Divorce Without Minor Children For Petitioner Only To File: Fill & Download for Free

I have mixed feelings about this.Warning: This is going to be a very long answer.First, let us look at the background.In Islam, there are two kinds of divorce:[1] Talaq and Khul’. To simplify, Talaq is a divorce initiated by the husband while Khul’ is initiated by the wife. When the husband initiates Talaq, there is a waiting period of three months (or if the wife is pregnant, until she delivers) within which he can revoke the divorce. During the waiting period, the husband has to support the wife financially as before. When the waiting period is over and there is no revocation, the couple is divorced and the wife gets to keep the dowry she was given for the wedding. It is allowed for them to remarry each other after this. However, there is a first strike that comes along with it. Once the husband divorces the wife thrice — whether the divorces were revoked or whether there was remarriage involved — they are not allowed to marry again unless she has married someone else, consummated the marriage and divorced him first (this is the root of the horror of Nikah Halala,[2] but that is another story[3]).Triple talaq is the process by which the husband declares at the outset that he is not interested in any possibility of reconciliation. Instead of declaring an intent to divorce and waiting for three months (even after which there could be a reconciliatory remarriage), he gives all three divorces in one go. The marriage ends immediately, with no recourse for reconciliation. Now, there are different religious rulings about this. Irrespective of Islamic sect and school of jurisprudence, all Muslims treat such a divorce as abhorrent and cursed. The only religious disagreement is about the validity of such a divorce. Some groups consider such a divorce completely invalid, while some treat it as a single revocable divorce. At the extreme end are groups which treat it as three divorces leaving no possibility of reconciliation. Unfortunately, Sunni Hanafi Muslims who form the majority of north Indian Muslims fall under this category.With this introduction, let us see what the issues are with Triple Talaq in the current context of Indian society, Muslims and women. This is a subject on which there is a lot of cacophony from all sides, so I will try to give as unbiased an overview as possible. The basis of this section is going to be the Supreme Court judgement in Shayara Bano vs Union of India and Ors which is comprehensive as Supreme Court judgements get. It is one of the few judgements I have read in their entirety, and I welcome you to do the same (you can find the judgement here[4]). So let us look at the general arguments about Triple Talaq without getting into questions about the court’s jurisdiction and so on.1. Triple Talaq is gender-discriminatory. If the man can unilaterally and irrevocably divorce the wife even in her absence while she has no such recourse, where is the equality?It was submitted, that a female spouse had no say in the matter, inasmuch as, ‘talaq-e-biddat’ could be pronounced in the absence of the wife, and even without her knowledge. It was submitted, that divorce pronounced by way of triple talaq was final and binding, between the parties. These actions, according to learned counsel, vested an arbitrary right in the husband, and as such, violated the equality clause enshrined in Article 14 of the Constitution.To put this in context, we need to see where India’s divorce laws stand. According to the Special Marriage Act,[5] for instance, the only valid reasons for divorce are adultery, desertion (two years), imprisonment (seven years), mental disorder, communicable sexual disease and going missing (seven years!). The wife can also apply for a divorce if the husband is guilty of rape/sodomy/bestiality, or has been legally allowed to not provide maintenance to her under separation. Either party can demand divorce also after one year of separation following a ruling of judicial separation or of restitution of conjugal rights (another horrifying British relic that has been thrown out in most other places[6]). Finally, both the husband and wife can ask for divorce with mutual consent. Divorce under the Hindu Marriage act is very similar.[7] There is a reasonably fair and equal way for the couple to separate.But the situation in Muslim personal law is very different. The dissolution of Muslim Marriages Act[8] provides for divorce initiated by the wife under the grounds of the husband going missing (four years), lack of maintenance (two years), imprisonment (seven years), not performing marital obligations (three years), impotence, insanity, sexual disease, underage marriage or cruelty. There is also a general “on any other ground which is recognised as valid for the dissolution of marriages under muslim law” clause, but the basic point is that she needs to have a valid ground for divorce. There is no mention of Talaaq initiated by the husband in the law because he faces no such obstacles to obtain a divorce. He can get an irrevocable divorce for no reason whatsoever! Meanwhile, the woman-initiated divorce of Khul’ is hard to obtain because the wife needs to justify it based on a few grounds to a patriarchal Islamic cleric, and they are often opposed to it even when there is a valid reason.