Abstract husband to a wife does not dependent

 

Abstract

Personal laws evolve from customs
and religious practices which form a part of the legal system.  The practice which is followed in the name of
religious practice should not be discriminatory, arbitrary and should be within
the principles of natural justice.  This
paper explains Shah Bano case in 1985 which deals about talaq, which is neither
recognized nor sanctioned by the holy Quran and the practice of triple talaq
which is in existence in the Muslim community since centuries.  The Shah Bano case (1985 AIR 945, 1985 SCC
(2) 556) was a controversial divorce lawsuit in India, in which Shah Bano, a
62-year-old Muslim woman was a divorcee in 1978 and was subsequently denied
alimony. This case is a milestone for Muslim women’s who search for the justice
and beginning of the political battle over personal law has this case created
considerable debate and controversy about the extent of having different civil
codes from different religions, especially for Muslims in India.  This paper further deals with the
unconstitutionality of the practice of talaq as it violates Article 14, 15, 21
and 25 of the Indian constitution.

Keywords: arbitrary, fundamental rights, Quran, triple
talaq, unconstitutional.

 

 

 

 

 

 

 

Introduction

      According to the
Mahomedan law, marriage is not a sacrament but a civil contract.  Although, all the rights and obligations it
creates arise immediately, the payment of dower by husband to a wife does not
dependent on any condition precedent.  The Rajasthan High Court has made a clear observation
in the instant case that unlike a Hindu Marriage, which is a sacrament,
according to the Islamic Law, a marriage i.e. Nikah is a permanent and an
unconditional civil contract made between two persons of opposite sexes with a
view to mutual enjoyment and procreation and legalizing of children.  The payment of dower (mehr) is one of the
essential features of valid marriage.

    
After the period of iddat, the right to maintenance comes to be considered
under sec. 125 to 127 of Code of Criminal Procedure.  The division bench of Kerala High Court got
an opportunity to discuss the meaning of ‘reasonable and fair provision’ and
its distribution with maintenance.  The
court observed that the legislature has deliberately used the two expressions
‘provision’ and ‘maintenance’ with the intention of expressing two different
things or ideals departing from the view expressed by the Supreme Court in Shah
Bano case.  Parliament while enacting s.
3(1) (a) of the Act, accepted the traditional view that right to maintenance
ceases after the expiration of the iddat.

Mohammad
Ahmed Khan vs. Shah Bano Begun & Ors

     Mohammad Ahmed Khan vs. Shah Bano Begum
– this case is commonly known as the Shah Bano case, in which favouring
judgement was delivered to an aggrieved divorced Muslim woman by the Supreme
Court.  The Muslim woman, Shah Bano who
is 62 years old Muslim mother of five form Indore, Madhya Pradesh, was a divorcee
in 1978 by her husband.1 In
Supreme Court of India, the criminal case was filed by Shah Bano, in which she
won the right of alimony form her husband. 
Though, the Muslim politicians mounted for the verdict’s nullification,
the Indian Parliament reversed the judgement under pressure.  The judgement was reversed from Islamic
orthodoxy and The Muslim Women (Protection of Rights on Divorce) Act, 1986.
2 3 4 5
Though the judgement was in conflict with Islamic law which was cited by some
Muslims in their holy book Quran,6
the judgement went in favour of the woman in this

Case evoked criticisms. 789This
case with its absolute majority caused the Congress government to pass the
Muslim Women Act, 1986, in which judgment of the Supreme Court restricted the
right to alimony for 90 days after the divorce i.e., the period of Iddah in
Islamic Law.  In Danile Latifi case and Shamima
Farooqui v. Shahid Khan Case, the later judgement in Supreme Court
interpreted the validity and consequently of the case which upheld the Shah Bano
judgement and The Muslim Women Act, 1986 was nullified.101112
The order which was given by the Supreme Court- the right to maintain the
divorced Muslim wife13
was accepted and supported by many Muslims including All India Shia Personal
Law Board. 1415

