The constitutionality of triple divorce

Faizan Mustafa

THE Allahabad High Court, while dismissing two petitions and refusing to give any relief, has made interesting observations on triple divorce. There was no “judgment” as was reported in the media as judgment determines rights and liabilities. In one case, the petitioner was the second wife who had sought protection from the police harassment as the mother of the divorced first wife was threatening her. Here, the contention was that since the husband gave instant triple divorce just to marry another woman, the first marriage has not dissolved. 

Justice Suneet Kumar did not appreciate that as per existing law, bigamy is not an offence for Muslims and thus even if the first marriage subsists, the husband can take a second wife, of course if he can "do justice between the two wives" and the first wife would retain all rights of wife, including the right to residence and maintenance. In the second petition, the wife whose first husband was living in Dubai has married another man by asserting that her husband had divorced her on the telephone. The husband denied this but the lady insisted that her second marriage  is valid as triple divorce on the phone has legally dissolved her first marriage. 

The learned judge refused to go into the validity of either divorce in the first case and marriage in the second but rightly noted that not only men but even women do take undue advantage of personal laws. In the process, the judge said that triple divorce is cruel, inhuman and unconstitutional. Now the question is, without recording a finding should a judge make such sweeping observations, particularly when the judge has recorded that the matter is pending before the apex court? The current debate even in the Supreme Court is unnecessary as in 2002 itself the apex court has held in the Shamimara case that triple divorce does not dissolve marriage. A writ court can declare a “law” as unconstitutional. But is Muslim Personal Law “law” within the meaning of Article 13 of the Constitution?  Only a “law” can be challenged and courts would have power of judicial review if a “law” is in contravention of fundamental rights.  “Custom and usages” are not personal laws but deviations from personal law. Had personal law been “law”, untouchability would have become void on its own. Its explicit abolition under Article 17 indicates that framers of the Constitution intended to exclude “personal laws” from the definition of “law”. Even “constitutional amendments” are not “laws” under Article 13 and cannot be challenged on the basis of fundamental rights. The limited challenge can be on the basis of the “basic structure” of the Constitution. “Judgments” of the Supreme Court too are also not “law” under Article13. However, parts of Muslim Personal Law which have been enacted by the Parliament are certainly “laws” such as the Shariat Act, 1937, Dissolution of Muslim Marriage Act, 1939 etc. If any of these laws are contrary to fundamental rights, the court would be free to strike them out as unconstitutional. Muslim Personal Law is largely based on juristic interpretation. Islamic law is given by the experts. Law making is indeed a private enterprise in Islam. Jurists intervene between God and State. Muslim Personal Law has not been passed by any legislature. It is based on the interpretations given by various jurists. Can courts declare the opinion of jurists who lived in 9th century and who considered triple divorce as valid unconstitutional? It is difficult to answer.  Moreover, if people in the family and neighbours consider that divorce has taken place, court's declaration that it has not taken place would not drastically change the ground situation. Things which society considers illegal, law on its own cannot easily make legal. There have been cases, including the second case of the Allahadad High Court where the wife herself asserted that triple divorce has irrevocably dissolved marriage. In the Masroor Ahmad case, the wife filed the case of rape against the husband, who continued to have sexual relations with her after giving her triple divorce. 

Accordingly, ulema must come forward to declare that three instant divorces in one go without prior efforts of reconciliation would be considered as just one pronouncement. There is enough room within Islam to show such flexibility. The Modi government has argued in the Supreme Court that triple divorce is not an essential aspect of Islam. What the government has failed to understand is that Article 26 gives religious freedom both to religious denomination as well as any sect thereof. Thus various sects have their own laws. Moreover, the question of what is permissible (halal) and what is prohibited (haram) is the central  to Islam. Islam does lay down what food is permissible, what clothes or metals one can wear and what relationship is valid. If some Muslim sects consider triple divorce as valid, sexual relations between the divorced couple would become haram or prohibited. 

Law is not a great agent of social control and we must accept its limitations in bringing about social change. Hindu law reforms have not fully succeeded in ensuring the empowerment of Hindu women. Similarly, demands of banning triple divorce are misplaced as "banning" would invariably mean "prohibiting" some conduct generally through the instrumentality of "criminal law". Strangely, even the senior officials of the Muslim Personal Law Board too are singing the tone of imprisonment for the one who gives triple divorce. Judiciary cannot create new crimes. We need an Act of Parliament to make an act criminal. This author is of the view that it is the duty of ulema to rise to the occasion and urge people to give divorce only as per the Quranic procedure if it is unilateral. That is, after making necessary efforts at reconciliation and arbitration with just one revocable pronouncement in a period of three months or alternatively have divorce by mutual consent which is a recognised mode of divorce in Islam. Pre-nuptial contract (nikahnama) with terms and conditions clearly laid down would be a much better solution. 

The writer is the Vice Chancellor of Nalsar University of Law, Hyderabad.