A raft of rulings in Indian courts and a study of cross-currents on the subject in some Muslim nations could inform the debate now on triple talaq

The thicket of legal dialogues on the validity of triple talaq conceals the result of churnings that have already taken place in our courts on this subject. The renewed debate has come through a questionnaire circulated by the Law Commission where it posed the question of whether triple talaq should be abolished or modified, along with a score of other questions predominantly in the context of framing a uniform civil code (UCC). There has been recently also reference to a larger Bench from a decision of the Supreme Court in Prakash v. Phulavati (2015), a case that had nothing to do with divorce but was a case disposed of under the Hindu Succession Act. The court was considering whether a Hindu woman had a right to claim by birth ancestral property held by her father who had died before 2005, although the property had not been put to partition till after the Act was amended in 2005. The court held that such a right existed, but before parting handed down a beneficent handshake to a bystander in court who wanted the plight of Muslim women also to be considered in public interest.

Triple talaq and Islamic countries

From the earliest days of Islam, a husband could divorce his wife on pronouncement of talaq in three successive tuhrs (menses-free time). The first and second pronouncements are revocable and resumption of cohabitation is possible. It is the third pronouncement that dissolves the marriage. Pronouncement of talaq at one go, called talaq-e-bidat, was a latter-day innovation to get an incorrigibly acrimonious couple to part ways as quickly as possible. The practice was challenged as early as the 13th century by the Hanbali scholar Ibn Taimiyah (1268-1328 AD), who argued that triple talaq at one sitting shall be counted as one and hence revocable. This idea never settled down to prevalent understanding till almost the entire Islamic world rallied to support this view around the first quarter of the 20th century.

Turkey adopted a modified version of the Swiss Civil Code in 1926, taking away the religious imprint and allowing for judicial control; Egypt framed a law in 1929 terming triple talaq pronounced at one sitting as a single pronouncement open to easy revocability; Syria followed in 1953 with a slight modification that if the pronouncement of talaq is with reference to number, every talaq shall be revocable, except a third talaq or a talaq before consummation or for a consideration and expressly stated to be irrevocable. Iraq, Jordan, the United Arab Emirates and Qatar have fashioned their own interpretations to Ibn Tamiyah’s view. In Iraq, since 1959, divorce could be effected only after approval by government-run personal status courts. Algeria has adopted the same law, making a further provision for completing the reconciliation process within 90 days. In 1956, a similar interpretation was adopted in Pakistan thanks to the recommendation of a seven-member Commission on Marriage and Family Laws that was set up to assuage the public outrage against then Prime Minister Muhammad Ali Bogra who married his secretary the previous year without divorcing his first wife. The commission suggested that the divorce would not take effect till the matrimonial court dissolves the marriage. The court intervention was opposed by some sections, necessitating promulgation of an ordinance in 1961 impliedly abrogated triple talaq at one go by removing the obstacle of the divorced woman by the first and second pronouncement to remarry the same husband without intervention of another marriage with another husband and dissolution of such marriage and restricting the disability to operate only after the third pronouncement. A later decision of the Supreme Court of Pakistan in Syed Ali Nawaz Gardezi v. Lt. Col. Muhammad Yusuf (1963) emphatically ruled against triple talaq in one session. In Tunisia, since 1956, divorce was possible only through court, which was to examine if there was scope for rapprochement between the parties before granting relief.

Judicial pronouncements in India

Islamic scholars in India and our high courts did not lag behind either. In A. Yousuf Rawther v. Sowramma (1971), Justice V.R. Krishna Iyer, as a judge of the Kerala High Court, wrote in eloquent prose as was his wont: “The Indo-Anglican judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal distortions are inevitable when the judicial committee in Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture law is largely the formalised and enforceable expression of a community; cultural norms cannot be fully understood by alien minds… It is a popular fallacy that a Muslim male enjoys, under the Koranic law, unbridled authority to liquidate the marriage. The whole Koran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him: If they (namely, women) obey you, then do not seek a way against them (The Koran, iv:34). The ‘Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously’.” Justice V. Khalid (in Mohammed Haneefa v. Pathummal Beevi, 1972, Kerala), even while sitting as a single judge, held that the view expressed by a Division Bench of two judges that a husband had an unbridled power to pronounce talaq unilaterally was wrong and did not lay down the correct law. Justice Baharul Islam, later a Supreme Court Judge, speaking for Gauhati Bench, said in Jiauddin Ahmed v. Anwara Begum (1981): “The 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; if the attempts fail, talaq may be effected.”

The Supreme Court, speaking through R.C. Lahoti, who later went on to become the Chief Justice of India, recalled all these decisions in Shamim Ara v. State of U.P. (2002) and struck down a claim of divorce by triple talaq expressed through a written statement filed to fend off a demand for maintenance from the wife as invalid. In an earlier judgment in Danial Latifi v. Union of India (2001), the Supreme Court adopted an extremely novel interpretation to get over the infamous attempt of Rajiv Gandhi by the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986 to scuttle the decision in Mohd. Ahmed Khan v. Shah Bano Begum (1985). While upholding the constitutional validity of the law, even if seriously straining the plain language, the court said: A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period (the period a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man) must be made by the husband within the iddat period.

Handling the current imbroglio

Now then, the approach shall be: (i) Triple talaq at one go shall be treated as a single pronouncement not yet capable of bringing an irrevocable coup de grace to end matrimonial ties. There is no need to abolish it since it is judicially pronounced to be ineffective. (ii) The pronouncements shall be tested on their reasonableness and parties shall undertake a compulsory conciliatory effort before their utterance. (iii) The interpretation of personal laws of all communities is — like every other law — amenable to be tested on its constitutionality on the touchstone of fundamental rights in the Constitution. (iv) The Law Commission, which is a recommendatory body, will do well to let the pronouncement of the Supreme Court clear the air.

It is important to remember that the judicial dispensation shall not be read as a testing time for pitching the status of one system of laws against the other and if we are undertaking a fresh exercise, it shall be to affirm that it is possible to reinterpret the law within the core equitable principles in every Holy Book. Courts cannot or shall not test the constitutional vires of any Holy Book, be it Koran or Gita or Bible. We shall fashion our understanding of these higher laws to the needs of the time by appropriate interpretations that shall serve the greater good. The regurgitation of existing case law may have the benefit of examining cross-currents on the subject in several countries and help us consolidate the gains of reformative spirit through an express legislation, the same way it was done to consolidate and clarify the provisions of Muslim law relating to suit for dissolution of marriage by women through the Dissolution of Muslim Marriages Act, 1939.

K. Kannan is a former judge of the Punjab and Haryana High Court and presently Chairman of the Railway Claims Tribunal, Delhi.