The Indian Media’s Focus on Shayara Bano Betrays an Ignorance of Important Precedents

Muslim personal laws and Indian secular laws already provide a two-tiered system of protection for Muslim women.

Over the years, numerous Indian Muslim women have approached the courts to overturn the arbitrary procedure of instantaneous triple talaq. Some of these cases, such as the Shayara Bano case filed recently, catch the attention of the media. Consequently many commentators with little knowledge of Muslim personal laws become interested in the need to reform them.

We are witnessing one such phase where the terms of the debate are pre-decided – it’s Islamic law vs. the secular law, the archaic vs. the modern, the oppressive vs. the civilised – without even a cursory glance at the thousands of Indian Muslim women who file cases in courts for enforcement of their rights under various legal provisions such as the Domestic Violence Act, 2005, the Prevention of Dowry Act, 1961 or maintenance under section 125 of the Criminal Procedure Code (CrPC).

Just because a Muslim personal law exists, that does not automatically debar Muslim women from approaching the courts for remedies. This in turn creates a two-tiered system of protection for them which is not available to women of other communities. Moreover, this system reduces the load on our already overburdened judicial system by resolving matters outside the courts.

The Shayara Bano case

After many years during which he physically and mentally abused her, Shayara Bano’s husband sent her a talaqnama in absentia and barred her access to her children. Shayara Bano has filed a public interest litigation to challenge instantaneous triple talaq, polygamy and halala (a practice where a woman who wishes to remarry her husband from whom she is formally divorced has to consummate a second marriage).

The headline of an Indian Express report on April 24 read, “Shayara Bano’s fight against triple talaq”, followed by the subheading: “… She thus becomes the first Muslim woman to challenge a personal law practice, citing her fundamental rights”. Although domestic violence and desertion are common enough among women across the board, it seems the Muslimness of Shayara Bano makes her newsworthy. Otherwise how is it that a reputed newspaper completely ignores the numerous case laws declaring instant triple talaq invalid? The verdict in this case will not set the first legal precedent. It is a given.

Instantaneous triple talaq or Talaq-ul-Biddat does not apply to all Muslims as is commonly believed and propagated. Out of the four schools of jurisprudence in Sunni law and the fifth Shia school of jurisprudence, only one – the Hanafi school – allows for instantaneous triple talaq. Shia jurisprudence prohibits Talaq-ul-Biddat. So before we exclaim ‘Muslims aren’t a monolith but…’ we should also consider that not all Muslims practice the Hanafi school of law.

Fourteen years ago, in a landmark judgement in the Shamim Ara vs State of UP case, the Supreme Court invalidated arbitrary triple talaq and held that in order to be valid, talaq has to be pronounced as per the Quranic injunction. The term “pronounce” was explained as “to proclaim, to utter formally, to declare, to articulate”. The Supreme Court said, “None of the ancient holy books or scriptures mention such form of divorce. No such text has been brought to our notice which provides that a recital in any document, incorporating a statement by the husband that he has divorced his wife could be an effective divorce on the date on which the wife learns of such a statement contained in an affidavit or pleading served on her.”

Shayara Bano’s divorce will certainly be overturned, but what difference would that make to her life? Here is a woman who doesn’t want a divorce but her husband has made up his mind to abandon her. Once the instantaneous triple talaq is revoked, he will divorce her by pronouncing it over a period of 90 days. The mode of divorce, therefore, is not as important as the consequences faced by the woman who is being divorced.

The current laws

Unless we are looking at banning all Muslim men from initiating a divorce altogether, the problem of women being deserted without proper maintenance will still remain, as it does universally. Women stay in bad, abusive marriages for a number of reasons. They face societal and cultural pressure in form of stigma surrounding divorce. There could also be familial pressure, where members of the woman’s family refuse to help or support her in situations of marital distress. But it is financial pressures which often supersede any other consideration, especially when young children are involved.

If our efforts are geared towards empowering and enabling Muslim women, especially those who tend to find themselves in the double bind of religion and culture, it will be worthwhile to study some of the protections that are already enshrined within the systems of marriages and divorce which are familiar to them and compatible with their beliefs. In putting all our efforts into banning triple talaq we are catching the wrong end of the stick. 

The current laws that determine Muslim marriages and divorces in India are the Sharia Act, 1937, which declares that the personal affairs of Muslims will be governed by the Sharia, the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986. Increasingly middle and upper class couples register their nikah under the Special Marriage Act in order to access travel documents or bank accounts. Marriages registered under the Act, even if they are carried out subsequent to a nikah, have to be formally dissolved in a court of law.

A nikah is conceptually a contract (Aqd-e-Nikah) and the wedding is a contract-signing ceremony between two parties. Like any other contract, the nikahnama can be modified or added to at the time of the marriage. Lawyers can be brought in to draft it. It may perhaps be better understood if I say it’s a pre-nuptial agreement sanctioned by religion. The Aqd-e-Nikah not only registers the mehr to be paid to the bride but can also contain rights and the logistics if the couple were to divorce.

