“In post- 9/11 America, Culture Talk focuses on Islam and Muslims who presumably made culture only at the beginning of creation, as some extraordinary, prophetic act. After that, it seems Muslims just conformed to culture.”[1] Islam is persistently poised against modernity, and ‘modernity’ is defined from standpoint of western culture whose beliefs are different from Islam. Western culture is not same as modernity, and as far as modernity is concerned all answers to questions raised by ‘modernist’ can be found within the fold of Islam. It is a sheer question of wanting to do justice without overstepping the precinct of judicial process.[2]
“Elasticity of laws is the greatest test of their beneficence and usefulness” [3] and even though laid down over a millennium ago the law is capable of such interpretation that can suit the modern society as well. Islam has laid down laws, but unfortunately, as in other systems, people have abused the law. However, one must be cautious that it is not what people do that is Islam, but is what texts have to say. While there are numerous issues in Islamic Law that have been debated in the context of modernity, discussion on triple talaq has gained relevance after the recent judgment delivered by the Bombay High Court in Dilshad Begum v. Ahmadkhan Hanifkhan Pathan[4] wherein the court has reiterated that for divorce to be legal it must be preceded with honestly attempted arbitration or mediation proceedings.
In Islam, “Talaq is the most detestable before God of all permitted things”.[5] Prophet Mohammad looked upon the custom of divorce as a calculated to undermine the foundation of society. Intricate, inseparable connection between Islam, Shariat and Mohammad increases the bearing of this statement on interpretive application of divorce laws in Islam.
First of all, it should be known that there are three methods of divorcing by recitation of words, “I divorce thee”: Talaq-e-Ahsan[6], Talaq-e-Hasan[7], and Talaq-e-Biddat (or Triple Talaq), of which the first one is most preferred way of divorcing and the last one is the most abhorred.
It is talaq-e-biddat or Triple Talaq that has always been a subject of consternation amongst Islamic scholar, lawyers and society.
Talaq-e-biddat, where biddat means an unlawful innovation, is a divorce that consists of either making a pronouncement of divorce during the woman’s menstruation period or to pronounce two or three divorces at once or to issue a divorce in a Tuhr in which sexual intercourse with the wife took place. The traditional Hanafi law treats talaq-e-biddat, an improper talaq, as an action ‘bad in religion but good in law’. If a man divorces his wife by saying “I give you three divorces” or by saying: “I divorce you” three times, it is considered an unlawful act and an innovation. It is sinful to divorce irrevocably in this manner; nevertheless such it is valid and operative.[8]
We have witnessed the zeal of the Indian Supreme Court in utilizing the provisions of Article 142 – the power to do complete justice, to dissolve marriage of parties that have been suffering in totaled marriages merely
because there is no provision in law that could liberate them.[9] The recent decision of the Supreme Court in Naveen Kohli v. Neelu Kohlí[10], suggesting to the Parliament to provide for ‘irretrievable breakdown of arriage’ in statutory law demonstrates that it is no longer feasible for law to chain two irreconcilable persons.[11] When juxtaposed with these developments, Islamic law of divorce seems progressive in as much it permits both women and men to divorce their spouse without resorting to unnecessary long litigations in the Court[12]; “the true Islamic law in fact stood for what is now known as the ‘breakdown theory’ of divorce”[13]. Conceding that men have more power to alter legal relationship than women, and therefore there are provisions within the precincts of present law as laid down in the Holy Quran that do not permit arbitrary divorce.
However, as in the case of marriages covered under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 there is no ‘statutory’ provision in Islamic law that would mandate that alternative methods of dispute resolution must be honestly resorted to before divorce is granted.[14] Islamic Law also requires one last attempt to be made by the parties before marriage is dissolved by either of them, and the source of such law is located not in statutes but in the Quran. We have often been swayed by the media and do to even attempt a study of true spirit of Islam that is pervasive in its law. Justice Krishna Iyer has observed, “The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions Indeed a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce. ”[15].
