Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (56 page)

54
. Interviews, Sona Khan; Indira Jaising (lawyers in
Danial Latifi
).

55
. Frykenberg 2008, vii; Pew Research Center 2011, 78.

56
. Iyer 2000; Christian Marriage Bill 2000; AICU 2000; CBCI 2000a, 2000b; Centre for Policy Research and Communication 2000; Interviews, Arun Jaitley; Jyotsna Chatterji; Dr. John Dayal; Dr. Julian Francis; Jos Chiramel; Rev. Richard Howell.

57
. Parashar 1992; Kapur and Cossman 1996; Sunder Rajan 2003.

58
. Narain 2008.

59
. Vatuk 2005; Basu 2003, 2008; Agnes 2005; Solanki 2011; Subramanian 2008.

60
. Parashar 1992, 164–68; Menski 2003, 515–22.

61
. These legislators disregarded the distinction that Islamic legal traditions make between the husband’s obligation to pay dower and his maintenance obligations after divorce. Judges distinguished the two obligations in many cases, such as
Hamira Bibi v. Zubaide Bibi
(1916),
Syed Sabir Husain v. Farzand Hasan
(1938),
Shah Bano
(1985), and
Abdul Khader v. Smt. Razia Begum
(1990).

62
. Some of the high court cases following this pattern were:
Khurshid Khan Amin Khan v. Husnabanu
(1976) and
Mehbubabi Nasir Shaikh v. Nasir Farid Shaikh
(1976). The relevant Supreme Court judgments were
Bai Tahira
(1979),
Fuzlunbi
(1980), and
Shah Bano
(1985). Courts required maintenance for just three months in other cases, such as
Rukhsana Parvin v. Sheikh Mohammad Hussain
(1977) and
Aluri Sambaiah v. Shaikh Zahirabi
(1977).

63
. The relevant verses say: “For divorced women, let there be a fair provision. This is an obligation on those who are mindful of god”; and “Let the divorced women dwell where ye dwell, according to your means, and do not harm them, to reduce them to straits.” Latif 1969. The courts have so far not followed the suggestion that the latter verse gives divorced women rights in the matrimonial home.

64
. The following prominent Indian Hanafis nevertheless accepted that
mata
should be mandatory: Maulana Mujahidul Islam Qasmi, who founded the Islamic Fiqh Academy and was the AIMPLB’s President; Maulana Khalid Saifullah Rehmani, current President, Islamic Fiqh Academy; Mufti Mukarram Ahmed, Shahi Imam of Fatehpuri
Masjid; and Athar Hussain, whose book on Muslim personal law the AIMPLB published. They and certain prominent Ithna Asharis, such as Maulana Kalbe Sadiq, the Vice-President of the AIMPLB, and Ayatollah Syed Aqeel-ul Gharavi, the Vice-President of the Muslim Majlis-e-Mushawarat, believed
mata
was meant to be a lump-sum amount. Interviews, Maulana Kalbe Sadiq; Maulana Khalid Saifullah Rehmani; Mufti Mukarram Ahmed; Ayatollah Syed Aqeel-ul Gharavi.

65
. Syed Ameenul Hasan Rizvi, a legal advisor to the Hanafi Islamist organization, the Jamaat-i-Islami Hind, offered this suggestion in 1980 and reported that certain important Hanafi
ulama
supported this proposal. Latifi and Rizvi 1998, 66–67. Interview, Maulana Jalaluddin Umri (whom Rizvi had consulted).

66
. Latifi 1988; Latifi and Rizvi 1998.

67
. Sethi, Nauriya, and Thapar 2000.

68
. Latifi and Rizvi 1998, 27–29.

69
. Latifi 1988. Section 125(3) enabled a woman to live apart from her husband and claim maintenance from him if he had another conjugal relationship. Justice Chandrachud considered this contrary to the permission Muslim law gave men to have up to four wives, and so found in this section a basis to override Muslim law. However, twenty-five years earlier in
Itwari v. Smt. Asghari Begum and Others
(1960), a high court had allowed a Muslim woman to gain judicial separation and maintenance from a bigamous husband based on the construction that in current social conditions, bigamy amounted to cruelty to one’s spouse and cruelty was a ground on which Muslim law allowed separation. Later, the Supreme Court enabled a Muslim woman to divorce her bigamous husband for the same reason, in
Begum Subanu alias Saira Banu and another v. A. M. Abdul Gafoor
(1987).

70
. He quoted Tahir Mahmood as saying: “instead of wasting their energies in exerting theological and political pressure in order to secure an ‘immunity’ for their traditional personal law from the State’s legislative jurisdiction, the Muslims will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India.”
Shah Bano
(1985) at 955.

71
. Carroll 1998, 144; Interview, Dr. Tahir Mahmood.

72
. Williams 2006, 144–45.

73
. LSD 1986, 309–18.

74
. The AIDWA gathered the signatures of a million women, including 252,000 Muslim women, in the largest signature campaign against the MWPRDA. Writ Petition No. 1001 of 1986, 5.

