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Mumbai High Court’s landmark judgement on talaq
By Asghar Ali Engineer
|Recently the Aurangabad Bench of Bombay High Court gave an important judgement in Muslim divorce case. It is a landmark judgement, which will benefit many suffering Muslim women who are arbitrarily divorced. We would like to throw light on this judgement. Before we throw light on the judgement we would like to say something about the personal law as applicable to Muslims in India.
There are great deal of misconceptions about Muslim personal law both among Muslims and non-Muslims. Muslims think it is beyond the scope of any change as it is divine and perfect in every respect. The non-Muslims think, on the other hand, it is very rigid and unfair to women and stands in need of improvement. Some rationalists and ironically communalists of the Sangh Parivar want to abolish personal laws and implement Common Civil Code. The whole matter is stuck between these polarities and one can hardly hope either from the Muslim Personal Law Board or country’s legislature to effect some reasonable changes.
For Muslims their personal law has also become a matter of their religious identity. They do not want any interference from government of the country or by legislature in their personal law as it is deemed undue interference in their religious matters. They argue that freedom of religion has been guaranteed by Art. 25 of the Constitution and effecting any changes amount to curtailing this freedom. Even the Supreme Court judges are not unanimous on the question whether enforcing Uniform Civil Code as per Article 44 of the Constitution would violate the right under Article 25 or not.
The Muslims feel that Articles 25 and 44 contradict each other and there is no question of enforcing Article 44 which is any way only recommendatory and not obligatory. Thus minorities in general and Muslims in particular refuse to allow any change in their personal laws. On account of this it is women who suffer. Another complication factor is the aggressive attacks by the Sangh Parivar on Muslims from time to time. The communal violence on the scale on which it was perpetrated in Gujarat recently makes minorities extremely insecure and naturally so. In such conditions they are bound to resist any attack on their religious identity.
But one can hardly ignore the plight of women either. Many Muslim men are unjust in their behaviour towards women. They, like men of other religious communities, treat women as mere chattels. Islam had provided women not only with dignity but also gave them concrete legal rights in no way inferior to men. As far as women were concerned Islam was nothing short of a social revolution for them.
However, society drags down religion to its own level. The society was not prepared to accord high or equal status to women. It managed, through various means, to push women to lower status on the social ladder. Pre-Islamic customs and traditions found place in Islamic Shari`ah through what can be called analogical reasoning (qiyas) and ijma` (i.e. consensus)
Thus Muslims must understand that Shari`ah laws have incorporated human reasoning as much as divine injunctions and human reasoning is greatly influenced by ones own social and cultural ethos. The medieval social and cultural ethos prevailed over Qur’anic injunctions and Qur’anic ethos. The status of Muslim women, which was elevated came hurtling down. Is it not for Muslims to seriously reflect on this and bring about desired changes in Muslim personal law as applicable in India?
It is also important to note that what is known as Muslim personal law was enacted by the British government in the nineteenth century and was based, apart from Shari`ah law, on British procedural law and also on various preceding judgements. It was not even properly codified. The judgements of those days delivered by the British courts were influenced by social ethos of Victorian period, which moulded the opinion of the British judges and also by prevailing and proven customs and traditions.
Today women’s rights have assumed great importance and have to be taken into account while deciding the cases pertaining to marriage, divorce, maintenance and property. Still our social traditions are such as to deny women rights in these respects. And as far as Muslim personal law is concerned, in the absence of any codification it is judge’s opinion, which takes precedence. Also, one has to remember that whatever the personal law judge is bound to be influenced by the social movements for women’s rights. No judge can ignore the rights of women in today’s social ecology.
The Supreme Court judgement in the Shah Bano’s case in 1985 also has to be seen in this light and the subsequent law (Muslim Women’s Act, 1986) upturning the Supreme Court judgement did not influence judges minds and they continue to give judgements as before even under the new law. Subjective human role is very important and this role is determined by prevailing social ethos. That is why most of the high courts are giving progressive judgements in favour of Muslim women.
