Escolar Documentos
Profissional Documentos
Cultura Documentos
J U D G M E N T S O N
M U S L I M L A W & WO M E N S R I G H T S
S a u m y a U m a
Women's Research & Aclion Grou
Mumbai
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The Supreme Court Speaks
SUPREME COURT SPEAKS :
Judgments on Muslim Law & Women`s Rights
Material contained in this document mavbe reproduced freelv for educational,
campaigning and non-commercial purposes, and for protecting and promoting womens
human rights, with due acknowledgment to the author and publisher. Copies of the
original fudgments referred to in this book are available with the publisher.
First Published in November 2007
Published by
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1udgments on Muslim Law & Women`s Rights
EEE
D ed ica ted to
All th ose cou ra g eou s a n d d eterm in ed wom en
wh o kn ocked a t th e d oors of th e Su p rem e C ou rt
a n d p rovid ed it a n op p ortu n ity to g ive p ositive ju d g m en ts on
Mu slim la w & wom en s rig h ts .
a n d m a n y m ore su ch wom en wh o were u n a b le to d o so.
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The Supreme Court Speaks
CONTENTS
Acknowledgments vi
Abbreviations vii
Glossary viii
About the Author ix
Table oI Cases x
A. Foreword xiii
B. Introduction xv
C. Some Quotable Quotes xvii
MARRIAGE
1. Presumption oI Marriage 2
2. Validity oI Marriage with Pregnant Woman 4
3. Compulsory Registration oI Marriage 6
MATRIMONIAL REMEDIES
4. Maintenance to Child 12
5. Custody oI Child 14
6. Unwed Mother`s Custody oI Child 16
7. Presumption oI Child`s Legitimacy 18
8. Triple Talaq 20
9. Dissolution oI Marriage Through Court 23
10. Legal Validity oI Fatwa 26
PROPERTY / ECONOMIC RIGHTS OF WOMEN
11. Mehr 30
12. Maintenance to WiIe aIter Divorce 33
13. Husband`s Impotency and Maintenance to WiIe 35
14. Husband`s Unreasonable Threat & Maintenance to WiIe 37
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15. Polygamy & Maintenance to First WiIe 38
16. WakI Board & Maintenance to Women 40
17. Oral GiIt to Married Woman 42
18. Right to Matrimonial Property 44
D. Conclusion 46
ReIerences 50
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ACKNOWLEDGMENTS
My heartIelt thanks to my collegues at Women`s Research & Action Group Noorjehan
SaIia Niaz, Pouruchisti Wadia, Shilpa Kashelkar-Nipunge, Suraiyya Razzak, Khatoon
Sheikh, Shabana Shaikh, Akhtari Sheikh and Leena K.K Ior providing the trigger, context
and concept Ior this research.
I am also grateIul to Aditya Swarup, Pinky Pandey, Samira Nazem, Uma Santha and
Geeta Kumana Ior research and technical assistance.
I thank Adv. Uttam Sarkar and the library staII oI Thane District & Sessions Court Ior
extending logistical and technical assistance in conducting this research.
I am indebted to Vahida Nainar, Sandhya Gokhale, Veena Gowda, Geeta Ramaseshan,
Sophia Khan and Ayesha Choudhury Ior patiently going through the draIt and giving their
critical comments and Ieedback. I am grateIul to Dr. Zeenat Shaukat Ali and Sona Khan
Ior going through the draIt. Acknowledgment is also due to Dr. Usha Ramanathan and
Madhu Mehra who have been a sounding board on critical issues and dilemmas Iaced
while preparing the draIt. Needless to say, these have helped enrich the contents oI this
publication and sharpen my own perspective in the process.
The role oI Noorjehan SaIia Niaz - my collegue and Iriend requires a special mention.
She has constantly motivated me throughout the process oI this research and publication. I
thank her Ior her encouragement and insightIul suggestions.
Women`s Research & Action Group (WRAG) is extremely grateIul to Jasmin Pavri and
J.R.D. and Thelma J. Tata Trust whose generous Iinancial support has made this publication
in English, Hindi and Urdu possible.
