Sunday, April 23, 2006 20:34 IST
Whenever reform has not come from within communities, the courts have moved decisively to ensure that rights, especially those of women, are upheld. The Supreme Court has now delivered a stinging rebuke to a group of local clerics in Orissa who tried to force a Muslim couple to separate after the husband accidentally uttered ‘talaq’ three times under the influence of alcohol. The clerics’ logic that the pronouncement of talaq cannot be reversed and that the couple must divorce and remarry if they wished to stay together found no favour with the court.
There is merit in the argument that it would be best for reform to be generated internally in a community. But it cannot be left to sundry clerics of any faith to selectively interpret the scriptures and apply them to people’s lives. In the latest case, they are blatantly on the wrong track. Vested interests, when faced with progressive court rulings, often argue that personal laws are out of the ambit of Article 13 of the Constitution. This has no legal basis. Court rulings of the sort issued by the Supreme Court in the Orissa case are often the only precedent in which petitioners can seek the justice they are denied by personal laws. It is significant that several Muslim countries have done away with the triple talaq law and have banned polygamy.
It cannot be anyone’s argument that personal laws should be allowed to perpetuate discrimination, especially against the economically and socially disempowered. Yet, it is precisely this logic that sections of the ulema put forward against the 2001 Aurangabad Bench vs Mumbai High Court verdict which decreed that a talaq cannot stand on its own and must be confirmed by a court order.
The clerics who fear that the courts’ intervention in personal law will undermine their authority will naturally try to offer various explanations, like the laws being based on ‘divine inspiration’ and therefore immutable. This is nonsense.
Learned Islamic scholars are clear that Islam discourages divorce unless under the most extenuating circumstances. It also affords women a status equivalent to men.
One way to speed up reform from within would be to give women greater representation on the Muslim law boards, a long-standing demand from progressive sections of the community. This along with the courts’ vigilance holds out hope that positive changes are not too far off.