Wednesday, August 23, 2017

The Journey from Shah Bano to Shayara Bano

1. The Muslim Personal Law (Shariat) Application Act, 1937 [Act No. 26 of 1937 dated 7th. October, 1937] 
An Act to make provision for the application of the Muslim Personal Law (Shariat) to Muslims 
2. The Constitution of India, 1950.
It was decided to add the implementation of a uniform civil code in Article 44 of the Directive principles of the Constitution specifying, "The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India."
3. Indian Express; New Delhi | Published:August 23, 2017 2:05 pm

The Mohd. Ahmad Khan vs. Shah Bano Begum & Ors. or the Shah Bano maintenance case is seen as one of the legal milestones in battle for protection of rights of Muslim women. While the Supreme Court upheld the right to alimony in the case, the judgment set off a political battle as well as a controversy about the extent to which courts can interfere in Muslim personal law. The case laid the ground for Muslim women’s fight for equal rights in matters of marriage and divorce in regular courts, the most recent example being the Shayara Bano case in which the Supreme Court invalidated the practice of instant triple talaq.

Here’s all you need to know about the Shah Bano case
In April 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition in court demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh. Khan had granted her irrevocable talaq later in November. The two were married in 1932 and had five children — three sons and two daughters. Shah Bano’s husband had asked her to move to a separate residence three years before, after a prolonged period of her living with Khan and his second wife.
Shah Bano went to court and filed a claim for maintenance for herself and her five children under Section 123 of the Code of Criminal Procedure, 1973. The section puts a legal obligation on a man to provide for his wife during the marriage and after divorce too if she isn’t able to fend for herself. However, Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce.
Iddat is the waiting period a woman must observe after the death of her husband or divorce before she can marry another man. The length of the iddat period is circumstantial. The period is usually three months after either of the two instances. In case the woman is pregnant, the period carries on until the childbirth.
Khan’s argument was supported by the All India Muslim Personal Law Board which contended that courts cannot take the liberty of interfering in those matters that are laid out under Muslim Personal Law, adding it would violate The Muslim Personal Law (Shariat) Application Act, 1937. The board said that according to the Act, the courts were to give decisions on matters of divorce, maintenance and other family issues based on Shariat.
After detailed arguments, the decision was passed by the Supreme Court of India in 1985. On the question whether CrPC, 1973, which applies to all Indian citizens regardless of their religion, could apply in this case.
Then Chief Justice of India Y.V. Chandrachud upheld the decision of the High Court that gave orders for maintenance to Shah Bano under CrPC. For its part, the apex court increased the maintenance sum.
The case was considered a milestone as it was a step ahead of the general practice of deciding cases on the basis of interpretation of personal law and also dwelt on the need to implement the Uniform Civil Code. It also took note of different personal laws and the need to recognise and address the issue of gender equality and perseverance in matters of religious principles.
Justice Y.V. Chandrachud said in his decision: “Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion.”
The following events were unfavourable to a great extent with the then Rajiv Gandhi Congress government, elected in 1984, passing the Muslim Women (Protection on Divorce Act), 1986. This law overturned the verdict in the Shah Bano case and said the maintenance period can only be made liable for the iddat period. The new law said that if a woman wasn’t able to provide for herself, the magistrate had the power to direct the Wakf Board for providing the aggrieved woman means of sustenance and for her dependent children too.
Shah Bano’s lawyer Danial Latifi had challenged the Act’s Constitutional validity. The apex court, though upholding the validity of the new law, said the liability can’t be restricted to the period of iddat. One of the key points of relevance in the verdict that set it apart from previous cases was the recognition of women’s claim for treatment with equality and dignity, particularly in cases of marriage.
Significantly, Shah Bano later withdrew the maintenance claim she had filed.

4. News 18; OPINION By Arif Mohammad Khan 

What Does Triple Talaq Verdict Mean? Analyses the Man Who Took on Rajiv Gandhi in Shah Bano Case

This verdict will bring about a paradigm shift and I foresee a changed scenario in the days when women will no longer accept instant talaq as a fait accompli.

It is a historic verdict and I honestly feel that none of us can make a realistic assessment of the positive impact that this judgment is going to have on the Muslim community.

It will not only liberate Muslim women but also provide them with a sense of equality. It will provide them with a sense of empowerment.

This verdict will bring about a paradigm shift and I foresee a changed scenario in the days when women will no longer accept instant talaq as a fait accompli. Empowered by the Supreme Court verdict, they will answer and retort back.

They will tell their spouse that “This triple talaq is unconstitutional. I am not going to leave the house, you can leave the house.”

Muslim women will seek protection from the police and other authorities. They can, like any other citizen of the country, report the case of mental torture and the husbands who pronounce unconstitutional triple talaq will be arrested.

Four to five such cases will set the precedent and send a strong message to the whole community.

This is going to be a game-changer for Muslim women. This verdict is not just about divorce but about giving a sense of equality of status and empowerment to all women.

Even the non-Muslim women, wherever and whenever they feel they are being subjected to injustice or being suppressed or being treated unequally, they will take inspiration from this judgment that Muslim women under such heavy and adverse situation and circumstances could successfully fight this unjust practice and win. It is a great milestone.

Our society is dynamic, it is changing and evolving. In 1986, when the Shah Bano Case happened, nobody was ready to speak. Even those who had submitted the petition to the then Prime Minister against the stand of the Personal Law Board never spoke in public. But Rajiv Gandhi government decided to enact a law to negate the apex court order in the Shah Bano case. The same set of petitioners who had earlier endorsed my stand later came up to me, requesting not to drag the matter any further.

I was told that I was up against a set of very powerful people.

There has been a sea change in the last two decades. In 1986 nobody was willing speaking. Everybody was scared of them. Not today. The women are now speaking freely. Women are more aware and this change has come because of education.

Also, today the All India Muslim Personal Law Board knows very well that its stand is unacceptable.

I don’t look at this as a victory or triumph of any one person or party. This is a great achievement for the women of India and not just Muslim women. This is not the end of the battle. In fact, the real battle has just begun. It is a battle for securing equality at home, workspace, politics, judiciary, business and every walk of life.

(Arif Mohammad Khan is a senior lawyer who argued on behalf of petitioners in triple talaq case. Former Union minister, he has advocated abolishing of All India Muslim Personal Law Board)


How do we know said...

How did I miss this post? It is superbly informative and succinct. Helped much.

J P Joshi said...

Thank you HDWK for your comment. Sorry, I am not getting enough time to interact and thus the delay.