Kochi: In a significant order, the Kerala High Court on Friday observed that that legislation was required in India to regulate triple talaq. Stressing the importance of formulating a codified law to govern Muslim divorce, the court asked the state why it was so reluctant to reform Muslim divorce law. The court recommended bringing in a uniform code to govern marriages instead of the personal laws that exist now. A common civil code, though it is debated at different levels, still remains a mirage for want of agreement among different groups. This essentially arises out of misconception as to the secular law, the court observed.
“It is to be noted that had the Muslim in India been governed by the true Islamic law, penal law would have acted as deliverance to the sufferings of Muslim women in India to deter arbitrary talaq in violation of Quranic injunction,” the court said. A single bench made the recommendations while considering four petitions filed by the spouses involved in triple talaqs. One petitioner questioned a lower court order to provide maintenance following a triple talaq using a ‘talaq kuri.’ Others challenged the passport authorities’ insistence on a court decree to prove dissolution of their marriages, which were carried out through talaqs.
The court noted that the resistance is from a small “section of 'Ulemas' (scholars within society) on the ground that 'Sharia' is immutable and that any interference would amount to negation of the freedom of religion guaranteed under the Constitution. “The state is constitutionally bound and committed to respect the promise of dignity and equality before law and it cannot shirk its responsibility by remaining a mute spectator of the malady suffered by Muslim women in the name of religion and their inexorable quest for justice broke all the covenants of the divine law they professed to denigrate the believer and faithful,” the court said.
“Justice has become elusive for Muslim women in India not because of the religion they profess, but on account of lack of legal formalism resulting in immunity from law. Law required to be aligned with justice. The search for solution to this predicament lies in the hands of the law-makers. It is for the law-makers to correlate law and social phenomena relating to divorce through the process of legislation to advance justice in institutionalised form. It is imperative that to advance justice, law must be formulated without any repugnance to the religious freedom guaranteed under the Constitution of India,” it said.
The law of marriage in Islam is more than a contract though it is performed through a contract. In Islam justice is not a lopsided virtue that could be used by men to oppress women on their capricious whims and fancies. “It is to be noted that Quran nowhere approves triple talaq in one utterance and on the other hand
promotes conciliation as the best method to resolve the marital discord,” the court observed.