1udgments on Muslim Law & Women`s Rights
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ABBREVIATIONS
A.I.R. All India Reporter
All. Allahabad
A.P. Andhra Pradesh
CEDAW The Convention on the Elimination oI All Forms oI Discrimination
against Women, 1979
DMC Divorce and Maintenance Cases
Cr L J Criminal Law Journal
IA Indian Appeals
J.T. Judgment Today
K.L.J. Kerala Law Journal
MANU www.manupatra.com
Mh L J Maharashtra Law Journal
Pat. Patna
PC Privy Council
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
SCW Supreme Court Weekly
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GLOSSARY
1. Amicus curae A person who is not directly involved in a litigation but is appointed as
a Iriend oI the court, to advise it on a matter oI law directly aIIecting
the litigation
2. Fatwa Advisory opinion concerning religious laws / religious edict
3. Habeas corpus Is a legal remedy available Irom High Courts and the Supreme Court,
asking that a person who has been illegally detained be produced in
court
4. Halala A practice by which a divorced woman is required to marry another
man, consummate the marriage and obtain a valid divorce Irom him iI
she wishes to re-marrying her Iirst husband aIter divorce
5. Iddat A waiting period to be observed by the woman aIter death oI her
husband or divorce, beIore she remarries
6. Ijtehaad Is a source oI Muslim law; it reIers to determining or arriving at a
decision about an issue on which the Shariat is silent. The decision is
taken in the light oI one`s own understanding oI the situation as well as
that oI the spirit oI the directives oI the Quran
7. Kabinnama Marriage certiIicate / contract oI marriage
8. Mahila adalat Similar to mahila panchavat
9. Mahila mandal Community-based women`s organizations
10. Mahila panchayat A redress Iorum Ior women living in communities, where inIormal
settlement oI disputes is undertaken
11. Maulvi Religious leader
12. Mehr An economic right oI woman, to be paid by her husband, the amount
oI which is stipulated in the contract oI marriage as a mark oI respect
to the woman
13. Nikah Marriage
14. Nikahnama Contract oI marriage
15. Qaza Judgment by a judge based on the Shariat
16. Qazi Judge who arrives at a judgment based on the religious tenets oI Islam
17. Quran The central religious text oI Islam
18. Shariat Islamic legal code based on the Quran and other sources oI Islamic
law
19. TaIweez-e-talaq A Iorm oI divorce in which husband delegates his power oI divorce to
his wiIe
20. Talaq Divorce
21. Triple talaq A method oI divorce practiced in India by which husband unilaterally
divorces wiIe by pronouncing the word talaq thrice
22. Ulema A body oI Muslim legal scholars and Iunctionaries who are arbiters oI
the Shariat
1udgments on Muslim Law & Women`s Rights
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ABOUT THE AUTHOR
Saumya Uma is a lawver and a womens rights activist. She graduated from National
Law School of India, Bangalore, in 1994. Soon afterwards, she began working with
Maflis, a Mumbai-based legal and cultural centre for women, where she represented
women in cases of domestic violence in the Bombav High Court and Familv Court. She
obtained an LL.M . in Human Rights and Familv Law from Bombav Universitv in 1997
and an LL.M. in International Human Rights from Universitv of Nottingham, U.K. in
1999. Subsequentlv, she worked for a vear with India Centre for Human Rights and
Law (ICHRL), Mumbai, in the capacitv of Assistant Director. In the vear 2000, she
initiated ICC-India. the Indian campaign on the International Criminal Court, which
she continues to coordinate. Since 2001, she has been working with Womens Research
& Action Group (WRAG) a non-profit organi:ation working on womens rights - as
Co-Director. In 2002, she initiated the Justice and Accountabilitv Matters programme
in WRAG which she also continues to coordinate.
As part of her work, she conducts programmes on legal literacv and human rights
awareness withvaried groups, including underpriveleged women living in communities,
adolescent girls, college students, police, seminarians, social activists and
representatives of non-governmental organi:ations. Her endeavour has been to make
law accessible to the lav woman, particularlv women belonging to minoritv and
underprivileged communities. She has authored two books on International Criminal
Court and India. Since the vear 2005, she became activelv engaged with the campaign
on Communal Jiolence Bill, advocating for an incorporation of international standards,
a gender perspective and a meaningful consultation with survivors on the same. She
has also been campaigning for the implementation of Justice Srikrishna Commission
report that enquired into communal violence in Mumbai in 1992-93. Her field of
speciali:ation is womens rights, human rights and the law.
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TABLE OF CASES
Name Citation Issue Page No.
