Muslim Marriage Laws – 4 Must reads
The challenge to constitutional validity of 3 types of temporary marriage in Islam is currently pending before the Supreme Court
In 2017, Shayara Bano v. Union of India the Supreme Court declared triple talaq unlawful. The Court stated that polygamy and nikah halala would have to be addressed by the Court at a later point. This judgement allowed the scrutiny of Muslim marriage laws from the lens of gender equality.
In 2018, several writ petitions were filed, challenging the constitutionality of four practices: polygamy, nikah halala, nikah mut’ah and nikah al-misyar under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Nikah halala, nikah mut’a and nikah al-misyar are types of temporary marriages in Islam.
In this post we curate a list of must reads that look into the understanding of personal laws in India and the constitutionality of Muslim marriage laws.
Ajaz Ashraf discusses the meaning, variants and nuances of the practices of Mut’a marriages or temporary marriages. The article explores how temporary marriages can be interpreted as similar to live-in marriages. Ashraf explains why this will make it difficult for the Supreme Court to hold such marriages invalid. He also studies the old practices of Mut’a and its evolution into modern forms of temporary marriages.
Tanja Herklotz writes about the approach the Supreme Court has taken to reconciling between personal laws and Articles 14, 15 and 21 of the Constitution of India, 1950. The article traces the reasoning of the Court through cases including The State of Bombay v. Narasu Appa Mali, and C. Masilamani Mudaliar and Ors v. The Idol of Sri Swaminatha Swamy Thirukoil and Ors. Finally the author discusses the judgement in Triple Talaq in 2017.
Asma T. Uddin writes about how Islam and Islamic law is not inherently antithetical to women’s rights and gender equality, and that its interpretation has made Sharia law oppressive to women. Equality in the Quran with regards to rules imposed on religious duties, and social and economic rules is examined to ascertain the levels of gender equality granted by the Quran. The author argues that laws pertaining to women in the Quran can be categorised as protective, corrective and non-discriminatory. Finally, Sharia law should not be used as a shield to cover oppressive socio-political motives.
This chapter in Mutinies for Equality discusses the approach of the Supreme Court in the Triple Talaq judgement. Senior Advocate Jayna Kothari argues that the Supreme Court’s judgement in the case was based on whether Triple Talaq was an essential part of Islam and thus protected by Article 25. Further, she argues that the only way the Court referred to equality under Article 14 of the Constitution was with regards to principles of arbitrariness, and not the equality between men and women. The Court did not comment on discriminatory religious practices, and instead examined whether the practice was consistent with the Quran. Finally, she notes that historically, although the Court has recognised the rights of the individual claimant in many cases of discrimination, it has not been progressive with examining the doctrine of equality in personal laws.