The parameters of the right of a husband to divorce his wife unilaterally through the pronunciation of ‘talaq’ three times (“triple talaq” or “unilateral talaq”) has been hotly contested in India’s Muslim personal law jurisprudence. Triple talaq, also known as talaq al-ba’in, is an irrevocable form of divorce initiated by men in classical Islamic law, including the Hanafi school – one of the four Sunni schools of Islamic law – followed in India. This form of talaq has been particularly contested in Indian courts as it traditionally requires no rationale at all for the divorce, and it can be effected very easily through the mere verbal pronunciation of talaq three times. This ease of male-initiated divorce comes in stark contrast to the difficulty Muslim women face in obtaining a female-initiated divorce (khulʿ).[1]
Initially, in the early 1900s, Indian High Courts had recognized the validity of such unilateral talaq.[2] However, the same courts, as well as the Supreme Court, have placed conditions on the practice of talaq over the years.[3]
In light of protest by members of the Muslim community in response to the Shah Bano case in 1985[4] (holding that a Muslim ex-husband is required to pay monthly maintenance under India’s Criminal Procedure Code in addition to the 3-month iddat period under Muslim personal law),[5] it appears that the Indian Supreme Court has become more reluctant to disturb classical interpretations of Islamic law out of fear of inciting further communal tensions. That is, the Supreme Court seems to have felt comfortable limiting a husband’s right to unilateral talaq largely where its interpretation fell in line with classical Islamic law interpretations and garnered the support of at least some key actors within India’s Muslim community, such as the All India Muslim Personal Law Board (AIMPLB).
AIMPLB is a self-appointed private body established in 1973 to protect Muslim personal law in India. It has 201 members, including many of India’s foremost clerics. AIMPLB exerts substantial power to pressure governmental actors and to mobilize the Muslim community in protest or support of political and judicial outcomes.[6]
Two cases in particular illustrate differing approaches that the Indian Supreme Court has taken with respect to the law on talaq; while the court refused to address the constitutionality of talaq in Ahmedabad Women Action Group (1997), it was willing to place limitations on the practice in Shamim Ara[7] (2002). These cases, as argued below, demonstrate the extent to which the court’s calculus is affected by the current sociopolitical context and by public perceptions among key members of India’s Muslim community.
First, in Ahmedabad Women Action Group vs. Union of India, the Supreme Court limited its intervention into Muslim personal law. This case was a form of Public Interest Litigation (“PIL”), a type of case that can be brought in India for the “public good” by any member of the public, not just the plaintiffs directly impacted. This particular case was brought by the Ahmedabad Women’s Action Group, seeking to challenge numerous aspects of Muslim personal law, including polygamy, inheritance, and unilateral talaq as discriminatory. In particular, the Group asked the Supreme Court to consider the question of whether unilateral talaq violated Articles 13 (protecting fundamental rights), 14 (protecting the right to equality before the law and equal protection of the law), and 15 (prohibiting discrimination on grounds of religion and sex) of the Constitution. The Group did not cite any facts, as it was a PIL case that did not require standing or reference to a particular plaintiff’s case. The Court ultimately held that the Muslim personal law system and its allegedly sex discriminatory aspects could only be addressed through legislative action, and that the Court could not interfere.[8]
In other words, the Court punted the question to the legislature. The Court relied upon numerous precedents where it was faced with similar challenges to aspects of personal law, and where it determined that such matters lie within the purview of the legislature. Extensively citing precedent and adding little analysis of its own, the Court looked to arguments that altering personal laws – particularly that codified in legislation – is seen as “social reform” and a political issue, and thus is a matter of legislative policy; the Court relied on such ‘separation of powers’ arguments.[9] However, there may have been an underlying and unsaid impetus: the Court may also have suspected that backlash would result if it held key tenets of Muslim personal law to be unconstitutionally discriminatory towards women, and may have wanted to avoid becoming embroiled in such politicization of personal law.[10]
In contrast, in the landmark Shamim Ara case a few years later, the Indian Supreme Court was willing to intervene to limit a Muslim husband’s previously unfettered right to divorce. In this case, the appellant – the wife – had married the respondent in 1968, and they had four sons. In 1979, she filed a complaint of desertion and cruelty to her and her two minor children under Section 125 of the Criminal Procedure Code in the Family Court at Allahabad (in the Indian state of Uttar Pradesh).[11] In his reply in 1990 (years later, attesting to the slow pace of the courts), her husband asserted that he had divorced her in 1987, and that he did not owe her maintenance as he had already given her a house in place of mahr (dower).[12] He presented no proof of divorce, except for an affidavit that he submitted in a different civil suit (the details of which were not provided in the Supreme Court’s judgment), which stated that he had divorced his wife. The Family Court had accepted this affidavit as proof of talaq and dismissed the wife’s complaint for maintenance in 1993. She then appealed the matter to the High Court of Allahabad, which has jurisdiction over Uttar Pradesh. That court upheld the local Family Court decision and further found that, although the divorce was not communicated to the wife, the husband’s written statement filed in court in 1990 would suffice as proof of divorce. It determined that the ex-wife was entitled to claim maintenance between 1988 and 1990 (the period of time where the husband did not pay maintenance, alleging that they were divorced). She appealed once again.[13]
The main question facing the Supreme Court was whether the husband’s affidavit sufficed to prove a divorce.[14] Thus, in some ways, this seemed an ordinary case of evidence. But it had extraordinary implications for conflicts of laws between Indian civil and Muslim personal law.