[9]Clearly, there is no gender or religious equality here.It was pointed out, that Muslim women, were placed in a position far more vulnerable than their counterparts, who professed other faiths. It was submitted, that Hindu, Christian, Zoroastrian, Buddhist, Sikh, Jain women, were not subjected to ouster from their matrimonial relationship, without any reasonable cause, certainly not, at the whim of the husband; certainly not, without due consideration of the views expressed by the wife, who had the right to repel a husband’s claim for divorce.2. When Triple Talaq is considered abhorrent by all groups, can it be considered an essential religious practice at all? Rulings supporting the validity of Triple Talaq have always been about “bad in theology, good in law”. Even the Sunni Hanafis accept it as bad practice. How can the government or the judiciary ending such a practice clearly opposed to by the religion be considered as an encroachment on religious freedom? Not every religious custom is “integral to the religion”. And this is even far from it: “My religion opposes it but does not forbid it, so the government should not interfere in my religious practice” is strange logic!3. Many Muslim-majority nations including Islamic theocracies have already enacted laws against Triple Talaq.Learned senior counsel also drew our attention to the fact, that a number of countries had, by way of express legislations, done away with the practice of ‘talaq-e-biddat’. It was submitted, that even when talaq was pronounced thrice simultaneously, the same has, by legislation, been treated as a single pronouncement, in a number of countries, including countries which have declared Islam as their official State religion. It was accordingly contended, that had ‘talaq-e-biddat’ been an essential part of religion, i.e., if it constituted a core belief, on which Muslim religion was founded, it could not have been interfered with, by such legislative intervention.And India has banned many Hindu customs like Sati, Devadasi system and polygamy by law. Why should India not follow these Islamic nations and ban Triple Talaq as well?4. Beyond all this, All India Muslim Personal Law Board had filed an affidavit in the Supreme court during the Shayara Bano case that it would advise men against Triple Talaq during weddings and create a code of conduct to avoid three divorces in one sitting!2. I say and submit that the All India Muslim Personal Law Board will issue an advisory through its Website, Publications and Social Media Platforms and thereby advise the persons who perform ‘Nikah’ (marriage) and request them to do the following:(a) At the time of performing ‘Nikah’ (Marriage), the person performing the ‘Nikah’ will advise the Bridegroom/Man that in case of differences leading to Talaq the bridegroom / man shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat(b) That at the time of performing ‘Nikah’ (Marriage), the person performing the ‘Nikah’ will advise both the Bridegroom/Man and the Bride/Woman to incorporate a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three divorces by her husband in one sitting.3. I say and submit that, in addition, the Board is placing on record, that the Working Committee of the Board had earlier already passed certain resolutions in the meeting held on 15th and 16th April, 2017 in relation to Divorce (Talaq) in the Muslim community. Thereby it was resolved to convey a code of conduct/guidelines to be followed in the matters of divorce particularly emphasizing to avoid pronouncement of three divorces in one sitting.5. In Indian society, women are typically completely financially dependent on the husband. This is particularly the case for Muslim women. As a result, the threat of an arbitrary and unilateral divorce always constrains the Muslim wife and is an affront to her dignity.One of the non-professional individuals assisting this Court on behalf of the petitioners’, went to the extent of stating, that the fear of the fact, that the wife could be thrown out of the matrimonial house, at any time, was like a sword hanging over the matrimonial alliance, during the entire duration of the marriage. It was submitted, that the fear of ‘talaq-e-biddat’, was a matter of continuous mental torture, for the female spouse.This also needs to be seen in the light of the alimony and maintenance laws in India. According to the Code of Criminal Procedure,[10] men are supposed to pay maintenance for their wives after divorce until they remarry. Alimony is also explicitly included (and gender-neutral) in the Hindu marriage act. However, the case of Muslim women is a bit complicated. In the Shah Bano case,[11] The Supreme Court ruled that the Muslim Husband had to provide maintenance for his divorced wife. There was widespread opposition from the orthodox Muslims against this, and the government passed The Muslim Women (Protection of Rights on Divorce) Act[12] — The husband had to provide maintenance for the wife only for the three month waiting period. After that, such maintenance had to be paid by her parents or other relatives! The implementation of the rule has not always been harsh.[13] In the Danial Latifi case, for instance, the Supreme Court ruled that the husband has to make provisions for alimony for the rest of the wife’s life during the three-month period.