The proposed bill to outlaw the instant triple talaq (most used way by the Muslim men to divorce their wives by uttering talaq-talaq-talaq in one go), the Muslim Women (Protection of Rights on Marriage) Bill 2017, that was passed by the Lok Sabha yesterday may have unnerved male dominated Muslim organisations, religious scholars and political leaders who are calling it anti-Shariat (hostile to the Muslim personal law) and un-Islamic, the fact is, the country’s apex court, had clearly ruled over three decades ago that religion is irrelevant for practices like divorce and the subsequent issue of maintenance for subsistence.
While delivering a landmark verdict in the Shah Bano case in 1985, Justice Y V Chandrachud, the 16th Chief Justice of India, observed that the Section 125 of the Criminal Procedure Code (CrPC) 1973 that deals with the issue of subsistence maintenance of wives, children and parents with provision of monthly payment included every wife irrespective of her religion, “Clause (b) of the Explanation to section 125 (1) of the Code, which defines “wife” as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Wife, means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman so long as she has not married, is a wife for the purpose of section 125.”
The former CJI emphasized that such provisions are objective and prophylactic in nature and were enacted to give protective cover to the aggrieved party, “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 and therefore such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion.”
Countering the arguments that the verdict encroached upon the Muslim personal law, the former CJI said “true such provisions do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, application is restricted to a defined category of religious groups or classes.”
Further elaborating his counter argument, Justice Chandrachud wrote in the landmark verdict, “Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular, religions like the Hindu Adoptions and Maintenance Act, the Shariat or the Parsi Matrimonial Act.”
And ruled that “the liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individuals’ obligation to the society to prevent vagrancy and destitution” is the moral edict of the law and morality cannot be clubbed with religion.
Shah Bano was 62, with five children to look after, when she filed a court case for maintenance from her divorced husband in 1978. In 1985, after seven years of struggles, the Supreme Court finally upheld the verdict of the high court, recognizing her right to alimony irrespective of her being a Muslim womam as the Muslim personal law doesn’t provide for a maintenance post divorce. Instead, what it provisions is sort of one time package that the husband needs to pay for “Iddat” or the waiting period before the woman can remarry again, usually a period of three months in divorce cases.
The verdict created social storm in the Muslim community and political storm in the country. Muslim clerics were dead against it and their pressure worked when the Rajiv Gandhi government brought in the Muslim Women (Protection on Divorce Act), 1986 next year to overturn the Supreme Court ruling. The bill, though claimed to protect the Muslim women in divorce cases, let erring Muslim husbands go scot-free again. Primacy of the ‘Iddat’ period and thus the superiority of the Muslim men were restored. And instead of giving any direct remedy to the aggrieved woman, she was forced to take a circuitous route, from her close relatives to the Waqf Board to beg for subsistence maintenance.