A modern law of divorce should have at least three characteristics. First, it should allow for divorce. Traditionally, divorce laws in different religious traditions disallowed divorce altogether. Islamic position on divorce was from the beginning more reasonable.

Second, a modern divorce law is supposed to vest the initiative to decide whether the marriage should be sustained or dissolved in the interest of the spouses in thespouses themselves rather than an external authority. No-fault divorce without the necessity of the divorce court having to go into the reasons for the breakdown of marriage is the second significant characteristic of a modern divorce law.

Judged against these criteria, Islamic law is remarkably modern. It allows no-fault divorce: a marriage can be ended on the ground that it does not work; and there is no necessity to allocate blame and retribution between the partners. It places the power to pass judgment on the viability of a conjugal relationship within the control of the individual husbands and wives. Islamic law allows for reconciliation between the spouses even after the process of divorce has been initiated.

The third characteristic of a modern law of divorce is that it should be fair and just towards both partners. As can be ascertained from a reading of the Koran, which Muslims consider to be the primary source of canonical law, the rules supposed to govern divorce among Muslims were supposed tobe just and fair to both partners. It was only subsequently that the liberal principles of early Islam came to be compromised to accommodate patriarchal arrangements and the practice of triple divorce whereby a Muslim husband enjoys a unilateral right to divorce his wife was incorporated in Muslim Personal Law. This practice is repugnant to the principles of equity, justice and good conscience.

While there is no doubt that even by the standards espoused by Islam, triple divorce is both ethically and legally reprehensible and ought to be abrogated, such ban would merely shift a man's unilateral right to divorce his wife from one sitting to three sittings over three months without ensuring her social survival in a world where she is confined to the four walls of the house. The contemporary agitation of the large majority of Muslim women who are assailed by divorce is not over whether their husbands should enjoy a right to divorce them. What they are saying is that they are dependent upon their spouses androle of the housewife is often their sole source of livelihood.

Simply banning triple divorce would not ameliorate the situation of these women. Indeed, it may make it worse. Since triple divorce is more common among Muslims of lower social strata, the chances are that husbands would simply desert their wives to fend for themselves or to bring in a legal case for divorce if they want the marital relationship to be formally terminated. This will bring in elements of adversarial procedure into the divorce process and make it less dignified and more punitive.

The protagonists of reform in Muslim law of divorce should work towards an enactment that simultaneously seeks to arrest the incidence of divorce and ameliorate the situation of those poor women with children who are directly affected by triple divorce. Preservation of cultural identity is a poor excuse for failure to address the problem of breakdown of social organisation.

The writer is a professor at JNU