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Commission on Policy, Governance and Public Witness, NCCI
October 18, 2016
Deciding issues of personal law
The Supreme Court can and must make a pronouncement on the widely excoriated practice of triple talaq
Wajahat Habibullah, a retired civil servant, has served as Chief Information Commissioner and Chairperson of the National Commission for Minorities.
Thirteen years ago, Justice V.R. Krishna Iyer, pleaded in a piece titled ‘Unifying personal laws’ in The Hindu (September 6, 2003): “My powerful plea is that the personal laws may be reformed from within, without a quantum leap into a common code. Remarkable changes in Islamic laws are possible without violating the Quran but adopting progressive hermeneutics.” The issue described as ‘triple talaq’ has unnecessarily been confused with the issue of a uniform civil code, thus thrusting India’s minority Muslim community into the defensive. But this dilemma is essentially a question of whether the Supreme Court can pronounce on an issue of personal law. It is my case that it not only can, but must.
Ruling in the Shah Bano case
The last time that Supreme Court sought to rule in a matter concerning personal law was in 1985 resulting in what has come to be known as the Shah Bano amendment. Shah Bano was married to Mohammed Ahmad Khan, an affluent and well-known advocate of Indore, Madhya Pradesh, in 1932. The couple had five children but after 14 years of marriage Khan took a younger second wife. For a time he lived with both, but when Shah Bano was 62, she was thrown out together with her five children. In April 1978, Khan even stopped giving her the paltry Rs.200 per month that is said to have been promised.
With no means to support herself and her children, Shah Bano petitioned a local court in Indore against her husband citing Section 125 of the Code of Criminal Procedure (CrPC), asking for maintenance of Rs.500 for herself and her children. Khan’s response: in November 1978 he pronounced an irrevocable talaq (divorce), taking the defence that hence Shah Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her except as prescribed under the Islamic law, which was her mehr, promised on marriage, Rs.5,400 in all. While courts at different levels directed payment of different sums, all a mere pittance, holding that Section 125 of the CrPC applies to Muslims, in 1980 Khan took the matter in appeal before the Supreme Court claiming that Shah Bano was no more his responsibility because he had a second marriage, which was permissible under Islamic law.
The Supreme Court of India — in a two-judge Bench of Justices Murtaza Fazal Ali and A. Varadarajan who first heard the matter — held in light of the earlier decisions of the court that Section 125 of the CrPC did indeed apply to Muslims, referred Khan’s appeal to a larger Bench. Some Muslim quasi-religious bodies, namely the All India Muslim Personal Law Board (AIMPLB) and Jamiat Ulema-e-Hind, joined the case as intervener.
The matter was then heard by a five-judge Bench chaired by Chief Justice Y.V. Chandrachud and comprising Justices Ranganath Mishra, D.A. Desai, O. Chinnappa Reddy and E.S. Venkataramiah. In a unanimous decision of April 23, 1985 in Mohammed Ahmed Khan v. Shah Bano Begum and Ors. (1985 SCR (3) 844), the Supreme Court dismissed Khan’s appeal and confirmed the judgment of the high court. It held unequivocally 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 was no doubt, held the apex court, that the Koran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. Besides, Section 125 of the CrPC applies to all regardless of caste or creed. So Shah Bano had the right to be given maintenance money, similar to alimony. The court also went on to discuss the desirability of bringing a uniform civil code in India, holding that a common civil code would help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.
The clergy backlash
This judgment was vigorously criticised by the Muslim clergy. I was at the time a Director in the Prime Minister’s Office (PMO), dealing with matters concerning the minorities. I found on my table a slew of petitions and letters criticising the judgment and seeking government intervention to overturn a ruling which in their view irreparably compromised Muslim Personal Law. The principal spokesmen for the clergy were Obaidullah Khan Azmi and Syed Kazi, founding members since 1973 of the AIMPLB, which was set up to safeguard Muslim Personal Law was enacted. But on my table were letters, petitions, and memoranda from organisations of Muslim clerics from across the country.
The source of Muslim Personal Law in India is the Muslim Personal Law (Shariat) Application Act, 1937, a law that is a colonial anachronism enacted to win over the Muslim clergy from what was, thanks to the legacy of the w