Former Prime Minister Rajiv Gandhi (R) and Shah Bano (L)
The ominous Triple Talaq bill has been tabled in Parliament yet another time and is facing strong criticism from the Opposition.
Muslim Women (Protection of Rights on Marriage) Bill, 2018 has been back and forth in the Lok Sabha and the Rajya Sabha – with the government passing it in the Lower House and the Congress-led Opposition, which is still in majority in the Upper House, rejecting it.
While the ruling NDA government believes the abolition of talaq-e-biddat or instantaneous talaq, as a practice which discriminates against women, will be facilitated by criminalizing it, the Opposition is of the opinion that it impinges on the religious freedom of the Muslim community bestowed in Article 25 and 26 of the Indian Constitution.
Further, while the government asserts that the bill stands for women empowerment, the Opposition rebuts the claim saying the imprisonment of the husband will be detrimental for the wife and the family as he would not be able to provide for the maintenance (as promised in the nikaahnama) when he is in jail.
While both points of view hold water, there is one instance that the ruling NDA always digs out from the past which leaves the Congress red-faced. Even today, during the debate on triple talaq, Union Minister of Minority Affairs Mukhtar Abbas Naqvi, in an attempt to beseech the Opposition to pass the bill, said, “Don’t repeat the mistake of 1986.”
What is this “mistake” that haunts the Congress every time the Bill is debated, let’s find out.
The Shah Bano Case
The Mohd. Ahmad Khan vs. Shah Bano Begum & Ors. or the Shah Bano case is seen as one of the legal milestones in the Muslim women’s battle to protect their rights. It clarified the extent to which courts can interfere in the Muslim Personal Law.
In April 1978, a 62-year-old Muslim woman filed a petition in court demanding alimony or maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh. The two were married in 1932 and had five children – three sons and two daughters.
Shah Bano demanded maintenance for her and her five children under Section 123 of the CrPC, which puts a legal obligation on a man to provide for his wife during marriage and after divorce too, if she is unable to fend for herself. However, Shah Bano’s husband contested the claim saying the Muslim Personal Law required him to provide for her only until the Iddat period.
Iddat is the waiting period a woman must observe after divorce before she marries another man. It is usually supposed to last three months, but is longer if the wife is pregnant.
Khan’s argument was supported by the All India Muslim Personal Law Board (AIMPLB), which said the courts cannot take the liberty to interfere with laws laid out in the Muslim Personal Law (Shariat) Application Act, 1937.
After a series of hearings, the Supreme Court, in 1985, ruled that the CrPC (Code of Criminal Procedure) applies to all Indian citizens regardless of their religion, and that it applied in Shah Bano’s case too. Besides, the apex court increased the alimony sum to be given to Shah Bano.
Then what was the “mistake”?
The Congress government, headed by then Prime Minister Rajiv Gandhi, overturned Supreme Court’s landmark judgment in 1986 by passing the Muslim Women (Protection on Divorce Act).
The Act said maintenance is only liable for the iddat period and that the courts only had the power to direct the Waqf Board for providing alimony to an aggrieving wife who is not able to fend for herself.
Even though Shah Bano’s lawyer Danial Latifi challenged the Act’s constitutional validity, the top court upheld it, saying the liability can’t be restricted to the period of iddat.
Shah Bano later withdrew the maintenance claim she had filed.
Both the Hindu right and liberals have pilloried Rajiv Gandhi for the flip-flop in the Shah Bano case and have viewed it as a move to appease minorities for votes by giving in to the orthodox Muslim clergy, even if at the expense of gender inequality.
However, according to a book written by Ziaur Rehman Ansari’s (a minister in Rajiv Gandhi's cabinet) son called Wings of Destiny: Ziaur Rahman Ansari – A life, it was his father driven by religious zeal and armed with a resignation letter, who had prevailed upon Rajiv Gandhi to overturn the apex court’s verdict.
The Lok Sabha, on July 25, passed the Triple Talaq bill as is. Now, the bill awaits the scrutiny of the Rajya Sabha.