Facts
of the case

     In 1932, a Muslim woman, Shah Bano who
married Mohammed Ahmad Khan, a wealthy and popular advocate in Indore, Madhya
Pradesh had five children from the marriage. 
After 14 years of marriage, Khan underwent second marriage with a young
woman and lived with both the wives for years. After years, he threw Shah Bano,
who was then 62 years old along with her five children out.  In April 1978, Khan stopped giving her Rs.200
per month,16
as she had no means to support herself and her children; she filed a petition
at a local court in Indore against her husband under sec.125 of Cr.P.C.
claiming for a maintenance amount of Rs.500 per month for herself and her
children.  In November 1978, an
irrevocable talaq was given to her by her husband which was his prerogative
under Islamic law was used as a defence. 
Hence she had ceased to be her wife, he was under no obligation to
provide maintenance except the amount of Rs.5,400 in total as prescribed under
the Islamic law.  In August 1979, the
local court ordered him to pay an amount of Rs.25 per mother to Bano as
maintenance.  As the amount was
insufficient, on 1 July 1980, on a revision application of Bano, the High Court
of Madhya Pradesh ordered Khan to pay a sum of Rs.179.20 per month as
maintenance.  As Khan had a second wife
which is also permitted under Islamic law, he then filed a petition to appeal
before the Supreme Court claiming that Bano is not his responsibility anymore.17

 

Maintenance
of wife

     If the husband divorces his wife or the
wife obtains a divorce from her husband , then she is entitled to claim
maintenance from her ex-husband, provided,  she is unable to maintain herself and the
husband has neglected to maintain her.  Her
right to claim maintenance would come to an end only if she remarries or lives
in adultery or if she voluntarily surrenders her right to maintenance.  Hence, the consideration of the previous
conduct of the divorced wife is wholly irrelevant in a under s.125 of the Cr.P.C.

     
It was contended that the wife had agreed to relinquish her right to
maintenance allowance and therefore, she was not entitled to claim maintenance
allowance in view of the provisions of 
s.127 (3)(c), but no settlement of claim which does not have special
statutory right of the divorce under s.125 can operate to mitigate that claim.

    
Where an order is made for the maintenance of a wife under s.488 of
Cr.P.C and the wife is afterwards divorced, the order ceases to operate on the
expiration of the period of iddat.  The
result is that a Mahomedan may defeat an order made against him under s.488 by
divorcing his wife immediately after the order is made.  His obligation to maintain his wife will
cease in that case on the completion of her iddat.  A divorced wife is entitled to claim or sue
for her dower, maintenance or return of her jewels and clothes.

      Section
125 of Cr.P.C
– order for maintenance of wives, children and parents, which applies to all
citizens regardless of cast or religion.

(1)
 If any person leaving sufficient means
neglects or refuses to maintain-

(a) 
his
wife, unable to maintain herself, or

(b)
his
legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or

(c) 
his
legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any physical or mental
abnormality or injury unable to maintain itself, or

(d)
his
father or mother, unable to maintain himself or herself.

Agreement
for future maintenance

      An ante-nuptial agreement between a Mahomedan
and his prospective wife, entered into with the object of securing the wife
against ill-treatment and of ensuring her suitable maintenance in the event of
ill-treatment, is not void as being against public policy.  Similarly, an agreement between a Mahomedan
and his first wife, made after his marriage with a second wife, providing for
certain maintenance for her if she could not in future get on with the second
wife, is not void on the ground of public policy.  Similarly, an agreement by a Mahomedan with
his second wife that he could allow her to live in her parent’s house and pay
her maintenance is not against public policy. 
It has been held in Bombay that an agreement for future separation
between husband and wife is void as being against public policy under the Indian
Contract Act, 1872, s.23.  An agreement,
therefore, which provides for certain maintenance to be given to the wife in
the event of a future separation between them, is also void.  If the marriage is dissolved by divorce, the
wife is entitled to maintenance for the period mentioned in s. 279 and not for
life, unless he agreement provides that it is for life.

