Tryst with Equality–Muslim personal law vs. Fundamental Rights
Long ago, at the stroke of the midnight when India attained its freedom, Nehru acknowledged India’s tryst with destiny and said, “At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom.” Little did he realize then that even after 65 years of our independence, India would still be sleeping on the matters regarding the right to life and equality of its Muslim women population.
Certain traditional practices relating to marriage and divorce backed by Muslim personal law is a serious threat to the constitutional right of equality and the right to life of a large population of Muslim women. Triple talaq, a practice by which a Muslim husband can divorce his wife by saying ‘talaq’ thrice, is something reprehensible in modern times where rule of law prevails. Another practice called Nikah Halala is far more surprising and condemnable. If a Muslim husband, after divorcing his wife inadvertently, wants to remarry with the consent of his divorced wife, he cannot do so until his wife undergoes Nikah Halala. It means the poor wife must have to marry another man first, consummate the marriage, and be divorced again in order to marry her first husband. This is an extreme practice which denies personal liberty and dignity to a woman which is an essential component of the right to life (art. 21). Polygamy is the most draconian of them all, which is allowed in Muslim personal law– a Muslim man can have up to four wives.
Recently, Shayara Bano has challenged these practices– triple talaq, nikah halala, and polygamy– in the court of law on the grounds of violation of fundamental rights. Many such feudal religious practices associated with other religions in India which were inconsistent with constitutional rights have already been abrogated with progressive legislations such as Hindu Marriage Act, Hindu Succession Act, etc. However, no such legislative actions were taken in case of Muslim Law due to vote bank politics and other fanatic forces.
It is highly inconceivable that in a country like India, where human rights and rule of law reigns, such feudal practices have existed so long. It is high time that Muslim personal law is codified so that gender justice and equality can prevail. In a secular country like India, it is the constitutional rights that prevail over all traditional and religious practices, and when there is a friction between the constitutional rights and the religious personal law, it is the latter which must give way to the former.
