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Mainstream, VOL LVII No 34 New Delhi August 10, 2019

Triple Talaaq and Shah Bano Case

Sunday 11 August 2019

by Fasihur Rahman

With the ongoing debat in Parliament and the media on the “Triple Talaaq”, the Shah Bano case has resurfaced. Recently, while giving an interview on the The Wire (July 27, 2019), a former Union Minister maintained that the Shah Bano case was related to Triple Talaaq. Although the Triple Talaaq issue did surface during the parliamentary debate on the Shah Bano case, it was not the issue. The core issue, in the Shah Bano case, was related to the provision of ‘maintenance’ by a Muslim husband after divorce. Having witnessed the debate live, from the visitor’s gallery of the Lok Sabha, prompted me to write on the subject, which has also been covered in a chapter of my book entitled Wings of Destiny: Ziaur Rahman Ansari—A Life.

Mohammad Ahmad, a resident of Indore, Madhya Pradesh, divorced his 62-year-old wife, Shah Bano, in 1978. The case was finally heard by the Supreme Court in April 1985. The Court ruled that under Section 125 of the Criminal Procedure Code (CrPC), a divorced Muslim woman was entitled to receive maintenance from her husband.

The Court, referring to interpretation of Verses (Aiyats) 241 and 242 of the Quran, contended that “there is an obligation on Muslim husbands to provide for their divorced wives’. The Court observed that: ‘It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India....’” (Mohd. Ahmad Khan v Shah Bano Begum, 1985, pp. 572-73)

On May 10, 1985, G.M. Banatwalla, then Member of Parliament from the Muslim League, moved the Code of Criminal Procedure Bill for the amendment of Sections 125 and 127. Speaking on the Bill, Banatwalla argued that “under Islamic Law, a husband is bound to maintain a divorced wife only during the period of Iddat, which is nearly three months and not thereafter”. (Lok Sabha Debate, 1985)

Arif Mohammad Khan from the Congress party and then Union Minister, supported the Supreme Court judgment. A few weeks later, it sparked a wave of protest from Kolkata, Patna, Mumbai, Delhi, Kanpur and Hyderabad.

A 19-member delegation of the All India Muslim Personal Law Board (AIMPLB), led by then its President Maulan Abul Hasan Ali Nadwi, met the then Prime Minister Rajiv Gandhi and handed over a memorandum stating that:

The Muslim community regards this judgement... as a clear interference with the Shariat (Muslim Personal law) and their freedom of religion and conscience contained in the Articles 25, 26, and 29 of the Constitution of India.... The Supreme Court in its judgement has misinterpreted two isolated verses of the Holy Koran quoted by it out of context and has ignored other verses of the Holy Koran on the subject ...

Ziaur Rahman Ansari, then Union Minister of State for Environment, in his three-hour speech in the Lok Sabha that was delivered in two parts (November 22, 1985 and December 3, 1985), lambasted the Court judgment and described it as prejudiced, discriminatory and full of contradictions. He maintained that the judges were not competent to interpret the Quran and Hadis.

Prof Tahir Mahmood, an authority on Islamic law, who was also quoted in the Shah Bano case judgement, reasoned:

“The provision of modern Hindu law that a Hindu wife who ‘ceases to be Hindu’ (by conversion to Islam or Christianity) cannot claim maintenance from her Hindu husband. (Hindu Adoption and Maintenance Act 1956, Sec. 18 read with Sec. 24) It is too progressive to earn any criticism. But, the rule of Muslim law that a wife who has been subjected by her husband to the indignity of divorce need not look to him for maintenance beyond a certain limit must earn strictures in foul language. Is this, indeed logical?” (Uniform Civil Code, India and Islam Research Council, 1995)

Shailendranath Ghosh, in an article (HT, April 5, 1986) claimed:

“While Egypt, Iran, Iraq, Turkey, Libya, Qatar, Indonesia, Sudan, Tunisia, Jordan, Syria, Yemen and even Pakistan have made new marriage, divorce and compensation laws, the Indian Muslims persist in defending practices ... [despite the] prevailing practices are just the opposite of the teachings of the Quran and Hadith.”

Prof Mahmood asserts: “If anybody has said that a Muslim woman in any of the Islamic countries can seek maintenance from her former husband after the expiry of the period of iddat with or without the help of the court, it is absolutely baseless.” (Sunday Observer, March 9, 1986)

Justice V.R. Krishna Iyer, the retired judge of the Supreme Court, in a letter dated February 29, 1986, to the Prime Minister Rajiv Gandhi wrote: “The Bill is a sin against the Quran. Many Islamic scholars hold that the Quranic command to husbands to pay upkeep expenses to divorcee beyond the period of iddat is clear.” (Engineer, 1987)

Dr Nadia Barakat, a researcher from the Ministry of Justice, UAE, known for her contribution to ‘family laws’, maintains:

“...[A]ccording to jurists, the Quranic injunction ‘Tasreeh bin Ahsan’ did provide for a compensation amount (however) it was left up to the Muslim judge, who should be well versed in the meaning and interpretation of the Quran, Hadith and Islamic law, to rule how much compensation should be payable to a woman who, in the opinion of the judge, does not have any means to support herself. This, of course, did not apply to a divorced woman who had relatives capable of supporting her.” (Amrit Bazar Patrika, March 9, 1986)

