The common civil code may not be a great idea, but ensuring equality before the law and equal protection of the laws is the sacred duty of the courts of law. This includes the duty to review all laws in force in India, and in so far as they are inconsistent with fundamental rights, declare them to be null and void.
Recently the Supreme Court has expressed its intention to review the Muslim personal laws. One can presume that the honourable judges have taken cognisance of the ills and evils produced by the unrestricted right to polygamy and triple divorce, and therefore have decided to scrutinise the personal laws.
It is true that the courts cannot legislate a comprehensive common code but they certainly have the power to review and strike down such provisions, which infringe upon the basic rights of a citizen.
The Court has observed that for a Muslim woman “there is no safeguard against arbitrary divorce and second marriage by the husband during the currency of the ﬁrst marriage, resulting in denial of dignity and security to her.”
It is difficult to challenge this observation and constitutional provisions obligate the judiciary to rectify the situation. But the protagonists of the Personal Law Board have objected and have asserted that the practice of polygamy and triple divorce is protected under article 25 that guarantees freedom of religion and its practices.
It is not merely through public statements, but in their publication titled “Compendium of Islamic Laws”, the MPLB has listed polygamy, triple divorce, divorce under compulsion or in jest as legally valid. Now for any law that purports to be Muslim must be tested on the anvil of Quran and prophetic traditions, the basic sources of Muslim jurisprudence.
For instance in the case of polygamy, Islam has permitted it only to meet certain contingencies and has made it conditional on capacity of the husband to deal with justice and equity. But in the same breath Quran declares that men have no ability to do justice between wives (4.129). To be fair, unless such grounds exist that give rise to a contingency, second marriage must be ruled out. Now who will have the authority to decide if such contingency exists? It can be only the courts, as they ought to be guardians of society to ensure that justice and equity is not violated.
It is strange that the conditional permission for more than one marriage (4.3) has been used as a licence but another verse which commands: ‘marry those among you who are single” (24.32) has been totally ignored. There is another verse which says: God has not made for any man two hearts in his body (33.4). A combined reading of these verses will show that although Islam permits polygamy under exceptional circumstances but it prescribes monogamy as a norm.
Here we may refer to two prophetic narrations listed in Sahi Bukhari. The subject matter is the second marriage of a son-in-law of the Prophet. It is reported that on hearing about the proposed marriage, the Prophet said: "Fatima is from me, and I am afraid she will be subjected to trials in her religion (because of jealousy)." (4.32). Elsewhere he said that Fatima is part of me, and I hate what she hates, and what hurts her hurts me. (7.157)
It is clear from these narrations that to live with a co-wife is hurtful and hateful and it arouses anger and jealousy. This applies to all women and can be construed as denial of dignity and security to women who are compelled to live in a polygamous relationship.
In Taiseerul Bari, an Urdu commentary on Bukhari, it is stated that in the marriage contract of the daughters of the Holy Prophet there was a stipulation that the husband cannot contract another marriage during the lifetime of the wife.
On the question of triple divorce, the less said, the better. Even the votaries of this method of divorce describe it as permissible in law and sin in religion. Admittedly religion cannot make a sin permissible. In fact, this method of divorce is described as TALAQ BIDAAT meaning divorce innovative. The name itself shows that it was not part of the original scheme and was incorporated into the law much later.
In fact, the Quran deals with the subject of divorce in clear terms and leaves nothing to doubt. It says: “When you divorce women, divorce them at their prescribed periods, and count accurately their periods and be conscious of God, your Lord. And turn them not out of their houses, nor shall they leave, except in case they are guilty of some open lewdness. Those are limits set by God; and anyone who transgresses the limits of God, does wrong his own soul. You know not if perchance God will bring about thereafter some new situation (65.1)
Further it is stated in the Hadith books that the (pronouncement) of three divorces during the lifetime of holy Prophet and that of Abu Bakr and two years of the caliphate of Umar (was treated) as one (pronouncement) (Muslim 9.3491)
In fact, divorce itself has been described as the most odious among permissible things. Therefore, care has been taken to avert it to save the family. According to the Quranic scheme, the process of divorce is completed with the completion of Iddat that is the cooling off period during which the option of reunion remains available. On the other hand triple divorce is completed at the beginning of Iddat with no option of reunion.
The personal law in India developed as Anglo-Mohammedan Law; it is declaratory as the British had refrained from codifying it due to differences among various schools of Muslim jurisprudence.
Since a substantive part of it lacks legislative sanction, the Supreme Court must review it at the earliest to bring it in conformity with the Constitution and its basic sources, the Quran and Hadith.