South Asia editor Jeff Redding argues that the “state vs. non-state character of talaq” is too often overlooked as a factor influencing the Indian Supreme Court’s decision in the landmark case Shamim Ara v. State of U.P. (2002). While the decision’s positive effect on Muslim women’s welfare in India cannot be denied, the contemporary Indian state’s concerns about presenting itself as a secular and modern state on par with its “peer” nations were more of an incentive. These concerns need to be taken in tandem with the Supreme Court’s a) historical preference for arbitrating reconciliation instead of easing divorce b) historical reluctance to intrude upon Muslim family law, as it usually involves divorce, and results in restrictions instead of liberal decisions expected of a modern state, and c) codify Muslim personal law (which may be due to Muslims being historically marginalized). Accounting for this set of factors leads Redding to conclude that the Supreme Court’s decision preserved both India’s preferred mores and its progressive aspirations by “allow[ing] divorce, while simultaneously attempting to distance itself—both figuratively and literally—from the practiced reality of it.”
In this piece, I argue that crucial aspects of the 2002 landmark Supreme Court of India opinion in Shamim Ara v. State of U.P. have largely been overlooked, with the consequence that this opinion’s broader significance for understanding the contemporary Indian state’s complicated self-conceptualization as secular and modern has been diminished.
The Supreme Court of India’s 2002 opinion in Shamim Ara v. State of U.P.[1] has been widely cited for this opinion’s effort to ‘reform’ Muslim personal law in India, most notably through this opinion’s seeming imposition of limitations on Muslim men’s powers to quickly divorce their wives via the efficient (if potentially arbitrary) ‘triple talaq.’ For example, Gopika Solanki has referred to how this case “laid down criteria to regulate triple talaq and restrain its misuse.”[2] Similarly, Narendra Subramanian has described how Indian “high courts responded differently to cases regarding the validity of [Muslim men’s marital] repudiation pronounced in an irrevocable form . . . until the Supreme Court delivered its definitive verdict in Shamim Ara.”[3]
While Shamim Ara certainly had interesting and important things to say about the parameters of Muslim men’s talaq privileges in India, the actual question presented by[4]—and holding in—this case pertained to a subtler set of issues. Moreover, as this piece argues, the Supreme Court’s resolution of these subtler issues has surfaced important and deep dynamics in the Indian state’s self-identification. In particular, the complicated dynamics of Shamim Ara illustrate the contemporary Indian state’s queasiness with divorce—and perhaps especially Muslim divorce—yet the simultaneous unwillingness of this state to make divorce completely unavailable. This is especially the case when such a limiting move would open the self-consciously secular and modern Indian state[5] to accusations that it is out of step with other ‘modern peer states.’ In short, the argument here is that Shamim Ara is a case more about the complex maneuvers that the Indian state engages in for the purposes of being seen as secular and modern—especially as these characterizations relate to the general availability of divorce—than it is a case demonstrating the Indian state’s deep solicitude for Muslim women’s welfare.
The Indian state’s ambivalence towards divorce is something evident across India’s different religiously premised personal laws, and something which this piece will shortly discuss. For now, however, a more detailed examination of what precisely transpired in Shamim Ara is in order. Towards that goal, it is worth noting that the common characterization of Shamim Ara as a decisive victory for the interests of married Muslim women in India is not completely without foundation. Prior to this 2002 decision, many of these women were at the complete mercy of their (Muslim) husbands’ divorce whims. And indeed, seemingly responding to this tragic situation, the Supreme Court in this case did endorse previous lower court judgments limiting Muslim men’s talaq prerogatives.[6] For example, in its opinion in this case, the Supreme Court quoted favorably from an earlier opinion of the Gauhati High Court[7] to the effect that “[t]he 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; [only] if the attempts fail, talaq may be effected.”[8]
However, as well known as Shamim Ara is for its insistence that Muslim men’s exercise of talaq can no longer be completely unilateral, this common reading of Shamim Ara actually involves a misreading of sorts. Indeed, as interesting as the Supreme Court’s favorable discussion of previous High Court cases putting checks and conditions on men’s exercise of talaq was, this discussion appears to be mostly dicta. Moreover, the question posed to—and answered by—the Supreme Court in this case was not whether a capricious husband, with no intervention by mediators or arbiters, could effectively talaq his wife. Rather, the precise question posed in this case was whether or not a Muslim husband’s written submissions to a state court indicating his clear desire to be divorced can—from the date of their filing in a state court—effectuate a talaq. Put even more simply, the question posed to the Supreme Court in Shamim Ara was whether or not a Muslim husband could use state court procedures to effectuate what is otherwise normally a non-state pronouncement of talaq. The Supreme Court ultimately answered ‘no’ to this question, reversing the lower courts which had heard Shamim Ara’s case prior to this case reaching the Supreme Court.
The earlier details of Shamim Ara’s case are complicated but important for any fuller comprehension of the Supreme Court’s opinion in Shamim Ara v. State of U.P. With respect to these details, Shamim Ara filed a complaint in 1979 for maintenance support of herself under Section 125 of the Criminal Procedure Code. This complaint was filed against her husband, Abrar Ahmed, in the Family Court located in Allahabad, Uttar Pradesh. Ms. Ara and Mr. Ahmed had originally married in 1968 and had had four children together. Responding to Ms. Ara’s complaint on December 5, 1990, Mr. Ahmed denied Ms. Ara’s allegations and “by way of additional plea[ stated] that he had divorced the appellant [Ms. Ara] on [July 11, 1987] and since then the parties had ceased to be spouses.”[9] As a result, according to Mr. Ahmed, this divorce limited (or eliminated) any subsequent Section 125 maintenance obligation that he had towards Ms. Ara.[10]
According to the Supreme Court’s description of the lower court proceedings in this case, the Presiding Judge of the Allahabad Family Court—acting in 1993, 14 years after the commencement of Ms. Ara’s complaint!—“upheld a strange story of divorce totally beyond the case set up by [Mr. Ahmed].”[11] As part of this strange story, Mr. Ahmed was apparently able to produce a written affidavit of himself, dating from 1988, attesting to his divorce from Ms. Ara in 1987. Apparently, this affidavit had been filed in a miscellaneous civil suit involving Mr. Ahmed but not involving Ms. Ara. As the Supreme Court summarized the Allahabad Family Court judge’s mistaken actions vis-à-vis this affidavit: “The learned Judge held that from such affidavit the plea of [Mr. Ahmed] found corroboration of his having [earlier] divorced [Ms. Ara].”[12] Moreover, “[t]he learned Judge concluded that [Ms. Ara] was not entitled to any [Section 125] maintenance in view of her having been [earlier] divorced.”[13]
Ms. Ara did not agree with the Allahabad Family Court’s decision and appealed this decision to the Allahabad High Court. Upon this appeal, the High Court did not agree with the 1987 dating of the effectiveness of Mr. Ahmed’s talaq. However, the High Court did note[14] that the talaq would stand completed on [December 5, 1990] with the filing of the written statement by [Mr. Ahmed] in [Ms. Ara’s Section 125] case. Therefore, the High Court concluded that [Ms. Ara] was entitled to claim maintenance from [January 1, 1988] to [December 5, 1990] (the later date being the one on which reply to application under Section 125, Cr. P.C. was filed by [Mr. Ahmed] in the Court) whereafter her entitlement to have maintenance from [Mr. Ahmed] shall cease.[15]
Still not fully prevailing on her claim for Section 125 maintenance, including her contention that she was never (properly) divorced by Mr. Ahmed, Ms. Ara appealed to the Supreme Court. As the Supreme Court saw the issue before it on appeal, “[t]he singular issue arising for decision is whether [Ms. Ara] can be said to have been divorced and the said divorce communicated to [Ms. Ara] so as to become effective from [December 5, 1990], the date of filing of the written statement by [Mr. Ahmed] in these proceedings.”[16] And, answering this question, the Supreme Court held: “A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed for delivery of a copy thereof to the wife.”[17] As a result, “[n]either the marriage between the parties stands dissolved on [December 5, 1990] nor does the liability of [Mr. Ahmed] to pay maintenance come[] to an end on that day. [Mr. Ahmed] shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law.”[18]
Shamim Ara is clearly a complicated opinion. However, focusing on the precise facts and question posed by the dispute in this case reveals that this case is, in some fundamental sense, more about the state vs. non-state character of talaq than it is about the constraints that can be placed on Muslim men’s pronouncement of talaq. It is certainly true that in its opinion—specifically, in its dicta—the Supreme Court attempted to bring talaq within the realm of state scrutiny. Indeed, in the future, pointing to this dicta, objections will likely be raised in court by aggrieved wives as to the reasons motivating their specific husband’s pronouncement of talaq, and also whether the requisite inter-spousal/inter-familial mediations was attempted, in order to attempt to defeat state recognition of the talaq.[19]
Yet that being the case, the Shamim Ara opinion also very much left the practice of talaq where and with whom it has historically tended to be—namely, in the private, non-state sphere of individual Muslim men’s decision-making processes. This aspect of the opinion was, in fact, on ready display in the resolution of the explicit question presented to and answered by the Supreme Court in this case. In this respect, one can see Mr. Ahmed’s pinning of the date of his talaq to the day when he filed his response in court to his former wife’s Section 125 complaint as an attempt to make a state court the arena within which to operationalize his talaq. However, in its resolution of this case, the Supreme Court clearly evinced its displeasure with this use of state venues and procedures to effectuate talaq.
The Indian state’s skepticism towards divorce as a practice, as well as its desire to distance itself from it, is not unique to the outcome at the Supreme Court in Shamim Ara. Moreover, in this observation lies an even deeper significance to Shamim Ara, namely the way this opinion surfaces tensions in the contemporary Indian state’s self-identification. In short, the argument here is that the contemporary Indian state does not like divorce yet, as a secular and modern state, it also cannot live without it. As a result, opinions like Shamim Ara help the state thread this needle. To be sure, Shamim Ara does this threading work in a particularly ‘Muslim way’—perhaps inevitably so, given the Indian state’s historical marginalization of Muslims and Muslim personal law alike[20]—yet the ambivalent web that Shamim Ara weaves is similar to that found elsewhere in relation to India’s other religiously premised personal laws.
The Indian state’s ‘threading of the divorce needle’ is a common theme across India’s several religiously premised personal law contexts, even if this threading looks different for different religious communities and their different family law regimes. For example, over the past nearly 70 years since India’s independence, there has been a formal expansion of divorce rights for both Hindus and Christians in India. This is most evident in the several amendments that have been made to the parliamentary Acts governing Hindu and Christian family law. With these amendments, as well as other legal authorities, Indian state courts have been given explicit—and largely exclusive—authority to grant Hindu and Christian divorces in a wide variety of situations of marital discord.[21]
Moreover, these reforms of Hindu and Christian personal law seem to have been motivated, at least in part, by the Indian state’s felt need to move its family law practices into conformity with family law practices—including the availability of relatively robust divorce options—found in other modern, broadly secular ‘peer states.’[22] For example, in 1960, not too long after India’s independence (in 1947) and the Constitution of India coming into force (in 1950), the official Law Commission of India noted how
[t]he law relating to divorce amongst Christians is contained in the Indian Divorce Act, 1869, and that relating to marriage in the Indian Christian Marriage Act, 1872. Both these enactments are based on the law as it then stood in England. Since then considerable changes have taken place in the social conditions both in England and in India. With a view to adjusting the law to those changes, the British Parliament has enacted a number of statutes on the above topics. . . . In India, however, the law as originally enacted in the statutes of 1869 and 1872 has remained practically unchanged, and the criticism that it has become antiquated and to some extent obsolete is well-founded. The need has thus arisen for enacting a law on the topic of marriage and divorce such as will be suitable to the present conditions.[23]
And in yet another report by the Law Commission of India, dating from 1978 and discussing potential reforms to the Hindu Marriage Act of 1955 and this Act’s regulation of Hindu divorce, the Law Commission had this to say: “[T]he Hindu law of divorce should be liberalised and brought in conformity with the modern trends in Europe and elsewhere.”[24]
However, notwithstanding this legislative push towards divorce liberalization, Srimati Basu has described how modern-day Indian family courts institutionally “function with a profoundly ambivalent view of divorce. … Nowhere is this ambivalence better reflected than in the language of the legislation [establishing these courts]. According to the 1984 act, family courts are set up ‘with a view to promote conciliation in . . . disputes related to marriage and family affairs.’”[25]
As a result, for Hindus and Christians alike in India, fairly expansive formal statutory rights to divorce have been diminished by state courts’ unwillingness to actually decree this divorce, preferring instead to delegate family disputation to the parties themselves—with the goal of marital reconciliation, not marital dissolution. In short, formal Hindu and Christian divorce rights exist—as secular modernity requires—but such rights are simultaneously vitiated on a day-to-day basis.
For Muslims, the state’s ‘threading of the divorce needle’ has had to work differently, as Shamim Ara demonstrates. Indeed, whereas the liberalization of divorce rights for Hindus and Christians has occurred via amendments of their personal law codes giving state court judges more authority to pronounce divorce—with the simultaneous restriction of Hindu and Christian divorce rights occurring through efforts to push marital discord out of the sphere of formal adjudication and into the sphere of informal ‘reconciliation’—a similar set of moves in the Muslim context would likely produce far different consequences.
This is for two different reasons. First of all, historically speaking, interventions by the Indian state into Muslim personal law have often meant restrictions in Muslim divorce rights—not liberalization, as in the (relatively) recent Hindu and Christian contexts. For example, before the legislation of the colonial-era Dissolution of Muslim Marriages Act of 1939,[26] Muslim women in India had rough equivalence with Muslim men’s talaq prerogatives, in that Muslim women’s conversion away from Islam effectuated an automatic divorce from their husbands.[27] In short, with her conversion, a Muslim wife could effectuate a divorce from her Muslim husband for whatever reason, whenever she wanted. And, indeed, so many Muslim women did exercise this divorce-upon-conversion option that significant Indian Muslim religious leaders put pressure on the British colonial government to judicialize Muslim women’s divorce rights—via the legislation of the Dissolution of Muslim Marriages Act—as a means to control Muslim women’s apostasy and divorce.[28] As to this control, the Dissolution of Muslim Marriages Act set out a restricted set of grounds for Muslim women to get a divorce from their husbands at the hands of India’s state courts.[29] Moreover, Section 4 of this Act bluntly declares: “The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage.”[30]
Relatedly, and secondly, the Indian state’s overall reluctance to codify or institutionalize Muslim personal law in India (to the degree that personal law has been for India’s other religious communities[31]) has largely facilitated Muslim divorce. As a result of this reluctance, ‘traditional’ individually (male) pronounced talaqs (of one sort or another) have been the predominant form of Muslim divorce in India; state court judges have had far less of a role in directly adjudicating Muslim divorces than these judges have had in other personal law contexts.
For both these reasons, then, the Indian state’s threading of the divorce needle has had to work differently in the Muslim personal law context, which Shamim Ara only confirms. Shamim Ara’s efforts to explicitly distance the Indian state from direct involvement and complicity in the most common form of Muslim divorce could not themselves mitigate the ostensibly undesirable, radical availability of (Muslim) divorce; in fact, this distancing only encourages divorce. Furthermore, statutory amendment was not possible here.[32] As a result, this opinion’s simultaneous attempt to facilitate the secular state’s restrictive divorce logics could only rely on the suggestion of limitations on individual Muslim men before they can effectuate talaq. With this opinion, then, talaqs have been brought into the realm of state cognizance, although highly incompletely and very ambivalently—certainly allowed but also impeded.
