Petition to ban polygamy and unilateral divorce in one sitting (Part I)

SAHR is following the Shayara Bano petition at the Indian Supreme Court to ban triple-talaq (unilateral divorce pronounced in one sitting), polygamy and nikah-halala in India.

In India, an interesting petition has come up before the Supreme Court challenging the constitutionality of the practices of triple-talaq (talaq-e-bidat), polygamy and nikah-halala in India. The petitioner argues that these practices violate her rights under Articles 14 (right to equality), 15 (right against discrimination), 21 (right to life and personal liberty) and 25 (right to freedom of religion) of the Indian Constitution. In this two-part post, we present an overview of the arguments made by the petitioner.

Facts as stated in the petition:

The petition has been filed by Shayara Bano, a Muslim woman, who hails from Uttarakhand. Shayara Bano was married according to Shariyat law customs to a man named Rizwan Ahmed (Respondent No. 5) in 2002. The petitioner alleges that she was subjected to cruelty after the marriage by her husband and in-laws who demanded that she pay dowry in addition to what her parents had given before marriage. Shayara Bano’s husband subsequently abandoned her and she started staying with her parents in April, 2015. Shayara Bano’s husband eventually divorced her by triple-talaq (this was confirmed in a divorce deed issued by Respondent No. 5).

Petitioner’s Arguments:

1. Polygamy is not an integral part of Islam.

In her petition, Shayara Bano refers to the SC decision in Khursheed Ahmad Khan v. State of Uttar Pradesh wherein it was held that practices permitted or not prohibited by a religion do not become a religious practice or a positive tenet of the religion, since a practice does not acquire the sanction of religion merely because it is permitted. The petition also notes the SC’s view that polygamy is not an integral part of religion and Article 25 merely protects religious faith, but not practices which may run counter to public order, morality or health. Accordingly, the petitioner argued for a ban on polygamy on the grounds of public order and health (¶¶ 5-6)

2. Divorce without attempt at reconciliation is against the Holy Quran.

Talaq-e-bidat (or talaq-i-badai) refers to the practice wherein a Muslim man divorces his wife by pronouncing more than one talaq in a single tuhr (the period between two menstruations), or in a tuhr after coitus, or pronouncing an irrevocable instantaneous divorce at one go.

The petitioner argues that this mode of talaq “treats women like chattel” and “is neither harmonious with the modern principles of human rights and gender equality, nor an integral part of Islamic faith”. The petition notes that talaq-e-bidat is banned (or restricted) in Saudi Arabia, Pakistan, and Iraq. The petition states that talaq-e-bidat and divorce of a woman without proper attempt at reconciliation violates the basic right to live with dignity of every Muslim woman (¶¶ 7-8).

The petition refers to nikah halala, a practice whereby a husband cannot take back a woman (whom he has divorced) as a wife even where he divorced her in a state of intoxication, unless the woman marries another man who subsequently divorces her; only then is the previous husband allowed to remarry her.

Several Islamic scholars are of the opinion that talaq-e-bidat is not a form of divorce recognised in the Holy Quran as the Holy Book provides for reconsideration and reconciliation before recognising divorce as irrevocable. Asghar Ali Engineer, a renowned Islamic scholar, states that talaq-e-ehsan, in which a married Muslim couple is given three months to separate if they wish, and also offers an opportunity to reconcile their differences, is the only acceptable and valid form of talaq. The petition also notes the views of noted Islamic law scholar, Prof. Tahir Mahmood, that talaq-e-bidat is not recognised by the Holy Quran. The petitioner relies on Shamim Ara v State of UP wherein the SC held that “talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife” (¶¶ 9, 11).

3. Bigamy is banned in India.

In Sarla Mudgal v. Union of India, the SC held that bigamy is a punishable offence in India under the statutory marriage and divorce laws applicable to Christians, Parsis and Hindus. The petitioner noted that the Dissolution of Muslim Marriages Act, 1939 “does not secure for Indian Muslim women the protection from bigamy which has been statutorily secured for Indian women belonging to all other religion”. The petitioner argued that “the failure to secure the same equal rights and life of dignity for Muslim women violates their most basic human and fundamental right to a life of dignity unmarred by gender discrimination” (¶ 14).

4. Religious practices against public order & morality are not protected.

The petitioner cited the Bombay HC’s view in State of Bombay v. Narasu Appa Mali (affirmed in Khursheed Ahmad Khan) that “a sharp distinction must be drawn between religious faith and belief and religious practices, since the State only protects religious faith and belief while religious practices that run counter to public order, morality or health or a policy of social welfare must give way to the good of the people of the State”. It was the petitioner’s case that polygamy is a religious practice against public order and morality and should therefore be prohibited (¶ 15).

5. Social conditions must be considered when interpreting matrimonial laws.

The petitioner cited Danial Latifi v. Union of India wherein it was held that “when interpreting provisions where matrimonial relationship was involved it has to consider the social conditions prevalent” (¶ 16).