JOURNEY FROM SHAH BANO TO SHAYARA BANO: BATTLE FOR RIGHT TO EQUALITY

JOURNEY FROM SHAH BANO TO SHAYARA BANO: BATTLE FOR RIGHT TO EQUALITY

Authors' Name: Sumit Gehlot and Sagarika Singh

College: Dr. Ram Manohar Lohiya National Law University, Lucknow


INTRODUCTION

The status of women under Muslim personal law (hereinafter-MPL) in India has always been a topic of debate and has involved serious social and legal issues related to the rights and liberties of Muslim women. It is said, that before the advent of Islam i.e. the period of ‘Jhailiah’, women in Arabic plains was considered to be a mere commodity, subject to ownership and inheritance. Some anthropologist believes that Islam marked the transition in the social status of women vis-a-vis men. When we trace back the history of Islamic law in India, then it can be said that the main sources of Islamic law in India are - Holy Quran, Ahadis and Sunnas, Ijmas and the Qiyas.[1] Holy Quran makes it clear that women have their own individual status and are not subjugated to men in any field. It also provides that women are not to be treated as an adjunct of their fathers, husbands or brothers. Surah 2 Verse 228 of the Quran categorically states that “women shall have rights similar to the rights against them, according to what is equitable”.

However, there still exist inequalities between men and women rights in the Indian MPL.[2] We see a clear violation of the rights of women by some provisions such as oral divorce[3], polygamy and the right to maintenance under this personal law. Moreover, it is pertinent to note here that teachings of Holy Quran do not discriminate the human on the basis of gender rather it directly talks about the women equal to men in every respect. It is seen that the main reasons for these inequalities are some practices which were prevalent at that particular time popularly known as ‘Hadith’. Later on, these hadiths were adopted as their own customary law. For this reason, even the unambiguous language of Quran has been interpreted strangely with the help of Hadith. This was done in order to subjugate women’s right which consequently leads to contradiction to the basic tenets of Quran.[4] Although, Muslim women have raised their voices against such inequalities their efforts did not yield the desired result. This is because the judicial bodies are unable to interfere with the personal laws. As these laws were being protected from judicial review as provided in the constitution.[5] It is pertinent to note here that there exists a “contradictory embrace”. Through

the personal law system, the Indian Constitution attempts to express its commitment to protecting group life[6], while simultaneously promising to introduce a uniform civil code. This contradiction results in a disjuncture between the equality promised to “Muslim women as citizens and legitimization of their unequal status under the personal laws.[7]

However, the apex court of India did not completely ignore the efforts of Muslim women and tried its best to provide remedies through some landmark judicial pronouncements. One of the best examples that can be seen is the Shah Bano[8] case which talked about the maintenance issue and the most recent one, the Shayra Bano[9] case in which the constitutionality of the ‘triple talaq’ was struck down.

The theme of the essay is to address the social issues relating to the right to maintenance and divorce of Muslim women. While addressing both the issues the author would try to provide a probable solution to overcome these social problems.

RIGHT TO MAINTENANCE

Maintenance is lawful right of the wife to be provided with husband’s expense with food, clothing, and accommodation and customarily extends to other necessities of life.[10] Under the Muslim personal law, the husband is bound to maintain his wife not only during the subsistence of marriage but also reasonably after the dissolution of marriage.[11] But he is not bound to maintain a wife who refuses herself to him or is otherwise disobedient. However, she will not be a disobedient wife if her acts are in reply of her husband’s inability to pay prompt dower when demanded or when she leaves the husband's house on account of his cruelty.[12]

However, after divorce, the Muslim wife is entitled to maintenance only during the period of iddat[13]  whereas, the liability of the Hindu husband extends till the time of the remarriage of the wife as contemplated by section 125 of Cr.P.C. Thus, in this way, Hindu women were better placed as compared to the Muslim women, on the grounds of the maintenance after divorce. The Supreme Court[14] extended the benefit of section 125 and provided for the maintenance to Muslim wife even after the period of ‘iddat’.

