Assignment
On
Muslim Law
( Case Laws)
Submitted to:-
Manju uppal
Submitted by:-
Aditi sidhana
BBA.LL.B(H)
CASE LAWS:-
1.Shayara bano vs. union of
India and ors.(2017)SCC :-
Introduction :
In the general elections of 1984, Indian Congress Party had won absolute majority in the Indian
parliament. Congress headed by the Prime Minister Rajiv Gandhi enacted the Muslim Women
(Protection of Rights on divorce) Act 1986 that nullified the Supreme Court’s judgment in
the Shah Bano judgment. The Supreme Court held that the act allowed maintenance to a
divorced woman only during the period of iddat or till 90 days after the divorce, according to the
provision of Islamic law.
Triple talaq is a 1400 year- old practice among Sunni Muslims. It is manifestly arbitrary and
allows a man to break down marriage whimsically and capriciously. Muslim family affairs in India
are governed by the Muslim Personal Law (shariat) Application Act, 1937. It was one of the
first acts to be passed after the Government of India Acts, 1935 became operational.
Owing to these historical factors, the checks that have been placed on the husband’s unilateral
rights of divorce by governments of other countries and the prohibition of triple talaq were not
implemented in India.
The Muslim Law classifies dissolution of marriage into the following categories i.e.
A. By the Death of the Husband
B. By the Act of the Parties: The act is categorised into following:
I. By the Husband
● Talak
● Talak-us-sunnat a. Ahsan b. Hasan
● Ila (Vow of continence)
● Zihar (Injurious Comparison)
II. By the wife: - Talak-e-Tafwid (Delegated Divorce)
III. By Mutual Consent:
● Khula (Redemption)
● Mubarat (Mutual Freeing)
IV. By Judicial Process: -
● Lian (Mutual Imprecation)
● Faskh (Judicial Annulment)
All the above stated types of Divorce are valid in Islamic law however; it is Talak-ul-Biddat which
is the issue of controversy. This is known as Trilpe Talaq.
Facts of the case-
Muslim Woman is deprived of good education and self dependency like the rest of the woman.
Education is denied to them and they are not allowed to work either. Hence post divorce the
need for maintenance only becomes greater for the Muslim community.
Shayara Bano was married to Rizwan Ahmed for 15 years. In 2016, her husband divorced her
through talaq–e-bidat (triple talaq). Ms Bano argued that three practices – triple talaq, polygamy,
and nikah halala (the practice requiring women to marry and divorce another man so that her
previous husband can remarry her after triple talaq) –were unconstitutional as she has to
challenge the Articles 14, 15, 21, 25 of the Constitution.
1.Issue :-
1. The validity of triple talaq.
2. Whether Triple Talaq is an essential religious practice?
3. Is section 125 of the Code of Criminal Procedure, 1973 applicable?
2. Rules and laws-
1. Article 14:- equality before the law
2. Article 15(1):- prohibition of discrimination including on the ground of gender
3. Article 21:- right to life and 21(a) right to education
4. Article 25:- freedom of religion
5. Section 125 of CrPC: - Order for maintenance of wives, children and parents.
3. Application of laws/rules in the facts-
1. Article 14
The petitioner wanted equality before the law, because she used to think that women are equal
to men and demanded equal status in the society. Under the Islamic law does not mention any
kind of equal status in the society. Under the article 14 states that the state shall not deny to any
person equality before the laws within the territory of India.
2. Article 15(1)
Petitioner said that religion is equal for man and woman. She pointed out that the Islamic law
creates the discrimination ground of religion. Under the article 15 state that prohibition of
discrimination on ground of religion, state shall not create the any discrimination against the
religion. But in this case discrimination was created by the Islamic law and also his husband.
3. Article 21 and 21A
Article 21 states that every person has the right to protection of life and personal liberty. It
means that Shayara Bano’s husband has a duty to protect the family’s life including the wife and
children and provides the basic necessity to the family to survive in the world i.e. maintenance.
But the Shayara Bano’s husband does not agree to give any kind of maintenance to the family.
Article 21A states that every person has the right to education. Shayara Bano’s husband refused to provide the
education to his children. The article states that the state shall provide free and compulsory education to all
children of the age of six to fourteen year. It means that a father must provide education to his children.
