Recently the Aurangabad Bench of Bombay High Court gave an important
judgement in Muslim divorce case. It is a landmark judgement, which
will benefit many suffering Muslim women who are arbitrarily
divorced. We would like to throw light on this judgement. Before we
throw light on the judgement we would like to say something about the
personal law as applicable to Muslims in India.

There are great deal of misconceptions about Muslim personal law both
among Muslims and non-Muslims. Muslims think it is beyond the scope
of any change as it is divine and perfect in every respect. The
non-Muslims think, on the other hand, it is very rigid and unfair to
women and stands in need of improvement. Some rationalists and
ironically communalists of the Sangh Parivar want to abolish personal
laws and implement Common Civil Code. The whole matter is stuck
between these polarities and one can hardly hope either from the
Muslim Personal Law Board or country's legislature to effect some
reasonable changes.

For Muslims their personal law has also become a matter of their
religious identity. They do not want any interference from government
of the country or by legislature in their personal law as it is
deemed undue interference in their religious matters. They argue that
freedom of religion has been guaranteed by Art. 25 of the
Constitution and effecting any changes amount to curtailing this
freedom. Even the Supreme Court judges are not unanimous on the
question whether enforcing Uniform Civil Code as per Article 44 of
the Constitution would violate the right under Article 25 or not.

The Muslims feel that Articles 25 and 44 contradict each other and
there is no question of enforcing Article 44 which is any way only
recommendatory and not obligatory. Thus minorities in general and
Muslims in particular refuse to allow any change in their personal
laws. On account of this it is women who suffer. Another complication
factor is the aggressive attacks by the Sangh Parivar on Muslims from
time to time. The communal violence on the scale on which it was
perpetrated in Gujrat recently makes minorities extremely insecure
and naturally so. In such conditions they are bound to resist any
attack on their religious identity.

But one can hardly ignore the plight of women either. Many Muslim men
are unjust in their behaviour towards women. They, like men of other
religious communities, treat women as mere chattels. Islam had
provided women not only with dignity but also gave them concrete
legal rights in no way inferior to men. As far as women were
concerned Islam was nothing short of a social revolution for them.

However, society drags down religion to its own level. The society
was not prepared to accord high or equal status to women. It managed,
through various means, to push women to lower status on the social
ladder. Pre-Islamic customs and traditions found place in Islamic
Shari`ah through what can be called analogical reasoning (qiyas) and
ijma` (i.e. consensus)

Thus Muslims must understand that Shari`ah laws have incorporated
human reasoning as much as divine injunctions and human reasoning is
greatly influenced by ones own social and cultural ethos. The
medieval social and cultural ethos prevailed over Qur'anic
injunctions and Qur'anic ethos. The status of Muslim women, which was
elevated came hurtling down. Is it not for Muslims to seriously
reflect on this and bring about desired changes in Muslim personal
law as applicable in India?

It is also important to note that what is known as Muslim personal
law was enacted by the British government in the nineteenth century
and was based, apart from Shari`ah law, on British procedural law and
also on various preceding judgements. It was not even properly
codified. The judgements of those days delivered by the British
courts were influenced by social ethos of Victorian period, which
moulded the opinion of the British judges and also by prevailing and
proven customs and traditions.

Today women's rights have assumed great importance and have to be
taken into account while deciding the cases pertaining to marriage,
divorce, maintenance and property. Still our social traditions are
such as to deny women rights in these respects. And as far as Muslim
personal law is concerned, in the absence of any codification it is
judge's opinion, which takes precedence. Also, one has to remember
that whatever the personal law judge is bound to be influenced by the
social movements for women's rights. No judge can ignore the rights
of women in today's social ecology.

The Supreme Court judgement in the Shah Bano's case in 1985 also has
to be seen in this light and the subsequent law (Muslim Women's Act,
1986) upturning the Supreme Court judgement did not influence judges
minds and they continue to give judgements as before even under the
new law. Subjective human role is very important and this role is
determined by prevailing social ethos. That is why most of the high
courts are giving progressive judgements in favour of Muslim women.

