The case of Mohammad Naseem Bhat vs Bilquees Akhtar heard by Justice Hasnain Masoodi is an infrequently told story of a Muslim wife's claim for maintenance against her husband. The parties were married in August 2002 and had a daughter. The marriage failed and Bilquees started living separately with her daughter. In January 2006, she filed a claim for maintenance for herself and her daughter. She alleged that her husband ill-treated her, mainly because she had given birth to a girl child. The husband held that he had divorced her more than a month before the child was born, and hence she wasn't entitled to any maintenance.
The lower court accepted the man's divorce plea and rejected her claim of maintenance for herself. Thus, he was directed to pay a monthly amount only towards his daughter.
The wife appealed against the judgment, and the first appellate court set aside the lower court's decision, calling it "perverse, illegal and passed in a mechanical manner". It also directed the lower court to fix a proper maintenance allowance. The husband appealed in the high court that the lower court's decision be upheld. It was then that Justice Masoodi stated that under the Kashmir Shariat Act 2007, Muslims are to be governed by the Shariat law.
Today, when discussions on triple talaq have boldly resurfaced in drawing rooms and newsrooms alike, Supreme Court lawyer Shabnam Lone, who was appointed by the High Court of Jammu and Kashmir as amicus on behalf of the lady in 2014, says that there is much to be learnt from this incident. "Many religious bodies, and even a retired high court judge and the bar filed a petition against the high court's order. The application was filed under Section 94 of the Constitution of J&K for reviewing the order passed by the high court. Her own lawyer refused to represent her since the case was widely reported in local newspapers. I filed her power of attorney in open court. When she contacted me, she was worried but sure about going ahead. After the third or fourth hearing, she stopped coming to court. It was then that the court appointed me amicus on her behalf," Lone said.
And whether she wasn't allowed to show up or lost interest in the case is a reason best known to her, the fact of the matter is that in India, women are entangled in legal battles they aren't even allowed to fight.
There are several cases to illuminate that a married Muslim woman's rights change with the culture and class she comes from, but in every situation, she is denied.
Women's rights activist and lawyer Abha Singh says it is as much an urban problem, and talks about two of her clients battling triple talaq in their own ways. In one case, the client comes from an upper middle class business family in south Mumbai, and because she spoke up against her in-laws, they urged their son to divorce her. She is a graduate and is seeking maintenance for her children under Section 125 of the CrPC. The second is a software professional who converted to Islam to marry her Muslim lover. He wants to divorce her and keep the child. She is fighting for the custody of her son, arguing she is better placed to take care of him.
"These are educated girls who feel they live with the fear of talaq looming over their heads all the time. They are now ready to spend on lawyers, install CCTV cameras to collect evidence against the husband and their in-laws. All this is done with the realisation that the Constitution guarantees basic rights which the All India Muslim Personal Law Board (AIMPL) cannot question or interfere with," Singh says.
Singh points to the many Halala marriages that are prevalent in Lucknow. In this, in order to return to the first husband and children after talaq, a woman is made to marry another man and sleep with him. This humiliating exercise is undertaken each time he divorces her. In other cases, rich Sheikhs from the Middle East marry girls half their age, impregnate them, divorce them and fly back; where there is extreme poverty, there is no concept of maintenance.
Triple talaq has been banned in Pakistan, Bangladesh, Iran and even Saudi Arabia, because as per Islam, there has to be a gap of one menstrual cycle between each time the man utters the word talaq. This ensures that divorce is not given in a fit of rage and the man has time to cool down and think rationally over his decision. While India has overlooked this aspect, it has embraced technology. Talaq can now be given via SMS or email.
Sharifa Khanam, who founded the STEPS Women's Development Organisation in 1987, has some more scary stories to share. She pointed out that in the last 15 years, 80 Muslim women have died in South Indians towns like Pattikonda, Nagapattinam and Tirunelveli, and there is no reliable data to certify that these were suicides. "In most cases, the woman doesn't complain because there's risk of being ostracised by the Jamaat. In 1993, we conducted a survey in Tamil Nadu and found out that in every five families, there is at least one woman who is divorced, or physically and mentally tormented, handicapped or destitute. Not much has changed," she said.
Khanam pointed out that there is no dowry in Islam and the cultural practice that has emerged in poor families in villages is that the boys' family pay a mahr of Rs 500, and in turn demand dowry worth Rs 50,000. A dowry harassment case she noticed in Pudukkottai involved a girl who was harassed and burnt to death while the police refused to hear her mother's plea and asked her to seek help from the jamaat. "In lower levels, the police refuse to interfere in Muslim matters for whatever reason," Khanam added.
Rubina Patel, who runs the Rubi Social Welfare Society in Nagpur, brings to light some more shameful cases. In Teka in Nagpur, 18-year-old Shahnaz was given talaq without her knowledge. She was packed off to her mother's house and was living in oblivion for months before she realised what has happened. Shahina, from the same place, was pregnant at 20. Her husband approached a Mufti who issued a fatwa. "When we asked the Mufti why he issued it, he said the talaq was decided according to the man's neeyat (will). Then we asked him how can a pregnant woman be divorced, to which he said that the talaq will be implemented once the baby is born, like an advance talaq," Patel said.
While the men are busy politicising personal laws, the women continue to fight peculiar battles, ones that they mostly lose.
Updated Date: Dec 08, 2016 22:22 PM