The latest judgement was delivered by Aurangabad Bench of Bombay High Court in respect of divorce of a Muslim woman. This judgement will greatly benefit Muslim women in India. The system of triple divorce is widely prevalent among Sunni Hanafi and Shafi'i`i Muslims except of course among Ahl-i-Hadith. But Ahl-i-Hadith are in small minority any way.
Fahimbi from Latur was married to Dagdu Chote and three children were born from this wedlock. Fahimbi filed a case under Section 125 of Cr.P.C. for maintenance for herself and for her three children. Dagdu Chote married another woman Kamrunbee and from her also children were born. He neglected the first wife Fahimbi and her children and did not pay any maintenance.
On receipt of summons from the Court Dagdu Chote appeared before the court and filed a reply saying he does not owe any maintenance as he divorced her (Fahimbi) on 24th February 1995. He also claimed that he divorced his wife in the presence of a Qazi and two witnesses one of whom was Muslim and another one Hindu. He, therefore, prayed before the court that application for maintenance under Section 125 of Cr.P.C. by Fahimbi be dismissed. This petition was dismissed by the 2nd joint judicial magistrate First Class at Latur on 21st November 1998. And the maintenance application filed by Fahimbi and her three children was allowed. The Magistrate maintained that the fact of talaq must be proved, as it cannot be accepted merely on grounds of pleading.
The respondent No. I i.e. Fahimbi maintained that she was unaware that talaq has been given to her as it was not communicated to her by registered post which was returned. However, a presumption was made by Dagdu that pronouncement of talaq was communicated to the wife on 30th November 1992. The reason stated in the talaqnama executed was that the wife had filed a case for maintenance and that she insulted the husband and mother-in-law as well as there were differences of opinion, as a result of which they cannot run a family.
The husband had pleaded orally that he had divorced his wife as per Mohammadan Law by pronouncing talaq in presence of two witnesses though there he gave no reasons. The learned Judges maintained that as per the Holy Qur’an there should be 1) it should be for reasonable cause, 2) it should be preceded by an attempt at reconciliation and c) the talaq be effected if the attempt for reconciliation failed.
This view was taken by the Single Judge and the learned judge had agreed with the Gauhati High Court in the case of Zeenath Fatima Rashid and the Calcutta High Court in the case of Chandbi.
The Aurangabad Bench formulated the issues as follows: 1) whether a Muslim husband has a right to divorce his wife without any reason and merely at his whim; 2) whether the Muslim law mandates pre-divorce reconciliation and whether any pleading by husband in the court that he divorced his wife which would amount to divorce according to Muslim law and whether the husband has to prove in the court that talaq was duly effected.
General belief is that a Muslim husband is free to divorce his wife any time at his will and without assigning any reason but the teachings of Holy Qur’an and other sources of Islamic law hold marriage as contract but once marriage takes place it becomes an institution for life long and this contract is holy and sacred (the Qur’an describes it as mithaq-e-ghaliz i.e. strong covenant).
The talaq must be preceded by an attempt at reconciliation. The Muslim law also recognises distinction between effective or proper talaq and ineffective or improper talaq. Thus it is necessary, the Aurangabad Bench of Bombay High Court concluded that a talaq, even if it is oral, must be proved before the Court, if it is contested by wife by leading evidence.
The above judgement will be quite beneficial for women and is quite in keeping with the Islamic law, particularly in keeping with the Qur’anic pronouncements on talaq. The Qur’an lays emphasis on justice, not on arbitrariness. Anyone who ignores the spirit of justice violates Qur’anic spirit. The `Ulama and members of Muslim personal law board must not allow any Qur’anic injunction or spirit to be violated. The Qur’an has done great service to the cause of women and empowered them through their clearly defined legal rights. Time has come that this Qur’anic spirit be upheld and justice be done to suffering Muslim women.
One must also congratulate the learned judges of the Aurangabad Bench to have discussed the matter in detail in their judgement in the light of the Qur’an and its injunction and not merely on grounds of secular and constitutional laws. This is indeed a healthy change. q
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