75
. For instance, H. A. Dora of the Telugu Desam party, who wished to require alimony among Muslims, voiced such concerns. LSD 1986, 335–37. The Prime Minister’s office is said to have pressed the AIMPLB officials to accept the act as initially drafted or take the risk that no legislation might result. Interviews, Yusuf Hatim Muchchala, Convenor, AIMPLB Legal Committee; Dr. Qasim Rasool Ilyas; Maulana Syed Jalaluddin Umri.

76
.
Ramzan v. Smt. Salma
(1987);
Abid Ali v. Mst. Rasia Begum
(1988);
Mehboobkhan v. Parvinbanoo
(1988);
Rupsan Begum v. Md. Abdus Sattar
(1990);
Abdul Rashid v. Sultana Begum
(1992);
Mohamed Ibrahim v. Ramzan Begum
(1993);
Begum Bibi v. Abdul Rajak Khan
(1994);
Mrs. Nazimunnissa Begum v. Abdul Majeeth
(1994);
Shahadabi M. Isak v. Abdul Ajij Abdul Latif
(1996);
Shahida Begum v. Abdul Majid
(1996);
Noor Jehan. v. State
of Maharashtra
(1996);
Abdul Haq v. Yasmin Talat
(1998); and
Aziza Khan v. Dr. Amir Hussain
(1999).

77
.
Usman Khan Bahamani v. Fathimunnisa Begum
(1990) (also called
All India Muslim Advocates Forum v. Osman Khan Bahmani
).

78
.
G. M. Jeelani v. Shanswar Kulsum
(1992).

79
.
M. H. Hameed v. Arif Jan, alias Shahida Begum
(1990);
Abdul Khader v. Smt. Razia Begum
(1990).

80
.
Syed Fazal Pookaya Thangal v. Union of India
(1993);
Sadique Ali v. Apar Sessions Naiyai Dheesh, Basti & Ors
. (1995).

81
. The major high court judgments along these lines were
Arab Ahmedhia Abdullah v. Arab Bail Mohmuna Saiyadbhai
(1988) (the first such decree);
Ali v. Sufaira
(1988);
Aliyar v. Pathu
(1988);
Mohd. Tajuddin v. Quomarunnisa Begum
(1989);
Ahmed v. Aysha
(1990);
Abdul Khader v. Smt. Razia Begum
(1990);
M. Subhan v. Smt. Mazbul Be
(1991);
Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh
(1993);
Smt. Hamidan v. Mohd. Rafiq
(1994);
Banu v. Kutubuddin Selumanji Vimanwala
(1995);
Kunhammed Haji v. K. Amina
(1995);
K. Zunaideen v. Ameena Begum
(1998);
Kaka v. Hassan Bano
(1998);
Mumtazben Jusabbhai Sipahi v. Mahebubkhan Usmankhan Pathan
(1998);
Majitha Beevi v. Yakoob
(1999);
Shaikh Babbu v. Sayeda Masarat Begum
(1999);
Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh
(2000);
Abdul Latif Mondal v. Anuwara Khatun
(2001);
Shamshad Begum v. Md. Noor Ahemad Khan
(2001);
Hasenara Begum v. Fazar Ali
(2002); and
Naseemunisa Begum v. Shaikh Abdul Rehman
(2002).

82
.
Arab Ahmedhia Abdullah v. Arab Bail Mohmuna Saiyadbhai
(1988).

83
.
Ali v. Sufaira
(1988);
Aliyar v. Pathu
(1988).

84
.
Abdullah Rauf Khan v. Halemon Bibi
(1989);
Noor Saba Khatoon v. Mohammad Quasim
(1997).

85
. Writ Petitions No. 996, 1001, 1055, 1062 of 1986, 868 of 1996 in
Danial Latifi and Ms. Susheela Gopalan v. Union of India
.

86
. This was in contrast with Justice Chandrachud, who was unwilling to speak about
Shah Bano
over two decades after his judgment. Interviews, Justices S. Rajendra Babu; Shivaraj C. Patil; G. B. Pattanaik; D. P. Mohapatra; Doraiswamy Raju (members of the bench); Yusuf Hatim Muchchala; Sona Khan; Kamini Jaiswal; Indira Jaising; Syed Saif Mahmood (lawyers in the case); Dr. Tahir Mahmood.

87
.
Danial Latifi
(2001) at 742–43.

88
.
Danial Latifi
(2001) at 746–47.

89
.
Danial Latifi
(2001) at 742–43, 757–58.

90
.
Danial Latifi
(2001) at 744, 762.

91
. Sunder Rajan 2003, 148–49; Okin 2001.

92
.
Shabana Bano v. Imran Khan
(2009).

93
.
Iqbal Bano v. State of Uttar Pradesh
(2007).

94
. See discussion on pp. 34, 51.

95
. The verse quoted in the last judgment was: “If ye fear a breach between them twain, appoint two Arbiters, one from his family, and the other from hers. If they seek to set things aright, Allah will cause their reconciliation. For Allah hath full knowledge; and is acquainted with all things.”

