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From Shah Bano to Shabana
Innovative judicial interpretations of Muslim law advance the
cause of Muslim women
BY FLAVIA AGNES
1. The unfolding of the Muslim Women’s Act (MWA)
In recent years the rights of Muslim women have been
advanced by innovative interpretations of Muslim law by the judiciary.
These are important markers that serve to strengthen the rights of Muslim
women. But, rather unfortunately, these have not received the media
attention they deserve with the result that their impact is not felt on
the ground. Despite these positive interventions, Muslim women continue to
suffer due to misinformation about their rights. It is not just the
conservative Muslim religious leadership; academics or scholars,
progressive Muslim intellectuals, NGO activists and at times even lawyers
and judges in trial courts are also unaware of these developments. This
article attempts to trace these developments and popularise the
advancements that have strengthened the position of Muslim women in this
regard.
After the controversy about the Shah Bano judgement in
19851 and the enactment of the Muslim Women (Protection of Rights on
Divorce) Act in 1986, it appeared that the divorced Muslim woman’s right
to maintenance had been extinguished. It seemed that the state had
sacrificed the rights of divorced Muslim women to appease the Muslim
religious leadership within vote bank politics. The only recourse left to
those who opposed this enactment was to challenge this act by way of a
writ petition and get it struck down in courts.
So within the same year around 15 different writ
petitions were filed by secular groups and women’s organisations,
including the National Commission for Women. The first of these
petitions was the one filed by Danial Latifi, the senior counsel who
had represented Shah Bano Begum in the controversial case. The writ
petitions lay dormant in the Supreme Court for a long time and before
this one came up for trial, Danial Latifi, already advanced in years
when he argued the Shah Bano case, had passed away.
While the writ petitions lay dormant, the act began to
unfold in the lower courts. Gradually, several appeals filed by husbands
against the rulings of various high courts also started accumulating in
the Supreme Court alongside the writ petitions filed in 1986-87. What was
intriguing was that if indeed the act was depriving women of their rights
and was enabling husbands to wriggle out of their financial liability, why
did the husbands find themselves "aggrieved" by the orders passed under a
blatantly anti-woman statute? Perhaps the manner in which the act was
unfolding in the lower courts was indicative of a different reality. It is
in this context that I set out to research legal precedents for the MWA.
2. Rulings of various high courts
between 1988 and 2000
It seemed that a seemingly innocuous clause, which had
escaped the attention of protesters and defenders alike, had been invoked
by a section of the lower judiciary in order to pronounce judgements that
provided greater scope for protection against destitution. Section 3(1)(a)
of the act stipulates that a divorced Muslim woman is entitled to "a
reasonable and fair provision and maintenance to be made and paid to her
within the iddat period by her former husband". This clause, along
with the preamble describing the law as "An act to protect the rights of
Muslim women who have been divorced by, or have obtained divorce from,
their husbands…", had been invoked by the judiciary in defence of Muslim
women’s rights.
The high courts of Gujarat and Kerala were among the first
to herald the new tidings. They affirmed that the new act was intended to
protect the rights of divorced Muslim women and not to deprive
them of their rights. They further stressed that any ambiguity within its
clauses must be interpreted in a manner consistent with the proclamation
contained in the title of the act. Banishing divorced women to a life of
destitution would not amount to protecting their rights as stipulated by
the statute, they declared.
