On 23 August 1985, Arif Mohammad Khan, minister of state for home affairs in Rajiv Gandhi government, delivered a passionate speech in the Lok Sabha defending the Supreme Court judgment in the Shah Bano case. It was in the backdrop of a private member bill that was moved in the Lok Sabha by an MP named GM Bantwala, seeking to exempt Muslims from the purview of Section 125, an exemption that was nullified by the apex court judgement in the Shah Bano case, pronounced on 23 April, 1985.
Ramchandra Guha in his book India after Gandhi writes that the bill was opposed in the house by Khan, representing “so to say, the ‘progressive’ Muslim point of view”. Guha writes that Khan defended the judgement by quoting Maulana Azad who had “written that the Quran takes occasion to re-emphasise that proper consideration should be shown to the divorced women in every circumstances”
Khan argued that “We should have better practices these days and only if the downtrodden are uplifted, can the Islamic tenants be said to have been followed and justice done”. However, ‘political compulsions’ won over the ideals enunciated by Khan and in February 1986, a bill was introduced in the House to overcome the Supreme Court judgement.
And as mentioned in his book Text and Context : Quran and Contemporary Challenges, Khan, a few minutes after the bill was introduced, “sitting two benches behind the law minister” wrote his resignation, and according to Guha, told an interviewer, afterwards, that with this new legislation “Indian Muslim women will be the only women to be denied maintenance anywhere in the world”.
As the issue of ‘triple talaq’ and the desirability of uniform civil code (UCC) is once again being debated, Firstpost spoke to Khan to understand what has changed in last three decades and whether he feels that this time around, Muslim women will get their dues and their right to equality. The question is not about my expectations, the question is what the citizens and in this case, women of India should expect from the government and judiciary. Naturally, the expectation will be that they uphold the law of land and ensure the basic constitutional guarantee of equality before law and equal protection of the laws which includes equality in marital rights.
There is no question that ‘triple divorce’ negates both equality and dignity of Muslim women as human beings and citizens of India and can have no place in a civilised society. In fact the Personal Law Board publication titled The Compendium of Islamic Laws itself describes this form of divorce as “talaq bidat”. Now bidat literally means innovation, something that is not part of the original scheme. They themselves describe it as “good in law and bad in religion”. It is indeed bad because it seeks to dehumanise women. The important question is how you can defend something in the name of religion that you admit to be bad in religion.
Regarding polygamy, the provision of the Quran is crystal clear. It says: “Marry those among you who are single (24.32)”. This is addressed to both men and women and strangely this provision has been totally ignored, while the provision that gives conditional permission for polygamy, applicable in very exceptional circumstances has been elevated to the status of regular law. If you read the provisions of Quran together, then it leaves no room for doubt that it prescribes monogamy as a norm and allows polygamy under very extraordinary circumstances.
I have already pointed out that even the Personal Law Board publication admits that triple talaq is an innovation and bad in religion, so their insistence on retention of triple talaq is not a matter of wrong interpretation rather it is an attempt to perpetuate something that is repulsive both to religion and good conscience. It is important to note that few years after the death of the Prophet, when triple divorce found legal sanction, the men who resorted to triple divorce were awarded 40 lashes as punishment as they were perceived to have committed a crime. Today you cannot resort to lashing, so a new law may be enacted providing for four years of rigorous imprisonment for the crime of triple talaq.
With respect to the honourable courts, I would say that the Muslim personal law received legislative sanction through Shariat Application Act of 1937. Now a law that is passed by the Parliament cannot, by any stretch of imagination, be outside the purview of judicial review by the higher courts, who have been charged by the Constitution to safeguard the fundamental rights of the citizens from any encroachment by anybody including the executive and Parliament.