Open Forum

New Delhi, 31 March 2016

Muslim Women’s Rights

UNIFORM CIVIL CODE VITAL

By Oishee Mukherjee

It may be an agonizing wait for Muslim women yearning to be freed from the shackles of personal laws. However, the silver lining is that Supreme Court is seized of the matter and there may be light at the end of the day. The validity of ‘triple talaq’, polygamy and alimony are under question and those in favour and against will have to battle it out once again,  

Entertaining a PIL, the apex court has agreed to hear the All-India Muslim Personal Law Board’s objections and asked the Centre to submit its report on ‘women and the law’, wherein various practices require reform. Recall, the court had last October asked the Government why polygamy in the Muslim community should not be banned and sought its response in framing a Uniform Civil Code as provided under Article 51 of the Constitution. An opinion being that no fundamental rights should be violated by personal laws governing marriages and divorces.

It is surprising that the code hasn’t been implemented though Article 44 of the Constitution stated clearly: the State “shall endeavour to secure for the citizens a uniform civil code throughout the territory of India” but political and religious sensitivities have prevented such possibility.

Meanwhile, a Mumbai-based organization, the Bharatiya Muslim Mahila Andolan, which is a national coalition, wants to fight Muslim women’s right to polygamy and oral divorce. According to its co-founder Zakia Soman, there is need to reform Muslim personal law. A survey conducted by the group across 13 States including Bengal, Maharashtra, Jharkhand, Karnataka, Bihar and Tamil Nadu revealed that nearly 92 per cent of Muslim women want a ban on oral and unilateral divorce (triple talaq) while 78 per cent divorced women had no say in their divorce and over 53 per cent faced domestic violence.

The Supreme Court had as early as 1986 ruled that divorced Muslim women who were unable to sustain themselves were entitled, like their counterparts from other regions, to alimony throughout their lifetime or till they remarried.  But the government passed a law reverting the alimony period to the traditional period of three months with a provision to move court if denied this relief.

Recently, the apex court suggested that a Constitution bench re-examine the controversial law because Muslim women cannot be discriminated against in terms of polygamy and alimony. It had sought the response of the Government and the National Legal Services Authority and something should be expected soon.  

It is significant that Zakia’s organization has already written to the Prime Minister, the Law Commission and the National Commission for Women forwarding the survey findings and requesting action. It is understood that they would approach the apex court for justice.  

As is well known that prior to Mohammad Ahmed Khan v. Shah Bano Begum, a Muslim wife was not entitled to claim maintenance after the completion of her iddat period. Shah Bano was a 62-year-old Muslim woman. Her husband divorced her and she filed a criminal suit in the Supreme Court of India, claiming maintenance and the same was granted in her favour. It was held that a Muslim wife is entitled to the right to claim maintenance under Section 125 of Criminal Procedure Code even after the expiry of iddat period as long as she is not remarried and she is not able to sustain herself from the dower received at the time of divorce.

Yet, Parliament reversed the judgment, and consequently, she was denied the right to claim alimony. The judgement raised controversies among Muslims since it was in conflict with Islamic Law. With this case the Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed, which diluted the judgment of the Supreme Court and denied the right to claim maintenance to a Muslim woman from her former husband.   

Recently, a section of Muslim fundamentalists are trying to implement a uniform civil code or ensuring that divorced women of the community receive alimony till they get remarried. They argue that such a code would not impinge on the religious freedom and secular principles enshrined in the Constitution. Moreover, in a country where there is a code for other religious groups, there is no justification why uniformity should not be maintained. This is so in most other countries of the Western world. 

From various judgments pronounced by various High Courts and the Supreme Court from time to time, it is evident that conflicting decisions have been given on the hot issue of granting maintenance to the second wife, whose marriage as per Hindu law is void. In particular, in a recent case of Narinder Pal Kaur Chawla (2008), the Delhi High Court gave a liberal interpretation to the expression ‘wife’, subsequently granting the second wife the right to claim maintenance. But the law, till date still recognizes the second marriage, while the first marriage subsists, as void and thus, the second wife is not entitled to any of the rights of a legitimate wife including that of claiming maintenance.

Very recently the apex court stated and quite rightly that it favoured implementation of a uniform civil code as enshrined in the Constitution. Earlier way back in 1995 Sarla Mudgal case the SC had stated: “Where more than 80 per cent of citizen’s have already been drought under codified personal law, there is no justification whatsoever to keep in abeyance, any more, the introduction of uniform civil code in India”.  

One must appreciate the fact that the judiciary has decisively shown benevolence towards Muslim women and these women have evidently been empowered, especially divorced women whose position was even worse. The ruling given by the Supreme Court in the Daniel Latifi case settled the law in favor of the divorced Muslim wife and has conferred on them, a constitutional right to livelihood by way of granting them a claim to alimony.  

It has become a need of the hour to do away with laws related to claiming maintenance which are based on religion. Also, laws which hamper the application of general laws with reference to the basic livelihood of a divorced woman as is assured under Article 21 of the Indian Constitution should be struck down. Thus keeping in mind the constitutional provisions, the State must try to implement a Uniform Civil Code under Article 44 of the Indian Constitution in some measure with respect to the essential and basic aspects of personal laws.

Meanwhile, it needs to be mentioned that a group of Muslim women has moved the Supreme Court demanding entry into all mosques in the country. The move comes at a time groups of Hindu women are fighting to end the ban on their entry into select temples. The petition decried the fact that the community has not thought the need to allow access of Muslim women to mosques that receive monetary aid from taxpayers’ money. 

There is need at this juncture to protect the interests of Muslim women by distancing religion from law and giving them necessary protection, giving them their due rights and encouraging them to become not just literate but educated and socially consciousness. The community and also the government should join hands in stopping early marriage of girls which should be strictly dealt with as per law of the land while Muslim men deserting their wives and children should be forced to pay alimony. --- INFA

(Copyright, India News and Feature Alliance)