The Madurai bench of the Madras High court, has recently made an observation that a divorced woman cannot claim alimony from her ex-husband, if she enters into any relationship with another man.
The bench was hearing a revision petition filed by a man who was pleading that he should not be made to pay an alimony of Rs 1000 to his ex-wife as he had got an ex-parte divorce from his ex-wife on the grounds that she was adulterous.
Justice S. Nagamuthu, who presided over the case said that: “Since a man carries an obligation to maintain his divorced wife, the woman also carries the obligation not to live in relationship with another man. If she commits breach… she will suffer disqualification from claiming maintenance… If she wants to live in relationship with another man, she may be entitled for maintenance from him and not from the former husband.”
The judgment has come under criticism in certain sections of population who are viewing the judgment as patriarchal. But, is such a view really justifiable?
Let us first look into what marriage is. The Merriam-Webster dictionary defines marriage as “the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law.” Therefore, marriage is not just acquaintance or friendship. It is a union between spouses in every-sense of the word- physical, mental, and social.
The concept of marriage in Hindu culture takes it one step further and makes it even a spiritual union, wherein the spouses together work towards attaining all the four-fold goals of life- kama (desire including sexual desires), artha (wealth and prosperity), dharma (duty and righteousness), and moksha (final liberation).
Therefore, sexual fidelity is implicit and most vital in the union of marriage. As marriage is a physical, emotional, ethical, and social bond, the sexual infidelity or adultery which amounts to cheating at all levels from physical to social, is considered as being opposite to the very essence of marriage.
The bond of marriage is rooted in fidelity, and this bond breaks down due to infidelity. It is for this reason that the amendment to the marriage laws in 1976 stipulated that even a single instance of adultery could be a ground for divorce. Therefore, sexual fidelity which implicitly includes emotional, ethical and spiritual fidelity as well is at the very center of marriage and hence of divorce as well.
Regarding the reason for giving alimony to women after divorce, Justice S. Nagamuthu said: “Even after divorce, the law takes care that a woman does not end up in destitution and that is the reason why she is entitled for maintenance from her erstwhile husband.”
Therefore, the husband is to provide financial assistance to his wife even after divorce, so as to help her sustain herself. In other words, the husband is being stipulated by the law to perform his conjugal duty of economically sustaining the family, even after divorce.
Now, if such a divorced woman, who is receiving alimony from her ex-husband, is entering into a relationship with another man, be it casual affair or permanent bond, the woman in question is breaching the conjugal bond that is rooted in sexual fidelity with her ex-husband and creating a new conjugal bond with a different person.
Hence, the court rightly observes that: “If she wants to live in relationship with another man, she may be entitled for maintenance from him and not from the former husband.”
Why should the husband be expected to do his conjugal duties even after divorce, when his wife has established a new conjugal relationship with another man?
Therefore, it is incorrect to consider the court judgment as being patriarchal. Instead, the judgment upholds the core tenet of marriage which is fidelity and commitment.
Uttar Pradesh, October 9, 2017: Whoever said the number thirteen is unlucky was right. A horrific case of a Muslim man brutally murdering his wife has now come forward.
According to reports, police have arrested Mohammad Mustkeem, a resident of Raebareli, a small town in northern India’s Uttar Pradesh after he allegedly murdered his 13th wife. While cases of murders within marriages are not new, this particular case is extremely peculiar.
Mustkeem is a practising Muslim and had been married thirteen times. While he had divorced all his former twelve wives, the thirteenth wife was cruelly hacked to death.
The victim and Mustkeem had been married for over four years and also had a three-month-old child. However, the two were believed to fight a lot, because of which Mustkeem had been contemplating another divorce.
But before the 13th divorce could happen, the victim went missing, which created alarm in the Pure Kale Khan locality in the district. Upon search, her body was recovered from the fields near Chulamau village in the district.
According to the police, the victim’s body bore several injury marks that indicate that she had been tortured and strangled to death.
Consequently, the police arrested Mohammad Mustkeem on charges of murdering his own wife.
While no official information has been obtained as of now, locals believe Mustkeem was planning to re-marry for the fourteenth time and had even sought a bride.
While we condemn the victim’s murder, the case involving Mustkeem and his multiple wives has once again brought Triple Talaq under the spotlight, which had been rife in the country till the past few weeks.
Before the verdict was announced on the declaration of Triple Talaq as unconstitutional, census figures revealed that for every Muslim man divorced in India, four Muslim women had been previously divorced. This is also evident from Mustkeem and his former 12 wives.
As per the law, Muslim men could divorce their wives for any possible trivial reason. By contrast, the woman was expected to almost always avail the husband’s consent for a divorce. This robbed women the right to have a say, and to have a secure livelihood and instead granted men the permission to blatantly indulge in matrimony, which is evident from Mustkeem’s life.
While a constitutional ban on the practice has gathered mix responses, the question remains how the change will seep down to the very roots of the society. And how is the government planning to protect the married Muslim women in the country, who are often desolated by their husbands? Until then, cases like Mustkeem and his twelve divorced wives can be expected to continue making headlines.
Women are asked to compromise for the sake of family honor, children, not being financially independent and many such reasons
It’s a tough decision for Indian women to file for a divorce even if their marriages have been exploitative, oppressive or unhappy
The problems are most dreadful for women whose marriages have not been formally ended
New Delhi, September 3, 2017: Supreme Court’s verdict on Triple Talaq case is like a ray of sunshine. The verdict has been welcomed, applauded and celebrated all across India by the people who advocate for women’s rights. Judgement on Triple Talaq has been possible because of courage shown by strong Muslim women to change the course of their lives and a long struggle of groups such as the Bharatiya Muslim Mahila Andolan who did not put their foot down in spite of having to face pressure, threats from the Muslim community and outside of it.
Reactions women in country face when they consider getting a divorce
There are many other societies where higher rates of divorce are often equated with an expression of choice that women possess and the liberation of women. But, sadly this is not the case with India as divorce evokes dark, shameful reactions, taunts, rage, and pity from the society, often a woman is blamed for it. It is not considered as a suitable option for women suffering from unhappy marriages, they are asked to work it out, to solve the differences even if there’s no easy solution to it. They are asked to compromise for the sake of family honor, children, not being financially independent and many such reasons.
Why do Indian women hesitate from taking a Divorce?
It’s a tough decision for Indian women to file for a divorce even if their marriages have been exploitative, oppressive or unhappy. One reason for this could be the low status of women or not enough respect and value given to them in the society, especially rural India. Another reason is that the women who have low income don’t spend their independent share on themselves out of guilt, they utilize most it in taking care of their homes and save the rest. Also, some regressive and unequal practices are still going on like inheritance, asset ownership which means that no matter which religion a woman belongs to they are denied access to owning assets.
It means that most often than not an end of marriage leaves women with a financial crisis, along with emotional pain, on top of that they not only have to manage their own life but also their children’s without much financial aid.
According to 2011 census on Indians marital status, “among divorced Indian women, 68% are Hindu, and 23.3%, Muslim.” This implies that more Hindu women are getting divorced than Muslim women.
The State governments have failed to empower Muslim women, issues related to their rights and needs are hardly addressed by politicians. Thus their social and economic conditions are degrading- they have unequal access to job, education and other opportunities in life.
More failed marriages were recorded in rural India with 8.5 lakh divorced persons and in urban India, the number is 5.03 lakh divorced persons. Maharashtra has the highest number of divorced citizens which is 2.09 lakh persons. The state which holds the record of lowest failed marriages has 1,330 divorcees.
Negatives of Triple Talaq
A Muslim man being able to end a marriage by a means of disrespecting and utterly irresponsible manner of triple talaq (uttering the word talaq 3 times, it can be oral, written or electronic). The practice of triple talaq was gender biased and gave unequal rights to Muslim women. So, it’s a victory worth celebrating that this shameful practice has culminated legally.
Why is Separation more harmful?
More dissolved marriages in India happen through separation and not a formal divorce. It’s a growing concern as separation (abandonment by a husband) is more common for women in all religions than a divorce. It puts women in a more dangerous spot as they can’t ask for alimony as there is no legality connected to it, which further weakens their financial status. Also, their husbands take away their freedom to remarry. According to census data, “More women than men in India are separated (out of a marriage without a formal divorce).”
So, though triple talaq was definitely a truly intolerable practice, it is only one of the ways through which married women could be abandoned. There are women across different communities who continue to face problems of abandonment, also called separation without having a proper means to survive or lead a decent life.
Marital dissolution in India comes under various laws but more often than not, the decisions don’t benefit women in a big way. No matter how strong or secure is the legal framework, the single legal right that an Indian woman has after getting a divorce- the right of maintenance from her spouse or alimony. But maintenance or alimony reaches them much late due to the ‘prolonged legal processes’ and they are sometimes provided with very small and negligible amounts. Another loophole is that the court doesn’t ensure regular payment from their husbands.
Obviously, the problems are most dreadful for women whose marriages have not been formally ended, who are separated and not divorced from their husbands. Even for those women who have a formal divorce, the courts (be it family courts or formal courts) turn out to be grueling and intimidating places to seek justice, especially for the ones who are illiterate, not much educated, or belong to poor families.
Struggles faced during and after a divorce
Taking Divorce is a tedious process with repeated court trips, cases getting postponed, and lawyers charging heavy fees and most important but sidelined factor- to deal with patriarchal attitudes shown by lawyers as well as judges. All these reasons contribute to women feeling helpless with wasted efforts, and even lead to dissuasion of women (by family, relatives, friends, lawyers) to pursue the cases after a point. Those women, who have taken up employment (for financial security) after the end of marriage, even if their employer pays them very less, they get little sympathy from the courts regarding alimony.
This should be the focal point in viewing the triple talaq judgment by the court. Muslim women have been successful in getting triple talaq scrapped by law but the war is not over yet. Indian women still have to face difficulties in getting some alimony or maintenance which is due to them, on which they have a deserving right.
Muslim Women (Protection of Rights on Divorce) Act
But, there has been a setback for Muslim women, we are talking about the Muslim Women (Protection of Rights on Divorce) Act 1986, also known as MWA. This was widely seen as a patriarchal response in response to the clamor by the Muslim men to the Supreme Court judgment in the Shah Bano case in which her former husband was forced to pay continued alimony to her.
“The MWA drastically limited the husband’s liability to his former wife. It stated that once a woman’s iddat expenses (covering three months’ subsistence) had been paid and she had received her mehr (dowry) and any other money or property that had been gifted to her at the time of marriage, the husband had no further financial responsibility towards her.”
This law came was criticized by women activists and others who were sensitive towards women’s rights. It was called a discriminatory law that singled out Muslim women and deprived them of maintenance rights which are available to all the other divorced Indian women. They were taken for granted and the act had some harmful consequences. It encouraged a higher rate of divorce in Muslim community as it allowed Men to get away from the marriage without providing any maintenance for their wife’s survival.
Revision of Act
As per MWA, the husband should provide “reasonable and fair provision” during the 3 month iddat period. A clause was further added in 2001 by a Supreme Court judgment that “during the iddat period, a Muslim man is liable to make a payment to his ex-wife that will secure her ability to sustain herself in the future. As a result, courts began to require men to give their ex-wives substantial lump-sum amounts or to transfer some material assets such as land, a house, or gold and jewelry.”
The implementation of the law made divorced Muslim women heave a sigh of relief and will force the ex-husbands to give a substantial lump-sum amount to their wives. This would thus release the divorced Muslim women from worrying over the unreliability and uncertainty of periodic payments (by law) for maintenance. This might make them even better off than non-Muslim counterparts. But in most other cases of divorce, lack of financial support from husbands remains a big concern for them.
The war is not over
The point we are trying to make is that the problems faced by divorced Indian women are plenty, and they are because of the social, cultural, economic and legal practices that are still present in all religions. This Supreme Court verdict should be reminders for all of us to take note of this small victory, to keep in mind the loopholes present in Divorce rights still and should also motivate us to take up more such battles in future in order to make our country more gender sensitive. So, that both the genders can live a life of peace and dignity.
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Aug 22, 2017: The Apex Court today has made a historical verdict by imposing a ban on triple talaq calling it ‘unconstitutional’. Supreme Court also upheld the validity by stating that it is not the violation of Article 14, 15, 21 and 25 of the Indian Constitution.
A bench of five judges, directed by Chief Justice J S Khehar, declared a split verdict. The verdict of five judges also came from five faiths. Justices Uday Lalit (Hindu), Joseph Kurien (Christian) and Rohinton Nariman (Parsi) decreed that triple talaq is unconstitutional. Chief Justice JS Khehar(Sikh) and Justice Abdul Nazeer(Muslim) supported the validity of triple talaq. Chief Justice also asked the government to bring enactment within the period of six months and proposed all political parties to decide on the issue collectively.
What is “Triple Talaq”?
Triple Talaq (Talaq-e-Biddat) is a verbal divorce where a Muslim husband can divorce his wife by merely uttering “Talaq Talaq Talaq”. A divorced woman is not allowed to remarry her divorced husband unless she first marries another man under the practice called Nikah Halala.
Origin of Sharia Law
Prior to Independence, British Judges were assisted by Muftis and Qazis for the performing of executive functions in India. In 1880, Qazis were deprived of their judicial powers through ‘The Qaziz Act’. On the other hand, the British started pronouncing judgments on Muslim Personal Law. Keeping the whole scenario in consideration, the establishment of Sharia courts was demanded in the first quarter of 20th century, however, the demand was not conceded. Later in 1920, the first sharia court was established in Bihar.
Many mosques in the country are functioning on Sharia courts based on Muslim Shariat law. The source of Muslim Personal law is the 1937 act of Muslim Personal Law (Shariat) application, which was also an attempt by British India to win over Muslim clergy. These extra-constitutional bodies had the power to function as courts parallel to Indian courts.
Abdur Rehman, a Muslim NRI from the UK had approached sharia court named Makkah Masjid Sharia Council in Chennai to get reunited with his wife. However, instead of reuniting the couple, Sharia court pressurized him to divorce his wife after he uttered talaq thrice. The man pleaded that he has changed his mind and he wants to reunite with her. After facing refutation from Sharia court, Abdul approached to Madras High Court begging for the same. He even said in his appeal that many blameless Muslim brothers or wives face the same problem across Chennai and Tamil Nadu on the whole because of the functioning of such forums that claim them to be judicial forums.
The High Court judgment said: “If a place of worship – whether it be a temple, mosque or church – is used for purposes other than prayers, and more specifically to create extra-constitutional forums, certainly the authorities are duty-bound to action against them.”
It ordered the state government to ensure that such courts do not function. This order was not specific to Muslims, and it empowered the police authorities to close down such extra-constitutional court, whether run by Hindu, Christian or Muslim.
Although the judgment did pronounce on the behalf of the sufferers of sharia law, there were still some ambiguities that led to confusion among such extra-constitutional bodies. A large number of Sharia courts which were supervised by imams and Islamic scholars operated from places that were not Mosques. It was not clear that whether the order applies to only sharia courts performing from mosques or to those who operate from Madrassas and non-religious places. Hence, a further detailed clarification was needed.
In 2014, Supreme Court declared the functioning of Sharia courts illegal and can be challenged in the court of law. On the contrary, Madras High Court did not make it clear owing to which the ambiguity in the Tamil Nadu state remained.
Supreme Court Verdict (2014)
A Delhi based advocate, Vishwa Lochan Madan challenged the validity of the parallel courts run by institutions such as Dar-ul-Qaza, Darul-Iftaa and Dar-ul-Uloom Deoband which issued fatwas. Under his appeal, he highlighted the plight of a woman, Imana, who was asked by Dar-ul-Uloom, Deoband to leave her husband and children and live with her rapist, father-in-law in her case. Madan argued that Sharia courts meddles with the personal affairs and obstructs the religious and social freedom of Muslims.
According to Supreme Court, Islamic judges, who interpret religious law can only come into power when individuals submit voluntarily to them and that their decisions or fatwas are not legally binding. It also curtailed the forums like Dar-ul-Qaza, Darul-Iftaa and Dar-ul-Uloom Deoband to issue fatwas on the basis of complaints by strangers.
The Supreme Court stated, Religion cannot be allowed to be merciless to the victim. Faith cannot be used as a dehumanizing force. Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore would be absolutely uncalled for. It shall be in violation of basic human rights. It cannot be used to punish innocents.