There are broadly four ways in which a divorce can be granted:

• Talaq – The granting of divorce by the husband (inclusive of instantaneous triple talaq among the Hanafis).
• Khula – A divorce initiated by the wife.
• Faskh-e-Nikah – The dissolution of marriage when the wife wants a divorce but the husband is refusing to grant it.
• Tafweedh-e-Talaq – The transfer of the rights of talaq to the wife.

Islamic law also lays down certain safeguards for women. One of the safeguards comes in form of the mehr, which is a pre-negotiated amount that a bride is entitled to and it is recorded in the nikahnama. Mehr is in the form of money or property meant for the exclusive use of the woman. It should ideally be paid on the night of the marriage. The wife can allow her husband to breakup the payments of the stipulated mehr by accepting a substantial part of it on the day of marriage and allowing the husband to pay the rest at a later date. Without payment of the mehr, the nikah is not considered valid.

The problem of implementation

However, the situation plays out differently in India. First and foremost, pre-wedding interactions usually end up in conflict over mehr negotiations. Generally, the groom’s side prevails and further discussions on mehr are pushed away because it’s considered bad shagun to talk of divorce when a marriage is taking place. The purpose of the mehr then just becomes customary whereas it should be the primary concern as it’s a safeguard in case a woman finds herself in Shayara Bano’s situation. These are complicated things and a lack of information and education have an impact on how they play out.

Dowry is not just a non-Islamic concept, but is in fact anti-Islamic. However, dowry has now become a prerequisite for all Indian marriages and so it is also prevalent among Indian Muslims. I was pleasantly surprised to come across a video doing the rounds of small town in Uttar Pradesh. In it, a Muslim gentleman explains the meaning of the nikah contract to the bride at her insistence. The bride then asks why is it that the dowry that is promised and the arrangements for the wedding that are made by her father are not recorded in the document, whereas the mehr is recorded.

The maulana admits that if the dowry is recorded in the nikahnama then the groom and his family can be booked under the Prevention of Dowry Act. He also admits that acceptance of dowry is a mistake and the groom eventually refuses all dowries. It’s heartening that such videos are becoming popular among young Muslim women, as they can help women to understand their rights within the religious set up. However, what is more interesting is that they are also being informed of the ease with which  divine laws are interacting with secular laws, forming a two-tiered system of protection for them.

The question of maintenance after divorce will immediately throw up the Shah Bano case. But before that, a word on the Islamic law regarding the maintenance of children after divorce. According to scholarly consensus in Islam, the maintenance of children is the duty of the father. Whether the husband remains married to his wife or divorces her and whether the wife is poor or rich, she is not obliged to spend money on the children while their father is alive. In case of very young children, a divorced woman can ask her husband for payment for breastfeeding. If the mother wants to breastfeed in return for payment, she has the first right to do so, even if the father can find someone else to breastfeed for free.  

The woman is entitled to the custody of children until the children reach the age of tamyiz. Then, the children are given a choice of whom they prefer until the age of bulugh. The age of tamyiz is generally around seven or eight years old. Special consideration has also been given for children with disabilities who have reached the legal age of adulthood. In case of the woman has remarried, the father’s approval of his children remaining with their mother is necessary.

The Shah Bano case

Shah Bano Begum was 70-years-old when her husband divorced her without paying her maintenance costs beyond the period of three months (iddah). She sued him for maintenance under the CrPC Section 125, according to which he had to maintain her until she remarried or died, if she had no means for her own for survival. The Madhya Pradesh high court decided in Shah Bano’s favour and granted her maintenance for life. The All India Muslim Personal Law Board (AIMPLB) and Jamiat Ulema-e-Hind challenged the decision in the Supreme Court.

The story goes that while the case was going on, Shah Bano’s lawyer Danial Latifi was looking for a copy of Sir Abdullah Yusuf Ali’s widely acclaimed and accepted English translation and exegesis of the Quran to submit as evidence to the Supreme Court. The edition of the Quran clearly states that women are entitled to maintenance after divorce. The verse 2:241 is translated thus: “For divorced women maintenance (should be provided) on a reasonable (scale). This is a duty; on the righteous”.

Latifi could not get his hands on a copy, but to his utter amazement and bewilderment, the AIMPLB and Jamiat Ulema-e-Hind submitted the edition to bolster their argument against maintenance. Clearly neither the legal team opposing Shah Bano nor the Muslim personal law interveners in the case had bothered to read it. The Supreme Court, basing its judgment on Yusuf Ali’s translation, upheld the high court order and granted alimony to Shah Bano. It can be said that in case of Shah Bano it was the Supreme Court that upheld the Islamic law, even as the AIMPLB was ready to abandon it.

