Daily Current Affairs – 18th October, 2016DEVENDRA VISHWAKARMA
Triple Talaq case: the judicial intervention
In news: The debate around triple talaq and Uniform Civil Code (UCC) has once again surfaced with mixing of two issues. Though the Law Commission sought public opinion on the exercise of revising and reforming family laws of all religions in the context of Article 44 of the Constitution, which talks of a Uniform Civil Code (UCC) for all citizens, it was opposed by All India Muslim Personal Law Board (AIMPLB), along with several other organisations associated with the Muslim community and called it as an attempt to target their personal law. The public today sees the judiciary as their final resort to get answers to their questions and doubts. Once again, the judicial door has been knocked for justice by a distressed women for her violation of fundamental rights. This time the battle seems to be tougher and judiciary is expected to play a crucial role.
The triple talaq issue has been confused with the issue of a uniform civil code, which has made the India’s minority Muslim community defensive.
A former SC judge, Justice V.R. Krishna Iyer, once wrote that personal laws can be reformed from within, without a quantum leap into a common code. According to him, remarkable changes in Islamic laws are possible without violating the Quran but adopting progressive hermeneutics.
Also, it has been time and again debated if judiciary can interfere while pronouncing judgements relating to personal law.
Ruling in the Shah Bano case
- The case had a 62 year old Muslim woman, Shah Bano, who filed a petition in local court under Section 125 of CrPC, asking for maintenance from her husband (Khan) for her children and herself, after being thrown out of house.
- Khan’s response was that Shah Bano had ceased to be his wife after he pronounced an irrevocable talaq (divorce) in 1978. Thus, he was not liable to provide maintenance (which was meagre Rs. 5400) except as prescribed under the Islamic law, mehr- amount promised on marriage.
- Courts at different levels upheld Section 125 of CrPC to be applicable to Muslims as well. Later, the case was taken to SC where Khan argued that Shah Bano was no more his responsibility because he had a second marriage, which was permissible under Islamic law.
- Finally in 1985, a five-judge bench of SC pronounced its verdict that there was no conflict between the provisions of Section 125 and those of 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 SC held that Section 125 of the CrPC applies to all regardless of caste or creed. It also discussed the desirability of bringing a uniform civil code in India which would help in national integration.
- However, it was the last ruling by Supreme Court in a matter concerning personal law.
Criticism by clergy
- The Muslim clergy was not happy with the judgement as it saw its importance in matters concerning social relations amongst Muslims under threat.
- The source of Muslim Personal Law in India is the Muslim Personal Law (Shariat) Application Act, 1937. It is a colonial law which allows Indian Muslims to be governed by the Shariat.
- The Muslim Personal Law was given the power to have their say in matters pertaining to intestate succession, special property of females, marriage, dissolution of marriage, maintenance etc. where the parties are Muslim.
- The absence of codification has legally allowed community leaders to hold the practices as sacrosanct. The Dissolution of Muslim Marriages Act, 1939, however, codifies a woman’s right to seek divorce by approaching the court.
Incoming of government
- The government of the time was requested to intervene in the matter and overturn a ruling which irreparably compromised Muslim Personal Law according to Muslim clergy.
- The government had to appease the Muslim community for reasons best known and hence couldn’t shy away from the case.
- The government argued that Koranic provision or lack of it for maintenance was neither a compulsion nor closed to interpretation. The Muslims could be reassured of their rights only by some amendments.
- Thus, it passed The Muslim Women (Protection of Rights on Divorce) Act 1986 which though was in name of protecting rights of Muslim women who had been divorced, actually denied Muslim divorcees the right to alimony from their former husbands.
A setback for Muslim women
- The Shah Bano judgement was overturned by adopting the new aforesaid law.
- As per the law, when a Muslim divorced woman is unable to support herself after the iddat period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, the magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim law.
- But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order theState Wakf Board to pay the maintenance.
- The ‘liability’ of the husband to pay maintenance was thus restricted to the period of the iddat only.
Thus, if it was a losing cause for Muslim women is still debated. Today, the society needs judiciary to take on the responsibility of interpreting the law in light of the widely criticised practice of triple talaq, which in the view of many practising Muslims is not the law.