CAN HOLY LIPS ALSO ‘PREY’?
This Article was shortlisted as the top entries at Educoncours 1st National Journalism Competition
“The women are not a garment you wear and undress however you like.
They are honoured and have their rights.”
Modern law in India is a hybrid legal system with a mixture of civil, common law and the customary laws within its legal framework which have been inherited from the colonial era and various other legislation first introduced by the British which is still in effect. The Indian laws stand strong and secured on the pillars of its Constitution that are the Law of the Land, based on the principles of JUSTICE, LIBERTY, EQUALITY, and FRATERNITY.
The personal laws that govern the citizens of India at present are complex owing to different personal laws that standardize only ‘a’ particular religious community and not the whole of India. Illustrating the above-mentioned fact, Hindus are bound by law to practice monogamy whereas Muslim laws permit men to have four wives at a time. The only state in India that boasts of a Uniform Civil Code is Goa which is also laden with varied disparities, providing for bigamy for the Hindus (under specific circumstances) and disallowing the same for Muslims.
The above lacuna in the personal laws comes to light when dissimilar sects in a secular country as that of India are taken care of differently. The personal laws have varying disparities with provisions that are at extreme ends yet measured on a single yardstick that is The Constitution of India, which reigns supreme, its provisions forming the foundation for the other laws. Any law which stands in derogation to the basic structure or cuts through the realm of the fundamental rights which are enshrined in the Constitution should be declared blatantly unconstitutional.
Fundamental Rights are the basic human rights to which every citizen, irrespective of their differences, should be entitled to, the deprivation of which would hamper the individual’s civil, political, spiritual and moral stature. In the words of India’s former Prime Minister, Pandit Jawaharlal Nehru, “A fundamental right should be looked upon, not from the point of view of any parliamentary difficulty of the moment, but as something that you want to make permanent in the Constitution.”
The most primary of all fundamental rights is the Right to Equality which in simple terms talks about ‘equality before law’. Any individual, including non-citizens, are entitled to this right making it one of the shields that cover within its ambit virtually the entire nation. Since the umbrella of the Right to Equality is so wide, will it be fair and just to exclude ‘a section’ of the society that represents women? Are women not entitled to this right which claims to be their preserver, shield, and savior?
Even though the Right to Equality is an unambiguous one, self-explanatory and crystal clear in nature, is seemingly opaque, creating a misty film preventing the discriminatory personal laws to see the light of equality.
“What are we having this liberty for?
We are having this liberty in order to reform our social system, which is full of inequality, discrimination, and other things, which conflict with our fundamental rights.”
-B. R. Ambedkar
There are practices in our country that have favored men over women clearly revoking the equality provision. One such practice is the Islamic practice of Triple Talaq that has been a subject of controversy and debates within the country giving rise to issues of human rights, justice, gender equality, and dignity.
Talaq-ul-biddat popularly called triple talaq is a form of divorce practiced in India whereby a Muslim man can legally divorce his wife by pronouncing ‘talaq’ three times. The pronouncement can either be oral or written, in recent times can also be through electronic means, wherein a man is not required to cite the cause for such pronouncement and the physical presence of the wife is not a necessity. Under this form of Islamic practice, the marital ties cannot be re-established.
Tracing the background of this practice, the Muslim personal affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (Muslim Personal Law) and under traditional Islamic jurisprudence. Triple Talaq is considered to be particularly disapproved, widely practiced, but still, constitutes a legally valid form of divorce.
The fact that this Islamic practice, still being prevalent in India, gives rise to the moot question: When Islamic countries such as Pakistan and Bangladesh could ban the practice, then why not India? Does a practice that gives men the power to end a marriage by simply uttering the word ‘talaq’ stand at good footing in a country that assures its citizens of being treated equally?
The right to divorce is not an absolute right that is available to the Muslim men and thus they should be made subject to self-imposed restrictions. This right that makes itself available only to the men of the community should not be used to exploit and victimize women, instead, it is a right that is ought to be used with responsibility and not in a manner that is evidently haphazard and slapdash in conduct.
“Right” to divorce must be mutual, with both the parties having an equal right to revoke their marital ties, in addition to which it is to be used with responsibility and with the cognizance of a moral obligation.
It should further be noted that this Right to divorce which is a Right in Personam tardily takes the shape of a Right in Rem which affects a major portion of the society. Though apparently, it seems to adversely affect the women, it unknowingly affects men as well, since a woman has the multiplicity of roles, being a daughter, sister, and mother, in addition to being a wife. Since this right which transforms into a Right in Rem, ought to make the men all the more responsible towards the deployment of this right, which should be sparingly exercised.
In a country as that of India which is so rich and varied in culture, language and customs with the presence of varied religions and communities co-existing, each sect has its own norms, tradition, and values, yet all are knitted together only because of tolerance and mutual respect. There is unity in diversity and all the varied sects share one thing in common: ‘respect for relationships’. Be it any community or sect in India, relationships are valued, maintained and taken care of with utmost respect and affection. In such a surrounding where we highly regard our relationships, practices like triple talaq defy the Right to Equality and in turn, retract the country’s progress towards attaining equality for women in the right sense.
“Hands that serve are holier than the lips that pray”
Thus, any practice, custom or tradition which is against dignity and humanity should be abolished and discontinued. Laws are made for the society and for the larger interest of its members. Triple Talaq, a practice that has foiled the lives of innumerable women across the country leaving them desolated, hampering their self-esteem and dilapidating their lives thereafter should be declared unconstitutional for thenceforth the women can breathe life and live it without the fear of being unaccompanied.
Author: KRISHNA THAKKAR
College: PRAVIN GANDHI COLLEGE OF LAW
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