January 28
Advocate Mujeeb u Rehman
Penology resorted to circumvent the crafty rather than to any a real born issue within a facade of “Gender justice & Right to Equality ” finally script to victimology of the Institution of Marriage itself.
Pitching high on Talak instead scanning the aftermath of termination of Nuptial knot be to which otherwise responsible host of factors from illiteracy, economic upheavals, psychological maladjustment, etc more connected to sociological tornadoes rather than to any cause as such exfacie embark upon an “issue” let to born from ‘No issue”.
Same raise voice over the chapters and Institution of wisdom itself be in one form or the other throughout the country.
Destructive to very basics of Matrimonial chapters which otherwise stand born on pillars of mutual understanding, trust, confidence, love and affection the present efforts from the power corridors are to centrifuge out it from the aforeheld graphics to the doors of victimology and as such all apprehensions based on coherent and cogent reasons base of it’s doing much more harm to the Institution of Marriage rather than doing any good even to contain it.
The intense relation of spouses is everywhere, in any Family Law read as a bed rock of the society and it’s foundations are to be understood , interpreted in terms of their constitution in which they are born , not ignoring their applied part as that of “shariah” in Islam.
Islam reads Marriage as partly “ibadaat” and partly as “mamlaat” , a concept of it’s zenith in itself , drawn within concentric circles of mutual trust and confidence, of reciprocal Rights and obligations within a set, specific Islamic environs.
Here Muslim society been growing a cosmopolitan one having adopted his / her approach as per their respective likes and dislikes , so not being one as the picture is drawn in Islamic set up , seeks ironically answer as to end results to their day to day family affairs in shariah when such arisen or arising issues has had no room in an pure Islamic family system. The case as pleaded by one Zakia samon; echoing voice that a Muslim women on sudden desertion on exercise of Triple Talaq is thrown open to hazardous of Gender justice.
The notion of being subjecting of Muslim women to inequality is virtually a voice for Uniform Civil Code, where all family laws are to be understood as a common whole rather than accommodating each and every faith within there set frame.
Let to reach the matter as such before the Hon’ble Supreme Court of India , thread of “Triple Talaq” got thrashed out in the case of Shayra Bano & ors v/s Union of India & or’s decided on 22/08/2017 has been with the Majority view as holding Triple Talaq ..lacking legal sanctity as doors of reconciliation is closed. It says that Triple Talaq goes against the basic tenants of Holy Quran and consequently violates Shariyat. No law in India can conceive of any a legislation which be arbitrary. With the application if Muslim Personal Law (Shariat ) Application Act,1937 ..it is so clear as to it that What is held to be bad in Holy Quran can not be good in Shariat and in that sense what is bad in theology is bad in law as well.
It is pertinent to make a note of this fact that Minority view in this judgment as held by Hon’ble Per R Jagdish Singh Khehar,CJI and S. Abdul Nazeer j it is held that because it is not expressly provided for or approved by Holy Quran, can not be a valid justification for setting aside the practice. Religion is a matter of Faith and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion.
However, this practice of Triple Talaq , Talaq e biddat stands set aside by a majority of 3:2.
In the wake of this development one witness efforts from the Government as to formulation of a Bill ..The Muslim Women (Protection of On Marriage) 2017 introducing it in Parliament as passed by Lok Saba. It goes to read that as Triple Talaq in any and every form as illegal and void, seeks for three years jail term for the husband, keeping the marriage intact with every responsibility to maintain her. This Bill though faced severe criticism both within and outside the House and voices got born to send it to select committee which BJP does not want as treating that this is simply to delay this important legislation and nothing more.
So be said the pot is boiling and the Domiciles sword is hanging over. Same is to disfigure otherwise this beautiful institutionof marriage itself. So, a student of law seeks space to debate on the point as when Indian Criminology system has stepped to hold Adultery as no longer to an offence though being a valid ground at it’s own place for a divorce and so how come the power corridors are on heels to make a civil matter to fall within environs of penology!
Besides this when every legislation is let to born with an objective to achieve any a desired end and on application of this Constitutional Doctrine not any such a result is seemingly to come fore. Herein upon exercise of Triple Talaq, when relation is not to come to an end, is not to stall the maintenance of the wife and when during subsistence of all this husband is to go to jail term, a common sense asks for a reply as to How the relationship is understood itself, How institution of marriage is read to run compatible to to accept his wife within all estranged situation,where the mutual trust, confidence, love and affection be having lost . Is same to accept as Law speaks so?
Be said to accept the divergent souls to remain together for the simple threat of penology.?
Apparently answer to such a questions is no more to come any a positive way. It is all hazy , not promising one. So the prime factor runs in terms as to how the Institution of Marriage will be read, understood and translated in times to come ? Emotionally broken family even if let to take shelter under one roof , be under threat of penology or as law be speaking ,the predominant factor be always whether the same is to help alleged gender justice and equality factor any way ? And answer to it be all the times to come in negative. The subject of Human Nature Theory can not overlooked in family matters at any cost and otherwise the results are to be with no smile and the things are to run commodious to other dark shades.
The frame of personal law is not be ignored ,where in marriage contract ,a sacrosanct one ,to be held as Massaqan I ghaliza ( a strong pious covenant,) where in Khutba Nikah constitutes it’s integral part, where Mehar is not to read at par with consideration in ordinary civil contract, where important feature is to be understood in terms of “..taasa a look na bi hi....” Meaning you seek to one another through him , where reciprocal set of obligations and duties stand set with predominant edge of male over female born on reason, logic and so husband carrying a unilateral power of divorce as well.
All this is reflected here to just lend support to the argument that when divorce though held detestable before Allah is no more ruled to be out of the chapters of institution of marriage. A well set mode stand known and given. No penalty is forthcoming from it’s ( divorce) exercise , however it can not be without reason or cause, which is a sin where for too One is answerable before Allah.
So induction of penology factor for triple Talaq is just to place a boiled and boiling kettle upon a burner with a hope against hope to let believe to get cooled as the trend is against common human nature even. The hypothesis of let to achieve the projected objective of gender justice in this phenomenon is never to let estranged spouses to come close despite of let to put up under common roof be under the might of law or be under the threat of penology factor.
A home which be already shattered one where matrimonial relationship of spouses be shoddy, be in doldrums , a fragile one can no more be a Happy Home on mounting such a plate /board on its wall.
The trend as is seemingly to born after holding of triple as illegal and void to make it penal and in the same breath to let achieve gender justice by this exercise is to be as good as to let a boat of cardboard in stormy sea with anxious wait on the other side of the shore of its safe arrival. As such things do speak that the said bill is more to gain a political mileage than to do any a good in the projected context and so penology for triple talaq seems to be all potential to disfigure the institution of marriage by one way or the other through this facet.
The Views Expressed by the author are his own.