1. Abdul Rasak vs Aga 31 Ind App. 56 (P.C.) Presumption oI lawIul 3
Mahomed JaIIer marriage through
continuous,
prolonged cohabitation
2. Ahmedabad Women AIR 1997 SC 3614: ReIorm oI Muslim Iamily 47
Action Group vs (1997) 3 SCC 573 law through judicial
Union oI India intervention
3. Amina vs Hasan Koya 2003 Cri.L.J. 2540 (SC) Validity oI marriage with 4
a pregnant woman
4. Amina Bibi vs AIR 1929 Oudh 579 Right to mehr 30
Mohamed Ibrahim
5. A.S. Parveen Akhtar MANU/TN/2472/2002 Triple talaq, validity oI 22
vs Union oI India Muslim Personal
Law (Shariat) Application
Act, 1937
6. Badri Prasad vs AIR 1978 SC 1557 Presumption oI lawIul 3
Deputy Director oI marriage through
Consolidation continous, prolonged
cohabitation
7. Begum Subanu alias AIR 1987 SC 1103: Polygamy and maintenance 38
Saira Banu and another (1987) 2 SCC 285 to Iirst wiIe
vs A.M.Abdul GaIoor
8. Chandrakala Menon vs (1993) 2 SCC 6 WelIare oI child as the 15
Vipin Menon paramount consideration
in awarding custody oI child
9. Dagdu Pathan vs Rahimbi 2002 (3) Mh.L.J.602) Validity oI triple talaq 22
10. Daniel LatiIi & Another AIR 2001 SC 3958: Quote on interpreting xvii, xviii
vs Union oI India (2001) 7 SCC 740 matrimonial laws, husband`s 33
duty to pay post-divorce
maintenance
11. Dukhtar Jahan vs AIR 1987 SC 1049 Presumption oI a child`s 18
Mohammed Farooq legitimacy
12. GhasanIar Ali Khan 87 Ind. App. 105 (P.C.) Presumption oI lawIul 3
vs Kaniz Fatima marriage through continous,
prolonged cohabitation
13. Gohar Begum vs Suggi AIR 1960 SC 93 Custody oI unwed 16
mother`s child
14. Gokal Chand vs AIR 1952 SC 231 Presumption oI lawIul 3
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Name Citation Issue Page No.
Parveen Kumari marriage through continous,
prolonged cohabitation
15. Gulam Hussain Kutubuddin J.T. 2000 (10) SC 425: Oral giIt to married woman 42
Maner vs Abdulrashid 2000 (8) SCC 587
Abdulrajak Maner
16. Haliman vs Mohamed Manir AIR 1971 Pat. 385 Right to mehr 30
17. Hamira Bibi vs Zubaida (1961) IA 249 Right to mehr 30
18. Illahi Shamsuddin (1994) 5 SCC 476 Oral giIt to married woman 43
Naday vs Jaitunbi
Makbul Naday
19. Javed vs State oI Haryana AIR 2003 SC 3057 Quote on polygamy xviii
20. K. A. Abdul Jaleel vs AIR 2003 SC 2525 Right to matrimonial property 44
T. A. Shahida
21. Kapore Chand vs AIR 1953 SC 413 Widow`s right to mehr 30
Kidar Nissa Begum and
others
22. Khatoon vs Mohammed AIR1982 SC 853 Husband`s unreasonable 37
Yamin threat and maintenance
to wiIe
23. Lily Thomas vs AIR 2000 SC 1650: Quote on Islam and xvii, xviii
Union oI India 2000 Cr.L.J. 2433 (S.C.) Muslim law, and polygamy
24. Maina Bibi vsVakil Ahmed (1924) 52 IA 145) Right to mehr 30
25. Masroor Ahmed vs State Judgment delivered in Legal validity oI 22, 27
(NCT) oI Delhi & Another Delhi High Court on unilateral triple talaq,
3 Oct 2007 by Justice diIIerence between
Badar Durrez Ahmed fatwa and qa:a
26. Mohammed Ahmed AIR 1985 SC 945: Post-divorce maintenance 33
Khan vs Shah Bano 1985 Cr L J 875 to woman
Begum
27. Mohammed Amin vs AIR 1952 SC 358 Presumption oI lawIul 2
Vakil Ahmed marriage through
continuous, prolonged
cohabitation
28. Mohammad Khalid vs AIR 1988 All 252 WelIare oI child as the 15
Zeenat Parveen & others paramount consideration
in awarding custody oI child
29. Mohamed Shahabuddin vs AIR 1960 Pat 511 Right to mehr 30
Ummatur Rasul
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30. Nazma Bibi & another vs Order dated Legal validity oI fatwa 26
State oI Orissa & Others 21 April 2006
31. Noor Saba Khatoon vs AIR 1997 SC 3280 Muslim Iather`s duty 12
Mohammed Qasim to pay maintenance to
his children
32. Pannalal Bansilal vs (1996) 2 SCC 498: Quote on law reIorm xviii
State oI A.P. 1996 AIR SCW 507
33. Ram Niwas Todi and (1996) 6 SCC 444 Oral giIt to married woman 42
another vs Bibi Jabrunnissa
and others