Ahmad Hasan, quoting an expert opinion from the Ministry of Justice of the United Arab Emirates (UAE), contends that “...living allowance given to a woman after divorce extends up to three months. This has been an accepted fact all through Islamic history. All the well known schools of Islamic law are unanimous on this.” (Amrit Bazar Patrika, March 9, 1986)

After a great deal of consultation with the Muslim intellectuals, academia, the Muslim Personal Law Board (MPLB) members and Muslim Members of Parliament—then Prime Minister Rajiv Gandhi decided to introduce a Muslim Women (Protection of Rights on Divorce) Bill. The Bill intended to exclude the former husband of a divorced Muslim women from the liability of maintaining her beyond the three months period of Iddat and instead to be maintained by her father or brothers. It excluded the Muslim women from Section 125 and 127 of the Code of Criminal Procedure to ensure that the Supreme Court judgment on Shah Bano Case did not apply to them.

Amidst strong resentment from a section of then ruling Congress party as well as Opposition parties, the Muslim Women (Protection of Rights on Divorce) Bill was introduced in the Lok Sabha on May 5, 1986, and after a marathon debate for 14 hours was concluded at 3:00 am on May 6, 1986.

While Arif Mohammad Khan, the then Minister of State for Power, resigned from the Council of Ministers in protest against the introduction of the Bill on his own accord, several heads rolled to check the dissidence in the Congress. It was reported that “The Congress (I) President Rajiv Gandhi ... expelled Mr. Pranab Mukherjee [later president of India] from the party for six years and suspended Mr. A.P. Sharma [then a member of Rajya Sabha and former union minister], Mr Sripati Mishra [former chief minister of Uttar Pradesh], and Prakah Mehrotra [former governor of Assam]... to check the growing dissidence in the party.” (IE, April 28, 1986)

The outpouring sympathy shown by non-Muslims for Muslim women was seen with skepticism and suspicion rather than appreciation. M.J. Akbar, noted journalist and later Union Minister, observed, “Persons and parties who have never lifted a finger to help a Muslim victim of a communal riot suddenly became champions of Muslim women.” (The Telegraph, May 5, 1986)

Many argued that by upholding the Supreme Court judgement will enhance secularism and national integration in the country. Justice V.R. Krishna Iyer, in a letter dated February 28, 1986, to prime minister wrote, “The best gift for national integration and incendiary communa-lism is the anti-secular, anti-Shah Bano Amend-ment Bill now under way. Please desist” (Engineer, 1987)

Pondering on the issue of national integration and citing examples of some of the past Acts, Rajshekar, an eminent journalist, questioned:

“When the Hindu Marriage Act was passed in 1955, and the Hindu Succession Act in 1956; there was already an Indian Succession Act. If the intention then was for Common Civil Code, they could have straight away called the Hindu Marriage Act as the ‘Indian’ Marriage Act and the ‘Indian’ Succession Act with suitable amend-ments if necessary.... Still, they passed the Hindu Marriage Act and the Hindu Succession Act exclusively for themselves. Where was their sense of ‘national integration’ at that time?” (Engineer, 1987)

The judgment also drew attention towards Article 44 of the Constitution, “... to secure for the citizens a Uniform Civil Code throughout the territory of India.” Salman Khurshid, an advocate and later Union Minister, argued: “Why a Uniform Civil Code is considered imperative for national unity or a functional democracy. After all, uniformity is neither a necessary nor a sufficient condition for nationalism or unity...”(HT, December 3, 1985)

Justice Rajinder Sachar expressed his forth-right views on the issue of Uniform Civil Code:

“The question was which model of a [Uniform Civil] code the country was going to adopt. As far as the Hindus were concerned they had a lot to answer in defence of their personal law. For example, a marriage between an uncle and nice was taboo in North India whereas it was not so in Andhra and Karnatka. In fact, in Andhra and Karnatka an uncle had a ‘first right’ to marry his nice.” (The Statesman, April 26, 1986)

“The question of bridging the gaps,” wrote A.G. Noorani, a distinguished jurist, author and historian, “is a matter of policy to be decided by an elected legislature in the light of social conditions and popular sentiments. It is not a matter of law to be decided by the judiciary.” (IE, Dec.27, 1985)

Bruce B. Lawrence, Professor of Islamic Studies at Duke University, USA, observes: “The Muslim Women (Protection of Rights on Divorce) Bill, in fact, discriminated against Muslim women; it removed the right of any Muslim woman to juridical appeal for redress of the award made to her under Muslim Personal Law.” (Lawrence, 1998)

Describing the merits and shortfalls of the Muslim Women Act, Prof Mahmood wrote:

“The Muslim Women’s Act, does not leave divorced Muslim women in a ‘total state of vagrancy’ or to ‘beg from door to door’, as is claimed by some of its critics. ... Under the 1986 Act, a Muslim divorced woman can be awarded by the criminal courts Rs 50,000 (or five lakhs or more, there being no statutory ceiling) — as a lump sum, or payable in installments — never to be re-opened in a civil court. Yet, it is believed, said and propagated that the Act has ‘taken away’ from Muslim women all that the CrPC had ‘given’ them along with other women, and has left them to ‘beg’ from door to door.” (Mahmood, 1995)

The author is an environmental scientist, and author of Wings of Destiny: Ziaur Rahman Ansari—A Life.

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