[14] There is still a significant difference between post-divorce maintenance for Muslim women compared to other religions.6. All oppositions in the Supreme Court against banning Triple Talaq were procedural. There was the argument that the change had to come from the community and not from the government. There was also the argument that any change to religious personal law had to be a legislative effort and not to be done by a Court. Finally, there was also the claim that Triple Talaq could not be touched legally because it was part of constitutionally protected legal practice. There was not a single word in the 395-page judgement where anyone on any side said anything good about Triple Talaq!Clearly, Triple Talaq is a complete wrong that needed to be remedied. It was bad practice even in the view of religion, and it was discriminatory against women. Islamic societies around the world were curbing it legislatively. So what was the status of Triple Talaq in India before the passage of the recent bill?The order in the Shayara Bano case wasORDER OF THE COURTIn view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’ — triple talaq is set aside.That is, Triple Talaq was already invalid in India in 2017. If a Muslim man divorced his wife by giving Triple Talaq, it had no legal validity. It would not change the wife’s right to the marital home or maintenance.So, what does the bill change? It is a very short piece of legislation, so I request you to read it yourself.[15]First, it declares the Triple Talaq (abbreviated just to Talaq in the bill for some reason!) void and illegal and prescribes the punishment for the same.3. Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.4. Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.Triple Talaq was already void by the Supreme Court ruling. The only addition is making it illegal as well. The point of making an already void civil action illegal seems strange. If the Muslim man declaring Triple Talaq has no legal validity and does not render them divorced, why go ahead and make it a criminal act? And why further punish him? Introducing a criminal punishment in a civil matter is always dodgy. Consider a similar scenario in which a husband (of any religion, including Islam) deserts his wife and stops giving maintenance to her. She can approach the court in that case. If a Muslim man declares Triple Talaq and leaves his wife now, the case is identical — his pronouncement of Triple Talaq has no standing in the eyes of law.So what was the justification for introducing such a bill? The statement of objects and reasons saysIn spite of the Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country. It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.To me, this does not seem strong. If someone has performed Triple Talaq after the Supreme Court ruling, it was simply not valid. The state could have dealt with such men as if they had simply deserted their wives. The existing law was enough to demand maintenance from them since they remain married legally.But what this also shows is how inconsiderate the patriarchal Islamic clerics are towards Muslim women and the Supreme Court ruling. It was very straightforward for religious leaders across the country to refuse Muslim husbands’ demands to approve their Triple Talaq both based on the Supreme Court ruling and based on its abhorrence in Islam. But if Muslim men are continuing to give Triple Talaq with their approval, it shows that the Muslim religious leadership in India is upholding its cherished history of unfailing and mindless support of patriarchy.Additionally, the bill has a couple of clauses for the protection of women after the Triple Talaq.5. Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced shall be entitled to receive from her husband such amount of subsistence allowance, for her and dependent children, as may be determined by the Magistrate.6. Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.I am a bit confused about the first point again. If the Triple Talaq is void and she remains legally married, does she not already have recourse to maintenance as his wife? Additionally, it is contradictory to the punishment clause. How is the husband supposed to provide subsistence allowance for the wife and children when in prison?According to Islamic law, the guardianship of young (<7 yr old boys, girls under puberty) rests on the mother and later, on the father. This law extends that and provides full custody of children to the victim of Triple Talaaq. No issues there.That is pretty much all there is in the bill. Many have questioned the necessity of including a criminal aspect in the law. Today’s The Hindu editorial[16] touches upon this and the contradictions of the law which talks about custody and maintenance when the marriage is still legally ongoing. Overall, I am not very bothered about the criminalisation but just think of the law as pointless given the Supreme Court ruling.I am far more bothered about what the bill does not achieve.First, there is still no divorce equality for Muslim women. Instead of a Triple Talaq, the husband can give a revocable Talaq and end the marriage after three months. This can be done arbitrarily, he does not need to have a reason. Meanwhile, the Muslim woman has to approach the court for divorce — that too, after waiting for two years if the husband does not provide maintenance or three if he does not fulfil marital obligations. The Muslim man can just decide that he does not like the tea the wife made and still go for a divorce, and get rid of her at the end of three months.In fact, with this reason, the attorney general argued in the Supreme court that all forms of Talaq should be made illegal!The learned Attorney General having assisted this Court in the manner recounted above, was emphatic that the other procedures available to Muslim men for obtaining divorce, such as, ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were also liable to be declared as unconstitutional, for the same reasons as have been expressed with reference to ‘talaq-e-biddat’. In this behalf, the contention advanced was, that just as ‘talaq-e-biddat’, ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were based on the unilateral will of the husband, neither of these forms of divorce required the availability of a reasonable cause with the husband to divorce his wife, and neither of these needed the knowledge and/or notice of the wife, and in neither of these procedures the knowledge and! or consent of the wife was required. And as such, the other two so-called approved procedures of divorce (‘talaq-e-ahsan’ and ‘talaq-e-hasan’) available to Muslim men, it was submitted, were equally arbitrary and unreasonable, as the practice of ‘talaq-e-biddat’.