In answering this question, Justice Ramesh Chandra Lahoti (who later became Chief Justice in 2004) referred to the analyses of Islamic law scholars and High Court cases. Notably, Justice Lahoti cited and rejected the positions of two prominent scholars of Muslim personal law. First, he looked to Mulla on Principles of Mahomedan Law (1990), who had determined that under Islamic law, a mere statement of talaq – even if not pronounced in the presence of the wife and without proof of intention – sufficed to effect a divorce.[15] He also referenced Dr. Tahir Mahmood, who stated that a divorce can be effected unilaterally by a Muslim husband, and that a statement made by the husband during the course of judicial proceedings would also suffice to effect a divorce.[16] Justice Lahoti then cited numerous High Court cases where other Justices opposed these scholars’ conception of unilateral talaq, instead urging limits to it. For example, he cited Justice Baharul Islam in Jiauddin Ahmed (1978) (in the Gauhati High Court), who notes that the Qurʾān requires reasonable cause and attempts at reconciliation to effect talaq. He also cites Rukia Khatun (1981), where the bench drew the same requirements for talaq from the Qurʾān.[17]
Ultimately, relying heavily on such High Court cases and rejecting the interpretations of Mulla and Tahir Mahmood, Justice Lahoti rejected the husband’s claim. He held that for talaq to be valid, there must be (1) a reasonable cause and (2) proof of an effort of reconciliation.[18] Justice Lahoti also found that a simple utterance of talaq, or the presentation of a written statement stating that the respondent had divorced the plaintiff sometime previously, was not sufficient to effect unilateral divorce. The Court only noted that the husband should have “adduced evidence and proved the pronouncement of talaq…,” but did not specify what evidence would suffice.[19] Thus, the holding remains somewhat unclear, leaving us only with an idea of what does not suffice as proof.
This development certainly strengthened the rights of Muslim women in India. In short, it made it more difficult for Muslim husbands to divorce their wives and abandon them financially without a valid reason.
Why was the Court willing to limit talaq in this case but not in the last? As noted, Shamim Ara followed a line of cases limiting the practice of unilateral divorce, particularly Jiauddin, mentioned above.[20] But perhaps even more significant, the response from key Muslim religious and political institutions in India was supportive. For instance, Jamaat Ahl-i-Hadith (a religious institution) and Muslim Majlis-e Mushawarat (a Muslim political institution/consultative assembly)[21] issued declarations in support of limiting unilateral talaq. These actors were willing to do so because they interpreted the Qurʾān to provide basis for limiting unilateral talaq.[22]
Indeed, several Qurʾānic verses attempt to prevent the parties from acting hastily in obtaining a divorce. For instance, Sura 2, verse 229 limits a couple to two divorces, after which the couple must choose whether to stay together or separate forever.[23] The exception is where a husband can remarry his wife if she marries and divorces another man afterwards.[24] In addition, the Qurʾān provides for the appointment of two arbiters to attempt to reconcile the couple before they can divorce.[25] All of these verses point to the prevention of rash, impulsive divorces. Looking to these verses, the All India Muslim Personal Law Board (AIMPLB) made a practice of non-intervention in cases where the validity and form of triple talaq was challenged.[26]
Ultimately, I argue that the implied and overt support of AIMPLB and other major Muslim institutions, grounded in the reasonableness of such an interpretation of the Qurʾān, made the Supreme Court more amenable to upholding limitations on triple talaq in the Shamim Ara case and made reform in the direction of strengthening the family law rights of Muslim women more tenable. Because the Muslim community’s outcry against perceived interference of the Supreme Court in the Shah Bano decision, the Indian Supreme Court has been more responsive to the perceived public opinion of the Muslim community, and it seems more likely to take steps to strengthen the rights of Muslim women when its interpretations enjoy support from at least some key Muslim elite institutions. While there is no formal mechanism through which the Court systematically receives or takes into consideration public opinion, the Court clearly does not operate in a vacuum.
In addition, the differing outcomes in these cases illustrate that the Court has been more willing to make smaller, piecemeal changes to Muslim personal law to advance the rights of women (as in Shamim Ara), while leaving the system intact in its constitutionality. This line of cases, I argue, demonstrates the Court’s hesitance to become involved in the politicization of personal law, and to avoid judgments that overtly assert that personal law is discriminatory towards women.[27] The evolution of Indian law on unilateral talaq, and particularly the contrasting outcomes in Ahmedabad Women Action Group and Shamim Ara, is an apt reflection of these dynamics.