According to the Holy Quran: “And if ye fear breach between them (man and wife), then send a judge chosen from his family and a judge chosen from her family if they desire reconciliation, God will cause them to agree; verily, God is knowing and apprised of all.”[16]
There is thus, a clear requirement in The Holy Quran to attempt to solve the matrimonial dispute by alternative methods, failing which divorce may be granted. “The Prophet restraint the power of divorce possessed by the husband; he gave to the women the right of obtaining a separation on reasonable grounds; and towards the end of his life he went so far as practically to forbid its exercise by the men without the intervention of arbiters or a judge.”[17]
Judicial approach in this decade has undergone a strategical change to accommodate dynamics of evolving jurisprudence in a system of law that is perceived to be static. In Shah Bano era, attempts to ‘modernize’ Muslim personal laws, especially the laws affecting women’s right, have met with stiff resistance within the Muslim community primarily because it was seen as imposition of outside ‘assimilative’[18] rules on them. However, the present approach has changed, to find solutions within Islam relying on settled rules; courts in India it is politically wiser for the courts to not embark on finding the law in the holy texts through interpretative acrobatics. Judgments that do not go against the religion, which is opium for insecure masses, will have more legitimacy. Therefore, ideal situation would be to find ameliorative provisions within the religion instead of importing and imposing it. “Indian courts have proved a more hospitable forum for protecting and promoting women’s rights than political branches or minority institutions”[19], because they have been able to develop strategies to. Even though the practice of triple talaq has been abolished in many Islamic nations, it still prevails in India.[20] Since political organs have failed to discharge their obligation, duty now rests with the courts to set at naught the controversy that looms over triple talaq. Courts have at more than one occasion declared it to be illegal, if there was no arbitration or mediation proceeding conducted prior to declaration of divorce by the husband.
In 1981 Jiauddin Ahmed v. Anwara Begum[21], Baharul Islam, C.J., held that “In our opinion the correct law of ‘talaq’ as ordained by Holy Quran is: (i) that talaq must be for a reasonable cause; and (ii) that it must be preceded by an attempt at reconciliation between the husband and wife by two arbiters, one chosen by the wife from her family and the another by the husband from his. If their attempts fail, talaq may be effected….” The said ratio was re-affirmed in the same year in Rukia Khatun v. Abdul Khalique Laskar[22], and in 1993 in Zeenat Fatema Rashid v. Md. Iqbal Anwar[23]. These judgments have been approved by scholars as being reflective of the correct perspective of Islamic law.[24]
In 1998, the Madras High Court in Saleem Basha v. Mrs. Mumtaz Begam [25] has taken the same view in this regard that a husband cannot divorce his wife on his whims and caprice, and it is imperative for a valid talaq that the parties must attempt to solve their dispute by alternative means.
In 2002, the Dagdu v. Rahimbi Dagdu[26] the Bombay High Court has relying upon the decisions quoted above has held that the husband must prove that all conditions precedent including the condition of holding arbitration or mediation have been fulfilled before the courts would give recognition to such divorce.[27] This decision has been approved very recently by the Bombay High Court in Dilshad Begum v. Ahmadkhan Hanifkhan Pathan[28]. In 2004, the Allahabad High Court, speaking through Justice I.M. Quddusi has taken a similar view in Sadiqunnisa v. State of U.P.[29].
These cases reflect that judicial response to abuse of law is more vibrant that political responses from the legislators. These judicial opinions together have lit a new torch that seeks to pull out Muslim Personal law from the deep abyss of darkness and ignorance. The beauty of these decisions is that unlike in Shah Bano, judges here have not embarked upon interpretation of the Holy Quran, which is clearly not their domain. Judicial process of deciding cases on Muslim Personal Law has graduated to a new dimension where reforms are being located within the four corners of Islamic Law. It is submitted that the ratio decidendi of Dilshad Begum case delivered by the Bombay High Court and of several other cases cited above are here to stay.