…One of us (U.U. Lalit, J.), enquired from the learned Attorney General, that if all the three procedures referred to above, as were available to Muslim men to divorce their wives, were set aside as unconstitutional, Muslim men would be rendered remediless in matters of divorce? The learned Attorney General answered the querry in the affirmative. But assured the Court, that the Parliament would enact a legislation within no time, laying down grounds on which Muslim men could divorce their wives.Let me admit that this is something I struggle with. I am opposed to the demands of Indian law and society that you should only be allowed to divorce if you can justify it to an authority. I find this deeply troubling, if you do not feel comfortable staying married to someone, it is a violation of your most personal freedom to be forced in that marriage. But this is one of those situations where I am willing to have a legal change in the “wrong” direction in the short term to make things better in the long run. Muslim men and women need to have divorce equality. It can be either achieved by extending the right of arbitrary divorce to the woman (codifying Khul’ should do within the personal law) or by taking away arbitrary talaq from the Muslim man and requiring judicial sanction as in the case of divorce in other religions.The more important issue is what happens in the case of divorce. As discussed above, Muslim women still face discrimination when it comes to alimony/maintenance after divorce. What India needs is a religion-neutral and gender-neutral law for division of marital assets and maintenance after marriage to keep up with the times.And of course, there is the continuing discrimination through polygamy. Indian Muslim men can still marry multiple women at the same time while of course, the women cannot. Instead of attacking any of these issues where an entire law would have to be built from scratch, the government has effectively just added an appendix to the Supreme Court ruling!Considering all this, I see little to justify the hype about the passage of the Triple Talaq bill. Had it been introduced before the Supreme Court ruling voiding the practice, it would have been revolutionary. As of now, it is merely symbolic and incremental, something I would even call confused at some level. Its only purpose was to show that the government was doing something without doing anything major. There are still miles to go before we can say that any significant legislative step has been made towards equality for Muslim women.PS: I am not an expert in law. Or a beginner in law, for that matter — it is completely divorced from my field of expertise. My analysis of the Supreme Court judgement and the other Indian laws should be treated as just the view of an average Indian interested in the subject, and could have serious issues. Corrections from those with expertise in law welcome!Footnotes[1] Divorce in Islam - Wikipedia[2] Nikah halala - Wikipedia[3] Raziman T.V. (റസിമാൻ ടി.വി.)'s answer to As an Indian Muslim, what is your view on the Supreme Court banning triple talaq? Also, do you want Nikah Halala to be banned?[4] File:Shayara Bano vs Union of India and Ors (Triple Talaq Judgment).djvu[5] Special Marriage Act, 1954[6] Restitution of conjugal rights - Wikipedia[7] Hindu Marriage Act, 1955[8] Dissolution of Muslim Marriages Act, 1939[9] 'I'm not his property': Abused Muslim women denied right to divorce[10] https://indiacode.nic.in/handle/123456789/1611[11] Mohd. Ahmed Khan v. Shah Bano Begum - Wikipedia[12] Muslim Women (Protection of Rights on Divorce) Act, 1986[13] Maintenance for Muslim women[14] Danial Latifi & Anr vs Union Of India on 28 September, 2001[15] https://www.prsindia.org/billtrack/muslim-women-protection-rights-marriage-bill-2019[16] Beyond talaq: On Muslim divorce bill

There are two types of divorce under Hindu Marriage Act, 1955, first is Mutual Consent and second is without Mutual consent which is also known as Contested Divorce. If any of the spouse intends to dissolve their marriage, then the aggrieved can seek the relevant grounds of divorce according to their religion and personal laws. There are specific grounds on which divorce can be granted because court cannot simply grant divorce without seeking any reason.Strong grounds for divorce:There are some strongest grounds for divorce and an additional 5 grounds which is exclusively available for wife.Adultery: Adultery means when a person is already married and having an illicit sexual relationship with another men or women. Before the landmark judgment of Supreme Court in Joseph Shine vs. Union of India, adultery was a criminal offence in India. But after this landmark judgment adultery is a ground for divorce and no more a criminal offence in India. So a husband or wife can file a divorce petition and dissolve their marriage if one of the spouse is indulge in extra marital affairs.Cruelty: The term cruelty was brought as a ground of divorce in the amendment of 1976 in the Hindu Marriage Act, 1955. Prior to this amendment, cruelty was not a ground for divorce. Basically there are two types of cruelty one is mental cruelty and the second is physical cruelty. Any conduct or behavior of one spouse which cause annoyance to another, cannot be amounted as cruelty. To constitute cruelty, the act or behavior should be grave and weighty (mere unhappiness with spouse due to high temper/whimsical nature is not cruelty). It must be so serious that cohabitations become impossible.Act which are treated as Cruelty:Actual or threatened physical violence.Verbal abuse and insult.Excessive sexual intercourse against the wish of wife.Unreasonable refusal to sexual intercourseSexual dis-satisfaction of wife.Negligence of husband or wife.Ill treatment of children.Drunkenness/use of drugs.Forcing association with improper person and etc.