The first significant judgement on this issue was
pronounced by the Gujarat high court on February 18, 1988, within a year
and a half of the enactment. But even before this, the die was cast in
favour of women by a woman judicial magistrate in Lucknow on January 6,
1988. The woman concerned, Fathima Sardar, was awarded Rs 85,000 as fair
and reasonable provision and maintenance during the (three-month) iddat
period. Justice MB Shah, presiding at the trial in the Gujarat high court,
explained: "The determination of fair and reasonable provision and
maintenance would depend upon the needs of the divorced woman, standard of
life enjoyed by her during her marriage and the means of her former
husband. The amount must include provision for her future residence,
clothes, food and other articles for her livelihood."2
In the same year the Kerala high court reaffirmed this
position in Ali vs Sufaira3 and Aliyar vs Pathu4
and later in Ahmed vs Aysha5
in 1990. In 1995 a division bench of the Kerala high court explained: "The
clause, ‘reasonable and fair provision and maintenance to be made and paid
to her within the iddat period’, is as follows: Provision is
to be made and maintenance is to be paid. The provision has to be made to
secure livelihood of the wife. This need not be in monetary terms; it
could be by grant of immovable property or other valuable assets or other
income-yielding property. Provision must be made within the iddat
period and it has to be fair and reasonable. … The revolt against the Shah
Bano judgement by a section of Muslims was only in respect of a continued
liability. There was no dispute regarding the liability of the husband to
pay. It is difficult to think that Parliament has, by enacting the act,
completely taken away the right of divorced Muslim women under Section 125
of the CrPC [Code of Criminal Procedure] without making any provision as a
compensatory measure."6
In 2000 a full bench of the Bombay high court, in
Karim Abdul Rehman Shaikh vs Shehnaz Karim Shaikh,7 clarified that
‘maintenance’ and ‘reasonable and fair provision’ cannot be confused
with mehr (bridal gift from the husband to the wife). Mehr
is a liability which cannot be discharged by way of any other payment
or consequences. In cases where the husband is unable to pay the
entire amount, the court held that the amount can be paid in
instalments and until the payment is made, the magistrate can direct
monthly payment to the wife even beyond the iddat period.
3. The Supreme Court ruling in the Danial Latifi
case settles the controversy
In 2001 a Constitution bench of the Supreme Court, ruling
in the matter of Danial Latifi vs Union of India,8 put an
end to the entire controversy and upheld the constitutional validity of
the Muslim Women’s Act. The court confirmed that the MWA had substituted
the earlier right to recurrent maintenance under Section 125 of the CrPC
with a new right to a lump sum provision to be made and paid to the woman
soon after her divorce. If the husband fails to make the settlement, a
divorced Muslim woman has the right to approach the magistrate’s court for
enforcement of the right under Section 3 of the MWA.
After this judgement, it becomes clear that a Muslim
husband is liable to make a reasonable and fair provision for the future
of his divorced wife, and this must be done within the iddat
period. The court also clarified that the liability of a Muslim husband to
pay maintenance to a divorced wife under the act is not confined to the
iddat period. A divorced Muslim woman is entitled to a fair and
reasonable provision with respect to her future needs.
Interestingly, in this long-drawn-out legal battle, both
sides – the husbands who were "aggrieved" by the interpretation of the MWA
and the secular groups who had challenged the validity of the act – lost
out. It was a victory for the Muslim woman who had fought for her right to
survival. Viewed in this context, the struggles of individual Muslim women
who defied the dictates of patriarchy in defence of their right must be
acknowledged as acts of assertion. This was a great triumph for individual
Muslim women, who had to fight every inch of the way because of the
ambiguities created by callous and inadequate draftsmanship. The act left
ample scope for Muslim men to exploit the situation, which led to
protracted litigation that was beneficial to husbands and a nightmare for
women. But women withstood the ordeal with courage and determination, with
patience and perseverance. Today the end results of this determined
struggle are clearly visible. The Muslim woman has secured for herself the
right to determine her financial rights after divorce and get a lump sum
settlement, a right that is lacking in the matrimonial laws of other
communities.
4. Invalidating arbitrary triple talaq
There have also been important judicial interventions that
dealt with the issue of arbitrary triple talaq. The leading case on this
issue is Shamim Ara vs State of UP,9 in which the Supreme
Court held that a mere plea taken in a written statement, of a divorce
having been pronounced some time in the past, cannot be treated as the
pronouncement of talaq. Thus the liability of the husband to pay
maintenance to his wife does not come to an end through such
communication. The court commented that for talaq to be valid it
has to be pronounced in accordance with Koranic injunctions.
Several high courts have also rejected the practice of
triple talaq and held that talaq has to adhere to Koranic injunctions. In
Dagdu Pathan vs Rahimbi Pathan,10 a full bench of the Bombay high
court ruled that a mere assertion to the court by the husband that he has
divorced his wife is insufficient, he must prove the divorce by presenting
evidence before the court. He cannot divorce his wife at will. In
Najmunbee vs Sk Sikander Sk Rehman,11
the Bombay high court reiterated this position and held that a Muslim
husband cannot repudiate the marriage at will. There has to be a
supporting reason, his decision cannot be based on a whim. Muslim law
mandates pre-divorce attempts at reconciliation through the appointment of
two arbitrators, one from each side, to mediate between husband and wife.
