“I was convinced that this stand (overturning Shah Bano judgment) would cause a setback to the process of reform and gender justice”, says Arif Mohammad Khan

“I was convinced that this stand (overturning Shah Bano judgment) would cause a setback to the process of reform and gender justice”, says Arif Mohammad Khan

"...the overwhelming majority of Muslim women are celebrating and the number of Muslim men who are happy with this decision is no less significant. In fact it is this Muslim mood that has forced the Personal Law Board to change their tone and welcome the decision." 

 

 

Arif Mohammad Khan is a former Union minister. He quit the Rajiv Gandhi government and the Congress over differences on the Muslim Personal Law Bill passed in the Parliament, following Supreme Court’s judgment in the Shah Bano case. In this interview he discusses with Shivangi Misra the changing landscape of personal laws since the Shah Bano judgment. 

 

 

Shivangi Misra: You opposed The Muslim Women (Protection of rights on Divorce) Act, 1986 that neglected the Shah Bano judgment. What has changed in the legal landscape since the case to the recent judgment in Triple Talaq? 

Arif Mohammad Khan: I did not oppose the legislation per se. After seeing the draft and discussion with the then Law Minister, Ashok Sen, I found that the Muslim Women (Protection on rights of Divorce) Act, 1986 had not accommodated the demand of the Personal Law Board to confine the liability of the Muslim husband to the period of Iddat. The Section 3(a) of the Act said that a divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the Iddat period by her former husband. 

Ashok Sen was a brilliant lawyer and he had intelligently used the word ‘within’ instead of ‘for’. The implication was clear and the higher courts interpreted the provision in consonance with the letter of law and held that liability is not confined to three months of Iddat but payment has to be made within that period and since it has to be reasonable and fair therefore it must be adequate enough to meet all her future needs. 

Incidentally the then Chairman of the Personal Law Board, Ali Mian, denounced the Act within three years of its passage and said that the historic movement of the Board proved to be futile which resulted in digging of the mount that produced only a rat. He demanded that Muslim Women (Protection on rights of Divorce) Act, 1986 needs to be amended. 

 

What I had opposed was the assertion of MPLB that Muslims have a community identity (Milli Tashakkhus)  that is different from other Indians and that any reform of the personal law would endanger this identity. They spoke very aggressive and violent language. Outside Parliament they exhorted Muslims to break the legs of Members of Parliament who opposed their demand and inside Parliament their supporters used contemptuous language for the honorable judges of the Supreme Court who had given the verdict. Their insistence on separate community identity reminded one of Muslim League which had asserted before 1947 that Muslims are a separate nation and demanded partition of India on that ground.

 

What I found totally unacceptable was the statement of objects and reasons of the Bill as it clearly stated that the purpose was to overturn the judgment in the Shah Bano Case. I was convinced that this stand would cause a setback to the process of reform and gender justice. We must also not forget that Shah Bano judgment was not delivered under the personal law, it was under a criminal law. So I saw it as an attempt to introduce separate criminal laws for different communities as it deprived the Muslim women of the benefits of Section 125 of Code of Criminal Procedure.

 

SM: Do you agree with the stand of Justice Lalit and Justice Nariman that the practice of Triple Talaq is unconstitutional? 

AMK: I fully agree with this observation and although during my submissions before the honorable court I had gone into details to show that triple talaq finds no sanction in the Quran or in prophetic traditions, but I had also briefly tried to show that this innovative right is simply arbitrary and therefore it violates the fundamental rights enshrined in the chapter 3 of the Constitution.

 

SM: What are your thoughts on enacting a law on the subject? Do we need a law that caters to muslim women or one gender just law for women of communities who wish to dissolve a marriage? 

AMK: My understanding is that the words of Article 25 of the Consitution are absolutely clear. The right to freedom of religion is a personal and individual right. This is not the right of a religious community. Subject to public order, morality and health, and to other provisions of part three, all persons are equally entitled to freedom of conscience. Admittedly there are differences of opinion among members of each community. The members can practice individually what they believe in. But if a law is made on the basis of one interpretation and imposed on everybody else belonging to that community then it would result in denying freedom of religion to those who subscribe to a different interpretation as it was done in the case of Shah Bano. Invoking State power of a secular dispensation to enforce laws of religion goes against the grain of a secular democracy. In a system like ours the rights and obligations which arise from marriage should be equal but there should be no interference with the customs and rituals like how a marriage is solemnized or the payment of Mehr to a Muslim bride.

 

SM: Were you disappointed that the subject of polygamy was not raised and discussed in the ambit of the recent judgment? 

AMK: No, it was made clear that the issue of polygamy can be addressed by the court separately on some future date. The history of social reform shows that these things do not happen in one go. The Hindu Code also happened through piecemeal legislations. This judgment has not only come as great relief to the hapless Muslim women but has also become a source of great education and awareness. Now it would be smoother to deal with the issue of polygamy. My understanding is that like triple talaq, the unrestrained right to polygamy also does not find sanction in Quran. This absolute right of man is arbitrary and if on the ground of arbitrariness triple talaq is thrown out why should the absolute right to polygamy not meet the same fate.

 

SM: What do you have to say about the timing of this decision? Also, the current right-wing Government is taking credit for this victory, how do you see that?  Do you think there will be backlash from the community?

AMK: Just because a so-called Hindu right wing government is in power doesn’t mean we should not pursue the agenda of reform. When in 1986, the right wing had only two members in Lok Sabha and a secular party was in power, they did not hesitate to reverse a progressive judgment at the behest of the Personal Law Board.

As far as I know the overwhelming majority of Muslim women are celebrating and the number of Muslim men who are happy with this decision is no less significant. In fact it is this Muslim mood that has forced the Personal Law Board to change their tone and welcome the decision.

I do not wish to enter in this debate about right and left but you cannot deny that the governments in this country are elected by the people and they have a duty to protect the interests of all and priority must be given to the needs of the weak and the underclass. On the issue of triple talaq the present government has behaved credibly. The Prime Minister himself spoke in support of the Muslim women who were fighting this enormity and his government supported them in the Court and this must be acknowledged with gratitude.

 

Shivangi Misra is a Legal Officer at with Lawyers Collective. 

Disclaimer:"The views in the article are of the author and do not represent the views of the Invisible Lawyer"

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