34. Rosy Jacob vs Jacob A. AIR 1973 SC 2090 WelIare oI child as the 15
Chakranakkal paramount consideration in
awarding custody oI child
35. Sabir Hussain vs Farsand AIR 1938 PC 80 Right to mehr 30
36. Secretary, Tamil Nadu AIR 1996 SC 2423 State wakI board and 40
WakI Board and another maintenance to women
vs Syed Fatima Nachi
37. Shamim Ara vs State AIR 2002 SC 3551 Validity oI triple talaq 20
oI U.P. & another
38. Sirajmohmedkhan AIR 1981 SC 1972 Impotency oI man and xvii, 35
Janmohamadkhan vs maintenance to woman,
HaIizunnisa Yasinkhan & Quote on Marriage under
another Muslim law, sex within
marriage, maintenance to
women under Criminal
Procedure Code
39. Smt. Seema vs (2006) 2 SCC 578 Compulsory registration oI 6
Ashwani Kumar marriage
40. Sona Ullah Ganai vs 1988 K.L.J. 201 Legal validity oI fatwa 27
Moulvi Akbar
41. Syed Saleemuddin vs AIR 2001 SC 2172 WelIare oI child as the 14
Dr. Rukhsana & others paramount consideration in
awarding custody oI child
42. Valie Peedikkandi AIR 1964 SC 275 Oral giIt to married woman 43
Katheessa Umma vs
Pathakkalan Narayanath
Kumhamu
43. Zohara Khatoon vs AIR 1981 SC 1249 Dissolution oI a Muslim 23
Mohammed Ibrahim marriage through court
Name Citation Issue Page No.
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FOREWORD
India's constitution was a milestone Ior women`s advancement; the right oI non-discrimination on the
basis oI sex is guaranteed in the list oI justiciable Fundamental Rights, as also equal protection under the
law and equal opportunity in public employment. Yet, judging Irom the status oI women in India, this
has not always been the case. These guarantees did little to bring about social and material change in the
lives oI most women. Vast numbers oI women lack essential support Ior Iundamental Iunctions oI a
human liIe. This is Irequently caused by their being women. The constitution protects sex equality, non-
discrimination, and Iree choice oI religion, but it also retains plural systems oI religious personal law.
With the exception oI commercial law which was codiIied on a nationwide basis by the British and has
remained so, civil law remains the province oI various personal systems oI law. Personal laws cover
rights within marriage, divorce, maintenance and inheritance, and all oI them discriminate against women.
The system oI personal laws creates diIIiculties not only Ior gender equality and Ior non-discrimination
on the basis oI religion. Secularism notwithstanding, the state has been unwilling to radically interIere in
matters oI the Iamily, marriage and personal law which are widely seen as the domain oI religious and
traditional authorities and where religious and customary precepts (the latter oIten giving women even
Iewer rights than the Iormer) continue to hold sway.
Among a population oI over a billion Muslims spread across the world, India has one oI the largest
concentrations oI Muslim population. The Muslim community in India is not homogenous. It is
divided into sects (Shias and Sunnis) and sub-sects (Hanafis, Shafis, Mallikis, Hanbalis, Bohras,
Khofas, Itnaasharis etc). Each religious community in India, including the Muslim community, is
governed by a diIIerent set oI Iamily laws (popularly known as 'personal laws) that governs issues
arising out oI matrimonial relations, such as marriage, divorce, maintenance and alimony, inheritance
and succession. India`s Muslim community is governed by a complex set oI laws, consisting oI uncodiIied,
statutory (codiIied), customary laws and practices. UncodiIied laws derive their basis Irom interpretations
oI Quranic verses, ranging Irom the most orthodox to most liberal interpretations. UncodiIied laws and
customary laws and practices diIIer with each sect and sub-sect oI the Muslim community in India,
while statutory laws and judicial interpretations are by and large applicable to the entire Muslim
community.
