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Muslim Woman Opposes PIL For Uniform Law For Divorce, Maintenance and Alimony Before Supreme Court

Akshita Saxena
24 March 2021 11:20 AM GMT
Muslim Woman Opposes PIL For Uniform Law For Divorce, Maintenance and Alimony Before Supreme Court
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A Muslim woman has moved the Supreme Court, seeking to oppose the PIL filed by BJP leader and Supreme Court Advocate Ashwini Kumar Upadhyay for uniformity in personal laws regulating divorce, maintenance and alimony for Indian citizens. A resident of Gurgaon, Amina Shervani claims that the provisions regulating Muslim marriages, divorce, alimony, etc. under the Muslim personal law...

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A Muslim woman has moved the Supreme Court, seeking to oppose the PIL filed by BJP leader and Supreme Court Advocate Ashwini Kumar Upadhyay for uniformity in personal laws regulating divorce, maintenance and alimony for Indian citizens.

A resident of Gurgaon, Amina Shervani claims that the provisions regulating Muslim marriages, divorce, alimony, etc. under the Muslim personal law are rather beneficial.

She claims that the contractual nature of Muslim marriage helps Muslim women to impose such conditions on their marriage, that safeguard their interests in the face of uncertainties of marital life.

The application field through Advocate Fuzail Ahmad Ayyubi and drawn by Advocate Rashmi Singh states,

"Muslim marriage is contractual in nature and as such the parties to it are allowed to impose conditions for regulating their matrimonial relations. Such conditions can be imposed before the marriage or at the time of the marriage or even after the marriage. The agreement has to be legal and as per the provisions of Muslim law. The option to impose matrimonial conditions under 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."

The application further proceeds to elucidate provisions like Mehr (customary consideration for Muslim marriage), types of divorce, etc., available under the Muslim personal, that are purportedly beneficial to the community.

Rights under Muslim marriage agreements:

Through the marriage agreements under the Muslim personal laws, the applicant states, Muslim women have a right to Mehr— a "substantial" consideration for marriage. Mehr cannot be meagre under Islamic principles, she states.

The marriage agreement further allows Muslim women to:

  • Divorce the husband on the happening of certain contingencies (Sabra Jan v. Abdul Raoof, AIR 1921 Lah 194)
  • Leave the husband's house in case of ill-treatment or disagreement (Banne Saheb v. Abida Begum, AIR 1922 Oudh 251)
  • Claim fixed or separate maintenance in certain circumstances (Mohd. Muinuddin v. Jamal Fatima, AIR 1921 All. 152)
  • Impose a condition on the husband to provide maintenance for the children of his wife's former husband or to provide some special allowance to the wife by way of maintenance (Yussoof Ali v. Fyzoonisa, 15 WR 296)

Provisions of Mediation and Speedy settlement of matrimonial disputes:

The application avers that resolution of matrimonial disputes through mediation is provided for under Islamic matrimonial jurisprudence. It is submitted that such dispute settlement protects the parties from "protracted adversarial litigation" which entails immense hardship and humiliation to women in particular.

Methods available to Muslim Women for obtaining divorce

The application states that under Muslim Personal Law, a Muslim woman can divorce her husband in the following 5 ways:

  • Talak-e-Tafweez (wife's right to divorce her husband is like that of the husband if the same has been incorporated in the nikahnama or where such a delegation has been made by the husband on a subsequent date)
  • Khula (wife can get her marriage dissolved through Shariat Court)
  • Talak-e-Mubarrah (Divorce by mutual consent)
  • Fask- (wife can get the marriage annulled through Shariat Court)
  • Dissolution of Marriage by Court (wife can move the regular courts under the Dissolution of Muslim Marriages Act, 1939)

In this backdrop, Shervani seeks to oppose the PIL. She has also question the locus standi of the Petitioner and states that the instant petition is a blatant attempt to take away the agency of women like her.

The plea further states that the petition is a deliberate attempt to interfere with the cultural and customary practices and usages that enjoy the protection of Articles 25 and 26 of the Constitution of India.

"The divorce issue raised in the Writ Petition transcends into the domain of cultural & customary rights that are intertwined with the right to freely profess and practice religion," the application states.

Background

The writ petition for uniformity in personal laws was filed by BJP leader and Supreme Court Advocate Ashwini Kumar Upadhyay last year.

He had pointed out that Hindus, Buddhists, Sikhs and Jains have to seek divorce under the Hindu Marriage Act 1955, while Muslims, Christians & Parsis have their own personal laws. Couples belonging to different religions have to seek divorce under the Special Marriage Act, 1956. If either partner is a foreign national then the Foreign Marriage Act 1969 applies. Hence, grounds of divorce are neither gender neutral nor religion neutral, and are discriminatory under Art. 14, 15 and 44 of Indian Constitution.

On December 16, the Supreme Court agreed to issue notice on the petition however, however, while doing so the CJI remarked "We are issuing notice with great caution."

During the hearing, the CJI had expressed disinclination towards interfering with personal laws. "You are asking us to encroach upon personal laws and remove the distinction that they create," the CJI had said.

Click Here To Download Application

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