In this article, Syeda Muneera Ali of KIIT School of Law discusses Top five judgments on legal rights of Muslim women in India.

Introduction

• In India, Muslims personal laws are governed by the Shariat Law. In simpler terms, the Shariat Law is basically governed by the provisions of The Quran, and the teachings of the Prophet Mohammad.
• It is usual for Muslims in India to be governed by personal laws, as opposed to the Indian laws, as the Constitution of India provides provisions for the Right to Religion (Article 25 of the Constitution of India).
• However, unlike the usual situation, where Constitutional Rights are given higher strata, in comparison to ordinary laws, this principle fails to apply when it comes to personal laws.

While most Islamic countries, such as Egypt, Pakistan, Turkey, Bangladesh, etc., have chosen to modify and incorporate modernized versions of the Shariyat laws, India is still battling to do the same, when it comes to certain specific aspects of the personal law, such as, marriage, divorce, inheritance, family relations, etc. Some of the leading Supreme Court judgements, that have tried, to the best of their abilities, to defend the rights of Muslim women. These judgments are discussed below.

Mohd. Ahmed Khan vs Shah Bano Begum And Ors 1985 SCR (3) 844

One of the most landmark cases in the history of India, pertaining to Muslim women, was the Shah Bano Case of 1985. This case introduced an ever standing conflict between what should and should not come under the adjudication of the Supreme Court of India.

Facts of the case

• Shah Bano Begum, a Muslim woman, was divorced by her husband, Mohd. Ahmed Khan, by virtue of the Triple Talaq system. The issue that came up, was that Ms Bano had claimed maintenance under the Code of Criminal Procedure, rather than as per the personal laws.
• The personal laws of Islam state that a woman may be given maintenance for the ‘iddat’ period, i.e., a period of three menstrual cycles, along with the ‘mehr’, i.e., the money promised to the bride, at the time of marriage.
• Beyond these two, there is hardly any legally enforceable way of maintaining the woman for life. The Indian law, on the other hand, provides for maintenance for life, barring some exceptions.

Held

• The plaintiff and the defendant being Muslims, were to be governed by the Muslim Personal Law. However, since the petition was filed under the Code of Criminal Procedure, the district court, the High Court and the Supreme Court passed their judgements, favouring Ms Shah Bano.
• However, this judgement was opposed by the AIMPLB, as they claimed that adjudication of Personal laws was beyond the jurisdiction of the courts.
• The Shah Bano Case had received a lot of varied public stances. Muslim women vehemently defended the Supreme Court judgement of husbands having to maintain the wife.
• The then government had passed a legislation, termed as ‘The Muslim Women (Protection of Rights on Divorce), 1986’, and aimed to overturn the judgement of the Supreme Court.
• According to this legislation, Muslim women were entitled to a ‘fair and just’ amount of money within the ‘iddat’ period, beyond which, the husband was to have no liability.

Ahmedabad Women Action Group (AWAG) v. Union of India (AIR (1997) 3 SCC 573

Facts of the case

Muslim law allows Muslim men to have four marriages, along with the right to divorce, under the concept of Talaq, whereby, the husband has the authority to divorce by the utterance of the term ‘Talaq‘, without judicial methods, and this may happen without her consent. The PIL filed in this case addressed both these issues, along with some others.

The PIL addressed five major issues. They were:

• to declare Muslim Personal Law which allows polygamy as void as offending Articles 14 and 15 of the Constitution.

• to declare Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts. as void, offending Articles 13. 14 and 15 of the Constitution.

• to declare that the mere fact that a Muslim husband takes more than one wife is an act of cruelty within the meaning of Clause VIII.

• of Section 2 of Dissolution of Muslim Marriages Act. 1939.

• to declare that Muslim Women (Protection of Rights on Divorce Act, 1986 is void as infringing Articles 14 and 15.

• to further declare that the provisions of Sunni and Shia laws of inheritance which discriminate against females in their share as compared to the share of males of the same status. void as discriminating against females only on the ground of sex.

Held

In the light of these contentions, the court was of the opinion that India and Indians have been governed by personal laws, regardless of the time period. It was of the opinion that an interference by the court would lead to several undesirable outcomes, as the adjudication of personal laws was beyond the jurisdiction of the courts. The petition was therefore dismissed.

