1. A Muslim woman seeks help from the Family Court to avoid a likely Talaq (Divorce)
A 2-Judge Bench of the Kerala High Court recently ruled in favour of the husband in a divorce case involving a Muslim couple. Earlier, Sabina had filed a petition against her husband Anwaruddin in the Family Court. In her petition, she said that her husband had already uttered ‘Talaq’ twice after he made up his mind to separate from her. If he said ‘Talaq’ for the third time, it would result in their divorce. She requested the Court to intervene and prevent their separation. Accordingly, after careful deliberation, the Court ruled in favour of Sabina and protected their marriage, but things changed soon after this judgement.
2. The Kerala High Court refuses to interfere in the Muslim Personal Law
Anwaruddin wasted no time in approaching the Kerala High Court against this verdict. He leveraged the rules related to marriage and divorce mentioned in the Muslim Personal Law. A Muslim Judge was on the 2-Judge Bench of the Kerala High Court which heard this case. He firmly declared that Article 25 of the Constitution grants every individual the right to abide by his ‘personal law’. It implies that Muslim men can marry more than one woman; however, the Courts do not have jurisdiction over such myopic Muslim personal laws in a secular India.
3. Some other judgements have invalidated the practice of polygamy in Islam
In this context, it is critical to review some past judgements. The erstwhile Justice VR Krishna Iyer of Kerala High Court (who later became a Supreme Court Judge), in a verdict (Shahulameedu Vs. Subaida Beevi – 1970 KLT 4) quoted some views of Muslim scholars in this regard. He said, “There are many Muslim countries in the world. Syria, Tunisia, Morocco, Iran and the Islamic Republics of Afghanistan, Mauritania and Pakistan, which have banned polygamy”.
In its judgment dated 22.10.2008, the Kerala High Court said in the ‘Saidali Vs. Salina 94/2007’ case – “The law does not prevent Muslims from polygamy; however, this practice should be discouraged and discontinued in the present times. History is replete with examples of inhuman treatment meted out to the prisoners of war. The winning side used to impose stringent restrictions on women of the losing side. In those days, many women used to live as orphans, destitutes or widows. Polygamy was allowed by the Muslim clergy to support these vulnerable women. However, the times have changed for good; hence, it is high time the Government bans this practice”.
The judgement in ‘Itwari Vs. Smt. Asghari’ case (AIR 1960 Allahabad 684) also reflects on these points. The Courts have always protected the interest of Muslim women while taking a clue from the ‘Dissolution of Muslim Marriage Act, 1939’. On multiple occasions, the Courts have disregarded the Muslim Personal Law wherever needed, to ensure that Muslim women get justice.
4. The Kerala High Court rules against Sabina
Unfortunately, the Kerala High Court did not reflect on these considerations about polygamy in the ‘Sabina Vs. Anwaruddin’ case. The Court said it never had any authority to issue an injunction against an anticipated Talaq till the husband proclaims it. In this judgement, the 2-Judge Bench of the Kerala High Court conveniently ignored the 2018 SC judgement that invalidated Triple Talaq. Hence, Triple Talaq is illegal in our country. In this regard, the SC says – ‘After the husband pronounces Talaq, his wife has the right to file a petition against him in the Courts’. Since Triple Talaq is illegal, there is no point in letting the husband pronounce Talaq and expect the wife to waste precious ten years fighting a legal battle. Because of such verdicts, the ordinary citizens consciously or unconsciously feel that the Courts, the Police and the administration do not want to intervene when it concerns Muslims, and hence, support the status quo and the age-old religious traditions even if they are wrong.
After the SC judgement, it is illegal for Muslim husbands to pronounce (Triple) Talaq. When a woman seeks legal help from the Courts to prevent such an unlawful act, the Courts must welcome her and give a verdict in her favour to set the right precedence. However, the Madras High Court did just the opposite. Hence, it would not be far from the truth if we say that the Courts treat Muslim cases differently and give them and their age-old traditions as much legal protection as possible.
5. Different verdicts for Hindus and non-Hindus
Some years ago, Mr Sunil Bhagatraj Udasi was sued by his wife for alimony (maintenance to be paid after divorce). In her petition, she said that she was Mr Sunil Udasi’s wife as per the law, and she was financially dependent on him. Since she did not have any job or financial support, her husband should pay alimony to her. The Court then ordered Mr Sunil Udasi to pay Rs 3,500 per month as maintenance to his estranged wife. In addition, the Court dismissed the cases filed by Mr Sunil Udasi in the District and the Sessions Court.