There has been a history oI law reIorms in Muslim Iamily law in India dating back to the British period.
The British government enacted the Shariat Application Act, 1937 which was an attempt at codiIication
oI Muslim Iamily law. Dissolution oI the Muslim Marriages Act was enacted in 1939, providing, Ior
the Iirst time, a statutory right Ior a woman to obtain a divorce Irom her husband in a court oI law.
ThereaIter, Ior several decades, no Iurther reIorms were made in Muslim Iamily law. In 1986, aIter
the Supreme Court pronounced its judgment in Shah Bano's case, where it upheld Muslim women's
right to post-divorce maintenance, Muslim Iamily law and women's rights within the same came to be
discussed with renewed vigour. With a view to neutralize the consequences oI the judgment, the
controversial Muslim Women (Protection oI Rights on Divorce) Act was passed. Since then there has
been little visible eIIort by the state or the Muslim community to revive the process oI gender-just
reIorms in Muslim Iamily law. Repeated communal violence that targeted the minority community
during these decades has created a sense oI insecurity and alienation within the Muslim community. In
this context, when the community is enmeshed with issues related to its identity, survival, physical and
economic security, the right oI Muslim women to a digniIied liIe has taken a backseat in public
consciousness.
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There has been inadequate progress towards the secularization oI personal laws. The process oI bringing
about gender-just reIorms in Iamily laws needs to be preceded by a dialogue among various actors
involved in order to build a consensus on the reIorms required. Overall, the process oI legal reIorm is
protracted and is unlikely to be resolved any time soon. This process could take several years, as
indicated by the experience oI the Parsi and Christian communities in India in bringing about reIorms in
their Iamily law in the past two decades.
Simultaneous with the discussion and debate on reIorms within Muslim Iamily law that would beneIit
women, a signiIicant parallel process has been in progress which has slowly but surely helped in
consolidating the rights oI Muslim women. Muslim women have knocked at the doors oI the courts oI
law to assert their individual rights within Iamily law. Many courts oI law across the country, including
Family courts, High Courts and the Supreme Court, have responded to these petitions and pronounced
judgments on issues pertaining to women's rights within Muslim Iamily law. Since the Supreme Court's
judgments are binding upon all courts across the country, such judgments on women's rights within
Muslim Iamily law bear a special signiIicance. While there is no conclusive study on the percentage oI
Muslim women who access courts oI law as compared to women oI other religious communities,
Muslim women do approach courts oI law but the socio-economic and cultural status oI Muslim
women has created serious obstacles in their access to justice through courts oI law. This is partly
because oI the availability Ior Muslims oI extra-judicial divorce and the ineligibility oI Muslim women
Irom the maintenance provisions oI Section 125 oI the Cr.P.C.
In this context, the present publication is timely and useIul Ior the collective and individual struggles oI
women Ior a digniIied liIe, both within courts oI law as well as through inIormal Iorums oI dispute
resolution. The publication, aimed at popularizing Supreme Court judgments on Muslim Iamily law that
are beneIicial to women, Iorms one oI the many strategies that are urgently required to ensure that anti-
women and anti-Islamic practices and belieIs that violate a Muslim woman's dignity are countered.
This volume is a pioneering and commendable eIIort by a women's rights advocate and activist who has
worked closely with underprivileged women Irom the Muslim community, in bridging the gap between
judicial pronouncements and practices at the grassroots on aspects oI Muslim Iamily law in India. This
publication, with its compilation oI landmark judgments that are explained in a simple manner in order
to reach out to lay women, would deIinitely help conscious women's rights activists and organizations
to arm themselves in the struggle Ior dignity oI women within marriage and aIter divorce a struggle
that is bound to be intense and protracted.
This publication is essentially a compilation oI case law. Yet, various chapters with the incorporation oI
a background note, an in depth analysis oI the implications oI the judgment as well as a discussion oI
other related judgments, makes it a valuable book not only Ior activists but also lawyers and judges who
deal with issues pertaining to Muslim Iamily law. The concluding chapter is useIul in raising many issues
and dilemmas that would necessarily have to be addressed in Iuture through the collective eIIorts oI the
legal, academic and activist communities.