·Desertion: When husband or wife, without any reasonable cause, intentionally leaves him/her without the consent of him/her and starts living separately till two years so the aggrieved can file for divorce on the ground of desertion.Conversion of Religion: If the spouse has converted from Hindu religion to any other religion (not Jainism or Buddhism or Sikhism; but to Islam or Christian or anything of that sort). The other party can file for contested divorce.Unsound Mind: If one of the spouses is incurably of unsound mind or is suffering from such a mental disorder that the other spouse cannot reasonably expected to live with the respondent, the court, on petition by the aggrieved spouse, pass a decree of dissolution of marriage after being satisfied with the claim of the petitioner.Mental Disorder Includes:Mental illness.Mental arrest.Incomplete development of mindAbnormal aggression.Seriously irresponsible behavior.·Venereal Disease: If either husband or wife is suffering from any sexually transmitted disease which can also infect in communicable form then the other party can file for contested divorce.Leprosy: Previously, if the spouse suffered from leprosy of virulent and incurable form, the other spouse could file a divorce. However, this ground has been removed by the Personal Laws (Amendment) Bill, 2018 from all personal laws.Renunciation of World: If any of the spouse has renounced the world and has entered a holy order, the other spouse can file a divorce petition against the respondent. However, this renunciation must be absolute and indisputable. A person who renounces the world is declared as civilly dead.Presumption of Death: If a person is not seen or heard of being alive for a continuous period of 7 years, the person is presumed to be dead. This is a valid reason to file a contested divorce against the spouse.Additional grounds available women onlyBigamy or Polygamy: Before the Hindu Marriage Act was made, there was no rule of monogamy. So a person could have more than one wife. So if any person had multiple wives before the act, his all wives but the last one, have the right to fight for divorce on the ground of monogamy after the act was made. However, husbands do not have any such right, as it was assumed that women do not marry multiple men. However all the couples married before the act might be too old to claim for divorce.Husband Guilty of Rape & Sodomy: If the husband is accused of rape, bestiality and sodomy, than the wife can file divorce on this ground.No cohabitation for one year: If husband is not cohabiting with wife without any reasonable ground for the period of one year. Wife can go for contested divorce.Option of Puberty: If during the marriage the woman was a minor (probably less than 15 and not 18), and after the act has now attained the age of 18; she was either forced in sex or marriage or was innocent, and now wants a divorce, can claim for it. However if a man was married as minor and is now an adult, he cannot claim on this ground, as it was assumed that the men cannot be forced into it.Following the procedure:Step 1: So the first step of go for contested divorce is to contact a suitable lawyer so that he/she can handle your case and guide you accordingly.Step 2: The second step of divorce procedure is to file a divorce petition in the Family Court in your jurisdiction.Step 3: The next step after filing petition is service of summon to the Respondent. And according to the date of Hon’ble court both parties have to appear in court.Step 4: once both the parties have presented their grounds through petition and reply, trial begins and the court hears both the parties with their witnesses and evidence.Step 5: Step 5 is final order, where the court pronounces the final order dissolving the marriage and ends the court proceedings.How can a lawyer help in this case?With the right divorce lawyer, it is easy to get divorce without mutual consent. It is important to have a lawyer by your side who can guide you through this procedure. Consultation of an experience lawyer can help you in numerous way.Actually divorce without mutual consent is little bit tough comparing to divorce with mutual consent. It needs lot of experience to tackle this kind of issues and satisfy the court with the ground.Most of the people search an experienced lawyer and there is a common mistake which people do is they only notice the experience or age of the lawyer. They enquire from how long they are practicing law, what is his/her age etc. etc. But wait, you are committing a little mistake here, only age or long practice cannot make a lawyer experienced. The most important role for any experienced lawyer is knowledge of laws and his handling. So whenever, you will search a suitable lawyer for your case don’t forget to check either your lawyer is well versed with laws or not.