Danial Latifi and another v. Union of India (2001) 7 SCC 740

Facts of the case

After the landmark judgement of Shah Bano’s case, there was a chaos in the Muslim personal law. The parliament passed and enforced The Muslim Women (Protection of Rights on Divorce) Act, 1986, which provided that under section 3(1)(a), a divorced woman is entitled to reasonable and fair provisions, and maintenance within the ‘iddat’ period. One of the council, i.e, Danial Latifi challenged the above act, claiming that it was unconstitutional, and in violation of Article 14 and 21.

Held

In this case, the petitioner, in his argument said that that the Act is unconstitutional and has the potential of suffocating the Muslim women, and undermines the secular character, which is the basic feature of the Constitution. There is no reason to deprive the Muslim women of the applicability of section 125 of CrPC and present act is in violation of article 14 and 21. To this, the respondent said that personal laws are a legitimate basis for discrimination and therefore does not violate article 14 of the Constitution. The Court thereby held that the said Act was not in violation of Article 14 and 21 of the Indian constitution.

Shamim Ara v. State of U.P. (MANU/SC/0850/2002)

Facts of the case

• The petitioner was married to the respondent in 1948, in accordance with the Muslim personal law, and subsequently had four sons.
• The wife filed an application in the court, under Sec. 125 of the CrPC, claiming that her husband had deserted her and that there was cruelty by the husband.
• The family court denied her maintenance, on the grounds that she had already been divorced. However, a sum of Rs. 150/- was granted as maintenance for one son, till he attained majority.

Held

• The petitioner denied having been divorced. One of the major points of conflict, was that ‘Is a divorce valid if it is not directly communicated to the wife( in this case the husband said to have dissolved marriage by means of triple Talaq in presence of neighbours) and the said divorce communicated to the appellant become effective from the date of filing the written statement by the husband in the proceeding?’
• To this, the Supreme Court was of the view that the mere plea of a Talaq, would not validate the same. Ther Quranic procedures of obtaining a Talaq need to be fulfilled, i.e., Talaq has to be pronounced in the Quranic injunction.
• The following case had several reactions, the most popular one being that the concept of triple Talaq was both demeaning as well as cruel to Muslim women. There were several other contentions, however, the idea that triple Talaq was immoral stuck to the minds of people.

Shayara Bano v. Union of India and others. (The current Triple Talaq case.)

Though this case has not yet received a judgement, it deserves a mention in this article, as it has challenged the very concept of ‘instantaneous triple Talaq’, though not the concept of ‘triple Talaq’ itself.

The mere approval of the PIL filed by Ms Shayara Bano has led to a ray of hope for millions of women who have suffered because of this immoral and unfair practice. To begin with, this petition has been greatly discussed, supported and believed to have given a chance to those who have suffered for a long time.

The PIL was initiated by Ms Shayara Bano, a resident of Uttarakhand, who was constantly abused by her husband and eventually divorced by way of Triple Talaq at one go. Her plight was heard by the Supreme Court of India and a 5-judge Constitutional Bench heard this case. The verdict is yet to come.

India is a secular country and its citizens deserve to be happy, content and should always have the right to equality and justice. The very fact that the Hon’ble Supreme Court of India has chosen to acknowledge the rights of those who truly deserve it, is commendable and a positive step towards the injustice that women are subjected to.

India is the home to the second largest Muslim population. If several Islamic countries have chosen to forgo the concept of Triple Talaq, why shouldn’t a secular country like India, do the same?

Conclusion

India is one of the most accepting and broad-minded countries and takes pride in being the most secular-democratic state in the world. It has always supported what is right and has chosen to abolish what is wrong. The patriarchal Muslim population needs to recognise the rights of women, and it is the time that we, as citizens of India do that too. It is crucial today, for people to stand united against the plight of those Muslim women, who have been suffering for a very long time. There has been an unfair interpretation of Islam and it is upon the Legislature and Judiciary to change that. Having a 14.2% Muslim population, i.e., roughly 172 million people (as per the 2011 census), it is important for India to accept that times are changing, and personal laws need some reformation. Furthermore, it is important for the All India Muslim Personal Law Board (AIMPLB) to accept that women are equal to men and not subordinates, otherwise, are we really evolving as human beings?

References:

1. https://scroll.in/article/808588/the-debate-on-triple-talaq-and-muslim-womens-rights-is-missing-out-on-some-crucial-facts
2. http://www.thehindu.com/todays-paper/tp-opinion/triple-talaq-and-the-constitution/article18421721.ece
3. https://wrcaselaw.files.wordpress.com/2012/08/talaq-shamim-ara-v-state-of-u-p-ors.pdf
4. http://www.aljazeera.com/indepth/features/2017/05/tripple-talaq-triple-divorce-170511160557346.html