THOSE OPPOSING TRIPLE TALAQ BILL: HAVE THEY FORGOTTEN WHAT RAJIV GANDHI’S ILL-CONCEIVED SHAH BANO MOVE DID?

Tamil Nadu’s ruling party AIADMK says it will not support the Triple Talaq Bill brought by the government in its present form.

They are demanding to remove the clause from the bill that criminalises instant triple talaq and has provisioned a jail sentence for three years.

In addition, the proposed bill, the Muslim Women (Protection of Rights on Marriage) Bill 2017, also makes the practice of instant triple talaq non-bailable and cognisable offence.

BJD, the ruling party in Odisha, is opposed to the bill as its feels there are several flaws and internal contradictions and needs amendment. The party like many others in the opposition camp including Congress, are questioning the provisions on criminalisation and jail term.

CPI-M says the move by the government is ‘unwarranted and politically motivated.” Its MP Mohammed Salim said, “When the Supreme Court has already banned the triple talaq, there is no need to bring such a law. If divorce has not happened in the first place, where does the need to criminalise the act arise?”

AIMIM’s Asaduddin Owaisi is outrightly dismissive of the bill saying it violates the Fundamental Rights and is also legally inconsistent. He even moved a notice in the Lok Sabha to oppose the bill.

Parties like SP, BSP and RJD are also opposed to the criminalisation provision, a principal demand of Congress, the largest block in the Rajya Sabha, along with the BJP. Both parties have 57 RS MPs each.

And they all are doing so to address their political constituencies. But does it really help? History tells otherwise.

THE SHAH BANO CASE

Shah Bano was 62 when she filed a court petition in Indore in April 1978 demanding maintenance from her divorced husband, a well-to-do lawyer, for herself and her five children, two daughters and three sons. The divorce was not final yet as per Islamic law. Shah Bano demanded her right to alimony, Rs 500 a month, for subsistence under the Section 125 of the Code of Criminal Procedure (CrPC) 1973 which deals with maintenance issue of wives, children and parents.

Her husband had thrown her out and was staying with his second wife. After he stopped giving the promised monthly maintenance sum of Rs 200, Shah Bano was forced to approach the court in April 1978. Irked by the move, the husband made the talaq irrevocable in November 1978 and claimed he was not liable to pay any monthly subsistence as per the Muslim personal law and what all he owned to Shah Bano was Rs 5400, the amount according to their marriage contract or Mehr.

Shah Bano won, both from the Indore local court in August 1979 and from the Madhya Pradesh High Court in July 1980. After the local court found that a meagre sum of Rs 25 a month was enough for her and her five children, she filed a petition in the high court to revise it. The high court upheld the lower court order and raised the monthly maintenance to Rs 179.20 a month. But it was still a mere pittance, much lower than Rs 500 a month demanded by Shah Bano.

Shah Bano’s husband immediately moved to the Supreme Court against the high court order. The first hearing in the Supreme Court took place in February 1981. They referred the case to a larger bench. Soon the case acquired a much larger social canvas with Muslim bodies like the All India Muslim Personal Law Board (AIMPLB) and the Jamiat Ulema-e-Hind joining the case intervenors.

The matter was finally heard by a five judge bench of the Supreme Court. The Justices included India’s 16th Chief Justice Y V Chandrachud, Justice Jangnath Misra, Justice D A Desai, Justice O Chinnappa Reddy and Justice E S Venkataramiah.

They delivered a landmark ruling on 23 April 1985 that not only upheld the high court verdict but also opened the way for awakening among the Muslim women, to raise voice against their commoditization and secondary status, in nuptial agreements, in family and in society. The long fight that has resulted in the Supreme Court banning the practice of instant triple talaq and the government coming up with bill to make it a criminal offence is a testimony of that awakening as the fight was spearheaded by individual Muslim women and Muslim women organizations.

RAJIV GANDHI’S SURRENDER

As was expected to happen, the Supreme Court verdict created a storm. The Muslim clergy vehemently opposed it. They took to streets terming the judgement an encroachment upon their personal laws governed by the Shariat. Political overtones of the protests were so strong that the Rajiv Gandhi Government had to surrender finally. It enacted a law in May 1986 that overturned the Supreme Court decision.

THE PRICE CONGRESS PAID – BUT HAVE OTHERS LEARNT FROM IT?

The way Rajiv Gandhi surrendered before the compulsions of appeasement politics and overturned the Supreme Court ruling on a social malaise that was affecting and afflicting millions of Muslim women, it sent out a message that the government of the day was ready to go to any extent to save its votebanks.

The move by Rajiv Gandhi sent a powerful message that the Congress government that was totally appeasement centric and if it could overturn a historic decision of the top court of the land to appease the minorities, it could never be friendly to the interests of the majority. And there were many takers for this perception.

Senior BJP leader L K Advani, deposing before the Liberhan Commission on Babri Mosque demolition, in fact counted the Shah Bano case as one of the three factors that led BJP to launch the movement for Ram Mandir construction in Ayodhya, “If the Shah Bano episode had not taken place, if the Government had not actively participated or facilitated the shilanyas or opened the Ram temple gates, may be this would not have weighed with us when we were thinking of the Ayodhya Resolution in 1989.”

The step that Rajiv Gandhi believed would pay political dividend, in fact, proved a major drag on his legacy and the political dividend instead went to parties like BJP and Shiv Sena. Congress started shrinking and BJP started growing. And the consequences are there for everyone to see today. BJP is now in 19 states while Congress has shrunk to just four and the party has come down to a historical low in its Lok Sabha representation. It could win just 44 seats in the 2015 General Election.

And Rajiv Gandhi did it for a social malaise that that had made lives of Muslim women a hell. 95 per cent of the arbitrarily divorced Muslim women don’t get any compensation or maintenance from their husbands, a survey by the BMMA reveals. The BMMA survey also says 92 per cent Muslim women want triple talaq banned.

The Lok Sabha where BJP and its allies are in absolute majority passed the bill to ban instant triple talaq on 28 December. Now the Rajya Sabha will take it up on 2nd January for discussion and passage. If BJP and Congress can reach to a compromise, then opposition by any other party will not matter.

And history says Congress would not do so, reflecting in the fact that it was, in fact, a poorly calculated decision by Rajiv Gandhi, even if under the pressure of Muslim clerics, that became one of the rallying points for Hindutva politics.

Congress, it seems, has learnt its lessons after paying a heavy price. But can we say that about others?

©SantoshChaubey

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SHAH BANO CASE: WHEN SUPREME COURT RULED THAT RELIGION IS IRRELEVANT IN DIVORCE MAINTENANCE CASES

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.

©SantoshChaubey