The problems for Muslim women did not end here. The central government came up with a law[15] to nullify the effect of Shah Bano judgment. Later on, this law was constitutionally challenged in the Supreme Court.[16] The court upheld the constitutional validity of the law. Now, the present position of right to maintenance is that the divorced Muslim wife would be entitled to maintenance from her husband under section 125 of Criminal Procedure Code subject to provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986. Section 125 of Cr.P.C. would apply only when both the parties have consented to be tried under the provisions of Cr.P.C. as required by section 5 of the said act. Thus, in this way, the right to maintenance issue has almost completely been resolved after the Daniel Latifi judgment.

TRIPLE TALAQ UNDER MPL

‘Triple talaq or talaq-ul-biddat’ is one of such customary practices prevalent in MPL which leads to gross injustice and inequalities to Muslim women. It consists of three pronouncements made during a single tuhr either in one sentence or in separate sentences.[17] Where the intention of the husband is clear the divorce becomes irrevocable.[18]  Such a talaq is lawful, although sinful, in Hanafi law.[19] The Hanafi rule recognizing and giving effect to improper talaq is not a part of the original Islamic law; it was adopted at a later stage in order to help men and women. Thus, the Muslim women have raised their voices time to time about the legal sanctity of this particular type of talaq.

Before, the petition filed by Shayra Bano in 2016, the apex court made some passing reference to the legal sanctity of triple talaq in Shamim Ara v State of UP[20] case. The High Court of Madras in the case of A.S Parveen Akhtar v UOI[21] was posted with the question on the validity and constitutionality of Section 2 of the Shariat act, 1937 so far as it recognizes triple talaq as a valid form of divorce. The court followed Shamim ara judgment and held that “talaq, in whatever form, must be for a reasonable cause, and must be preceded by attempts for reconciliation”. However, the court did not go into the constitutional validity of section 2 of the 1937 Act on the ground that part III of the constitution does not touch upon the personal laws.[22] Since then, Shamim Ara judgment was being followed by the various courts till the Supreme court pronounced the Shayara Bano judgment while dealing with this issue directly or indirectly.

The Supreme Court finally dealt with this issue thoroughly in a petition filed by Shayara Bano for assailing the divorce pronounced by her husband. Along with it, petitions by four other women Ishrat Jahan, Gulshan Parveen, Afreen Rehman and Atiya Sabri and a petition by Bhartiya Muslim Mahila Andolan named ‘Muslim Women’s quest for equality’ were also filed. In the petition, she contended to declare triple talaq void ab initio. She also argued that the practice of talaq-e-biddat is violative of the fundamental rights guaranteed to citizens in India, under Articles 14, 15 and 21 of the Constitution. On 22nd August 2017, Supreme Court of India declared the practice of triple talaq as unconstitutional by a majority of 3:2.

As a result, Union Cabinet on 15th December 2017 approved the Muslim Women (Protection of Rights on Marriage) BILL, 2017. The Bill makes the practice of triple talaq a cognizable and non-bailable offense. A husband who resorts to triple talaq will be fined and will face a jail term of three years. The woman will be entitled to receive a subsistence allowance for her and her child. However, the Bill has been drafted in haste and it lacks its legal sanctity.

CRIMINALISING TRIPLE TALAQ LEGALLY SUSTAINABLE?

When we look at the proposed Bill through legal lenses, the Bill lacks its legal backing. An act can be criminalized only when all the elements of ‘crime’ is present in that particular act. The main elements of the crime are- it must involve human being, there must be an actus reus, the presence of mens rea and it must also involve some injury.[23] An act of ‘uttering the triple talaq’ does not contain all these elements. Because, the effect of the supreme court judgment is that if a Muslim man pronounces triple talaq to his Muslim wife, the marriage does not get dissolved.[24] Thus, there is no injury caused to the victim.