[1] In order to obtain a female-initiated divorce (khulʿ), a Muslim woman must agree to give consideration to her husband in return for his agreement to divorce. Khulʿ is not a unilateral right, as the husband must consent, and the wife must also give up all, or part, of her dower in return. In certain limited circumstances, a woman may also obtain a judicial divorce under the Dissolution of Muslim Marriages Act. See Vrinda Narain, Gender and Community: Muslim Women’s Rights in India 27 (2001).
[2] See, e.g., Sarabai v. Rabiabai, (1906) 8 BOMLR 35 (recognizing the validity of unilateral talaq by looking to the classical Islamic legal tradition).
[3] See Narendra Subramanian, Legal Change and Gender Inequality: Changes in Muslim Family Law in India, 33 Law & Soc. Inquiry 631, 650–53 (2008).
[4] Also available at http://indiankanoon.org/doc/823221/.
[5] Siobhan Mullally, Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case, 24 Oxford J. Legal Stud. 671, 672 (2004).
[6] Despite this, AIMPLB is largely male, and Muslim women’s rights activists have not felt the Board is representative of their view. Sylvia Vatuk, Islamic Feminism in India: Indian Muslim Women Activists and the Reform of Muslim Personal Law, 42 Modern Asian Studies 489, 493 (2007). As an example of AIMPLB’s political power, it has launched a campaign against the Modi government, whose mobilization of the Hindu majority has led to concerns about the treatment of the Muslim minority. Muslim Law Board Attacks Modi Govt, RSS, Times of India (Mar. 22, 2015), http://timesofindia.indiatimes.com/india/Muslim-law-board-attacks-Modi-govt-RSS/articleshow/46654786.cms. And indeed, the AIMPLB even has the power to refuse to meet with India’s Prime Minister. See, e.g., Not Meeting PM Now, Says AIMPLB, Times of India (Mar. 23, 2015), http://timesofindia.indiatimes.com/city/jaipur/Not-meeting-PM-now-says-AIMPLB/articleshow/46662241.cms.
[7] Also available at http://indiankanoon.org/doc/332673/.
[8] Ahmedabad Women’s Action Group v. The Union of India, (1997) 3 S.C.C. 573, 574–75.
[9] Ahmedabad Women’s Action Group v. The Union of India, (1997) 3 S.C.C. 573, 575–84.
[10] While similar trends may be detected in other cases, more research is required to definitively conclude that the Court takes into consideration or is influenced in any way by the sociopolitical context, and particularly the likelihood of backlash against its decisions.
[11] Shamim Ara v. State of U.P. & Anr (2002) 7 S.C.C. 518, 520.
[12] Shamim Ara v. State of U.P. & Anr (2002) 7 S.C.C. 518, 521.
[13] Shamim Ara v. State of U.P. & Anr (2002) 7 S.C.C. 518, 521. With respect to precedent, the Supreme Court is the ultimate authority, and its decisions are binding on all lower courts including High Courts. India Const. Art. 141. Lower courts provide only persuasive precedent to the Supreme Court.
[14] Shamim Ara v. State of U.P. & Anr (2002) 7 S.C.C. 518, 520–21.
[15] Shamim Ara v. State of U.P. & Anr (2002) 7 S.C.C. 518, 522.
[16] Shamim Ara v. State of U.P. & Anr (2002) 7 S.C.C. 518, 523.
[17] Shamim Ara v. State of U.P. & Anr (2002) 7 S.C.C. 518, 525–26.
[18] Shamim Ara v. State of U.P. & Anr (2002) 7 S.C.C. 518, 527.
[19] Shamim Ara v. State of U.P. & Anr (2002) 7 S.C.C. 518, 527.
[20] Jiauddin Ahmed v. Anwara Begum (1981) 1 GLR 358, 388. See also Subramanian, supra note 3, at 650–53. See also Sylvia Vatuk, The Application of Muslim Personal law in India: A System of Legal Pluralism in Action, in Adjudicating Family Law in Muslim Courts 48, 56–57 (Elisa Giunchi ed., 2014).
[21] The at-time President of this institution, Syed Shahabuddin, was involved in protesting against the Supreme Court’s intrusion into Muslim personal law after the Shah Bano case. Ishtiaq Ahmed, Secular versus Hindu Nation-Building: Dalit, Adivasi, Muslim and Christian Experiences in India, in The Politics of Religion in South and Southeast Asia 45, 57 (Ishtiaq Ahmed, ed., 2011).
[22] See Subramanian, supra note 3, at 650–53.
[23] Qurʾān, 2:229.
[24] Qurʾān, 2:230.
[25] Qurʾān, 4:35.
[26] See Subramanian, supra note 3, at 650–53.
[27] Colin Gonsalves, Kaliyug: The Decline of Human Rights Law in the Period of Globalisation 254 (2011).