முத்தலாக்கும், ஷாபானு வழக்கும். Triple Talaq - Shah Bano Case in SC(1985)

முத்தலாக்கும், ஷாபானு வழக்கும். Triple Talaq - Shah Bano Case in SC (1985)

இந்தியாவில் முத்தலாக் சட்டம் நாடாளுமன்றத்தில் நிறைவேற்றப்பட்டு குடியரசுத் தலைவரின் ஒப்புதலை பெற்றுள்ளது. இஸ்லாம் மார்க்கத்தில் ஆண்கள் தங்களின் மனைவியிடம் மூன்று முறை தலாக் என்று மட்டும் சொல்லி மணமுறிவு அறிவிப்பது இனிமேல் முடியாது.

ஏற்கனவே 1985ஆம் ஆண்டு உச்சநீதிமன்றம் சா பனோ என்பவரது வழக்கில் இஸ்லாம் பெண்களுக்கு சில உரிமைகள் உண்டு என்று தன்னுடைய தீர்ப்பில் கூறியது. அத்தீர்ப்பில் தலைமை நீதிபதி ஒய்.வி.சந்திரசூட், டி.ஏ.தேசாய், ஓ.சின்னப்ப ரெட்டி, வெங்கட்டராமய்யா, மிஸ்ரா ரகுநாத் ஆகிய நீதிபதிகள் மணமுறிவு பெற்ற முஸ்லிம் பெண்களுக்கு ஜீவனாம்சம் பெற உரிமை உண்டு என்று தீர்ப்பில் கூறியிருந்தனர். இஸ்லாம் அமைப்புகள் இது மத மார்க்க நெறிமுறைகளுக்கு விரோதமானது என்று உச்சநீதிமன்றத்தில் வாதாடினார்கள். இந்த வழக்கில் நீதிபதிகள் ஆணும், பெண்ணும் சமுதாயத்தில் சரிசமமே. யாருடைய உரிமைகளும் பாதிக்கப்படக் கூடாது என்பது அடிப்படைக் கூறாகும் என்று தங்களின் தீர்ப்பில் குறிப்பிட்டிருந்தனர். 
ஆனால் இந்த தீர்ப்பின் மீது எதிர்வினைகள் இருந்தன. இதை குறித்தான விவாதமும் நாடாளுமன்றத்தில் 1986 மே மாதம் 4, 5 தேதிகளில் வாக்கெடுப்போடு நடந்ததாக நினைவு. ஏனெனில், மதுரையில் டெசோ மாநாடு ஏற்பாடுகளை மே 2, 3 தேதிகளில் கவனித்து வந்தேன். மாநாட்டிற்கு வந்த கே.பி.உன்னிகிருஷ்ணன்., ஃபரூக் அப்துல்லா, முரசொலி மாறன், வைகோ, சி.டி.தண்டபாணி, ராமாநாதபுரம் சத்யேந்திரன் போன்ற நாடாளுமன்ற உறுப்பினர்கள் டெசோ மாநாடு முடிந்த நள்ளிரவிலேயே சென்னை சென்று மறுநாள் காலை டெல்லிக்கு செல்லும் விமானத்தை பிடிக்க வேண்டிய நிலையில் இருந்தனர். ஷாபானு வழக்கை குறித்து நாடாளுமன்ற விவாதத்தில் பங்கேற்க வேண்டுமென்று மிகவும் சிரமப்பட்டு சென்றதெல்லாம் கண்முன் தெரிகிறது.
இதுவரை முத்தலாக் முறை பல நாடுகளில் ரத்து செய்யப்பட்டுள்ளன என்று தகவல்கள் உள்ளன. அவை வருமாறு.

துருக்கி (1926), சைப்ரஸ் (1926), எகிப்து (1929), சூடான் (1935), ஸ்ரீலங்கா (1951), சிரியா (1953), துனிசியா (1956), மொராக்கோ (1957), ஈராக் (1959), பாகிஸ்தான் (1961), ஈரான் (1967), மலேசியா (1969), வங்காளதேசம் (1971), இந்தோனேஷியா (1974), ஜோர்டான் (1977), அல்ஜீரியா (1984), புருனே (1999), யு.எ.இ (2005), கத்தார் (2006), இந்தியா (2019).

முத்தலாக் ஏற்புடையதா? இல்லையா? என்ற விவாதம் ஒரு பக்கம் நடந்த வண்ணம் இருக்கின்றன. மதசார்பின்மை என்ற நிலையில் எந்த கருத்துகளையும் சொல்லிவிட முடியாது. என்ன நடந்தது? என்ன நிலைப்பாடு என்பதை தான் நம்மால் உணர முடிகின்றது.

*Triple Talaq - Shah Bano Case in SC(1985)*

President Ram Nath Kovind has given assent to the triple talaq bill passed by Parliament, turning it into a law which makes the practice of instant divorce among Muslims a punishable offence, a government notification said. The gazette notification, published on Wednesday, says the president has given assent to the bill passed by parliament. This juncture we have to go back to 1985 that Shah Bano case in Supreme Court of India.

