Before triple talaq case, a look at how India’s judiciary dealt with personal laws vs the fundamental

New Delhi, May 11, 2017: Triple talaq case, originative from the petition filed by Shayara Bano in a case of divorce from her husband, is not the first matter relating to personal laws before the Supreme Court.

The apex court has dealt with several such cases before but surprisingly it has not given a consistent interpretation of the laws and provisions of Constitution. The conflict arises when personal laws are perceived to be in violation of the fundamental rights.

Article 13 of the Constitution states that any law, which goes against the provisions of fundamental rights, shall be void to the extent of contravention.

SUPREME COURT’S STAND ON PERSONAL LAWS

Personal laws in India are codified and uncodified – existing in custom and practice. Over the years, the Supreme Court has taken differing views on the question of precedence of personal laws over the fundamental rights.

In Krishna Singh vs Mathura Ahir case of 1980, Maharshi Avdesh case of 1994 and Ahmedabad Women Action Group case of 1997, the Supreme Court held that personal laws could not be challenged for being in contravention of the provisions of fundamental rights enshrined in the Constitution.

Many believe that this interpretation of the Supreme Court has been based on a ruling of the Bombay High Court in Narsu Appa Mali case of 1951. In this case, the Bombay High Court has enunciated that personal laws are not ‘laws’ under Article 13 of the Constitution.

But, a three-Judge Supreme Court bench in Mudaliar case of 1996 held that personal laws are void to the extent that they are in violation of the fundamental rights.

All these aspects and arguments are likely to be placed and reexamined the Supreme Court during the seven-day hearing of the triple talaq matter this summer.

SOME RECENT CASES OF PERSONAL LAWS: SHAH BANO MATTER

The most famous case relating to personal laws was that of Shah Bano, who had fought long drawn legal battle seeking maintenance from her ex-husband. In 1985, the Supreme Court had directed Shah Bano’s husband to pay her alimony according to the laws applicable to other Indians.

The Supreme Court had rejected the argument of Shah Bano’s ex-husband that since she was paid during the period of iddat – the waiting period after divorce and also the amount of mehr, she was not entitled to any further maintenance under the Muslim personal law.

MARY ROY CASE

The very next year, the Supreme Court decided another case relating to Christian personal law in the 1986-case of Mary Roy. The Supreme Court ruled that Syrian Christian women were entitled to equal share in their father’s property.

Before the Supreme Court order, the Syrian Christian community settled property inheritance issue as per the Travancore Succession Act, 1916 and Cochin Succession Act, 1921 while other Christians followed the Indian Succession Act of 1925 for the same.

As per the Travancore and Cochin Acts, women received only a quarter of their male siblings or Rs 5,000 whichever was less.

DANIAL LATIFI CASE

Danial Latifi was the lawyer of Shah Bano, who has won a maintenance case against her ex-husband in the Supreme Court. But, the apex court verdict was not received well by the conservative segment of Muslim society.

In order to pacify the swelling sentiment of the community, the then Rajiv Gandhi government enacted the Muslim Women (Protection on Divorce Act), 1986.

The new Act overturned the judgment of the Supreme Court providing that a man was required to pay maintenance to his divorced wife only during the period of Iddat.

Danial Latifi challenged the constitutional validity of the Personal law. The Supreme Court, in 2001 during the Atal Bihari Vajpayee government, held that the Muslim Women (Protection on Divorce Act), 1986 did not violate the Constitution or the fundamental rights.

The Supreme Court maintained that the personal laws need not be tested on the touchstone of the provisions of the fundamental rights.

TRIPLE TALAQ CASE IN BOMBAY HIGH COURT

In another case of triple talaq, the Bombay High Court held in 2002 that if wife contests this practice of divorce, it needed to be proved in a court of law.

In its 88-page judgment, the Bombay High Court ruled that “divorces between Muslims couples will now have to be convincingly proved under Civil Procedure Act and Indian Evidence Act. A mere statement, written or oral, by a Muslim man seeking divorce will not be enough proof of his having obtained the divorce.”

The Bombay High Court also held that a Muslim man did not have a unilateral right to divorce his wife by triple talaq. The man is bound to provide good reasons for a divorce.

ADOPTION BY MUSLIM WOMEN

The Supreme Court again delivered a landmark judgment in 2014 on the question of adoption of child by a Muslim woman. The Muslim personal law does not give women of the community the right to adopt children.

A three-judge bench of the Supreme Court headed by the then Chief Justice of India P Sathasivam ruled that Muslim women had the right to legally adopt children like any other Indian citizen. The Supreme Court held that the right to adopt children could not be denied by Muslim personal law.

RIGHT OF UNWED MOTHER

Under the Hindu Minority and Guardianship Act of 1956 father was held as the natural guardian of a Hindu child. If a child was born out of wedlock, only then the mother could be considered a natural guardian.

But, in 2015, the Supreme Court held that an unwed mother can legally become the sole guardian of a child. The apex court held the consent of the biological father is not necessary for the mother to become legal guardian of the child.

The Supreme Court observed that the father could not have ‘a preferential right over the mother in the matter of guardianship’.

– india today