- Dr. Zoya Hasan
ProIessor at the Jawaharlal Nehru University and
Member, National Commission Ior Minorities,
Government oI India
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INTRODUCTION
Supreme Court is the highest judicial institution under the Indian Constitution. By
pronouncing judgments, it not only resolves disputes but also states the law and decides
the rights oI parties. It also interprets laws and legal provisions when their meaning is
ambiguous or when they seem to contradict one another, and sets precedents Ior itselI and
other courts to Iollow.
Muslim law in India is partly codiIied and mostly uncodiIied. The law is uncertain and
ambiguous on many issues. The Muslim community in India interprets the law diIIerently
depending on the sect and sub-sect that one belongs to. Many oI the verses oI the Holy
Quran have been interpreted by religious and patriarchal Iorces in a manner detrimental
to the interests oI women. Seen in this light, Supreme Court judgments on Muslim Iamily
law bear a special relevance and signiIicance to Muslim women`s individual and collective
struggles to lead a liIe with dignity.
Few women have approached the Supreme Court Ior asserting their rights related to Muslim
Iamily law. Hence, opportunities Ior courts to give judgments protecting Muslim women`s
rights have been limited. Fewer women have obtained judgments in their Iavour, which
also lay down a law or interpret legal provisions. Some oI these judgments have sparked
protests Irom patriarchal Iorces within the community. Though these judgments are well-
known, women Iind it diIIicult to counter the resistance Irom the community and seek
recourse to law. Other judgments remain dormant in law reports, only to be accessed by
lawyers, judges, law students and researchers Irom time to time. They are not known to
most lay persons, particularly women. Hence, practices that adversely aIIect women`s
rights continue to exist and remain mostly unchallenged in courts oI law.
A primary objective oI this work is to contribute to bridging the existing gap between the
law and practice, by disseminating inIormation on landmark judgments oI the Supreme
Court on Muslim law and women`s rights. Such judgments have the potential to strengthen
individual and collective struggles oI Muslim women Ior equality and justice in the Iamily
sphere, within and outside the courts. Needless to say, all Supreme Court judgments are
not inIallible. Many contain communal and patriarchal biases. However, this compilation
culls out, highlights and explains only the judgments beneIicial to women.
It is pertinent to note that there is no record at all oI the number oI Muslim women
approaching district courts Ior matrimonial relieIs, as judgments oI such courts are not
reported. One cannot even begin to guess iI women obtain justice Irom such courts. Due
to a lack oI access to quality legal aid, Muslim women`s access to justice Irom High
Courts is poor, and Irom the Supreme Court even more remote. There are many lawyers
practising in the district and High courts, Iighting their small battles in representing Muslim
women in Iamily law cases and trying to obtain judgments in their Iavour. This compilation
is intended to be a resource material to all such lawyers.
Mahila mandals, mahila panchavats, mahila adalats, women`s cells and such other
inIormal / semi-Iormal dispute resolution mechanisms intervene on behalI oI women.
They play a signiIicant role in negotiating and settling matrimonial disputes amicably
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outside the Iormal judicial structure. This book is also aimed at disseminating inIormation
to members oI such Iorums so that the Supreme Court judgments Iavourable to women
maybe used while negotiating Ior the rights oI Muslim women. It is also hoped that this
book will contribute to and strengthen the national campaign on reIorm oI Muslim law in
a small way.
As Iar as practicable, recent judgments have been included in this compilation, except
where no recent judgments were available on an important principle. Judgments chosen
Ior this book are those that have laid down an important principle in Muslim law, and
which continue to remain law oI the land. They also include observations made by the
Supreme Court on aspects oI Muslim law. Care has been taken to include issues such as
custody and compulsory registration oI marriages, which apply to all religious communities,
only because they are relevant issues Ior the Muslim community. A consistent demand has
come Irom over 25 communities that Women`s Research & Action Group works with, Ior
inIormation related to property rights oI Muslim women. In response to the demand,
judgments on property rights oI women have been included in this compilation.
This book summarizes landmark judgments oI the Supreme Court on Muslim Iamily law
and women`s rights, and does not reproduce the judgments. However, copies oI the
judgments in English are available with the publisher upon request. While summarizing,
legal language and jargon, reIerence to laws, sections, sub-sections and prior judgments
have been kept to a minimum, but could not be omitted in their entirety. Some judgments
deal with multiple issues. However, in order not to conIuse the reader, only the issues
relevant to the topic at hand are highlighted and discussed. Some judgments included in
this compilation have political and / or communal overtones and implications. While
endorsing the law that is laid down by the Supreme Court, there is a need to work on
countering the communal prejudices with which the Iindings have been arrived at and the
law has been laid down. The write-up on the respective judgments carry a note oI the
concerns to the communal implications.
