PUCL Bulletin, June 2002

High Court Judgement
Safeguards against reckless divorces

Muslim men in Maharashtra will now have to prove their divorce in a court of law.

Shah Bano, an elderly Muslim woman reduced to penury after being divorced whimsically by her husband, had approached the Apex Court 17 years ago. The Supreme Court had granted her maintenance. The Government at the Center had capitulated under pressure, ignored liberal Muslim opinion, and introduced a law that negated the Supreme Court's decision. The result was that like before the fate of Muslim women divorces in India largely remained at the mercy of their husbands. Reckless men have often severed conjugal obligations by arbitrarily uttering talaq thrice, in unexceptional cases divorcing even through post, e-mail, or fax. Without involving the wife, witnesses, courts, or the law of the land.

In a landmark judgement last week, the Bombay High Court ruled that divorces between Muslim couples will now have to be "convincingly proved in a court of law under the civil procedure code and the Indian Evidence Act." A mere statement, written or oral, by a man divorcing his wife won't be enough proof of his having obtained a divorce. Delivered by a full bench of the Bombay High Court (comprising three judges), the ruling is now binding for Maharashtra.
The 88-page judgement came after hearing in a case filed by Latur resident Dagdhu Pathan, 40, challenging maintenance claims by his wife Rahimbi, 31. The Judgement categorically states that for divorces to be deemed legal, husbands must prove in court that all requirements for divorce under Muslim law were fulfilled before pronouncing talaq.

This implies proving efforts have been made towards pre-talaq negotiations like reconciliation, arbitration, and payment of mehr (dower). "Unless the factum of talaq is proved in a court of law" the ruling says, divorce registrations made under the Wakf Act and certificate issued thereafter will carry no "sanctity" in the eyes of the law.

"The ruling have provided for procedural safeguards against reckless divorces, and as such ensure transparency in conjugal transaction. But it hasn't gone into the substantive issue of rights of a muslim male to divorce and so shouldn't upset the clerics", clarifies advocate Anees Ahmed according to reports. Mumbai - based feminist lawyer Flavia Agnes is reported to have said that the ruling unequivocally lays down that any or piece of paper proclaiming divorce will not be valid "so that women aren't deprived of financial dues such as mehr and maintenance if divorced arbitrarily by their husbands.

Sabiha Hussain of the Delhi-based Centre for women 's Development studies after a survey of Muslims women in Bihar's Darbhanga district some years ago 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 installments.

All India Muslim Personal Law Board (AIMPLB) secretary Maulana S Nizamuddin terms, on the other hand, the ruling as undesirable. He is reported to have remarked, "Once a man has pronounced talaq, where's the logic of going to court and producing paperwork to prove the same. We'll challenge this ruling." -- Via E-mail

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