission has conducted any survey on the extent of triple talaq among Indian Muslims pronounced in one sitting.

A recent survey conducted by the secretary of the Sachar Committee found that of all the divorces amongst the Muslim community, the ones attributed to triple talaq pronounced at one sitting represented only 0.44 per cent. The survey concludes that the incidence of triple talaq is trivial with only one out of a total of 331 instances of reports of talaq both by men and women. It is, therefore, clear that the constitutional issue was being addressed without the necessary data.

For centuries, women have not been equal partners in a marriage. Even today in India, barring a very small percentage of empowered women, they are neither part of the mainstream of national life, nor are their genuine concerns addressed. At the heart of it is the iniquitous nature of a patriarchal society. The fact that 50 per cent of mankind owns less than 2 per cent of its assets demonstrates the stark reality.

If two people cannot live together, both should have the right to opt out of the marriage. In an ideal world, that would be an acceptable solution. In India, by and large, women are not educated enough to be bread winners, and within the moorings of traditional cultures, do not have the courage and the capacity to leave the matrimonial home. Given the inequality prevalent in family structures, the woman’s right to opt out is suicidal.

For the husband, that option is less daunting. This does not mean that men, in most cases, opt out of the marriage without reason. Barring some exceptions, it is only when incompatibility cannot be resolved that men opt out. Given the patriarchal environment, they are better placed to do so, being the dominant partner.

The central issue, therefore, is not the finality and the manner in which women are divorced, but the inability of both law and society to protect women after divorce. Court proceedings are dilatory, delaying quick resolution. Unless the issue of the empowerment of women is addressed, the practice of women being unfairly treated will remain unresolved.

Triple talaq case, supreme court hearing, muslim personal law, islamic law, religious conservatives, triple talaq hearing, Supreme Court, India news, indian express opinion Neither the government nor the Law Commission has conducted any survey on the extent of triple talaq among Indian Muslims pronounced in one sitting. (Illustration by C R Sasikumar)

We have statutes in place which give women the right to seek or deny divorce. Absent divorce by consent, the wife has neither the wherewithal nor the capacity to defend herself in prolonged court proceedings. There is no light at the end of the tunnel. Most often women just abandon legal options and live a life of misery thereafter. Most of the time, they suffer ignominy throughout their life, not having the courage and financial capacity to seek divorce.

What the government and we in society need to do is to address the issue of gender justice. A legal proceeding in the Supreme Court may pay political dividends outside court but it does not address the real issue. The government should conduct a study about the effectiveness of divorce proceedings in family courts and bring about changes, both through legislation and other measures, to provide a support system for women in such a predicament.

A fund at the level of state governments to enable destitute and disempowered women to support them in legal proceedings may help. In many situations, the husband may not also have the wherewithal to support women adequately during the course of litigation because of other family responsibilities. The domestic financial pie is often too small to distribute equitably. There are provisions in the law under the Protection of Women from Domestic Violence Act, 2005, which entitle the wife to share the household where the couple resided. But that does not deal with all possible situations. Not everyone has a house big enough for sharing or a house capable of partition, given the levels of poverty in our country.

Systems of law may differ. Methods of divorce may differ. The procedure of resolution of disputes pending litigation may also differ. Whether a particular procedure which prolongs the agony of the couple for years without resolution is better than a quick divorce after which issues relating to the security and the future of women are addressed is debatable.

Furore and uninformed debates in the media only help to obfuscate the issue. An attempt by the political dispensation to empathise with women when their record in treating women is suspect will not serve their cause. Constitutional morality can only serve the cause of women if constitutional values in Part III of the Constitution are respected. The record of all governments in this regard is abysmal.

Mouthing platitudes in court is not enough. This battle is not to be fought in the court room alone. The real challenge is to fight this battle outside. What needs to be changed is the patriarchal mindset and social prejudice. What is needed is a government that does not shed crocodile tears.

The writer is a senior lawyer, Congress leader and former Union minister. He is representing the All Indian Muslim Personal Law Board in the triple talaq case

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