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 lawsmay be reformed from within, without aquantum leap into a common code. Remarkable changes in Islamic laws are possible without violating the Quran butadopting 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 canpronounce on an issue of personal law. It ismy case that it not only can, but must.Ruling in the Shah Bano caseThe 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. ShahBano was married to Mohammed Ahmad Khan, an aluent 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 ShahBano was 62, she was thrown out together with her five children. In April 1978, Khan even stopped giving her the paltry Rs.200per 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 Section125 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 diferent levels directed payment of diferent 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-judgeBench 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 backlashThis judgment was vigorously criticised by the Muslim clergy. I was at the time a Director in the Prime Minister’s Oice (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 AIM-PLB, which was set up to safeguard Muslim Personal Law as 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 war of 1857, a Muslim population largely hostile to the British. As acknowledged in the Statement of Objects and Reasons of the Act, it was in fact moved by the JamiatUlema-e-Hind, described in the Act as the“greatest Moslem religious body”.In my note on the file, I had pointed out that the representations received were primarily from the clergy and seemed to arise from an apprehension that the ascendancy granted to them by the 1937 Act in matters concerning social relations amongst Muslims was under threat. And indeed the law does state in Section 2 that in matters concerning “intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage,including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower,guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitableand religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law”.But I advised that the apex court had arrived at its decision after due reference to the provisions of the Koran. The government must respect the supreme character of that court and even if the arguments of the clergy in the matter are well founded, it is for the court to judge on their application, not the government and not the clergy. I suggested that a reply go to each of the petitions advising that the petitioners seek a review by the Supreme Court. The most that the government might do in this regard is to agree not to contest the review.Roots of government interventionIt seemed awhile that this advice had been accepted, although no response was received to my suggestion that the PMO politely decline the request to intervene. Then one day as I entered Prime Minister Rajiv Gandhi’s chamber, I found M.J. Akbar sittingacross his table. Rajiv smiled cheerily,“Come in, come in Wajahat, You are one ofus.” I found this greeting odd but was to discover the reason soon enough. Mr. Akbarhad convinced Rajiv that if the governmentwere not to contest the Shah Bano judgment,it would appear to the Muslim communitythat the Prime Minister did not regard themas his own. In what he perceived as the de-fence of their religious rights, Rajiv wouldshow himself worthy of the support that thecommunity had always placed in his family.This was the argument that Mr. Akbar de-veloped in a Doordarshan debate with then-Minister Arif Mohammed Khan, in whichMr. Khan had argued that the Koranic provi-sion or lack of it for maintenance was neithera compulsion nor closed to interpretation.But Mr. Akbar, more westernised, had ar-gued that the Muslims needed the reassur-ance that only an amendment could bring.A setback for Muslim womenThe Muslim Women (Protection of Rightson Divorce) Act was adopted in May 1986and nullified the Supreme Court’s judgmentin the Shah Bano case. The Statement of Ob-jects and Reasons of this Act clarifies thatwhen a Muslim divorced woman is unable tosupport herself after the iddat period thatshe must observe after the death of herspouse or after a divorce, during which shemay not marry another man, the magistrateis empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim law.Butwhen a divorced woman has no suchrelatives, and does not have enough meansto pay the maintenance, the magistratewould order the State Wakf Board to pay themaintenance. The ‘liability’ of the husbandto pay maintenance was thus restricted tothe period of the iddat only.The consequences of this Act are open todebate. Yet the message that it brings home isthat the application of the usual law, as enunciated by the Supreme Court, would havebeen of greater benefit and extended to theMuslim woman the rights granted to otherIndians. Worse, the Act generated a conflictof interest between the two principal religious communities of India, fostering hostility against each other and the government.In today’s vitiated communal environment it would be best if the apex court were to take on the responsibility of interpreting the law in light of the widely excoriated practice of triple talaq, which in the view of many practising Muslims is not the law.Copied from Wajahat Habibullah, a retired civil servant, has served as Chief Information Commissioner and Chairperson of the National Commission for Minorities.