Moreover, Blackstone defines ‘crime’ as a public wrong that affects the whole community.[25] The idea of a crime is that it is something that rightly concerns the State and not just the person(s) affected by the wrongdoing.[26] Whereas, civil wrong is, as defined by Austin, an offense which is pursued at the discretion of the injured party and his representatives as a civil injury.[27] It is pertinent to note here that ‘triple talaq’ appears to be of ‘civil nature’ because as a matter of fact, marriage in MPL is a ‘civil contract’.[28] When a Muslim husband divorces his wife through triple talaq, he commits an act of breach of civil contract. Therefore, the whole community does not get affected and it is merely concerned with some private rights. Thus, criminalizing triple talaq becomes irrational and unjustified because criminal liability can’t be inflicted on the civil action. It may also result in a sentence which amounts to a severe deprivation of the ordinary liberties of the person.[29] Criminalizing triple talaq also goes in violation to one of the cardinal principles of criminal law which says that law should not criminalize too much behavior. The criminal law should not be invoked unless other techniques are inappropriate.[30] With this legislation, the government is creating another law when there are already provisions like 498A IPC, Section 20, and 22 of the Domestic Violence Act, and the Women Protection of Divorce Act.  Hence, it can be safely said that there is no real need for such law and it might only lead to Muslim community feeling more cornered and alienated at the hands of the legislature.

The Supreme Court by a majority of 3:2 held that talaq-e-biddat is unconstitutional. The effect of the same judgment would be that even if a Muslim man pronounces triple talaq to his Muslim wife, the marriage would not get dissolved. Surprisingly, the proposed Bill presumes that the ‘pronouncement’ of talaq-e-biddat can instantaneously and irrevocably dissolve the marriage, and proceeds to “void” as it has been given in Section 3 of draft Bill.[31]  In such circumstances, if the marriage does not get dissolved by uttering talaq three times. How its nugatory pronouncement can be considered a cognizable and non-bailable offense in Sections 4 and 7? The internal contradiction within the Bill further goes on and provides for post-divorce issues such as ‘subsistence allowance’ for a woman upon whom instant talaq “is pronounced” and the “custody of her minor children” as if her marriage is dissolved by such pronouncements in section 6 and section 7 despite the fact that this uttering of talaq has been voided under section 3.

The Bill also seems to be in contradiction of the fundamental principle of procedural fairness in the criminal law which provides that a person should be presumed ‘innocent’ unless and until proven guilty.[32] ‘Innocence’ forms a cloak protecting the person against the accusations of the State. The cloak exists from the moment the person is charged until the conviction is stated in open court. However, under the proposed Bill, accused Muslim husband will be treated as guilty under a crime categorized as cognizable and non-bailable offense even before his guilt is proved.  Furthermore, another principle of criminal law is that the burden of proving the guilt beyond reasonable doubt is always on the prosecution.[33] Because the prosecution carries the legal burden of proof of guilt, each and every essential ingredient of the offence must be proven. If these ingredients are not proven beyond reasonable doubt, the prosecution’s case will fail.[34] The question arises -How will an oral talaq be proved by the wife beyond a reasonable doubt. Such impossibility in the law leaves scope for speculation, which may lead to abuse and exploitation of the entire process. Thus in this way, the proposed Bill, rather than ensuring equality, is doing arsenal to one section of Muslim community at the expense of others.

CONCLUSION

Holy Quran makes it clear that women have their own individual status and are not subjugated to men in any field. It is also clear that there is enough scope within the Islamic law to bring about changes ensuring gender justice. Therefore, the most probable solution for the problems related to inequalities of Muslim women under MPL would be to codify the MPL in such a way that it ensures gender equality and keep the Muslim women at the equal footing with other women of different religions. Any such change will be in the line of Quranic framework because it supports the gender equality. Therefore, it is high time to protect the spirit of the texts of holy Quran by abolishing such practices which are actually in contravention of the basic tenet of holy Quran.

