Talaq, no matter which side of the political spectrum one comes from, is against the basic right to equality, and right to life and dignity. However, to say that Islamic Jurisprudence is totally arbitrary in matters of divorce would be overreaching.
In the other form of Triple Talaq which is called ‘Talaq Hasan’ (which takes place over a period of 3 lunar cycles), there is provision for mediation and reconciliation. In traditional societies, it was often adopted as the method to resolve disputes, to ensure that both parties get a chance to put forward their arguments, and to access counselling from the wise and experienced. It ensured fairness and speedy justice for both parties.
Another provision is that of Khula, where a woman has the right to divorce her husband, though often at the cost of her mehr (dower received from husband). Though issues such as maintenance do arise, a woman is given the right to divorce her husband at will.
Furthermore, the honourable Supreme Court raised an important question, asking the method of divorce that is suggested, post-abolishment of the Triple Talaq. The existing Hindu Law in this regard, as we have seen, has not been very successful in handing out speedy justice. It is a well known fact that our courts are overburdened with divorce litigation that take years to conclude, not only consuming the precious time of the court but also impacting lives of both the parties and families involved. Even though the apex court has enlarged the scope of the law but unfortunately, Hindu Divorce Laws remain extremely rigid, and some may even say, biased towards women.
Multiple instances of misuse of the laws have been observed by the Honourable Supreme Court (SC) itself.
Women have also taken advantage of the Domestic Violence Act and Dowry Laws by taking undue benefit during the trial, often leading to extreme harassment of the husband’s family (including old parents) and appropriation of property through unfair arguments. Also, the process of getting a divorce might stretch up to 10 years, draining the parties of their will and energy to rebuild their lives. Often, this leads to abandonment or bigamy which is forbidden by Hindu Law.
The Hindu Divorce Law has its own share of problems and needs to be overhauled in context of the present day and time. Consequently, the SC and Law Commission recommended the provision of ‘irretrievable breakdown of marriage’ to section 13B of the Hindu Marriage Act which might, to an extent, provide a quick resolution in some of the cases.
Keeping all these in mind, I do not support an arbitrary imposition of the Uniform Civil Code. However, both the Hindu and Muslim Divorce Laws have been proved to be unfit for the 21st century India.
Perhaps this would be a good starting point. The Parliament must come up with a new secular law for marriage and divorce which gives every community the right to perform marriage rituals in their own way while embodying provisions which lay down the rights of both the parties to provide a fair and time bound procedure for the purpose of divorce.
Free and fair consent must be an essential requirement for every marriage, putting a plug to coerced marital practices. Also deterioration of a relationship to the extent where mutual trust and love has ceased to exist should be made a ground for ending an unhealthy marriage that has no scope of sustenance.
21st century India needs to empower her citizens to exercise their right of choice in matters of matrimony while also being assured of the equal protection of the law in the case of divorce.
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