In Mustari Begum vs Mirza Mustaque Baig,12
it was held that the husband did not plead that he had given talaq
through a talaqnama. In an oral divorce, the word ‘talaq’ must be
articulated. The mere assertion in a written statement or show-cause that
divorce had been pronounced cannot in itself be treated as effectuating
talaq on the date that a copy of such a document is delivered to
the wife. In Shahzad vs Anisa Bee,13
it was held that there must be some reasonable cause for granting a
divorce to the wife of a Muslim husband. In Farida Bano vs Kamruddin,14
it was held that unless requirements are proved, talaq is not
actionable.
In Dilshad Begaum Ahmadkhan Pathan vs Ahmadkhan
Hanifkhan Pathan,15 the sessions judge accepted the husband’s
contention that he had pronounced talaq to his wife in the
presence of witnesses at a mosque. This was duly proven by his
subsequent actions. Hence the trial court order awarding the wife Rs
400 as maintenance was quashed. But when the matter went up on appeal,
the Bombay high court held that though the husband had proved that he
had pronounced talaq, it was not a valid and legal talaq, as
the additional requirements had not been satisfied. The husband had
not stated the reasons for the divorce nor had arbitrators been
appointed to initiate pre-divorce attempts at reconciliation. The
failure of such pre-divorce proceedings or the situation wherein it
was impossible for the marriage to continue had not been adequately
established. A compromise was arranged through a written document
recording the fact that the husband had agreed to transfer one-third
of his land to his wife if he failed to cohabit with her or failed to
maintain her as his wife. The court held that this document was not
acted upon by the husband and it did not fulfil the additional
requirements in any way. The talaq was thus not valid and
legal. The impugned judgements were quashed and set aside.
In Riaz Fatima vs Mohd Sharif,16 the husband
pleaded that he had divorced his wife and hence she was not entitled to
maintenance under Section125 of the CrPC. He also produced a photocopy of
a fatwa obtained by him in respect of the divorce. He also disputed
paternity of the minor child. Rejecting the husband’s contentions, the
trial court had awarded Rs 400 to the wife and Rs 225 to the minor
daughter. But the sessions court had overruled this decision and the woman
and child were denied maintenance. In an appeal to the high court, the
court discussed in detail the issue of proving the talaq and spelt out the
requirements for a valid talaq:
i. Divorce must be for a reasonable cause; that is
mandatory in the holy Koran. Therefore, when a dispute arises, the husband
has to furnish evidence showing the cause which compelled him to divorce
his wife.
ii. He has to prove that the word ‘talaq’ was proclaimed
thrice in the presence of witnesses or in a letter (as pleaded in the
instant case). Until this is proved, the talaq is not valid.
iii. There has to be proof of payment of the mehr
amount or observance of the period of iddat.
iv. The husband has also to prove that there was an
attempt at settlement/conciliation prior to the divorce.
The high court held that in this case there was
insufficient evidence to show that the husband had pronounced talaq
to his wife and a fatwa was obtained. A mere written statement by the
husband asserting that he had divorced his wife on a particular day would
not suffice. The court held that the prerequisites have to be fulfilled
before a Muslim husband can divorce his wife. Though the metropolitan
magistrate had categorically decreed that the husband had not been able to
prove his plea, the sessions judge did not address this issue at all, as
he was relying on the mere averment made in the written statement. After
perusal of the trial court records, the high court held that there was no
proof of a valid talaq and hence the bar stipulated in the MWA was
not applicable. The high court also rejected the husband’s plea disputing
paternity on the ground that since the husband had clear access to the
wife when conception could have taken place, presumption under Section 112
of the Indian Evidence Act would come into effect. The metropolitan
magistrate’s order awarding maintenance to the wife and daughter under
Section 125 of the CrPC was restored.
In Gama Nisha vs Chottu Mian,17 it was held that
the necessary requirements for proving talaq had not in fact been
proved. A written statement cannot be treated as talaq. The husband could
not prove that he had already divorced his wife. A fatwa of talaq
is a question of fact that must be proved through evidence.
5. Jurisdiction of family courts over rights of divorced
Muslim women
Where family courts have been set up, jurisdiction under
Section 125 of the CrPC lies with the family courts. But jurisdiction
under the Muslim Women’s Act lies with the magistrates’ courts. This
caused Muslim women great hardships. More often than not, when a deserted
woman approaches the family courts for her right to maintenance under
Section 125 of the CrPC, the husband in collusion with his lawyer sends a
talaqnama and claims that he is not entitled to maintain his
divorced wife after the enactment of the MWA.
