On May 11, the Supreme Court is set to decide whether triple talaq is unconstitutional. Should it indeed declare the practice unconstitutional, as is widely expected, what would be the implications? What does unconstitutional mean? Will the system of nikah halala, or intervening marriage, stand annulled? And, above all, will it uplift Muslim women economically and socially?

Scroll.in put these questions to Faizan Mustafa, vice chancellor of Nalsar University of Law, Hyderabad. He explains all you would want to know about Muslim Personal Law, the forms of divorce in Islamic law, and the implications of the Supreme Court declaring triple talaq unconstitutional. Excerpts from the interview:

If the Supreme Court were to declare triple talaq unconstitutional, in what ways would it change the methods of divorce under Muslim Personal Law?

Constitutionality of a law can be tested only on two grounds. One is the competence of legislature. So, if it is a parliamentary law, the subject must be within the legislative competence of Parliament – that is, it should be in the Union List or the Concurrent List. If it is in the State List, courts may strike down such a law as unconstitutional. Similarly, if it is a state law, the subject should be either in the State List or in the Concurrent List.

Two, the law in question should not be inconsistent or in contravention of the fundamental rights. If it is determined to be so, it would be struck down as unconstitutional. This is called constitutionalism or the idea of limited government. The underlying principle is that the state should not violate the fundamental rights, which face the gravest threat from the state because of the power it possesses. This is why Chapter III on Fundamental Rights starts with the definition of ‘state’ in Article 12 of the Constitution. Thus, it is the state, not citizens, which is the primary addressee of the fundamental rights.

How far we can strike down private and personal decisions between husband and wife as unconstitutional is difficult to tell. The Delhi High Court has held that bringing the Constitution in family matters will be like a bull in a china shop.

In any case, even Parliament or the government does not care much about something having been declared unconstitutional by the Supreme Court. In Mithu Singh (1983), the Supreme Court held mandatory death sentence to be arbitrary and unconstitutional. Yet, after 1983, several laws have been passed by Parliament providing for mandatory death sentence.

When Parliament does not follow the court’s verdicts, how far private individuals will desist from triple divorce is anybody’s guess.

I am not hopeful of the ground situation changing drastically for better except for the educated or liberated women who may take some solace in getting their triple divorce nullified by the courts after a long and protracted legal battle.

Talaq-ul-Biddat annuls a marriage instantaneously and irrevocably. In other words, the husband can’t remarry his wife whom he had divorced until she marries another person, consummates the marriage and then gets divorced again (the system is called halala).

Yes, this is so for at least those who consider triple divorce valid.

In case triple talaq is deemed unconstitutional, will it also bring an end to the system of halala?

Yes and no. In triple divorce, reunion is not possible. So if triple divorce goes, halala too will automatically go. But then the nuanced position is that in Talaq-e-Ahsan, husband and wife can reunite only twice but if they divorce for the third time, the option of remarriage is not available until…(there is halala).

But first, let us try to understand this controversial subject of intervening marriage or halala. As a matter of fact, a Muslim can revoke his first divorce within three months without doing anything. If three months have passed without revocation, if both husband and the divorcee want to revive their relationship, they may simply remarry with fresh nikah (marriage) and mehar (dower to be paid by husband).

If again, after sometime there is second divorce, husband may either revoke divorce on his own within three months or remarry yet again if three months have passed and both are willing to reunite.

When the same story gets repeated a third time, then Islam treats the husband and wife as what is called the “prohibited degrees” and they cannot now remarry each other. If this divorcee contracts another marriage which also collapses or she becomes widow, and if she and her first husband, out of their own free will, want to marry yet again, the prohibition stands removed and they can enter into a fresh marriage contract for the fourth time.

Can such a thing really happen with any couple?

Not at all. Which lady will like to marry a man who divorced her and then took her back to divorce her again and then the third time? We must remember that no intervening marriage is permissible as an arranged device to remove the prohibition of marriage.

The Hindu Marriage Act, too, talks of prohibited degrees (sapinda) within which marriages are not permitted. For instance, spouses should not be related to each other for seven generations from the father’s side and five generations from the mother’s side.

Even the Special Marriage Act, which is the most progressive piece of legislation, mentions as many as 37 categories of prohibited relationships, disallowing marriages among those who fall in these categories. For instance, mother’s brother is in the prohibited degrees for the niece yet such marriages are common. Khap Panchyats, too, do not permit marriages between boys and girls of the same village as they consider them to be brothers and sisters and, thus, in the prohibited degrees.

Thus, on third divorce, under Islam, husband and wife come (within the domain of) prohibited degrees temporarily. No court can say it is arbitrary and unconstitutional. In any case, the prohibited degrees concept is an essential feature of any religion. Religion is all about what is permitted and what is prohibited. It is a question of belief. Rationality does not underlie such blind beliefs.

“The incidence of triple talaq is low. But there are genuine cases where husbands have been quite irrational and inhuman in giving triple divorces. The media gives a lot of prominence to such rare incidents. One gets worried when courts and governments, too, are influenced by such reports and get carried away by stereotypes.”

If the prohibited degrees of Hindu law are recognised as non-arbitrary, the prohibited degrees of Muslim law cannot be struck down as unconstitutional. If this is done it will be hit by Article 15(1), which prohibits discrimination “only” on the basis of religion.

In any case, the incidence of halala is negligible. Personally, I have not yet heard of a single case. In Masroor Ahmad, the Delhi High Court has rendered nugatory the effect of the so-called halala system.

Even a survey of the Bharatiya Mahila Muslim Andolan (which has spearheaded the movement for abolishing triple talaq) mentions just two cases out of 117 where their respondents said they were asked to undergo halala. The weakness of their questionnaire is evident as there was no follow-up question on who made the suggestion to them.

In another study, the Andolan found that just 1.6 per cent of women underwent halala. Here also it does not tell us why these women went back to their husbands who were not giving them maintenance even during their marital life and were subjecting them to violence. Did their parents force them to return to their first husbands? Was this intervening marriage used as a device to facilitate their remarriage with the first husband? If yes, such marriages are clearly prohibited.

Even if triple talaq is declared unconstitutional, assume a wife accepts the validity of instant talaq, what happens then?

Good question. Unconstitutional or not, most divorcees, out of fear of God, will accept the completion of divorce on the pronouncement of triple talaq. Even Shah Bano apologised. In Masroor Ahmad case, the wife went against the husband alleging that he had raped her as she was no more his wife after triple divorce. Of course, the Delhi High Court held that since three pronouncements are to be counted as one, there was no divorce and thus no rape.

Will a judgement declaring triple talaq unconstitutional debar clerics from issuing certificates of divorce to a couple who parted ways through instant talaq, that is, talaq pronounced thrice in one sitting?

No. Clerics issue fatwas to those who seek their opinion. Such opinions do not have any legal sanctity. They will continue to issue fatwas as per their understanding of Muslim Personal Law. My research, however, has proved that the number of people who seek fatwa on triple divorce is very small. This means the incidence of triple divorce is negligible.

Would it be right to assume that the Supreme Court can declare triple talaq unconstitutional but cannot order punitive action to be taken against those who violate its order? Can those pronouncing talaq three times in one sitting be hauled up for contempt of court?

Courts cannot prescribe punishment for triple divorce. Only Parliament can declare triple divorce to be a crime and prescribe punishment. Contempt powers are generally not used like this. Chief Justices of India and other judges have been expressing their displeasure on their directions or orders not being complied with, particularly by the government. Recall the court order on Aadhaar being optional. The re-promulgation of the ordinance on it was a fraud on the Constitution. Parliament has overturned a good number of court orders, for instance, on the Enemy Property Act.

If triple talaq is declared unconstitutional, can the executive enact a law imposing some form of punishment on those who are found to have divorced their wives by pronouncing talaq three times in one sitting? If yes, do you think it would anger Muslims?

Yes, I have been consistently writing that Parliament alone can do it. Yes, it may lead to protests but Muslim women could decide to come in support of such a law. It is claimed that Muslim women voted for the Bharatiya Janata Party in Uttar Pradesh on the promise of banning triple divorce. But then 4.8 crore Muslims, including a large number of women, are still with the Muslim Personal Law Board.

What data do we have on the incidence of triple talaq?

As per the 2011 census, only 0.49 per cent Muslim women were divorcees and all of them, obviously, were not given triple divorce. To find out the prevalence of triple divorce, I collected data from Darul Ifta (institutions which issue fatwas). The data from such institution in 10 states revealed that in the last one year, 340,206 fatwas were sought. Of which only 6.50 per cent were for triple divorce. On the same issue, husband, wife, relatives and friends seek opinion and, therefore, this does not mean 6.50 per cent is the rate of triple divorce.

I also collected data from 74 Sharia Courts (Arbitration Councils) run by the Muslim Personal Law Boards in 15 states. I found these councils rarely grant triple divorce and that divorce is permitted only through one pronouncement preceded by efforts of reconciliation through arbitration. Out of 1,252 divorce cases, only 16 were of triple divorce or just 1.28 per cent. Such institutions are mostly used by Muslim women for either getting divorce (31.49 per cent) or annulment or cancellation of marriage (27.09 per cent) as also for getting settlements. They take recourse to them because these are speedier and more cost effective than courts.

Why, then, has triple talaq become a symbol of all that ails Muslim women, and the community?

The incidence is indeed low. In some cases, even when divorce is by mutual consent or at the instance of wife after the failure of several rounds of arbitration, mediators and, many a time, lawyers themselves advise the two parties to record triple divorce. This is because they think three pronouncements must be made or recorded in writing to complete the divorce. At the same time, there are genuine cases where husbands have been quite irrational and inhuman in giving triple divorces. The media gives a lot of prominence to such rare incidents. One gets worried when courts and governments, too, are influenced by such reports and get carried away by stereotypes.

There are many Muslims who say there is such a hue and cry about triple talaq, but there is rarely any clamour about the deplorable economic condition of Muslims and the discrimination they encounter. Is it justifiable to not reform divorce laws of a community only because nothing substantial is being done to uplift it?

I am all for reform. In fact, I have consistently maintained that even the Uniform Civil Code should be enacted piecemeal. The truth is no one is really concerned about the real problems dogging Muslim women. These are poverty, unemployment and education. Why can’t the government insist on opening more Kasturba Gandhi Girls schools in Muslim dominated areas? If the government wants to reform Muslim Personal Law, then it has to constitute a committee on Muslim law just as the Hindu Law Reform Committee was in 1941.

Assume the Supreme Court goes against popular expectation and declares that triple talaq is not unconstitutional or that personal law is not law as defined in the Constitution, what happens then?

Nothing. We must understand that law or judicial decisions do not solve social problems. The issue of personal law being “law” is an interesting one. Judicial decisions are “laws” under Article 141, which means that a law declared by the Supreme Court shall be binding on all courts throughout the territory of India. But the same is not “law” under Article 13(3), thus we cannot say X or Y decision of the Supreme Court is unconstitutional as it is contrary to the fundamental rights.

We do not test judicial decision on the touchstone of fundamental rights. Moreover, if customs are laws, then any custom contrary to the Constitution should automatically under Article 13(1) become void. But then the question arises: Why did we need Article 17 to specifically declare that untouchability has been abolished?

Article 372 uses the expression “laws in force” on the commencement of the Constitution. Since personal laws were laws in force in 1950, can we include them within the expression “law”?

No, because the President was given power under Article 372 to make adaptations and modifications to the “laws in force” by way of repeal or amendment. No one can argue that the President was given power to make adaptations or alterations or amendments in personal laws. Thus Muslim Personal Law is not “law” within the meaning of Article 13.

In any case, Muslim Personal Law is largely based on juristic opinions that followers of a particular school prefer to follow. If they think any rule of their school is causing hardship, they may switch over to another school. Even Sunnis become Shias to take the benefit of law of inheritance, which is more favourable to daughters.

Can the government redefine personal law to bring it within the ambit of the Constitution or abolish triple talaq through a legislative fiat?

Of course, it can, but mere normative changes in law do not bring social reforms or social change. We need to convince ulema that they must educate the masses about the correct method of divorce.

This is the second part of a two-part interview. The first part can be read here.

Ajaz Ashraf is a journalist in Delhi. His novel, The Hour Before Dawn, has as its backdrop the demolition of the Babri Masjid. It is available in bookstores.