Opinion
of Supreme Court

     On 3 February 1981, All India Muslim
Personal Law Board and Jamiat Ulema-e-Hind joined as interveners in this case;
the same was then heard by a five-judge bench composed of Chief Justice
Chandrachud, Jangnath Misra, D.A.Desai, O.Chinnappa Reddy and
E.S.Venkagaramiah.  On 23 April1985, the
judgement given by High Court was confirmed by the Supreme Court based on a
unanimous decision.

    
Supreme Court concluded
that “there is no clash between the provisions of sec.125 and the Muslim
Personal Law on the question of the Muslim husband’s obligation to provide
maintenance for a divorced wife who is unable to maintain herself.”  The holy book Quran which is holding the
greatest authority among Muslims imposes an obligation on the Muslim husband to
provide maintenance to his divorced wife.  
As the case elapsed seven years when it reached the Supreme Court, the
court invoked sec.125 of Cr.P.C which commonly applies to everyone regardless
of creed, religion or caste.  Then the
court gave the judgement that Bano should be given maintenance money, similar
to alimony and also regretted the article 44 of the Constitution of India.

Movement
against the judgement

     The judgment given in Shah Bano case as
claimed turned a major national issue.18  It also resulted in protest from many
sections of Muslim law, Muslim people were took to the streets against what
they saw and what they were led to believe, was an attack on their rights of
own religious personal laws and their religion.19  Every Mohamedan was comfortable with the
Muslim Personal Law, as the Shah Bano judgement laid a new way, Muslim society
felt threatened by what they perceived as an encroachment of the Muslim
Personal Law and protested hardly.  Sunni
Barelvi leader Obaidullah Khan Azmi and Syed Kaz were their spokesmen and the
forefront was All India Muslim Personal Law Board, an organization that was
formed in 1973 in order to uphold what they saw as Muslim Personal Law.

Dilution
of the effect of the judgment

     In the Indian parliament, Indian
National Congress had won absolute majority of votes in the Indian general
election, 1984.  On seeing the Shah Bano
judgement, many leaders in the Congress said their opinion to the former Prime
Minister of India, Rajiv Gandhi that if the government did not enact a law in
Parliament overturning the SC judgement then the Congress might face decimation
in the polls ahead. 

    
In 1986, the India Parliament passed an Act – The Muslim Women
(Protection of Rights on Divorce) Act, 1986 which nullified the Shah Bano
judgment given by the Supreme Court.  Hence
diluting the Supreme Court judgment, the Act allowed maintenance to a divorced
woman only in the iddat period or till 4 months after the divorce as per the
provisions of Muslim law.  This judgment
is supported by section 125 of Criminal Procedure Code.20   Therefore,
this resulted that the responsibility of the husband who divorce his wife is to
pay the maintenance was thus restricted to the period of the iddat.21

    
The “Statement of
Objects and Reasons” of the act stated that “the Shah Bano decision
had paved a way to some controversy as to the obligation of the Muslim husband to
pay maintenance to his divorced wife and hence the opportunity was therefore
taken to prescribe the rights of a Muslim divorced woman in which she is
entitled to at the time of divorce and to protect her interests.”22

Reactions to the Act

     The judgement which was given in the Shah Bano Case received
severe criticism from several sections of the society as because the changes
were brought in the existing law.  The
opposition called it as appeasement towards the minority community by the Congress.  Demonstrations of Muslim women against the
move to deprive their rights that they had shared with the Hindus was organised
by the AIDWA (All India Democratic Women’s Association).  The then Prime Minister Rajiv Gandhi alleged
this law for Muslim appeasement.23

 

   The Bharatiya Janata Party did
not support the Act, has the party regarded it as an ‘appeasement’ of community
and discriminatory of the Muslims to the

