Najma Bibi and Sheikh Sher Mohammad of Orissa'sBhadrak district are the latest victims of the obnoxious and obsolete laws. The couple incurred the wrath of fundamentalist Islamic clerics after the husband pronounced triple talaq in a drunken state in 2003. However, on realising his ?terrible mistake? the very next morning, he decided to live with his wife and three children.
However, the mullahs in Bhadrak thought otherwise. They issued the much-misused fatwa (religious edict) declaring that the couple were divorced and hence cannot live together. Najma along with her children were forcibly sent to her father'shouse.
The Muslim clerics said if Najma wanted to live with her husband, she must perform halala, which meant she must marry another man and the marriage must be consummated, after which she can get a divorce and then re-marry the first husband. The couple were also ostracised by the Muslim community in Bhadrak.
However, Najma refused to do so and instead knocked at the doors of the High Court against the fatwa and sought police protection from her community men who were harassing the couple.
The incident created a nation-wide controversy with various women'sorganisations and civil society groups taking cudgels on behalf of the couple.
In a landmark judgment on April 21, the Supreme Court directed the Orissa government to provide police protection to the Muslim couple.
?No one can force them to live separately. This is a secular country. All communities? Hindus or Muslims?should behave in a civilized manner?, a bench of Justice Ruma Pal, Justice C.K. Thakker and Justice Markandey Katju observed.
The response of Muslim groups to the apex court'sverdict was on expected lines. Taking strong exception to the ruling, the Orissa unit of Jamiat-ul-Ulema threatened to further ostracise the couple if they went by the court decision.
?The Supreme Court has no power to intervene in religious matters. The apex court should have confined itself to other litigations. It should have consulted religious institutions and clerics before taking such a decision?, roared Aamir-e-Shariat (President) of the Jamiat, S.S. Sajideen Quasmi.
?We will certainly drive the couple out of Muslim society if they stay together defying the decisions of the clerics and abide by the Supreme Court verdict?, he said.
Jamiat, the highest religious body of the Sunni sect in the state, also announced plans to write to the President, the Prime Minister, the Chief Minister and Law Ministers of both the state and central governments to look into the matter. It demanded that the whole issue should be discussed in Parliament ?which should take a firm decision on religious freedom?.
Residents in Najma'snative village also opposed the reunion saying: ?We will not let anybody defying the fatwa stay among us?.
Najma'scase is not an isolated one. From the historic case of Shah Bano, which changed the political contours of the country, to the saga of Saddiqunissa and the soul-stirring tale of Gudiya, Muslim women have been at the receiving end of the obscurantist mullahs, who have not even spared tennis sensation Sania Mirza and suggested an Islamic dress code for her.
And slowly but steadily, the Muslim women are rising up against the blatant discrimination and inequality being perpetrated upon them.
?The lives of Muslim women cannot be governed by archaic practices like triple talaq. Muslim women should be governed by laws that treat them as equal citizens of democratic India?, says Supreme Court advocate Sona Khan.
After a survey of Muslim women in Bihar'sDarbhanga district some years ago, Sabina Hussein of the Delhi-based Centre for Women'sDevelopment found that eight among a random sample size of 100 were divorced. Only three among the eight had received their mehr and that too in paltry irregular instalments.
It is not for the first time that the courts have come to the rescue of the hapless Muslim women. In a landmark judgment in 2002, the Bombay High Court had ruled that divorce between Muslim couples will have to be ?convincingly proved in a court of law under the civil procedure code and Indian Evidence Act?. A mere statement, written or oral, by a man divorcing his wife won'tbe enough proof of his having obtained a divorce.
Delivered by a full bench of the court, the ruling is now binding for Maharashtra. The 88-page judgment came after hearing in a case filed by Latur resident Dagdhu Pathan challenging the maintenance claims by his wife Rahimbi. The judgment categorically states that for divorces to be deemed legal, husbands must prove in court all requirements of divorce under Muslim laws, like reconciliation, arbitration and payment of mehr.
In the matter of Saddiquinissa too, the Lucknow Bench of the Allahabad High Court pointed out that talaq could not be given by the husband in one instance and only comes to force after a certain time which is meant for reconciliation and arbitration by friends and relatives. It also ruled that talaq has to be confirmed by a court, which has to hold that the marriage was dissolved on valid grounds. Only then would talaq become final.
Over two decades back, another Muslim woman, Shah Bano, asked a court to ensure support from her husband who had divorced her after 43 years of marriage and thrown her out on the street. The Supreme Court had at that time ruled it could not accept her husband'splea that he was only bound by Islamic laws. A husband must assist his wife financially after a divorce if she has no other means, it ruled.
However, such was the fury of fundamentalist Muslims against the ruling that the Rajiv Gandhi government in 1986 diluted it through a legislation in Parliament. The result was that in several states, divorced Muslim women cannot claim maintenance beyond the ?iddat? (three menstrual cycle) period.
It remains to be seen whether the apex court'slatest verdict too would face a similar fate, given the Congress-led UPA government'spast approach towards its rulings including that on IMDT.
The powers that be would do well to remember that even in the Islamic Republic of Pakistan, a husband has to notify an arbitration council/Shariat court about the Talaq immediately after its pronouncement. The effect of the notice is to freeze the talaq for 90 days during which the council tries to bring about a reconciliation. After the expiry of 90 days, the talaq takes effect unless there is a patch-up. Moreover, the man has to apply to the council to marry a second time giving exact reasons why he wants to do so.
Demanding an amendment of the maintenance legislation passed by Parliament in 2001 to include Muslim women, Advocate Sona Khan says, ?Destitution, vagrancy, trafficking of neglected women do not vary with region, religion, caste and creed. The response to the basic right to life based on religion, with which the issue of maintenance of woman is linked, is unconstitutional and unethical.?
Are the mullahs and vote-catchers of the Congress listening?