An issue no one’s discussing

India is confronted with question of constitutionality of triple talaq as a mode of dissolution of Muslim marriages

The Supreme Court of India is confronted with the question of constitutionality of triple talaq as a mode of dissolution of Muslim marriages. Concerned with the ‘welfare of the Muslim woman,’ the BJP government has thrown its weight behind the petition. The All India Muslim Personal Board (AIMPL), however, has strongly objected to the Court’s interference in the matter. That a number of Muslim countries, including Pakistan, have either explicitly or implicitly abolished triple talaq is advanced as an argument in favour of reform of the existing Muslim Personal Law in India. The Muslim Family Law Ordinance (MFLO) promulgated in Pakistan in 1961, has time and gain been cited as an example for possible emulation. In the light of contradictory judicial decisions on the permissibility or effectiveness of triple talaq, the paradigmatic value of the MFLO legal regime may, however, be questionable.

Section 7 of the MFLO regulates the procedure for pronouncement of talaq by a Muslim man on his wife. Pursuant to section 7, the declaration of talaq becomes effective and attains finality following: 1) provision of a written notice of talaq by the husband both to his wife and the Chairman of the Union Council where the marriage was registered; and 2) failure of the parties to reconcile in a 90-day period commencing from the date of provision of the notice. The mandatory requirements of notice and reconciliation mean that a Muslim man cannot instantaneously and irrevocably repudiate his marriage with a woman upon a unilateral declaration of divorce made three times in one sitting. Triple talaq or Talaq-e-Biddat then arguably falls beyond the scope of section 7, which contemplates only one form ofpermissible talaq — broadly categorised as Talaq-e-Sunnah — which is revocable within the ordained 90-day iddat period.

The history of constitutional and religious challenges to the MFLO and the spate of contrary judicial opinions generated, render the above conclusion far from certain. The MFLO has, since its promulgation been vulnerable to challenge on the grounds of incompatibility with Islam. The superior courts have on occasion refused to exercise their constitutional jurisdiction on this question for lack of competence. The Federal Shariat Court (FSC) too initially read Article 203-B of the Constitution as excluding Muslim Personal Law, and thereby the MFLO, from the purview of its review powers. In Allah Rakha v Federation of Pakistan (PLD 2000 FSC 1), however, the FSC concluded otherwise and exercised its power of review to hold, on ostensibly altruistic grounds, that the provision of notice under section 7 of the MLFO was not essential for effectuating talaq. With appeal against the FSC’s decision pending before the Shariat Appellate Bench of the Supreme Court since 2000, the verdict remains in limbo.

It would not be fair to hold the FSC responsible for putting in doubt an otherwise settled provision of a progressive law. The FSC’s decision came in an environment of existing confusion on the subject, caused by inconsistent judicial interpretation of section 7 of the MFLO. The courts in the past have at one treated the failure to provide notice as an implied revocation of the divorce (1987 SCMR 518), and at the other ruled that such omission would not, under the MFLO, affect the validity of the divorce (1994 SCMR 2098, PLD 1984 Lah. 234). However, as recently as 2010, the Lahore High Court unequivocally held that, “It has now been settled law that talaq is not effective without notice under section 7(1) of the Muslim Family Laws Ordinance, 1961” (P L D 2010 Lah. 681). The procedural scheme of section 7 of the MFLO operates as an essential buffer against arbitrary and unfair pronouncement of triple talaq. The lack of clarity on the legal necessity of provision of notice of talaq also puts in doubt the law’s apparent prohibition of triple talaq.

Pakistani case law on the legality and effectiveness of triple talaq is again inconsistent. In contrast to my earlier reading of section 7, Pakistani courts have on occasion accepted Talaq-e-Biddat or triple talaq as a valid and binding method of divorce, which becomes effective and irrevocable from the moment it is pronounced (PLD 1994 Lah. 236, 2014 YLR 2315, 2016 CLC 180). Such interpretation renders nugatory the entire protective scheme of notice and reconciliation of the MFLO, and has on such count been criticised in other decisions of the superior courts (2003 Y L R 2623 Lah). The law then stands in a state of grave confusion. Can a Muslim man rid himself of an unwanted marriage with the ease permitted by talaq-e-biddat, or must he first fulfil the procedural and temporal requirements of section 7 of the MFLO? Does the law recognise triple talaq as a valid mode of dissolution of marriage? The law must provide a clear answer to these questions. Given the lack of religious consensus on the subject, coupled with the risk of strong reaction to any definitive position taken either way, this task is far from easy. In its current state the law regulating talaq in Pakistan is irrational and also vulnerable to abuse.

Published in The Express Tribune, November 15^th, 2016.

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