The Constitution of India guarantees the fundamental right to freely “profess, practice and propagate” one’s religion. It is in this light that various personal religious laws find their legitimacy under Article 372 and their validity under Article 13 of the Constitution of India to govern and apply on certain civil matters of marriage and succession, including certain matters of transfer of property amongst Muslims.
In Sarla Mudgal v. Union of India (1995), the Supreme Court observed, “The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of national unity and integration”, embracing evolution of their personal laws through codification.
However, some prominent communities in India, such as Muslims, continue to be governed by their personal religious laws which are largely uncodified by the Parliament and based on the commentaries by Muslim clergy and jurists, thus making it prone to orthodoxy, ambiguity and archaic interpretations. With this premise, this article tries to highlight and thereby counter certain claims made in the article titled ‘Divorced From Reality’ (‘Outlook’, December 01, 2025) authored by Lalita Iyer.
As mentioned above, Muslim Personal Law (MPL) is largely uncodified by Parliament. Non-codification of a law leaves it open-ended, loose and allows room for arbitrary and discretionary application of the law. The Supreme Court in Sarla Mudgal v. Union of India (1995), while discussing the law regarding polygamy under the MPL, raised concerns regarding non-codification of MPL and its consequent misuse. Lalita suggesting that codification of MPL may lead to loss of women’s rights is not just contrary to the basic legal jurisprudence and Supreme Court’s observations, but is also glaringly incorrect when seen vis-i-vis the Dissolution of Muslim Marriage Act, 1939 (hereinafter referred to as ‘Act of 1939’).
Under the MPL, governed by Shariat (traditional Islamic law based on holy Quran and Sunnah), before the enactment of the Act of 1939, Muslim women were given the right to obtain judicial divorce called Faskh. As per ‘Principles of Muhammadan Law’ by Tyabji, the Faskh could only be obtained on the following grounds – (a) the marriage is irregular, (b) a person having an option to avoid a marriage has exercised it (right of the party to invalidate the marriage upon attaining puberty), (c) parties are married between whom prohibition by fosterage is established, and (d) marriage having been contracted by non-Muslims, the parties adopt Islam. It was only after the codification with the enactment of the Act of 1939 that the grounds for judicial divorce given to Muslim women were expanded by including the most basic grounds like desertion, cruelty, unsoundness of mind etc. It is pertinent to note that the Act of 1939 applies homogeneously to all sects of Muslims, ensuring equal rights to all.
In her article, Lalita claims MPL to be progressive for women vis-i-vis the right to claim divorce. Divorce under MPL may be categorized based on at whose instance the dissolution of marriage is sought. Besides the right given to them under the Act of 1939, the Muslim women, under the MPL, have the right to obtain divorce by khula. The Kerala High Court in a landmark ruling in 2021 held the right of a Muslim woman under khula as equivalent to man’s right of divorce by talaq. However, unlike talaq by a Muslim man, the wife invoking her right to khula has to return her mahr or dower amount. This makes khula what many refer to as a ‘purchased divorce’. A Muslim woman invoking khula to obtain divorce essentially has to let go of her mahr – a legal incident of a valid nikah – acting as her financial security.
Notably, the holy Quran mandates following a procedure of reconciliation between husband and wife – involving four stages – before the marriage is dissolved by divorce. In this light, Lalita is correct in citing Shamim Ara v. State of Uttar Pradesh (2002) to argue the theological invalidity of talaq-ul-biddat or ‘triple-talaq’. However, she omits to acknowledge that until the Supreme Court’s judgement in Shayara Bano v. Union of India (2017) the arbitrary divorce pronounced by way of ‘triple-talaq’ continued to be a valid form of talaq in India. The Supreme Court in this caseheld ‘triple-talaq’ to be “manifestly arbitrary” for allowing a Muslim man to “capriciously and whimsically” break the marital ties. While Lalita’s omission to acknowledge marginalization of millions of Indian Muslim women at the behest of arbitrariness commanded by Muslim men is glaring, her major concern stresses upon ‘shifting narrative’ on how people see Islamic law.
It is important to acknowledge that divorce forms like mubarat (divorce by mutual agreement) and talaq-e-tafweez (delegation of right to obtain talaq by husband to wife) are progressive in protecting the interests of Muslim women. However, MPL as it exists to date in India still warrants reforms and evolution, especially in respect of women rights. Archaic practices like halala (intermediate marriage with another man for a divorced Muslim woman to remarry first husband), mutah (fixed-term temporary marriage contract with a set end date) and nikah-misiyar (marriage where the wife waives housing and maintenance rights) which subjugate the rights and status of women still find their authority in the traditional personal law of Muslims. Moreover, while polygamy in Hindus was put to an end with the codification of Hindu Marriage Act in 1955 (hereinafter referred to as HMA), the Muslim women in India are still vulnerable to their husband’s discretion of entering into another marriage due to continuous validation of polygamy under MPL.
Further in her article, Lalita quotes advocate Audrey D’Mello claiming that the Hindu women, with whom Hindu men had validly entered into polygamous marriages prior to the enactment of HMA, were “cut away from their rights (as a wife)” after such enactment. However, nothing could be farther from the truth. As per HMA, the polygamous marriages entered before its commencement continued to be valid for the purposes of law, with equal rights to all such Hindu wives, including their right to maintenance, residence and other legal incidences of a valid Hindu marriage.
Every religio-cultural community has certain practices that may be archaic and obsolete, mostly disadvantageous to the rights of women, thus warranting their reform and evolution. The Hindus, for instance, including Sikhs, Buddhists and Jains, have abandoned their obsolete practices with the enactment of Hindu Code Bill, with periodic amendments to their marriage and succession laws over the time, aiming to ensure a more equitable framework of laws for women. On similar lines, the reforms in the development of MPL are long overdue, more so when we have entered the eighth decade of our ‘secular democratic republic’. However, the acknowledgement of the mischief is a sine qua non to be able to resolve its remedy, which Lalita seems to have grossly missed in her piece.
Article 25 of the Constitution, as mentioned above, begins with “Subject … to the other provisions of this Part (Part III)”, thus making the right to freely profess, practice and propagate one’s religion subservient to other fundamental rights, such as Article 14, 15, and 21, which lay down the principles of equity, justice and good conscience, with special a special mandate for protection of women under Clause (3) of Article 15. Where under MPL, the status of a Muslim woman is considered half of that of a Muslim man, the reforms in MPL are not just a social requirement, but a constitutional necessity, especially when subjugating practices like polygamy, halala, mutah and nikah-misiyar continue to find their relevance under the MPL.
(Author Koushik Upadhyay is an Advocate with an interest in Constitutional Law, Family Law and Patent Law. He also closely follows socio-political economy and governance.)