All the cases discussed above have attempted to deal with
this situation while protecting the rights of women. The courts have
either held that such divorces are arbitrary and un-Islamic or that a
divorced woman has the right to lump sum settlements. But since the
jurisdiction for claiming lump sum settlements lay with the magistrate’s
court, the woman would have to withdraw her application for maintenance
filed in the family court and initiate a fresh round of litigation in the
magistrate’s court, which caused a great deal of hardship and a delay in
securing her rights. It is in this context that a recent judgement of the
Supreme Court, pronounced by Justices Deepak Verma and B. Sudershan Reddy
on December 4, 2009, gains relevance.
The case concerned a deserted Muslim woman, Shabana Bano,
who had approached the family court for maintenance of Rs 3,000; her plea
being that when she was pregnant, her husband had left her in her natal
home with a warning that she would not be allowed to return after the
child’s birth unless his demands for dowry were met. Shabana Bano was
constrained to file a petition for maintenance under Section 125 of the
CrPC in the family court at Gwalior. Since the husband pleaded that he had
divorced Shabana and was thus not entitled to pay her maintenance, the
court awarded her Rs 2,000 per month for the four intervening months
between the institution of her petition and her divorce. The Madhya
Pradesh high court dismissed her appeal. It is against this background
that the Supreme Court upheld her rights.
The judges relied upon two earlier rulings, the historical
Constitution bench ruling in Danial Latifi in 2001 and the more
recent ruling in Iqbal Bano vs State of UP in 2007, while upholding
the woman’s rights. The Iqbal Bano ruling of 2007 had held that
proceedings under Section 125 of the CrPC are civil in nature. Hence even
after the divorce, the woman would be entitled to claim maintenance under
Section 125 considering the beneficial nature of the legislation.
This leads us to conclude that: a divorced Muslim woman’s
right to maintenance (or financial settlement) from her husband is not
extinguished upon divorce; she is entitled to a lump sum settlement under
the MWA; while jurisdiction under the MWA lies with the magistrates’
courts, where family courts have been set up, if an application for
maintenance under Section 125 of the CrPC is filed before the family
court, and the husband pleads that he has divorced the wife, the court
must determine the pending case in accordance with the provisions of the
MWA. She does not need to file a separate application in the magistrate’s
court.
Conclusions
While these are significant rulings that should have a
far-reaching impact, unless they are used in trial court litigations and
are used to change social norms within communities, they will remain as
ornamental snippets in law journals. Unless all those who are committed or
statutorily bound to protect the rights of poor Muslim women – lawyers,
women’s groups and social activists – are aware of these gains, the
judicial pronouncements will cease to have an impact on the lives of
Muslim women, as was the case with Shabana Bano.
Rather ironically, Shabana was married in 2001, after the
Danial Latifi ruling. She filed for maintenance in March 2004. The
case followed the usual trajectory, that when an application for
maintenance is served on the husband he sends the talaqnama along
with his reply.
But sadly, both the family court at Gwalior and the Madhya
Pradesh high court did not apply the principles laid down in Danial
Latifi to her case. This resulted in grave financial hardship and a
delay in accessing her basic right to maintenance. If, for an ordinary
citizen, ignorance of the law is no defence for the commission of a crime,
ignorance of accurate legal provisions protecting the rights of the
vulnerable and marginalised cannot be a defence for lawyers, judges and
conciliators who are duty bound to protect their rights. n
(Flavia Agnes is director of Majlis, a legal centre for
women, based in Mumbai.)
Notes
1 Mohd Ahmed Khan vs Shah Bano Begum AIR 1985 SC
945
2 Arab Ahemadhia Abdulla vs Arab Bail Mohmuna
Saiyadbhai AIR 1988 Guj 141
3 1988 (2) KLT 94
4 1988 (2) KLT 172
5 II (1990) DMC 110
6 K. Kunhammed Haji vs K. Amina 1995 Cri.LJ 3371
7 2000 Cri.LJ 3560
8 2001(7) SCC 740: 2001 Cri.LJ 4660 SC FB
9 2002 (7) SCC 518
10 II (2002) DMC 315 Bom FB
11 I (2004) DMC 211 Bom
12 II (2005) DMC 94 Ori
13 II (2006) DMC 229 MP
14 II (2006) DMC 698 MP
15 II (2007) DMC 738 Bom
16 I (2007) DMC 26 Del
17 II (2008) DMC 472 Jha
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