Triple Talaq, Uniform Civil Code, and the way ahead

The much anticipated news on Tuesday morning was the Supreme Court ruling on instant Triple Talaq, and hopes that the esteemed bench would uphold the rights of women, rather than a practise that has been challenged by many scholars within the community, and activists within and outside the community. The Constitution Bench of the Supreme Court held that the process of instant Triple Talaq violates Article 14 of the Indian Constitution that promises the citizen equality before the eyes of law, as well as Article 15 that prohibits discrimination. 

At the core of the instant Triple Talaq case is the idea that a man dissatisfied with his wife, can instantly cast her aside by uttering "talaq" thrice in rapid succession. The divorced wife has no right to any appeal – the divorce is final by all accounts, and the woman is left out in the cold. While conservative elements in the seminaries and the All India Muslim Personal Law Board have been championing the upholding of this right; aggrieved women, their families, lawyers, and liberals within the Muslim community, and outside have been pushing to get the practise banned. Triple Talaq, as it is popularly known, is banned in many Muslim nations. Turkey was the earliest to ban it, when it adopted a secular law in 1926. Egypt refused to recognise it as a divorce in 1929. Pakistan banned it in 1961, when it promulgated the Muslim Family Law Ordinance; Bangladesh, then East Pakistan, too banned it in 1961. The practise of Triple Talaq is part of the Sunni Muslim tradition, Shias do not follow it; hence, it is not a practise in Iran. 

Five Muslim women in the country, and two rights groups challenged Muslim patriarchy all the way to the Supreme Court, to arrive at this landmark verdict. That perpetuating a system that trampled on the dignity of the individual (woman) and left her bereft of rights, is not just fundamentally wrong, it is also now, fundamentally illegal.   

Hopefully this landmark judgement, that upholds the right of the woman to equal status as a citizen of India, and who is guaranteed equal protection and dignity by the system, paves way for a civil code that is more equal, and equitable. The Uniform Civil Code that is being discussed by civil society, and the government, is the next step. A Uniform Civil Code is part of the promises made by the Indian State to its citizens; Article 44 of the Constitution (1949) states that “The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India”.

But, while we look at a Uniform Civil Code and equality to all parties, it is important for us to legislate from the point of view of individual rights, rather than get embroiled in the entire quicksand of religion, culture, and custom. And, while it is easier for us to side step religious strictures, because they are usually clearly laid out and spelt out, in our bid to create a more equal law, it is far more difficult to overcome social mores and social customs. What is interesting about the judgement today, is that it is not about religion, it is about the rights of the individual to be accorded equality and dignity. And, it this upholding of equality under the eyes of the law; and the prohibition of discrimination that the newly minted Uniform Civil Code must uphold. 

In a modern era, the state needs to be cognisant of the fact that adult individuals come to different personal arrangements. Marriage between a man and a woman is just one of them. People live together – and this is not just the South Mumbai, South Delhi elite – but ordinary people. There are enough and more stories of people who travel in from the villages to the towns – have a wife and children there, and a wife here. Society accepts both, the law is still awkward about these. Then, there are people in same sex relationships; there are polyamorous relationships; there are parts of India where polyandry is still practised; as is polygamy – and the core question that the state needs to debate is not “what form of association is acceptable to us” but, “how do we uphold the rights of our citizens”. How do you make sure that family rights that include next of kin, inheritance, are not threatened by a patriarchal view of what constitutes a ‘relationship’? 

The Modi government with a majority in both Houses, can create the single most accepting Uniform Civil Code – a code that does not make value judgements, nor decry people for their choices in life. It will be a code that is accepting of the people of India and their choices, and see how to work best to accommodate this diversity. And, the approach might actually be simpler if they looked at a formal relationship as a contract, as per the wishes and desires of mutually consenting adults; and the civil code itself looks at how do you ensure fairness and equality when the relationship breaks down. This may unite all the conservative elements in all religious and socio-cultural groupings to protest immoral legislation. But, the opportunity for this government to create an inclusive Uniform Civil Code across genders, groups, sexual orientations, and associations is huge. And, it would be good if they took this opportunity and created the legislation that we deserve. Not the legislation that is compromised by the patriarchal past.