Mr Sunil Udasi challenged this verdict in the Gujarat High Court. In his petition, he said, “Earlier, I was working with the State Bank of Hyderabad, and my salary was Rs 11,000. Later, I resigned and became a full-timer to pursue my desire for religious work at Ananddham Ashram in New Delhi. The ‘Ananddham / Vishwa Jagruti Mission Ashram’ has issued a letter in this regard stating that I do not have any income”. The verdict delivered in 2016 said, “The law, as well as religion, obligates the husband to support his wife after their marriage. The estranged wife is legally entitled to monthly maintenance from her husband”.
In this regard, Section 125 of the Code of Criminal Procedure, 1973, says – ‘It is the legal right of the estranged wife to receive maintenance amount from her husband if he wishes to separate from his wife, provided he has a sufficient amount of money’.
In this case, the Court should have considered the following points :
1. Does the husband fulfil the prerequisite of having sufficient means ? Here, if the husband has ‘sufficient means’, then the law protects the wife and demands the husband to pay the maintenance amount. However, in this case, the husband (Mr Sunil Udasi) works for a religious organisation and has no money.
2. Is it appropriate for the Court to order such a person to pay monthly maintenance to his ex-wife ?
Courts often take a philosophical stance when it comes to Hindus and lecture them on ethics, morality and religion. On the contrary, they say non-Hindus have the right to worship and live according to their specific religious teachings (read, ‘as they please’).
6. India needs to replace the borrowed British legal system with an indigenous legal system which is more applicable to the Indian culture and values
From these verdicts concerning a Muslim and a Hindu couple, the readers may get the impression that the Judiciary pleases Muslims and other minorities and praises their ‘Personal Laws’. However, if Hindus are involved, they leave no stone unturned to lecture them on ethics, morality, duty and the law.
In India, the laws made by the British were amended and made applicable to the citizens. In this process, we have ignored the kind of justice served in Ram Rajya, the judicial administration of Chhatrapati Shivaji Maharaj, and the verdicts delivered by Ram Shastri Prabhune, Chief Justice of the Maratha Empire in the 18th Century and have conveniently adopted the British legal system.
The crux of the matter is that foreign judicial system utterly fails in the Indian context. It often results in the victimisation of innocent Hindus. The British mindset adversely impacts the judicial system, the Police and the administration.
7. The Police and the administration are always seen putting the cart before the horse, hence, the need to enact the ‘Uniform Civil Code’ (UCC)
The following is a typical sequence of events on how the Police deal with such cases. The victim goes to a Police station and lodges a complaint. The victim typically seeks to register a crime against the accused, prevent a person from doing something or get Police protection for a while. In such cases, the Police do not file an FIR, but register a ‘Non-Cognizable’ offence, which never gets investigated. Since the victims do not have any alternative in such cases, they prefer to commit suicide.
Shahrukh Hussain (a religious fanatic in Jharkhand) poured petrol over Ankita (a Hindu girl) and set her ablaze. Some months ago, Mrs Savita Kale, a married woman in Sambhajinagar (formerly Aurangabad) complained to the Police and clearly stated that there was a threat to her life. Later, the news of her suicide came to light.
We often read or hear about such incidents. The irony is that the Police register an FIR and begin their investigation after the complainant commits suicide or gets murdered.
Such an approach of the Police amounts to putting the cart before the horse. In the process, the Police let the crime take place, and then they try to provide justice. Such an approach is fundamentally incorrect. If the complainant gets justice in time, there will be a drastic reduction in such incidents.
To deliver justice swiftly, the Government should enact the UCC. The UCC will address a range of issues concerning marriage, birth, death, inheritance and progeny.
8. Hindus should form a united front and work towards a singular objective : Establishing the ‘Hindu Rashtra’
Through its verdicts, many times the Supreme Court has directed the Centre to enact the UCC. Moreover, Dr Babasaheb Ambedkar, who played a pivotal role in drafting the Constitution of India, was also in favour of the UCC.
We have a pro-Hindu Government (which was voted to power by the patriotic Hindus) at the Centre for the past 8 years.
However, despite many petitions seeking enactment of the UCC, the Centre is yet to enact this crucial law. Due to this procrastination, Muslims and other religious communities get favourable treatment from the Courts, the Police and the administration.
We must realise that ‘Hindu Rashtra’ is the need of the hour and hence, we must unite and strive to make it a reality soon.
II Shrikrushnarpanamastu II
– H.H. (Advocate) Suresh Kulkarni (Founder Member, Hindu Vidhidnya Parishad and Advocate in Bombay High Court)
|Uniform Civil Code, or Samana Nagrika Samhita (IAST : Samana Nagrika Samhita), sometimes referred to as UCC, is a proposal in India to formulate and implement personal laws of citizens which apply to all citizens equally regardless of their religion, gender and sexual orientation. Currently, personal laws of various communities are governed by their religious Scriptures.|
The Uniform Civil Code will address a range of issues concerning marriage, birth, death, inheritance and progeny !