Syed Khalique Ahmed | Indian Tomorrow
NEW DELHI—Gurgaon-based Amina Shervani has moved the Supreme Court challenging a PIL that seeks uniformity in personal laws regulating divorce, maintenance and alimony for all Indian citizens, irrespective of their religion.
In her petition, she has demanded that the PIL be dismissed with exemplary cost as it is “frivolous” and petitioner Ashwini Kumar Upadhyay, a BJP leader, who practices in the supreme Court, has no “locus standi.” Amina filed the petition on March 23, 2021.
The writ petition (WP No 869/2020) filed by Upadhyaya says that Hindus, Buddhists, Sikhs and Jains have to seek divorce under the Hindu Marriage Act 1955, while Muslims, Christians & Parsis are governed by their own personal laws in such matters.
Upadhyaya also pointed out that couples belonging to different faiths have to seek divorce under the Special Marriage Act, 1956.
But if one of the partners is a foreign national, then the Foreign Marriage Act 1969 applies to them in case of divorce.
Stating that the grounds of divorce are neither gender neutral nor religion neutral, Upadhyaya submitted that these are discriminatory under Art. 14, 15 and 44 of Indian Constitution and sought a uniformity in such issues for all citizens, irrespective of their faith and gender.
But this seems to be an attempt on the part of the petitioner to introduce a uniform civil code from backdoor by getting an order from the highest court of the land by seeking uniformity in matters of divorce, maintenance and alimony which is governed by their respective religious laws in case of Muslims, Christians and Parsis. As for criminal laws, all communities are governed by Indian Penal Code and Criminal Procedure Code. The criminal laws of their respective religions don’t apply to any of the communities in India under the existing law because that will not be feasible, particularly in case of the parties from two different religious faiths. As for divorce, maintenance and alimony being civil issues and they pertain only to the couples as the parties in a matrimonial relationship belonging to the same faith. In case of couples belonging to different faiths, there is a special marriage act to deal with the issue in case of divorce or separation of the couple. So, the personal religious laws governing the issues of divorce, maintenance and alimony do not pose any legal, administrative or social problem. Moreover, Muslims cannot choose any other provision in such matters because doing so would amount to challenging the Quranic law, which is nothing but the commands of Allah Taala and punishable in the eyes of Islamic law.
Considering the issue in this background, the petition filed by the BJP leader has become serious as the Supreme Court bench comprising Chief Justice S A Bobde, Jusice A S Bopanna and Justice V Ramasubramanian have already issued a notice to the Centre on December 16, 2020 though CJI remarked, “we are issuing notice with great caution”.
While issuing the notice, the CJI had clearly stated that he did not intend to interfere with personal laws. CJI had said, “you are asking us to encroach upon personal laws and remove the distinction they create”.
Submitting that Upadhyaya’s petition has no locus standi, and demanding that it be dismissed with exemplary cost, Amina submitted that the prayers of Upadhyay amount to deliberate attempt to interfere with the “cultural and customary practices” that are “intertwined with the right to freely profess and practice religion” protected under Articles 25 and 26 of the Constitution of India.
If Upadhyay’s petition is allowed, she said that “it would be in violation of Articles 25 and 26 of the Constitution of India.”
PIL is an attempt to take away the rights of women
In her petition filed through Advocate Fuzail Ahmed Ayyubi, Amina claims that the rights available to her as also other Muslim married women under the Muslim Personal Law are not available under any other marital law.
Stating that the PIL is a “blatant attempt to take away the agency of women like her”, Amina says that she would lose all the benefits available to her under the Muslim personal law if the apex court passes a law on BJP leader’s petition and in opposition to her.
Muslim Personal Law Safeguards Interest of Women in Marital Life
Pointing out that “the Muslim marriage is contractual in nature and the parties (man and woman) entering into matrimonial relationship are allowed to impose certain conditions before the marriage, at the time of marriage or even after the marriage”, Amina’s petition says that “the option to impose matrimonial condition under the Muslim law provides protection to Muslim women and safeguards their interests in the face of uncertainties of marital life.”
“Additionally, such marital conditions provide adequate sustenance to Muslim women after dissolution of marriage as well as during the marriage,” she further says.
Elaborating it, she said that Muslim women are allowed to “divorce their husbands under certain contingencies”, “leave the husband’s house in case of ill-treatment or disagreement”, “claim fixed or separate maintenance under certain circumstances” and “impose a condition on the husband to provide maintenance for the children of his wife even from the former husband or to provide some special allowance to the wife by way of maintenance”.
Amina submitted that in her own “nikahnama”, she had included “conditions to divorce, custody of children and maintenance”.
Islamic law provides for speedy settlement of matrimonial disputes, protects women from humiliation
Stating that the Islamic matrimonial jurisprudence provides for speedy settlement of matrimonial disputes, Amina pointed out said that “this protects the parties from protracted legal battle which causes immense hardship and humiliation to women in particular”.
Mentioning about payment of Mehr or dower to the wife by her husband as an essential condition of marriage under Muslim law, she declares that “it is a symbol of respect to the wife and the Mehr amount has to be substantial and not meagre”. “In case of refusal by the husband to pay the Mehr, the wife is entitled to live separately and during this period, she is entitled to claim maintenance from her husband”, she points out in her petition.
Married Muslim woman is more independent than a Hindu or an English woman & free from the control of her husband: Privy Council
She has also quoted observations of the Privy Council in the case of Moonshee Buzloor Raheem vs Shamsoonisan Begum (1867) with regard to the rights of Muslim women. The Privy Council observed, “Distinction must be drawn between the rights of Mohammedan and a Hindu woman and in all that concerns her power over her property, the former is, by law, far more independent, in fact, even more independent than an English woman. There is no doubt that a Mussulman woman when married retains her dominion over her own property and is free from the control of her husband in its disposition”.
Divorce options available under Muslim law
Regarding methods available to a Muslim woman for obtaining divorce, she said that there were five options available through which she could divorce her husband and these provisions are not available in any other marital law. They are 1. Talaq-e-Tafweez (she can straightaway divorce he husband if such a provision has been incorporated in ‘nikahnama’), 2. Khula, under which she can move a Sharia court to seek divorce, 3. Talaq-e-Mubarra which is divorce by consent, 4. Fask, under which wife can get her marriage abolished through Shriah court and 5. Dissolution of Marriage by Court, under which the wife can move a regular court under the Dissolution of Muslim Marriages Act, 1939.