divorce in islam

In this blog post, Rishabh Rai, a CS Executive and a 2nd Year Law Student from National Law University, Odisha describes the ill effects of the system of divorce in Islam or triple talaq.

At a time when the uproar against the government step is growing regarding the implementation of Uniform Civil Code, the Allahabad High Court in the case of Smt Hina and Another v. State of UP and 2 others has stated that the personal laws of a particular community cannot claim superiority over the Indian Constitution. In the present case the petitioners are the wife aged 23 years and her husband aged 53 years. The second petitioner i.e., the husband has contracted marriage with his wife (the first petitioner) after giving a triple talaq to his first wife. The second petitioner has admitted before the court that he has two minor children from his first wife. When it was asked as to why the second petitioner has divorced his first wife, the second petitioner stated that in order to contract the second marriage, he gave talaq to his first wife.

ISSUE OF DIVORCE IN ISLAM or TRIPLE TALAQ

The issue in the present case was that the petitioner has sought a direction to restrain the third respondent who is mother of the first petitioner and police authorities to stop harassing the petitioner. The counsel for the petitioner has submitted that the petitioners are adults and after attaining the age of majority they are free to choose their own partners. The counsel has further contended that petitioners should not be deprived of their right to life and personal liberty granted under Article 21 of the Indian Constitution.

JUDGEMENT AGAINST TRIPLE TALAQ

In the decision given by the Honorable Judge, it has been stated that there is no dispute or any issue in relation to the age of petitioners. However the main dispute is the ulterior motive behind the petitioner to divorce her first wife. The questions raised by the Hon’ble High Court are-

  1. Whether the Muslim Personal Laws are so cruel that they cause such hardships to the Muslim wives?  
  2. Whether the Personal Laws can be amended in order to curb the adversities of the Muslim wives?

In the judgement, it has been stated that as the husband has been attached and attracted to a woman half his age, and therefore, the first wife has to suffer. The court has observed that an arbitrary and unilateral power has been given to a Muslim Husband to inflict an instant divorce to his wife which does not correlate with the Islamic injunctions. It is a misconception that a Muslim husband enjoys an authority to liquidate the marriage under Islamic Laws. It has been mentioned in the Quran that as long as the wife remains obedient and faithful to her husband, he cannot divorced her. Only on the grounds of indocile and undisciplined manner, a husband can dissolve the marriage. In the absence of any such grave reasons, no man can justify the divorce in eyes of law.

The court has said that the way the Muslim Personal Laws are applied in India, it has taken a course which is contrary to the spirit laid down by Holy Quran or the Prophet. When all the efforts to reconcile fail and there is a case of extreme emergency, only then it is permissible to give Talaq.

In a modern secular state the purpose of law is to bring social change and tranquillity. The Muslims, particularly the Muslim women are an integral part of the Indian population and thus cannot be left to be governed by the old and archaic customs and traditions. The Triple Talaq practiced by the Muslim community in India is the most demeaning form of divorces practised by the Muslim community.

The Shah Bano Case

In the case of Mohd.Ahmed Khan v. Shah Bano Begum and Ors. the Supreme Court stated that the Muslim husband enjoys the privilege of discarding his wife whenever he chooses to for reasons good, bad or indifferent. It was questioned that is the law so ruthless, that the mere fact that the husband has paid maintenance to his wife during the period of iddat no matter how little; it will absolve him from all the liabilities?

In the Shah Bano case, the issue before the Supreme Court was regarding the right to maintenance of Shah Bano from her husband who was married for 4 decades. Shah Bano seeks maintenance under Section 125 of Criminal Procedure Code. As per Section 125 of CrPC, a First Class Magistrate can order a husband to provide maintenance to his wife/divorced wife (for the time she is not re-married) if he has neglected his wife and she is not able to maintain herself.

However, the husband pleaded that since he and his wife are governed by the Muslim Personal Laws, he is not liable to pay maintenance to his wife. Muslim Personal Law did not have provisions to pay maintenance to the wife beyond the iddat period (3 months or 90 days). He was obligated to pay only Mahr (a gift given as a consideration to bride in marriage) and as he paid Mahr to the wife he is not entitled to maintain her any further. Thus Section 125 of Code of Criminal Procedure cannot override Muslim Personal Law. However the Supreme Court in its decision stated that Section 125 of Code of Criminal Procedure did not override the provisions mentioned in Muslim Personal Law and provided Shah Bano with a maintenance of Rs 500 monthly and stated that Section 125 of CrPC applies to all citizen irrespective of religion or cast.

The Muslim Women (Protection of Rights on Divorce) Act, 1986

After the landmark judgement by Supreme Court in the case of Shah Bano, many Muslim clerics took the judgement as an encroachment of their personal laws and protested against the Supreme Court decision. The government under the leadership of Rajiv Gandhi passed the ‘Muslim Women (Protection of Rights on Divorce) Act’. The government drew much criticism over the move as it consolidated the rights of Muslim women.

The main provision regarding the maintenance is stated as per Section3 of the Act

  1. Right to maintenance during the Iddat period i.e., the period during which a Muslim woman cannot re-marry.
  2. A reasonable and fair maintenance to be made by the former husband for 2 years in case she herself maintains the children born to her before or after the divorce.
  3. Right to receive an amount which is equal to the sum of Mahr which was agreed to her during time of marriage,
  4. Right to receive the properties which were given to her before, at the time, or after the marriage by her relatives, friends or any relatives of husband or his friends.
  5. In exceptional circumstance she has the right to receive maintenance from the State Wakf Board.

 

Conclusion

As the Muslim Women (Protection of Rights on Divorce) Act did not place an upper limit to the right of maintenance of a Muslim woman, it was not possible for them to receive large sum from their divorced husband. However in the case of Shamim Bano v. Asraf Khan, the Supreme Court has stated that a Muslim husband is liable to make reasonable and fair provision and maintenance for her divorced wife which is not limited to the iddat period as stated in the Muslim Women (Protection of Rights on Divorce) Act 1986. The court has stated that a divorced woman suffers a loss of dignity, social and economic security and it is the duty of the law to provide her with adequate compensation.

Thus considering the fact that rights of women are limited to their personal laws, India needs a Uniform Civil Code. The practice of triple talaq has once again brought the focus of government to implement Uniform Civil Code in India. The Central government has asked the law commission to examine the issue which can be seen as a first step by the central government in implementation of Uniform Civil code.

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