Moreover, the recent step of government to criminalize the triple talaq is not a viable solution to the prevalent problem in the Muslim personal law regime. The effect of such unnecessary criminalization would be as bad as, or worse than, not doing so. Thus, the policy of the government to criminalize such practices may not yield the desired result. Instead of, criminalizing such practices which violate the rights of Muslim women, the government should adopt some other proper effective mechanism like the uniform codification of all personal laws which will finish the inequalities prevalent in MPL.


[1] Razia Patel, Indian Muslim Women, Politics of Muslim Personal Law and Struggle for Life with dignity and justice, E.P.W., 45.

[2] Law relating to marriage, maintenance, divorce, and succession etc.

[3] It has been held as unconstitutional in the case of Shayra Bano v. U.O.I., (2017) 9 S.C.C. 1 (India).

[4] Ashgar Ali Engineer, Rights of women and Muslim Socities 7 Socio-legal Rev. 44 (2011).

[5] INDIA CONST. art. 13, cl. 3 excludes “personal law” from the definition of “law”.

[6]INDIA CONST. art.  25.

[7] Zayn Kassam, Reclaiming the Nation: Muslim Women and the Law in India by Vrinda Narain, 26 J.L. & Relig 633, 633-674(2010-2011).

[8] Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C. 556 (India).

[9] Shayara Bano v. U.O.I., (2017) 9 S.C.C. 1 (India).

[10] Nasir j Jamal, The Status of Women Under Islamic Law 147 (Kieth: Muslim Family Law London 1984).

[11] The Quran 2:228 and 2:241.

[12] Hidyatullah Mulla, Principles of Mahomedan Law 236 (19th ed.).

[13] Dr. Taslima Monsoor, Maintenance to muslim wife: the legal connotations 9 DULJ 63(1998).

[14] Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C. 556 (India).

[15] The Muslim Women (Protection Of Rights On Divorce) Act, 1986, No.25, Acts of Parliament, 1986 (India).

[16] Danial Latifi v. Union of India, A.I.R. 2001 S.C. 3958 (India).

[17]Mulla, Principles of Mahomedan law (Bombay N.M. Tripathi Private Ltd.), p261.

[18] Syed Khalid Rashid, Muslim Law (Eastern Book Company), p109.

[19] Asaf A.A. Fyzee, Outlines of Muhammadan Law  4th edn. (Oxford India Paperbacks), p.154.

[20] Shamim Ara v. State of U.P., (2002) 7 S.C.C. 518 (India).

[21] A.S Parveen Akhtar v. U.O.I. 2002 S.C.C. online Mad. 836 (India).

[22] Krishna Singh v. Mathura Ahir and Ors., (1981) 3 S.C.C. 689 (India).

[23] Kumar Askand Pandey, Principles of Criminal Law in India cases and materials 65 (Central Law Publications).

[24] Shayara Bano v. UOI, (2017) 9 S.C.C. 1 (India).

[25] Syed Shamshul Huda, The Principles of the law of crimes in British India 2 (Eastern Book Company).

[26] Andrew Ashworth, Principles of Criminal Law 2 (Oxford University Press).

[27] Syed Shamshul Huda, The Principles of the law of crimes in British India 2 (Eastern Book Company).

[28] Abdul Kadir v.Salima, (1886) 8 All 149 (India).

[29] Andrew Ashworth, Principles of Criminal Law 1 (Oxford University Press).

[30] Kumar Askand Pandey, supra note 24, at 10.

[31] A Faizur Rahman, The trouble with triple talaq BILL, The Hindu, Dec28, 2017 available at http://www.thehindu.com/opinion/op-ed/a-very-flawed-law/article22288659.ece

[32] Andrew Ashworth, Principles of Criminal Law 83 (Oxford University Press).

[33] Michael Allen, Textbook on Criminal Law 13 (Oxford University Press).

[34] Kumar Askand Pandey, supra note 25, at 13.


 


Disclaimer: The opinions expressed in the article or any other publication are those of the authors. They do not purport to reflect the opinions or views of Sadvidya or its members.

Leave a Reply

Close Menu
%d bloggers like this: