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AIMPLB to contest Shayara Bano's plea in SC, seeks to protect 'triple talaq'

The Supreme Court late last month agreed to hear AIMPLB's argument against the top court going into the validity of Muslim personal law

Shayara Bano

BS Web Team  |  New Delhi 

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The ghost of the Shah Bano case is back as the All India Muslim Personal Law Board (AIMPLB) has decided to contest the case in the Supreme Court, the Times of India reported on Monday.

The Supreme Court late last month agreed to hear AIMPLB's argument against the top court going into the validity of Muslim personal law — which allows triple talaq, polygamy, and imposes certain restrictions on Muslim women in case of remarriage.

AIMPLB's application to the top court comes at a time when the court, earlier last month, sought the Centre's response to Shayara Bano's plea challenging the constitutionality of Muslim practices of polygamy, triple talaq ('talaq-e-bidat'), and 'nikah halala'.

What does the plea contend:

Petitioner challenged the constitutionality of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, in so far as it seeks to recognise and validate polygamy, triple talaq and 'nikah halala'.

Bano also challenged the Dissolution of Muslim Marriages Act, 1939, saying that it fails to provide Indian Muslim women with protection from bigamy.

In her petition before the court, Bano related her own harrowing experience and said that she was subjected to cruelty, and dowry demands, from her husband and his family.

In her plea, Bano said: "Muslim women have their hands tied while the guillotine of divorce dangles, perpetually ready to drop at the whims of their husbands who enjoy undisputed power. Such discrimination and inequality hoarsely expressed in the form of unilateral triple-talaq is abominable when seen in light of the progressive times of the 21st century."

The practices in question:

'Talaq-e-bidat' is the law by which a Muslim man can divorce his wife by pronouncing the word 'talaq' (divorce) more than once in a single 'tuhr' (the period between two menstruations), or in a 'tuhr' after coitus, or pronouncing an irrevocable instantaneous divorce at one go (unilateral triple-talaq).

'Nikah halala', as Bano's plea describes it, is when "... once a woman has been divorced, her husband is not permitted take her back as his wife even if he had pronounced talaq under influence of any intoxicant, unless the woman undergoes nikah halala which involves her marriage with another man who subsequently divorces her so that her previous husband can re-marry her."

Shayara Bano's story:

Bano, a 35-year-old mother of two, had been visiting her parents' home in Uttarakhand for medical treatment in October last year, when she received her 'talaqnama', a BBC report said.

The report added that her attempts "to reach her husband of 15 years, who lives in the city of Allahabad, have been unsuccessful".

Speaking to BBC, she said: "He's switched off his phone, I have no way of getting in touch with him." She added, "I'm worried sick about my children, their lives are getting ruined."

According to BCC, in February this year, Bano finally filed her petition.

Following in Shah Bano's footsteps:

In the early 'Eighties, Shah Bano's husband threw her out after 14 years of marriage, leading to a court case and subsequent intervention by the Rajiv Gandhi government that came back to haunt the party after it was used to raise the bogey of minority appeasement.

62-year-old Bano and her five children had been surviving on the maintenance of Rs 200 per month her ex-husband had been paying her, till, in 1978, he stopped paying the amount.

Bano started a legal battle that went all the way to the Supreme Court, with Bano demanding what she saw as her rightful due.

The court eventually ruled in her favour. The court ruled that Bano's ex-husband had to provide her maintenance under Section 125 of the Criminal Procedure Code (CrPC).

The Muslim orthodoxy, AIMPLB included, reacted sharply to the judgement.

With mounting protests and many leaders of the Congress party requesting then PM Rajiv Gandhi to take steps to dilute the Supreme Court's judgement, the government passed a law in Parliament – The Muslim Women (Protection of Rights on Divorce) Act, 1986 – which in effect diluted the court's judgement.

The Act, in stark contrast to the court's ruling that even a Muslim woman is entitled to maintenance under Section 125 of CrPC, allowed maintenance to a divorced Muslim woman only during the period of 'iddat' — a period lasting 90 days after the divorce.

An India Today report from 2005 describes how the then government acted.

"Rajiv Gandhi took two political decisions which would have momentous and disastrous results: he pushed through an Act of Parliament which denied Muslim women the right to demand maintenance from their former husbands and gave the green signal to the Uttar Pradesh government to unlock the gates to the makeshift Ram mandir set up surreptitiously inside the Babri Masjid. Then, the premises were locked by the court while the case was sub judice," the report said.

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First Published: Mon, April 18 2016. 09:18 IST