Divorce and Democracy

In 2017, 27-year-old Shayara Bano challenged her husband’s unilateral right to instantaneously effect divorce under Muslim personal law in Court. She had endured years of torture, a forced abortion, and was finally abandoned through the oral pronouncement of divorce or ‘triple talaq’- that is, her husband uttered the words ‘talaq, talaq, talaq’. The case received tremendous public attention, and the final verdict declared the practice of triple talaq as invalid as it violated both the Quran and the Constitution. The courtroom witnessed representations by the central government, women’s groups, religious groups – often represented by lawyer-politicians of opposing national political parties – and so, demonstrating that the courtroom was a stage for more than one controversy.

In India, family law – marriage, divorce, succession, adoption et al. – continue to be governed by religious personal status laws alongside some civil law options. Personal law was one of the central themes around which constitutional and legal discourses as well as party politics were organized in the second half of the twentieth century. A commitment to a universal code to replace religious personal laws, and Muslim law in particular, entered electoral agendas of Hindu nationalist politics towards the 1980s. Identity politics and religious and social movements also developed around the protection of legal difference. On various occasions, political parties have opposed women’s equal access to divorce on religious pretexts, while religious organisations have defended the religious right to particular forms of divorce, thus creating a long history of negotiation with and within the state on the dissolution of marriages. Marriage is often regarded as an institution that is not only meant to protect the family, children, and community but also promote women’s safety. It is incentivized through tax or housing benefits and state support more generally. Social movements and feminist jurisprudence, on the other hand, highlight the trouble with marriage—and seek instead new grounds for divorce, equal grounds for divorce, recognition of marital rape, and so forth. Thus, while a state may value a marriage, democracy has historically loved a divorce.

In 1955, parliamentarian NC Chatterjee declared in the discussions on the Hindu Marriage Act that, ‘The great essence of the Indian civilisation is in the purity of the family, the great ideal of chastity, the great ideal of Indian womanhood which has been our pride and our glory through the ages […] isn’t this type of a communal legislation [permitting divorce] repugnant to the spirit of the constitution?’ In the case of Parveen Akhtar v. Union of India in 1995, the counsel drew attention to Syed Ameer Ali’s oft-cited quote from 1914, ‘He [the Prophet] pronounced, “talaq [divorce] to be the most detestable before the Almighty God of all permitted things, for it prevented conjugal happiness and interfered with the proper bringing up of children.”’ Years later, as Christian law was debated in the Lok Sabha in 2001, Law Minister Arun Jaitley, expressed reservations about the very use of the word divorce: ‘I am correcting myself and I am preferring to use the words “dissolution of marriage” because of the factors [sic], particularly in a large section of Christians says that the marriages are not really intended to be divorced.’ The conversations above tell us that the court, the Quran, the Shastra, the state, commandments and the constitution, all seem to emphasize the horrors of divorce. In one stroke, Chatterjee’s speech ties honour to womanhood, womanhood to a glorious civilization, and the preservation of such glory to the law.

Yet, it was through a conversation on marriage and divorce that women often routed claims of equal citizenship. Joan Scott famously compared divorce to democracy. She argued, in the context of the French Revolution, that political democracy offered the weakest with an opportunity to rebel against the strongest, and similarly, in a family, divorce allowed the more vulnerable, that is, the wife, to rebel against male domination. In this sense, both democracy and divorce were tools for voicing dissent and protecting the weak. The repeated disdain for simplified divorce in the above quotes as a threat to family structures, society, and the nation, demonstrates that patriarchy was instrumental to more than one discriminatory regime – community, state, and religion. In India, both the right to exit a marriage and the right to remain in one, entailed mobilising all democratic institutions. The Indian state remained at odds with itself over the constitutional status of personal laws and till date has not quite resolved whether religious personal laws are constitutional guarantees of freedom of religion or whether religious and customary laws indeed violate the constitutional right to equality. What emerged as Hindu, Muslim, and Christian personal law codes in independent India continued to be challenged by citizens, political parties, and democratic movements. They were critiqued for the institutionalization of religious practices that contradicted the fundamental rights of some citizens and, simultaneously, for the tenuous and questionable link that the personal law codes shared with the sacred.