96
. Jamaat Ahl-i-Hadith 1994; Shahabuddin 1992, 1999; All India Muslim Personal Law Board 2002. Interviews, Maulana Abdul Wahab Khilji; Syed Shahabuddin; Ayatollah Syed Aqeel ul-Gharavi; Habeebulla Basha (lawyer); Justices S. A. Kader; A. Abdul
Hadi, retired judge, Madras High Court; Badar Durrez Ahmed, judge, Delhi High Court.

97
. For instance, the Islamic Shariat Board (based in Kerala) intervened in
Shamim Ara v. State of U.P
. (2002), and the Tamil Nadu Advocates Meelad Forum in
Parveen Akhtar v. Union of India
(2002). An AIMPLB lawyer, Zafaryab Jilani, intervened in
Rahmat Ullah
, but in his individual capacity. Interviews, Zafaryab Jilani, lawyer and Member, AIMPLB Legal Committee; Zaffarullah Khan; Habeebulla Basha; Bader Sayeed; P. V. S. Giridhar (lawyers in the relevant cases); K. A. Sukkur (litigant); Justice S. A. Kader; Dr. Tahir Mahmood.

98
. The following judgments deemed the
talaq-ul ba’ in
revocable in this period:
Rukia Khatun v. Abdul Khalique Laskar
(1981);
Zeenat Fatema Rashid v. Md. Iqbal Anwar
(1993);
Motiur Rahaman v. Sabina Khatun
(1994);
Rahmat Ullah v. State of U. P. and Khatoon Nisa v. State of U. P
(1994);
Shaikh Mobin v. State of Maharashtra
(1996);
Saleem Basha v. Mumtaz Begum
(1998);
Kadar Mian v. Jahera Khatun
(1998);
Saira Bano v. Mohd. Aslam Ghulam Mustafa Khan
(1999);
Zulekha Begum alias Rahmathunnisa Begum v. Abdul Raheem
(2000);
M. Shahul Hameed v. Salima
(2003); and
Shamim Ara v. State of U.P. (2002)
. The triple
talaq
was deemed irrevocable in the majority of these cases, including
Ramzan v. Smt. Salma
(1987);
Sheikh Mohiuddin v. Hasina Bibi
(1988);
Abid Ali
(1988);
Sayed Newaj Ali alias Neti v. Rasida Begum
(1991);
Mohammad Umar Khan v. Gulshan Begum
(1992);
Begum Bibi v. Abdul Rajak Khan
(1994);
Shahadabi M. Isak
(1996);
Sheikh Saber Ali v. Smt. Sahmim Banu
(1996);
Shahida Begum
(1996);
Alimuddin Khan v. Nasiran Bibi
(1998);
Jaitunbi Mubarak Shaikh
(1993); and
Aziza Khan
(1999). The lower courts seem to have accepted the triple talaq in a higher proportion of cases.

99
. Interviews, Justices Ramesh Chandra Lahoti; P. Venkatarama Reddi (
Shamim Ara
judges); Aziz M. Ahmadi, former Chief Justice of India; Badar Durrez Ahmed (
Masroor Ahmed
judge).

100
. Interview, Justice Aziz M. Ahmadi (author of
Ahmedabad Women’s Action Group
).

101
. Redding 2010.

102
. Jacob 1999; Agnes 1999, 141–63; Monteiro 1992.

103
.
Dwaraka Bai
(1953) at 799–800.

104
.
Solomon Devasahayam Selvaraj
(1968) at 294.

105
.
T. M. Bashiam v. M. Victor
(1970) at 14;
Abedabi d/o Doud Shaikh & Anr. v. Sikandar Akabar Mujawar & Anr
. (1980);
Reynold Rajamani v. Union of India
(1982);
Jorden Diengdeh v. S. S. Chopra
(1985);
Swapna Ghosh v. Sadananda Ghosh
(1989);
Ramish Francis Toppo v. Violet Francis Toppo
(1989);
Ahmedabad Women’s Action Group (AWAG) and Others v. Union of India
(1997);
P. E. Mathew v. Union of India
(1999).

106
.
Swapna Ghosh
(1989) at 2–4.

107
.
Solomon Devasahayam Selvaraj
(1968) at 294;
Neena v. John Pormu
(1985) at 87;
Swapna Ghosh
(1989) at 3;
Ramish Francis Toppo
(1989) at 325;
Binoy Mathew v. Sabu Abraham
(1998).

108
. The three judgments were
Mary Sonia Zachariah v. Union of India
(1995),
Pragati Varghese v. Cyril George Varghese
(1997), and
N. Sarada Mani v. G.Alexander
(1997). The third judgment did not refer to its two predecessors and attracted limited attention among lawyers.

109
. The churches were the Saint Thomas Evangelical Church and the Assyrian Church of the East. The Christian reform organizations were the Christian Institute for the Study of Religion and Society (the JWP’s parent organization), the World Student Christian Federation, and the Janakiya Vimochana Viswas Prasthanam, an organization for lower-caste liberation affiliated with the Church of South India. The Church of South India is the largest Indian Christian church other than the Roman Catholic Church, and was born of a union of the Anglican, Congregational, Presbyterian, and Reformed churches in south India. The other rights organizations were the Indian Federation of Women Lawyers and the People’s Council for Social Justice.