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SOME QUOTABLE QUOTES
Reproduced below are some positive comments and observations made by the Supreme Court
pertaining to Muslim law and women`s rights. This would help us understand how the apex
court approaches these issues. The negative observations and comments anyway gain publicity
through other sources!
ON ISLAM & MUSLIM LAW
The word 'Islam` means 'peace and submission.` In its religious connotation it is
understood as 'submission to the Will of god.`.Muslim Law is admittedlv to be based
upon a well recogni:ed svstem of furisprudence providing manv rational and revolutionarv
concepts, which could not be conceived bv the other svstems of Law in force at the time of
its inception. The small beginnings from which it grew and the comparativelv short space
of time within which it attained its wonderful development marked its position as one of the
most important fudicial svstem of the civili:ed world. (Justice R.P. Sethi in Lily 1homas vs
Union of India AIR 2000 SC 1650 at para 61, page 1666)
ON MARRIAGE UNDER MUSLIM LAW
(UnderMuslim law) . marriage is a sacrosanct contract and not a purelv religious ceremonv
as in the case of Hindu law. (Justice Fazal Ali in Sirajmohmedkhan 1anmohamadkhan vs
Hafizunnisa Yasinkhan & another AIR 1981 SC 1972 at para 6, pages 1974)
ON SEX WITHIN MARRIAGE
Marriage without sex is an anathema. Sex is the foundation of marriage and without a
vigorous and harmonious sexual activitv it would be impossible for anv marriage to continue
for long. It cannot be denied that the sexual activitv in marriage has an extremelv favourable
influence on a womans mind and bodv. The result being that if she does not get proper
sexual satisfaction, it will lead to depression and frustration. (quoted with approval by
Justice Fazal Ali in Sirajmohmedkhan 1anmohamadkhan vs Hafizunnisa Yasinkhan &
another AIR 1981 SC 1972 at para 22, pages 1977-78)
ON MAINTENANCE TO WOMEN UNDER CRIMINAL PROCEDURE CODE
After the International Year of Women when all the important countries of the world are
trving to give the fair sex their rightful place in societv and are working for the complete
emancipation of women bv breaking the old shackles and bondage in which thev were
involved, it is difficult to accept a contention that the salutarv provisions of the Code are
merelv meant to provide a wife merelv with food, clothing and lodging as if she is onlv a
chattel and has to depend on the sweet will and mercv of the husband. (Justice Fazal Ali in
Sirajmohmedkhan 1anmohamadkhan vs Hafizunnisa Yasinkhan & another AIR 1981
SC 1972 at para 14, page 1976)
ON HUSBAND`S DUTY TO PAY MAINTENANCE TO DIVORCED WIFE
A woman on her marriage . shares with her husband, her emotions, sentiments, mind and
bodv, and her investment in her marriage is her entire life . When a relationship of this
NLEEE
The Supreme Court Speaks
nature breaks up, in what manner we could compensate her so far as emotional fracture or
loss of investment is concerned, there can be no answer. It is a small solace to sav that such
a woman should be compensated in terms of monev towards her livelihood and such a relief
which partakes basic human rights to secure gender and social fustice is universallv
recogni:ed . it is difficult to perceive that Muslim law intends to provide a different kind
of responsibilitv bv passing on the same to those unconnected with the matrimonial life
such as the heirs who were likelv to inherit the propertv from her or the wakf boards.
(Justice S. Rajendra Babu in Danial Latifi vs Union of India AIR 2001 SC 3958 at para 20,
p. 3967)
ON POLYGAMY
It mav be permissible for Muslims to enter into four marriages with four women . but no
religion in India dictates or mandates as an obligation to enter into bigamv or polvgamv .