4. Article 25
The Petitioner was seeking for the freedom of practice of religion, because in the Islamic law only
man can give divorce to wife by saying the word “talaq” twice. Article 25 was the most
changeable article in this case.
5. Section 125 CrPC
She wanted the maintenance provided under section 125 of CrPC to the husband. But the
husband denied the payment of the maintenance to the wife and children in this case.
Section125 states that order for the maintenance for wives, children and parents. It means that
the husband must pay the money and his wife is not able to maintain herself.
Conclusion –
The Laws applied to the facts of the case clearly shows that the Triple Talaq
do not stand in line with Faundamental Rights and basic right of
maintenance for women, a muslim woman being an indispensible part of
Indian society is not entitled to suffer at the hands of any personal law’s
restrictions and patriarcal ideology. Being a rightful citizen Shayara Bano
made her case a pertinent turn into mass consciousness. This case turned
out to be the most important case for empowerment of Muslim women. The
guardian of the Constitution of India which is the Supreme Court, gave a
momentous judgment - and granted maintenance to Shayara Bano and her
children. But this judgment and Muslim Women (Protection of Rights on
Marriage) Act, 2019 which later came up as a combined result of this
judgment and plight of many such victims of he menace behind Triple Talaq
is seen as a threat to the Islamic law (Shariah) as it is believed by many
Islamic scholars as averse to norms set by their long prevalent personal
laws.
2. Chand Patel vs. Bismillah
Begum (2008) SC :-
Relevant provision:-
Section 125 of Code of Criminal Procedure, 1973/Mulla’s “Principle of Mohammedan
Law”
Facts of the chand patel case:-
The appellant (Chand Patel) was first married to the elder sister of respondent
No.1 and subsequently married her, and lived under the same roof.
By the passing of time, the relationship between respondent No.1 and the
appellant deteriorated and soon he started to neglect and refused to maintain
respondent No. 1 and respondent No.2 (minor daughter of respondent No.1 born
out of wedlock between respondent No. 1 and the appellant) which resulted in
the filing of a petition under section 125 Cr.P.C for maintenance in the court of
Judicial Magistrate First Class.
The bench supported the contention of the respondent and granted her
maintenance of Rs.1,000/- per month, this order was disputed by the appellant in
District Court which also validated the decision of Judicial Magistrate of First
Class.
After which an application under section 482 Cr.P.C was filed in High Court and
the bench took a similar notion which resulted in this instant case.
Legal issue:-
Whether a marriage performed by a Muslim man with his wife’s sister during the lifetime
of his wife will constitute a valid marriage or irregular marriage and its implication on the
provision of maintenance?
Contention:-
The appellant asserted that, as Muslim law prohibits “Unlawful Conjunction” i.e. Man
cannot marry his wife’s sister during the lifetime of his wife and such marriage is void at
inception and would not give any rights to respondent No.1 and respondent No. 2.
The respondent contended they do not expect courts to examine the validity of
marriage while passing an order for maintenance under section 125 Cr.P.C.
Additionally, till the marriage has been confirmed as void by a competent court it
continues to exist and confers the right to maintenance.
The appellant himself married his wife’s younger sister during the lifetime of his wife
and is now using a technicality to deflect from his responsibility to maintain his wife and
children.
Ratio decedendi:-
The bench, in this case, deemed it essential to clarify the legal status of the
marriage between the respondent and the appellant as it would be the key factor
to the right of maintenance.
The case dwells in the ambit of Muslim law. As per Mohammedan law, it is
unlawful conjunction “where a man at the same time has two wives who are
related to each other by consanguinity, affinity, and fosterage, that if either of
them had been male, they could not have been lawfully intermarried, for
instance, two sisters or aunt or niece and this bar of unlawful conjunction render
a marriage irregular not void.”
Additionally, the bench also relied on the case of Tajbi Abalal Desai vs. Mowla
Alikhan Desai, where it was held that such marriages are irregular and not void
because such marriages could become lawful in case of death or divorce of the
first wife reducing it to a lawful marriage and after considering various judgments
of High Courts and related provision the bench agreed with the rationale of Tajbi
case.
Decision :-
The court concluded that unlawful conjunction leads to an irregular marriage and
is not void. Hanafi Law in relation to Muslims in India is concerned, an irregular
marriage continues to exist until a competent authority declares it void.
Till then, it entitled the wife and children to maintenance, and the court instructed the
appellant to provide maintenance to both the respondents.
3. