Md Afzalul Haque
There has been a report that the valid way of dissolution of marriage under Muslim law viz. Talaq al Ahsan or Hasan ex facie, is not flawless, even an attorney can do the pronouncement of divorce on behalf of his client. It may have elements of disparity, supports the hegemony of men; so it, obviously, is required to be socially or judicially examined. The issue may likely be probated by Court in due course if someone feels aggrieved of it, pursue the case before the court and in this case bona fide, is also beheld in such grievance impugning the customary law pertaining to dissolution of marriage of couple that adheres to Islam as a faith in India.
For several thousand years people have lived in the subcontinent as nomads, hunter-gathers, peasants, town planners and preux chevaliers in battle fields. Thus there had been a social setup undergoing changes which include the requirement of family life. A symbiosis for the procreation and growth of the progeny to fill void created by the cruel hands of death. So, the struggle to exist has continued with natural pairing of opposite gender. The formation of the nuptial bonds and dissolution of it have been mundane and banal facts, and thus exist hitherto in tribal society in the simple forms, where elopement or abduction has resulted in relation of the spouses and desertion or abandonment may result in dissolution of the said bond.
Many forms of marriage and divorce are being practised in India, even today, in different parts of our society and flourishing apparently without judicial and legislative intervention, and intended to be preserved as the cultural heritage of the hugely pluralistic society. One may find polyandry, a unique marriage in Himachal and Uttarakhand for certain reasons; the practice is absolutely repugnant to the spirit of Section 5 of the Hindu Marriage Act, which essentially requires that neither party have a spouse living at the time of marriage. And further it has not been free from criticism regarding its impact on women’s health.
One may also be pained to see women deserted by their male partners and forced to live an ascetic life in ashrams and sacred places, even though they clearly have the right to life, dignity, and liberty, as well as the right to ownership and a share in the residence, just like their male counterparts in the family. Laws were made to promote remarriage among widows. However, such laws heavily lack social acceptance approximately before the 70 per cent of Indian people who are not living in urban conglomerations and follow their rites and customs, obviously even after 26th November 1949, the crucial date in our post-Independence legal history.
The status has hitherto not improved satisfactorily enough to feel that equality and women’s rights have been fully achieved, especially within the Muslim community in India, in matters of marriage and divorce. So a judgmental approach may not be justified or fair if it does not steer clear of judicial overreach and intermeddling with customary laws, which also enjoy protection under Article 13 of the Constitution and are intended to be preserved through an independent adjudicatory system. Although Muslim family laws have a reasonable degree of soundness, they have been assailed and misconstrued on the basis of conjecture-based perceptions, without engaging with their contextual foundations or appreciating their profoundly judicious objects and reasons.
The Concept of Divorce
The concept of divorce has been alien to the marriage in the community where it has been sacrament or sacrosanct in nature as well as being treated as a divine bond never to collapse, even in cases of foreseen contingencies like death of the spouse. Whereas Muslim women have been possessing this right under a law which now is being made to subject of fresh legislation. One may fairly notice that the society has realised, in some cases, the nature and gravity of complete nuptial breakdown and accepted divorce as the remedy to dissolve the marriage. The provisions of dissolution of marriage have been legislated in different forms under Sections 13, 11, 12, and 10 of the Hindu Marriage Act, 1955 and similarly also under Sections 23, 24, 25, 27 and 28 of the Special Marriage Act, 1954 like Judicial Separation, Void and Voidable Marriage and Divorce, etc. The process may have meaning and notion different but the end result is that the wife and husband will be no more having the status of wife and husband in future and the marriage shall be treated as dissolved. Bizarre, here seems to be that a fully competent adult sound-minded woman still cannot divorce herself addressing her husband. Only a third person or authority shall have to intervene and pronounce divorce, based on its own legal and just wisdom.
There has not been a quest of parity also by sisters of other faiths to adopt this form of dissolution i.e. Talaq al Tafweez to be followed universally. It is egregious not to recognise that the woman following Islam as faith, may divorce herself, adopting certain specified ways and has never been fully incompetent to do so, like sisters following other faiths.
In the event the laws dealing with divorce are juxtaposed, the pulchritude illuminates. There are some ways available to husband and commensurately other ways are available to the wife also, if she has solemnly decided to part away and to break the nuptial bond. If the husband has the two ways i.e. Talaq al Ahsan and Talaq al Hasan forms of dissolution of marriage, usually former may convert into later, the wife also possesses right to divorce in one form or seek it, having unchallenged free will at the time tying the knot itself and may have acquiesce subject to having right to divorce herself. Khula, Mubaraat, Talaq ul Tafweed are obviously available to her, if she is determined to dissolve her nuptial bond and liberate her from unbearable liabilities besides the provisions under The Dissolution of the Muslim Marriage Act, 1939 for dissolving marriage on various grounds like Faskh, a form of divorce has been available to the wife through third party or mediation and Khula is at her own volition and will to dissolve her marriage.
Recent shift may be seen that the status of all forms of dissolution of marriage, having propensities toward a particular faith, has almost changed from sacrosanct to contractual in nature. In England, the dissolution of marriage has been evolved as a dispute in civil law and recognises the “no fault” theory of divorce, since Christianity treats marriage as sacrosanct. Verily the principle happens to be at the pace with the movement of society from status to contract.
The move near to the “no fault” doctrine
Similarly, in Shilpa Shailesh vs Varun Sreenivasan, the Supreme Court of India (May 2023) has gone to exercise its extraordinary power under Article 142 of the Constitution, to dissolve the marriage facing irretrievable breakdown to do complete justice. The move is ahead and near to the “no fault” doctrine for granting divorce. There are other cases like Savitri Pandey (2002) and Neelum Kumar (2010) where the verdicts of the apex court have come to get into the right of the women to seek divorce merely on facts and circumstances, the modern look has been otherwise conceptually available to Muslim women from beginning and terrifically without seeking any judicial help for this purpose.
It is also a fact that the judicial precedence and stare decisis have their own limitations. It justly suits to the facts and circumstances of a pendente lite only. Arguably, there is possibility that if the fact of the new case of the aggrieved differs, it will constrain her to be litigating for a considerable time period from the subordinate court to so on, for assuaging her grievance. However, following other sources of laws like custom and legislation if available to party of the said case, may be fairly expeditious, and of least cost and consequences.
One paramount aspect in this context, may be seen in the counsel of the Prophet ﷺ as follows “of all the lawful acts the most detestable to Allah is divorce”, narrated by Ibn Umar (book Abu Dawood 2178; Ibn Maja 2018). The Muslims are to comprehend how grave is the pronouncement of the painful and injurious word “Talaq”. It is permissible in Islam, however, has not been appreciated before the Almighty. Men have been asked to utter the word, to choose undesirable over desirable prima facie, while the marriage is being dissolved. However, the privileges of Muslim women are esteemed rights, superior and the claim of equality here in this context may lead to descending to the relegated position of men.
In neighbourhood, The Muslim Family Laws Ordinance, 1969 of Bangladesh and Pakistan, which may be said as contemporary laws, have got the provisions as vital check and balance that once the husband has made the pronouncement of Talaq under the Talaq al Hasan form, he shall communicate it to the Chairman and the Arbitration Council, which in turn, would endeavour to resolve the dispute and save the impugn marriage. The notion that the attorney or solicitor may pronounce Talaq on behalf of the client and entrustment of such right are yet repugnant to the Muslim family Law.
There is no erudition striving to match with sounding the absurd words “Talaq” and to question the legitimacy of laws which is otherwise comparatively modern enough to be applied. It is as if that a husband impugns the special mode and method of divorce available to wife under Special Marriage Act or even under Hindu and Muslim Marriage Acts, on parity and without comprehending the wisdom and intelligible classification, etc. behind the legislative form of laws in force. The contrivance and redaction may be reasonably foreseen for Muslim Women to have restricted right to seek dissolution from a third party. If a woman prefers to part away from the husband, her right and ability to do herself is much stronger right than a right to seek it from a third party. Let us hope the effervescent principles of law are not given an ethereal treatment.
[The writer is Law Officer at Central Waqf Council