What is permitted or not prohibited bv a religion does not become a religious practice or a
positive tenet of a religion. A practice does not acquire the sanction of religion simplv
because it is permitted. Assuming the practice of having more wives than one . is a
practice followed bv anv communitv . the same can be regulated or prohibited by
legislation in the interest of public order, morality and health or by any law providing for
social welfare and reform.(emphasis is the authors) (1aved vs State of Haryana AIR
2003 SC 3057 at para 60, page 3073)
Muslim law as traditionallv interpreted and applied in India permits more than one marriage
during the subsistence of one and another though capacitv to do fustice between the co-
wives in law is condition precedent. Under the Muslim law pluralitv of marriage is not
unconditionallv conferred upon the husband. (Lily 1homas vs Union of India AIR 2000 SC
1650 at para 61, page 1666)
ON INTERPRETING MATRIMONIAL LAWS
In interpreting the provisions where matrimonial relationship is involved, we have to consider
the social conditions prevalent in our societv. In our societv, whether thev belong to the
maforitv or the minoritv group, what is apparent is that there exists a great disparitv in the
matter of economic resourcefulness between a man and a woman. Our societv is male-
dominated both economicallv and sociallv and women are assigned, invariablv, a dependent
role, irrespective of the class of societv to which she belongs. (Justice S. Rajendra Babu in
Danial Latifi vs Union of India AIR 2001 SC 3958 at para 20, p. 3967)
ON LAW REFORM
The directive principles of the Constitution themselves visuali:e diversitv and attempted to
foster uniformitv among people of different faiths. A uniform law, though is highlv desirable,
enactments thereof in one go perhaps mav be counter-productive to unitv and integritv of
the nation. In a democracv governed bv rule of law, gradual progressive change and order
should be brought about. Making law or amendment to a law is a slow process and the
legislature attempts to remedv where the need is felt most acute. It would, therefore, be
inexpedient and incorrect to think that all laws have to be made uniformlv applicable to all
people in one go. (Pannalal Bansilal vs State of A.P. 1996 AIR SCW 507 at p. 515)
1udgments on Muslim Law & Women`s Rights
MARRIAGE
MATRIMONIAL RELIEFS
continue paying maintenance to Shamim until the obligation comes to an end in accordance
with law.
BeIore arriving at the judgment, the court reIerred to several commentaries on Islamic
law by eminent scholars, including Dr. Tahir Mahmood`s The Muslim Law oI India` 2
nd
edition and Mulla`s Principles oI Mohamedan Law` 19
th
edition, as well as previous
judgments oI the courts on the issue. Based on these, the Supreme Court stated the Iollowing
principles in relation to unilateral, oral talaq by the Muslim husband:
An oral talaq, to be eIIective, has to be pronounced / uttered; iI the wiIe contests the
divorce in court subsequently, the Iact that it was pronounced will have to be proved.
A written statement / aIIidavit by the husband Iiled in court in response to the wiIe`s
petition Ior any legal remedies against her husband, saying that he pronounced triple
talaq some time in the past cannot, by itselI, constitute a pronouncement oI talaq.
A mere statement in writing or in oral disposition beIore the court regarding the talaq
having been eIIected in the past is not suIIicient to prove the Iact oI divorce. Such a
Iorm oI divorce is not recognized in ancient holy books or scriptures oI Muslims.
Talaq, to be legally valid, must be Ior a reasonable cause
Talaq must be preceded by attempts at reconciliation between the husband and the
wiIe by two arbiters - one Irom the wiIe`s Iamily and the other Irom the husband`s; iI
the attempts Iail, talaq may be eIIected.
IMPLICATIONS OF THE 1UDGMENT
A unilateral divorce pronounced by the husband without a reasonable cause and without
any attempts at reconciliation by two arbiters prior to the divorce is not a legally valid
divorce. II the wiIe disputes the Iact oI divorce beIore a court oI law, all the stages oI
conveying the reasons Ior divorce, appointment oI arbitrators, conciliation proceedings
Ior reconciliation between the parties by the arbitrators and Iailure oI such proceedings
are required to be proved in court by the husband. A wiIe who has had a unilateral oral
talaq pronounced on her that does not satisIy the conditions stated above, would continue
to be entitled to matrimonial relieIs such as maintenance, since it is not a legally valid
Iorm oI divorce.
NOTE
A Full Bench judgment oI Bombay High Court, delivered prior to the Supreme Court judgment
discussed above, stated that mere pronouncementoItalaqbythehusbandormerely
declaringhis intentionsor hisactsoIhaving pronouncedthetalaqisnot suIIicient and does
not meet the requirements oI law; in everysuchexercise oIrightto talaq the husband is
required to satisIy the preconditions oI arbitration Ior reconciliation and reasons Ior talaq.
It Iurther held that iIthehusband has not been able to prove his statement regarding