Hamza Khan & Vanshika Sharma

Source: Galbraith Family Law

Abstract: Presently, the Supreme Court is adjudicating a challenge to the validity of Talaq Hasan under Muslim personal law, which allows the husband a unilateral right to divorce. The Petitioners argue that Muslim marriages should be reconceptualised as a sacrament rather than a contract, to remove the husband’s right to unilateral divorce. In this backdrop, the article advances two claims. First, it argues that reconceptualising Muslim marriage as a sacrament is both conceptually incoherent and has undesirable consequences. Second, it contends that while the contractual character of Muslim marriage should be retained, the existing divorce framework is unconscionable. Gender justice, it proposes, is better achieved by extending symmetrical and flexible rights of marital termination to Muslim women, rather than by extinguishing the husband’s power of divorce.

Introduction

One of the first lessons a law student encounters in family law is the formulation: “Hindu marriages are sacraments; Muslim marriages are contracts.” The simplicity of this statement is memorable, but its significance becomes apparent only when constitutional questions arise for determination. How we characterise marriage shapes the terms on which it can be entered into, who holds the power to end it, and how rights within the relationship are distributed. This seemingly basic distinction, therefore, has profound consequences for fundamental rights, particularly of Muslim women.

Presently, the Supreme Court in Benazeer Heena v. Union of India and Ors. is adjudicating a challenge to the practice of Talaq-e-Hasan in Muslim law. Briefly stated, Talaq-e-Hasan allows a Muslim man to unilaterally pronounce divorce on his wife. The Petitioner in Benazeer argues that Talaq-e-Hasan is arbitrary, and discriminatory towards Muslim women, and must be declared illegal like Talaq-e-Biddat that was outlawed in Shayara Bano v. Union of India. They argue that Muslim marriages should also be recognized as sacraments, denying the husband the privilege of exiting the relationship unilaterally without objective grounds of divorce being proved such as laid down in the Hindu Marriage Act.

The Respondents represented inter alia by the All-India Muslim Personal Law Board, however, assert that Muslim marriage is a contract, and hence, the husband should have the right to terminate the contract being a party.

This article argues first that, treating Muslim marriages as sacraments is both principally flawed and consequentially undesirable. Second, it suggests that having recognized Muslim marriages as contract, the current framework should be regarded as unconscionable, and gender justice could be achieved by modifying the provisions of separation under Muslim law to extend the same flexibility of termination to Muslim women, rather than challenging the right of the husbands to pronounce divorce.

Treating Muslim Marriages as Sacrament: A Misconceived Solution

Treating a marriage as sacrament under Hindu law indicates three key features: (i) It is a permanent union, which cannot be untied; (ii) It is an eternal union, which means it is valid for lives to come; (iii) It is incomplete without religious ceremonies such as saptapadi.

A cursory look at the framework of marriage and divorce under Muslim law leaves no doubt that marriage in Islam is viewed in a principally different way. The Muslim law does not treat marriage as an eternal bond, it has encouraged re-marrying of the widows, allowed divorce without requiring strict proof of limited grounds such as in HMA, allowed polygamy, made provision for marrying hurs in the heaven as opposed to stipulating a monogamous relationship in the hereafter. The flexibility of marriage in Islam, therefore, vitiates principally against considering it a sacrament. To consider Muslim marriage institution akin to Hindu marriage is, therefore, a transplantation of idea where it does not belong.

Further, while the objective of the petitioners in seeking to establish such a status is laudable to achieve gender justice, the statistics of divorce cases under the HMA are far from ideal. The statutory insistence on fault-based divorce has made it difficult to allow separation on grounds of irretrievable breakdown, or unilateral separations. In cases where a marriage has broken down but does not fit within the fault-based grounds under the Hindu Marriage Act, parties often remain trapped in prolonged litigation across multiple forums. In several such cases, spanning decades, the Supreme Court has ultimately exercised its exceptional powers under Article 142 to dissolve marriages on the ground of irretrievable breakdown, precisely because this ground has not been statutorily recognised.

The pendency of nearly 10 lakh cases before Family Courts as of October 2024 reflects the systemic burden created by a fault-based divorce regime.

To recognize Muslim marriage as a sacrament, therefore, introduces undesirable rigidity, leading to prolonged litigation in public courts, of matters which are inherently personal in nature, which is taxing for both the parties, and would harm the Muslim women more than benefitting them considering their financial dependence and vulnerability, as only 4.9% of Muslim women have formal employment, while close to 48% of Muslim women, the highest in any religious group, were illiterate as per the 2011 Census.