The striking feature about debating divorce is that, although both support and opposition to divorce are anchored in arguments around women’s rights, women’s demands rarely heeded to, directly. For instance, while debating the Hindu divorce in the 1955, bigamy was pitched by some as a ‘protection’ more beneficial for women than divorce, as divorce could lead to desertion of wives. Parliamentarian Subhadra Joshi boldly countered this by comparing the institution of marriage to that of prostitution because women had no agency to deny sex and no means to exit a troubled or even a violent marriage, since they had no financial or social support outside of marriage. Her comments resulted in an absolute disorder in the House, with demands that it be expunged from the records. Joshi raised many other issues about women’s consent in marriage and choice of partner, but her speech was drowned in the commotion stemming from the ‘prostitute comment’. [1]

The demand and decision were rarely in consonance in matters of family law. Again, in the Court’s recent declaration of triple talaq as ‘invalid’ in Shayara Bano a bill was subsequently introduced in Parliament to criminalise the practice. The Muslim Women’s Protection of Rights on Divorce Act, 2019 targeted mainly just the ‘speed’ at which such divorce could be given effect rather than the abandonment of the wife or the fact that such divorce was entirely unilateral. This is ironic because some Muslim women were rallying, among other things, for a greater legal recognition of an equivalent right for unilateral divorce initiated by wives (khula) with increased benefits and protections. The new law disregarded most recommendations from women’s groups as well as the Law Commission of India and earned criticism for targeting the already marginalised Muslim population. The Act has so far been challenged by nine petitions before courts on various grounds. Thus, this uncertainty of legislation and disagreements within the institutions of the state itself (Law Commission, Supreme Court, and Parliament) render impossible the imputation of any will to the state itself. Confusing legislation nevertheless prompted much dialogue and many Islamic organisations came up with campaigns to discourage triple talaq.

As Courts debated the Quran, Qazis (clergy/ judges in an Islamic court) began to train in constitutional law. Thus, despite disappointment with legislation, women’s initiatives over time began to use legal spaces to produce a dialogue on progressive or even feminist interpretations of religion, challenging community hierarchies as well as state-produced law.

So diverse were the interpretations of personal law that legislation rarely managed to tighten the grip of the state on domestic lives. To the contrary, this uncertainty disallowed both state and clergy to remain the sole custodians of religious or constitutional knowledge. In 1985 a row over Muslim women’s maintenance upon divorce in the infamous Shah Bano case, witnessed two major judgements and a new law. All interventions endorsed a woman’s right to maintenance through either religious or constitutional reasonings. Parliament claimed that it ‘overturned’ the Shah Bano judgement to codify ‘true’ Muslim law. The new law was immediately challenged before the Supreme Court for violating ‘constitutional law’. The Court in 2001 upheld the new law but in its verdict, it reconciled the judicial and parliamentary, and Quranic and constitutional understandings of Muslim women’s right to maintenance upon divorce to the same end – maintenance should be granted. Routing law in religious reasoning allowed the courts to practically write modern religion and simultaneously for religion to inform legislation. The central intrigue in personal law debates is then not the legal dynamism or breadth of difference the ‘constitution’ is capable of absorbing, but rather the diversity of laws—frequently sourced from texts outside the constitution, the Quran, the Shastra or the Sharia — that democracy is capable of enabling and to what end!

Thus, despite the state’s consistent discomfort with divorce, complex law-related processes around the subject prompted new imaginations of divorce. The women’s movement spoke in multiple voices, and in doing so, they undermined the law’s potential to create any permanent categories or fixed notions of ‘groups’ or ‘rights’. In the limited realm of family law, this has meant that the official law produced weak legal interventions that shared an uncertain relationship with the constitution and remained vulnerable to challenges. Such law was neither merely an instrument of control nor solely a tool for resistance it was, in fact, a dialogue.

[1] Details are available in Hindu Marriage Act Lok Sabha Debates, col. 6526. 2 May 1955.