Justice by law

Triple talaq will not be addressed by political rhetoric, trial by media or social boycotts. It will take strategic legislation to bring genuine reform

personal law system is deep-rooted in society — all citizens are ordinarily governed by one or another community-specific law — and uprooting this system with a single stroke of legislation is neither feasible, nor necessary.

Like all other family laws, Muslim law too should be codified and reformed. Strategic revision of existing legislation will be the answer to the problems of the day. There are on the statute book three enactments relating to Muslim family law: Muslim Personal Law (Shariat) Application Act 1937, Dissolution of Muslim Marriages Act 1939 and Muslim Women (Protection of Rights on Divorce) Act 1986. These can be tactfully developed into a Muslim Marriage and Divorce Act. Once adopted by Parliament, ways and means will have to be found for its uncompromising enforcement.

As regards polygamy, Sections 464-65 of the Indian Penal Code dealing with this have remained unchanged for over 150 years. Macaulay had kept its application confined to those whose religious law prohibited polygamy — which, at that time, meant only the Christians. Ninety-five years later, Hindus, Buddhists, Jains and Sikhs were brought into its purview by the Hindu Marriage Act; at present, only the Muslims and all tribal groups remain outside it. Dropping a few words from the IPC provisions can do away with these exceptions.

Family law traditions prevalent among the Muslims of India represent a distorted

C R Sasikumar version of the original Islamic law. Legal reform for them in the true spirit of the Quran is advisable, and quite possible. As a condition precedent for achieving the target — if it is genuinely the target — the issue should be totally depoliticised and de-theologised. Ferocious debates on the idiot box are vitiating the cause and must be stopped. It is a social issue and must be tackled at an apolitical and juridical level.

Social issues as grave as triple talaq cannot be resolved by political rhetoric or trial by media, both of which are being orchestrated in the country. Nor can it be tackled by an utopian scheme like a social boycott of wrong-doers, as the All India Muslim Personal Law Board reportedly decided in Lucknow on Sunday. How effective will be such a boycott and who will have the authority to enforce it? And how will the poor wife, whose life has been ruined, benefit from it?

The argument that triple divorce is bid’at (repugnant to true Islamic law) but it cannot be legally done away with does not stand to reason. The strange formula of “bad in theology but good in law” associated with triple talaq — to which the British Indian courts adhered in the distant past — has no legs to stand on in a modern 21st century society which is, or must be, governed by the principles of law, and not theology.

The writer is former chairman of the National Minorities Commission and member of the Law Commission of India