Non-Muslims and they thought it as a “violation of the sanctity of the
country’s highest court”.24 The Muslim Women (Protection of Rights
on Divorce) Act was seen as discriminatory as it denied divorced Muslim women
the right to basic maintenance which women of other faiths had access to under
secular law. Makarand Paranjape sees the overruling of Supreme Court verdict
in Shah Bano case which
happened when the Congress party was in power, as one of the examples of the party’s pseudo-secular tactics
which allowed “cynical manipulation of religion for political ends”.25  Lawyer and former law minister of India, Ram Jethmalani has
termed the act as “retrogressive obscurantism for short-term minority
populism”.26
 Rajiv Gandhi’s colleague Arif Mohammad Khan who was INC member and a minister in Gandhi’s
cabinet resigned from the post and party in protest.27

     Critics of the Act point out that while
divorce is within the purview of personal laws, maintenance is not, and thus it
is discriminatory to exclude Muslim women from a civil law. Exclusion of
non-Muslim men from a law that appears inherently beneficial to men is also
pointed out by them.  Hindu
nationalists have repeatedly contended that a separate Muslim code is
tantamount to preferential treatment and demanded a uniform civil code.28

Later developments

     The Act has led to Muslim women receiving
a large, one-time payment from their husbands during the period
of iddat, instead of a maximum monthly payment of Rs.500 – an
upper limit which has since been removed. Cases of women getting lump sum
payments for lifetime maintenance are becoming common.  However it is seen that despite its unique
feature of no ceiling on quantum of maintenance, the Act is sparingly used
because of the lack of its knowledge even among lawyers. The legal fraternity
generally uses the Cr.P.C provision while moving maintenance petitions,
considering it handy.

     The Shah Bano case had once again spurred
the debate on the Uniform Civil Code in India. Ironically, the Hindu Right led
by parties like the Jan Sangh in
its metamorphosis as the Bharatiya Janata Party, became an advocate for secular
laws across the board. However, their opposition to the reforms was based on
the argument that no similar provisions would be applied for the Muslims on the
claim that they weren’t sufficiently advanced. The pressure exerted by orthodox
Muslims caused women’s organizations and secularists to cave in.

Challenge to the validity of the Act

     The constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged before the Supreme
Court in Danial Latifi &
Anr v. Union of India by Daniel Latifi in 2001, who was the lawyer
of Shah Bano in the Shah Bano case.  The Supreme Court tried to
maintain a balancing act, attempting to uphold Muslim women’s rights without
addressing the constitutionality of gender and religious discrimination in
personal law. Court reiterated the validity of the Shah Bano judgment. The
Muslim Personal Law Board, an intervener, questioned the authority of the court
to interpret religious texts.

     The Court concluded that the Act does not,
in fact, preclude maintenance for divorced Muslim women, and that Muslim men
must pay spousal support until such time as the divorced wife remarries.
However the Court held that if the Act accorded Muslim divorcees unequal rights
to spousal support compared with the provisions of the secular law under
section 125 of the Criminal Procedure Code, then the law would in fact, be
unconstitutional.  Further the
Supreme Court construed the statutory provision in such a manner that it does
not fall foul of articles 14 and 15 of the Constitution of India. The provision
in question is Section 3(1) (a) of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 which states that “a reasonable and fair provision and
maintenance to be made and paid to her within the iddat period by her former
husband”. The Court held this provision means that reasonable and fair
provision and maintenance is not limited for the iddat period (as evidenced by
the use of word “within” and not “for”). It extends for the
entire life of the divorced wife until she remarries.

 

 

   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1
 The Hindu. 2003-08-10, Retrieved 2013-05-07.

2
T.P.
Jindal, p. 57.

3 Seyla Benhabib 2002,
p. 91-92.

4The Muslims of
India: a documentary record 2003, p. 216-224.

5
A brief history of
India 2006, p. 280-281.

6
The politics of autonomy: Indian experiences 2005, p. 60-61

7Inscribing
South Asian Muslim women 2008, p.357

8
On violence: a reader 2007, p.262-265

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