Moreover, this ambivalence in the Muslim context parallels the way divorce works in other personal law contexts in modern, secular India (if in a converse manner). In all this then, Shamim Ara has surfaced deep tensions in the Indian state’s self-identification as secular and modern, especially as the availability of divorce relates to these two ideas. Put this way, upon deeper inspection, Shamim Ara appears to be a case not so much about the secular Indian state saving Muslim women from Muslim male divorce practices than it is a case about the secular Indian state trying to align itself with modern (if restrictive) secular-liberal norms divorce rights norms. In doing so, the secular state allows Muslim divorce, while simultaneously attempting to distance itself—both figuratively and literally—from the practiced reality of it.
[1] Shamim Ara v. State of U.P., A.I.R. 2002 S.C. 3551.
[2] Gopika Solanki, Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India 133 (2011).
[3] Narendra Subramanian, Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India 249 (2014).
[4] This is also a point recognized by Akhila Kolisetty. See generally Akhila Kolisetty, Unilateral Talaq and the Indian Supreme Court’s Responsiveness to Perceptions within India’s Muslim Community, SHARIAsource, June 2, 2015.
[5] I follow Narendra Subramanian here when he observes that “[t]he majority of nationalist . . . projects give considerable attention to both modernity and authenticity, particularly in late-developing societies. They reconcile or fuse these considerations by presenting the changes they promote as emanations of group culture that would yield contextually appropriate forms of modernity. Official . . . Indian nationalism [is] representative of this pattern. [This nationalism has] presented [India] as based in the overlapping cultures of [its] various religious and ethnic groups, drawing inspiration from [this] portrait for [its] efforts to form [a] secularist state[] engaged with various religious norms and practices and [also] to build [a] developmental state[].” Subramanian, supra note 3, at 67.
[6] See Shamim Ara v. State of U.P., A.I.R. 2002 S.C. 3551, 3555-56. The Supreme Court’s actions here are relevant, at a minimum, to ‘triple talaq.’ In this respect, the Court noted in its opinion that “[t]he divorce said to have been given … to [Shamim Ara] was a triple talaq though such a fact was not stated in the written statement.” Id. at 3553. That being said, the Court’s broader observations and comments regarding the operation of talaq in this opinion do not seem to be restricted to triple talaq only. On this point, Narendra Subramanian notes that his interview of the Supreme Court Justice who authored Shamim Ara suggested that this Justice was hostile to “all forms of unilateral repudiation” of Muslim wives by Muslim husbands. Subramanian, supra note 3, at 250.
[7] The Supreme Court here actually pointed to two previous Gauhati High Court opinions on this topic. See id. at 3556. Both opinions, however, were authored by the same High Court judge, namely Justice Baharul Islam.
[8] Id. at 3556 (quoting Sri Jiauddin Ahmed v. Mrs. Anwara Begum, (1981) 1 G.L.R. 358). There was also a similar outcome and holding in Must. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 G.L.R. 375.
[9] Shamim Ara v. State of U.P., A.I.R. 2002 S.C. 3551, 3552-53.
[10] According to the Supreme Court’s opinion, as part of his original defense against Ms. Ara’s (potentially post-marital) maintenance claims, Mr. Ahmed “also claimed protection behind the Muslim Women (Protection of Rights on Divorce) Act, 1986.” Id. at 3553.
[11] Id.
[12] Id.
[13] Id.
[14] At least according to the Supreme Court description of the High Court’s decision.
[15] Id.
[16] Id.
[17] Id. at 3557.
[18] Id.