The judgment brought in its wake a baffling round of protests from the Muslim orthodoxy. The Supreme Court verdict was seen as a war against Islam; Islam khatre me hai (Islam is in danger) was the regular sentiment expressed by its leadership. The then Prime Minister Rajiv Gandhi, in an act of singular political opportunism, overturned the Supreme Court verdict by an Act of parliament. The parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, that nullified the Supreme Court’s judgment and exempted Muslim women from the purview of Section 125 of the CrPC. The act allowed maintenance to a divorced woman only during the period of iddat, or until 90 days after the divorce.  

Judgments on post-divorce maintenance

Despite the circumstances under which this Act was drafted, it still leaves room for the courts to interpret the amount of payment to be made within the first 90 days. Therefore, for several years, maintenance for Indian Muslim women post-divorce was dependent on the varying high court opinions on the matter. This finally came to an end with the Danial Latifi vs Union Of India case, where the full bench of the Supreme Court confirmed that “reasonable and fair provision” meant lifelong post-divorce maintenance to be paid by the husband within the iddat period or 90 days. Since then, courts have been pronouncing judgments regularly interpreting the Section 3(a) of the Muslim Women’s Act, 1986 in conjunction with the Section 125 of the CrPC. The courts are ordering large one-off payments as maintenance to be paid to the wife and unlike with the CrPC, there is no ceiling to this quantum of maintenance.

The Calcutta high court, while deciding Shakila Pervin’s case, opined that she should be given the sufficient amount of maintenance within the iddah period to last her for life. Justice Basudev Panigrahi said, “A divorced Muslim woman is entitled to maintenance after contemplating her future needs and the maintenance is not limited only up to the iddat period. The phrase used in Section 3 (I) (A) of the Act, 1986 is reasonable and fair provision and maintenance to be made to see that the divorced woman gets sufficient means of livelihood after divorce and that she does not become destitute or is not thrown out on the street.”

The full bench of the Bombay high court also held that while deciding the amount of the provision, several factors including the standard of life enjoyed by the divorced woman during her marriage and the means of income of her former husband will have to be taken into account. If the husband is unable to arrange such a lump sum amount he can ask to pay in instalments and the court shall consider granting this to him.

Despite these judgments, no protests such as those during the case of Shah Bano have taken place. No effigies were burnt, no marches were taken out, no communal tensions were flared, no fatwas threatened us with a brain seizure and most importantly, no media outlet thought them newsworthy. Why does Shayara Bano get so much news space while thousands of progressive judgments don’t find any mention in the media?

Television commentators should note that these judgments don’t just appear in a vacuum; they have been pronounced in response to Indian Muslim women approaching the courts to settle their matters. Again we see a two-tiered system coming into play where a woman who is unhappy with what she is being offered in the divine law, can approach the courts for redress. It’s almost as if a system has found a buffer or has corrected itself quietly.

It will be worthwhile to put our efforts behind standardising the nikahnama and educating Muslim women about their rights, both in religious and in secular law. Tafweedh-e-talaq is a very important provision in the Quran that transfers the rights of talaq to the wife and this can be recorded in the nikahnama. Indian Muslim women should know that their nikahnamas can be upheld in family courts. We should encourage them to fully exploit the unique two-tier system of protection which is not available to their counterparts in other communities.

The problem with the Uniform Civil Code

It is the accepted view that the Uniform Civil Code (UCC) is inoperative in India because of Muslims. In a regular drawing room conversation, one invariably comes across arguments such as: ‘But the Christians are alright with it. Look at Goa!’ It is true that the Christian civil code, the Hindu civil code and the secular laws are more or less in conjunction with each other. Although many activists feel that even the latest amendment to the Hindu Marriage Act in 2013 is ambiguous about the division of property and is limited to a class of people who own property, Muslims are envisaged as the only hurdle to the glorious future of UCC.

What is overlooked in this simplistic argument is that neither the Sastrik law nor the Christian canon recognizes divorce.  Unlike Hinduism and Christianity, marriages are not imagined as preordained or sacrosanct in Islam. Islam recognises the right of a person to end a marriage and puts the power to end it in the hands of the individuals involved by laying down extensive laws regarding divorce. When these laws fall within the realm of the ‘divine’, they become sacrosanct for the people who believe in them yet laws considered ‘divine’ are also grounded in a historical context . Shari’a laws too have a context and have over the centuries made compromises.

The UCC promises us non-negotiable processes to maintenance and child custody as well as other rights within a marriage.  The existing provisions in the Domestic Violence Act and the CrPC take care of quite a few of these concerns as do general pronouncements by courts. So till such time that the UCC is not just a stick to beat up Muslims, but something more substantial than what we already have, let us try and support Muslim women in a manner that really helps them.