MPL and TT: A Background

There are two important laws that have been the reference points in recent dis­cussions on the triple talaq debate: the Muslim Personal Law (Shariat) Application Act, 1937, which deals with the concerns related to marriage, succession, inheri­tance and charities among Muslims; and the Dissolution of Muslim Marriage Act, 1939, which defines the circumstances in which Muslim women can obtain divorce under extrajudicial or judicial modes, and her rights as a divor­cee.

The codification of Hindu reform laws in 1956 under the much debated Hindu Code Bill and the absence of UCC, which left the Personal Laws of reli­gious minorities unmodified, established Muslim Personal Law as a ‘sacred’ and ‘fixed’ category.²⁰ The fate of Muslim women in matters of marriage, divorce and inheritance was left on the mercy of Muslim clergy and community elite. At the same time MPL was placed in a direct conflict with national identity. The Muslim religious elite and different political parties projected the Sharia laws as the lifeline of Muslim existence in India. The political debates placed MPL uncritically in a binary opposition to a highly vague idea of Uniform Civil Code. In fact, the MPL and UCC were posed as a threat to each other. In this schema, the sociocultural diversity and multiplicity of family laws followed by different religious communities was completely kept out of the national political discourse.

This debate found a radical overtone during the Shah Bano controversy, which exposed the blatant nature of politics over Muslim Personal Law. In a landmark judgement, the Supreme Court held that a Muslim woman was enti­tled to get maintenance even after the divorce (A.I.R 1985 S.C. 945).

The controversy on triple talaq regained its momentum in 2016. Shayara Bano, a victim of talaq al-bid’ah, filed a Writ Petition in 2016. She demanded that the two governing legislations concerning the MPL must be declared as unconstitutional.²³ Evoking the Fundamental Rights under Articles 14, 15, 21 and 25 of the Constitution, the petition also insisted that the divorce deed issued by her husband should be treated as illegal and unconstitutional along with the practice of polygamy and nikah-halala.²^ The Supreme Court upheld the view that the triple talaq was invalid and unconstitutional. The court also described this practice as un-Islamic and arbitrary.²⁵ The court instructed the government to legislate on the issue while at the same time keeping UCC clearly separated from it. However, the case proceedings and later developments brought these contro­versies at surface level with new political dynamics. This led to an interesting mediatisation of triple talaq issue.

IV.