The Shah Bano judgement: The Shah Bano judgement gave Muslim women certain rights. Because the all India Muslim Personal Law board was against this, Rajiv Gandhi's government intervened through the parliament to enact laws that would over turn the judgement and disempower women like Shah Bano (pic.). Here is the operational text of the judgment.

The Shah Bano judgement 23rd April 1985. Chandrachud, Y.V. ((Cj), Desai, D.A., Reddy, O. Chinnappa Reddy (J), Venkataramiah, E.S. (J), Misra Rangnath

This appeal, arising out of an appellation filed by a divorced Muslim woman for maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction.

The appellant, who is an advocate by profession, was married to the respondent in 1932. Three sons and two daughters were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore asking for maintenance at the rate of Rs 500 per month. On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq. His defence to the respondent's petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to provide that he was therefore under no obligation maintenance for her, that he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat. In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. It may be mentioned that the respondent had alleged that the appellant earns a professional income of about Rs. 60,000 per year. In July, 1980, in a revisional application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. The husband is before us by special leave.

Under  section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1), 'wife' includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions.

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. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent ? 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. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True, that they 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, their application is restricted to a defined category of religious groups or classes. The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual's obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion. Clause (b) of the Explanation to section 125(1), which defines 'wife' as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character.

According to the Explanation to the proviso:

"If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him."

It is too well-known that "A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular". (See Mulla's Mahomedan Law,18th Edition, paragraph 25S, page 285, quoting Baillie's Digest of Moohummudan Law; and Ameer Ali's Mahomedan Law, 5th Edition, Vol. II, page 280). The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that  section 125 overrides the personal law, if is any there conflict between the two.

According to Dr Paras Diwan:

"When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat.... On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognise any obligation on the part of a man to maintain a wife whom he had divorced." (Muslim Law in Modern India, 1982 Edition, page 130) These statements in the text book are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself. One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent both, in quantum and induration, of the husband's liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dir hams, which is equivalent to three or four rupees (Mulla's Mahomedan Law, 18th Edition, para 286, page 308). But, one must have regard to the realities of life Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We are of the opinton that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject matter of section 125. That section deals with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain herself. Since the Muslim Personal Law, which limits the husband's liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under all obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. The argument of the appellant that, according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact she is unable to maintain herself, has therefore to be rejected. The true position is that, if the divorced wife is able to maintain herself, the husband's liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of  section 125 and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself.

There can be no greater authority on this question than the Holy Quran, "The Quran, the Sacred Book of Islam, comprises in its 114 Suras or chapters, the total of revelations believed to have been communicated to Prophet Muhammed, as a final expression of God's will". (The Quran- Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 . of the Quran show that according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives. ….

It is a matter of deep regret that some of the interveners who supported the appellant, took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women who are unable to maintain themselves.

The written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how a Muslim divorce should maintain herself. The facile answer of the Board is (that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephew and cousins, to support her.

This is a most unreasonable view of law as well as life.

We appreciate that Begum Temur Jehan, a social worker who has been working in association with the Delhi City Women's Association for the uplift of Muslim women, intervened to support Mr. Daniel Latifi who appeared on behalf of the wife

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". There is no evidence of any official activity for framing a common civil code for the country.A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law.A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.

Dr. Tahir Mahmood in his book 'Muslim Personal Law' (1977 Edition, pages 200-202), has made a powerful plea for framing a uniform Civil Code for all citizens of India. He says: "In pursuance of the goal of secularism, the State must stop administering religion based personal laws". He wants the lead to come from the majority community but, we should have thought that, lead or no lead, the State must act. It would be useful to quote the appeal made by the author to the Muslim community:

"Instead of wasting their energies in exerting theological and political pressure in order to secure an "immunity" for their traditional personal law from the state` legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India."

At a Seminar held on October 18, 1980 under the auspices of the Department of Islamic and Comparative Law, Indian Institute of Islamic Studies New Delhi? he also made an appeal to theMuslim community to display by their conduct a correct understanding of Islamic concepts on marriage and divorce (See Islam and Comparative Law Quarterly, April-June, 1981, page 146).

Before we conclude, we would like to draw attention to the Report of the Commission on marriage and Family Laws, which was appointed by the Government of Pakistan by a Resolution dated August 4, 1955. The answer of the Commission to Question No.5 (page 1215 of the Report) is that "a large number of middle-aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children."

The Report concludes thus:

"In the words of Allama Iqbal, "the question which is likely to confront Muslim countries in the near future, is whether the law of Islam is capable of evolution-a question which will require great intellectual effort, and is sure to he answered in the affirmative "

For these reasons, we dismiss the appeal and confirm the judgment of the High Court. The appellant will pay the costs of the appeal to respondent 1, which we quantify at rupees ten thousand. It is needless to add that it would be open to the respondent to make an application under section 127 (1) of the Code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section.

Appeal dismissed.

This matter was raised in both houses of Parliament and at that time it was the banning issue all over India.

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கே.எஸ்.இராதாகிருஷ்ணன்.

01-08-2019