The latest judgement was delivered by Aurangabad Bench of Bombay High
Court in respect of divorce of a Muslim woman. This judgement will
greatly benefit Muslim women in India. The system of triple divorce
is widely prevalent among Sunni Hanafi and Shafi`i Muslims except of
course among Ahl-i-Hadith. But Ahl-i-Hadith are in small minority any
way.

Fahimbi from Latur was married to Dagdu Chote and three children were
born from this wedlock. Fahimbi filed a case under Section 125 of
Cr.P.C. for maintenance for herself and for her three children. Dagdu
Chote married another woman Kamrunbee and from her also children were
born. He neglected the first wife Fahimbi and her children and did
not pay any maintenance.

On receipt of summons from the Court Dagdu Chote appeared before the
court and filed a reply saying he does not owe any maintenance as he
divorced her (Fahimbi) on 24th February 1995. He also claimed that he
divorced his wife in the presence of a Qazi and two witnesses one of
whom was Muslim and another one Hindu. He, therefore, prayed before
the case that application for maintenance under Section 125 of
Cr.P.C. by Fahimbi be dismissed. This petition was dismissed by the
2nd joint judicial magistrate First Class at Latur on 21st November
1998. And the maintenance application filed by Fahimbi and her three
children was allowed. The Magistrate maintained that the fact of
talaq must be proved, as it cannot be accepted merely on grounds of
pleading.

The respondent No. I i.e. Fahimbi maintained that she was unaware of
talaq has been given to her as it was not communicated to her by
registered post which was returned. However, a presumption was made
by Dagdu that pronouncement of talaq was communicated to the wife on
30th November 1992. The reason stated in the talaqnama executed was
that the wife had filed a case for maintenance and that she insulted
the husband and mother-in-law as well as there were differences of
opinion, as a result of which they cannot run a family.

The husband had pleaded orally that he had divorced his wife as per
Mohammadan Law by pronouncing talaq in presence of two witnesses
though there he gave no reasons. The learned Judges maintained that
as per the Holy Qur'an there should be 1) it should be for reasonable
cause, 2) it should be preceded by an attempt at reconciliation and
c) the talaq be effected if the attempt for reconciliation failed.

This view was taken by the Single Judge and the learned judge had
agreed with the Gauhati High Court in the case of Zeenath Fatima
Rashid and the Calcutta High Court in the case of Chandbi.

The Aurangabad Bench formulated the issues as follows: 1) whether a
Muslim husband has a right to divorce his wife without any reason and
merely at his whim; 2) whether the Muslim law mandates pre-divorce
reconciliation and whether any pleading by husband in the court that
he divorced his wife would amount to divorce according to Muslim law
and whether the husband has to prove in the court that talaq was duly
effected.

General belief is that a Muslim husband is free to divorce his wife
any time at his will and without assigning any reason but the
teachings of Holy Qur'an and other sources of Islamic law hold
marriage as contract but once marriage takes place it becomes an
institution for life long and this contract is holy and sacred (the
Qur'an describes it as mithaq-e-ghaliz i.e. strong covenant).

The talaq must be preceded by an attempt at reconciliation. The
Muslim law also recognises distinction between effective or proper
talaq and ineffective or improper talaq. Thus it is necessary, the
Aurangabad Bench of Bombay High Court concluded that a talaq, even if
it is oral, must be proved before the Court, if it is contested by
wife by leading evidence.

The above judgement will be quite beneficial for women and is quite
in keeping with the Islamic law, particularly in keeping with the
Qur'anic pronouncements on talaq. The Qur'an lays emphasis on
justice, not on arbitrariness. Anyone who ignores the spirit of
justice violates Qur'anic spirit. The `Ulama and members of Muslim
personal law board must not allow any Qur'anic injunction or spirit
to be violated. The Qur'an has done great service to the cause of
women and empowered them through their clearly defined legal rights.
Time has come that this Qur'anic spirit be upheld and justice be done
to suffering Muslim women.

One must also congratulate the learned judges of the Aurangabad Bench
to have discussed the matter in detail in their judgement in the
light of the Qur'an and its injunction and not merely on grounds of
secular and constitutional laws. This is indeed a healthy change.

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