The lives of
Muslim women cannot be governed by archaic practices like triple talaq.
Muslim women should be governed by laws that treat them as equal citizens
of democratic India
It will be no consolation for Saddiqunissa, from a village near
Sitapur, UP, to learn that a very ill Kiran, 27 years old and a mother of
three sons, was carried in her father’s arms to the Kakardooma court in
New Delhi in a desperate attempt to pursue her application to seeking
maintenance from her indifferent husband. So far there have only been
adjournments. Like Kiran, millions of poor women are suffering the
indignities of their husband’s neglect in a country where cultural
pressures lead to parents marrying their daughters off either as part of
dharma or sunna (farz).
In Saddiqunissa’s case, Justice I.M. Quddusi of the Lucknow Bench of
the High Court of Allahabad has rightly returned the maintenance
application to the lower court to examine its merits, as well as to
enquire and adjudicate accordingly whether or not the husband has followed
correct talaq procedures. It appears that when Saddiqunissa filed an
application for maintenance from her estranged husband, he divorced her
and the lower court dismissed her application. She then went to the high
court. If so, the dismissal of the maintenance application without relief
being provided is illegal.
After the judgment in Danial Lattifi & another (myself) Vs Union of
India, challenging the constitutional validity of Muslim Women (Protection
of Rights on Divorce) Act of 1986, the Supreme Court has given a Muslim
woman the right to receive maintenance for life from her husband even on
divorce or until she re-marries. Therefore the question of maintenance not
being granted in this particular case cannot even arise.
In order to prevent the destitution and vagrancy that results from
triple talaq, the implementation of the law pronounced is not optional but
mandatory. However, the Muslim leadership, fully aware of the implications
of this judgment, has taken no steps to create general awareness of it in
backward areas.
In the practice of Muslim law in India, the unilateral right of the
Muslim husband to dissolve the contract of marriage is recognised. But in
order to do away with inequalities, various judgments are bringing in an
element of equity. As per the ruling of the Aurangabad Bench of the Bombay
High Court, a talaq must be confirmed by the court in order to be valid,
thereby taking away the instantaneous character from the tradition of
triple talaq. This is applicable all over the country unless the high
court of another state either disagrees with the decision or the Supreme
Court sets the judgment aside.
In the matter of Saddiqunissa, the high court rightly pointed out the
necessary procedure for dissolving marriage. It also pointed out that
talaq could not be given by the husband in one instance and only comes
into force after a certain time (three months and a gap of one month in
each pronouncement) which is meant for reconciliation and arbitration by
friends and relatives. Finally, talaq has to be confirmed by a court,
which has to hold that the marriage was dissolved on valid grounds. Only
then would talaq become final.
The case of Nagma Bibi of Orissa is important here. She was divorced by
her husband in a drunken state. Next morning he realised he had committed
a terrible mistake and wanted his wife back. She also wanted to go back
but community leaders are preventing them from doing so. They have
forcibly sent her with her three children to her father’s house. It is
being suggested that Nagma Bibi will have to marry someone else and only
upon being divorced by that person can she re-marry her husband. This
practice is called Halala.
Triple talaq and Halala are not prescribed in Quran, the main source of
Shariat and Muslim law. These are social evils and not Islamic practices
and only continue to be propagated because of the ignorance of community
leaders as well as the community as a whole.
The maintenance legislation passed in 2001 by Parliament does not
include its benefits for Muslim women. The legislation needs to be amended
to include Muslim women, irrespective of political implications. This is
legally possible after the above-mentioned Supreme Court judgment passed
in September 2001, challenging the Muslim Women (Protection of Rights on
Divorce) Act of 1986. Destitution, vagrancy, trafficking of neglected
women does not vary with region, religion, caste or creed. The response to
the basic right to life based on religion, with which the issue of
maintenance of woman is linked, is unconstitutional and unethical. By
suitably amending the maintenance legislation, we will preserve our
diversity and pluralism. Equality before law and equal protection of law
guaranteed to all citizens by the Constitution would become a reality in
the area of rights of maintenance of Indian women, who are dependent on
their families for survival in the absence of any state social security.
The writer is an advocate of the Supreme Court
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