Additionally, it risks introducing ideas such as restitution of conjugal rights, which challenge personal autonomy and privacy of the parties, with added risk for women. While there are instances of Muslim parties seeking the remedy of restitution of conjugal rights, the same finds no mention in the Muslim Dissolution of Marriage Act, or in the primary sources of Muslim law. In fact, the Kerala High Court in the recent decision of Aneesha v. Navas has rightly held that “As far as the right of restitution is concerned, no provisions of law is provided in the Muslim Law that wife is entitled to restitution of conjugal rights because the marriage between the husband and wife belonging to a Muslim religion and caste, is a contract.” This stands in contrast to Hindu law, where restitution of conjugal rights is statutorily codified under Section 9 of the Hindu Marriage Act and was upheld as constitutionally valid in Saroj Rani v. Sudarshan Kumar Chadha, thereby institutionalising restitution as a routine matrimonial remedy.

The flexibility offered by Muslim Personal law and its imagination of marriage as a civil contract has been noted by Nithya et al. who observe that “The Muslim marriage being a contract, protects women better during divorce, than in the case of Hindu or Christian marriages which are considered as sacraments”

Muslim Marriage: An unconscionable contract?

The primary legal authority that described Muslim marriages as contract was the Allahabad High Court decision in Abdul Kadir v. Salima. Subsequently, this position was adopted by the Supreme Court in Daniel Latifi v. Union of India, Shayara Bano. However, having considered it a contract, the courts stopped midway and did not apply common law principles of fairness in contract, such as unconscionability.

Muslim Personal Law presently, treats the rights of husband and wife in starkly different manner. While the Husband’s right to pronounce Talaq-e Hasan is absolute and does not require either judicial recognition or consent of the other party, Khula, which is considered the counter-part to Talaq is different in form, and requires the consent of the parties (Section 318), Compendium of Islamic laws by AIMPLB. Similarly, in revokable talaq, the husband has the right to take back the wife without her consent. This asymmetry is difficult to justify once Muslim marriage is acknowledged as a civil contract creating reciprocal rights and obligations, since a party cannot be eternally restricted from terminating a contract.

The solution lies in the approach adopted recently by different high courts  such as the Kerala HC decision in X v. Y, and Telangana HC decision in Mohammed Arif Ali v. Smt Afsarunnisawhich recognized the right of Muslim women to khula as absolute without requiring the permission of the husband. This makes khula at par with the right of talaq given to Muslim husbands, and introduces the idea of no-fault separation unilaterally to both the parties in Muslim marriage. Notably, such an interpretation of khula as an absolute right of women has been taken by some Muslim jurists earlier particularly from the Maliki school of jurisprudence. However, this interpretation of khula that brings Muslim women at par with their husbands has been challenged before the Supreme Court and is pending adjudication in SLP (C) Diary No. 11727/2023.

The solution, to gender inequality in Muslim marriages is upholding this interpretation of khula that aligns with the equality of parties in contractual law without the need for reimagining Muslim marriage as a sacrament. This is ideal for three reasons: First, it does not require a legislative reform nor an imposition of Uniform Civil Code and hence will not be seen as the imposition of majoritarian norms and values on the minority. Second, this does not alter the essence of Muslim marriage by treating it as a sacrament, which is an alien idea to Muslim Personal Law. Third, it retains the flexibility inherent to Muslim marriages as opposed to Hindu marriages while extending equal treatment to wives. It is clear from the decision in X v. Y (notably rendered by a Muslim judge) that the current framework of Muslim law is open to such an interpretation for khula and does not require a massive overhaul to make it egalitarian.

Needless to say, the procedural safeguard of mandatory reconciliation efforts given in Quran and recognized in decisions such as Shamim Ara v. State of UP, must be followed equally for both Talaq and Khula to avoid hasty decisions. Ensuring such procedural parity would preserve the religious character of Muslim law while allowing constitutional commitments to equality and dignity to operate symmetrically within the marital framework.

Conclusion

The recognition of unilateral no-fault divorce is at rise globally, with most western countries now recognizing unilateral no-fault divorces, and moving away from requirements of fault, or mutual consent that historically resulted in a protracted litigation. The long years of litigation in Family Courts under the HMA, often resulting in character trials, bringing to public domain some of the most private details of marital relationship, shows that adding rigidity to the separation process may not favor the affected women. Hence, while the objective of achieving parity and gender justice in Muslim marriage are laudable, the same should not be through rigidification of the process by converting the character of Muslim marriage from a civil contract to sacrament. Rather, the Court should recognize Muslim marriages as contracts to retain flexibility but modify the condition of Khula to be an absolute right of woman to ensure parity in the said contract. Doing so is both closer to the fundamentals of marriage in Islamic Law and more empowering to Muslim women.

Hamza Khan and Vanshika Sharma are fourth-year students at NALSAR University of Law. They have a keen interest in evolving questions of public law, particularly at the intersection of gender justice and minority rights.