[19] See text accompanying supra note 8. But see Narendra Subramanian, Legal Change and Gender Inequality:
Changes in Muslim Family Law in India, 33 Law & Soc. Inquiry 631, 653 (2008) (noting that his “interviews show that some judges and lawyers in the lower courts were either unaware of or misunderstood this landmark judgment”).
[20] I say here that Muslim personal law has been marginalized due to the peculiar drafting of the statutory Act authorizing the application of Muslim personal law to Muslims in India. Unlike other personal law Acts for other Indian communities, this 1937 Act is written in a uniquely open-ended manner that leaves much of the applicable law uncodified and seemingly dependent on non-state discourses and actors. The substantive portion of this Act reads as follows:
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
The Muslim Personal Law (Shariat) Application Act, Act No. 26 of 1937, India Code, available at http://indiacode.nic.in/.
[21] See generally Subramanian, supra note 3, at 137-198 (Chapter 3), 199-265 (Chapter 4).
[22] This argument is, admittedly, in some tension with Narendra Subramanian’s argument that “indigenous norms” have been perhaps even more responsible for reforms in Hindu personal law in India than “Western precedents” have been. Subramanian, supra note 3, at 145. In making this observation, Subramanian points to the Law Commission of India’s Fifty-Ninth Report’s discussions concerning reform of the 1955 Hindu Marriage Act. See id. at 145-46. Yet, while a close examination of this report finds it introductory discussions extensively concerned with Hindu traditions and practices vis-à-vis family law, there are many subsequent portions of this report where English and other Western precedents are discussed and cited—a reality not explicitly acknowledged by Subramanian. See generally Law Commission of India, Fifty-Ninth Report, Hindu Marriage act, 1955 and Special Marriage Act, 1954 (1974).
[23] Law Commission of India, Fifteenth Report, Law Relating to Marriage and Divorce Amongst Christians in India 1 (1960).
[24] Law Commission of India, Seventy-First Report, The Hindu Marriage Act, 1955—Irretrievable Breakdown of Marriage as a Ground of Divorce 2 (1978).
[25] Srimati Basu, The Trouble with Marriage: Feminists Confront Law and Violence in India 101 (2015) (emphasis added). The 1984 Act that Basu is referring to is the 1984 Family Courts Act. See The Family Courts Act, No. 66 of 1984, India Code, available at http://ncw.nic.in/acts/The_Family_Courts_Act_1984.pdf. See also Subramanian, supra note 3, at 169 (noting that “Section 23(2) of the [Hindu Marriage Act’s provisions governing divorce] . . . require courts to attempt reconciliation before they decree divorce or judicial separation”).
[26] The Dissolution of Muslim Marriages Act, No. 8 of 1939, India Code, available at http://indiacode.nic.in/.
[27] See Rohit De, Mumtaz Bibi’s broken heart: The many lives of the Dissolution of Muslim Marriages Act, 46 Indian Econ. & Soc. Hist. Rev. 105, 120 (2009).
[28] De notes that one strand of pro-Dissolution of Muslim Marriages Act argument was motivated by a view that “the Indian High Courts, by adopting a narrow doctrinal approach [to Muslim women’s apostasy], had missed the spirit of [apostasy] doctrine and had treated [it] in the case of the wife as a privilege that which was intended to be a punishment.” Id. at 120-21.
[29] Narendra Subramanian sees things differently. See Subramanian, supra note 3, at 211 (describing the Dissolution of Muslim Marriages Act as legally empowering for Muslim women).
[30] The Dissolution of Muslim Marriages Act, No. 8 of 1939, § 4, India Code, available at http://indiacode.nic.in/.
[31] See supra note 20.
[32] Admittedly, this observation is one premised not on any explicit limitations on the powers of the Supreme Court of India (or other Indian courts) but, rather, one based on the Indian judiciary’s historical reluctance to legislate (or re-legislate) Muslim personal law. On this reluctance, see Subramanian, supra note 3, at 235.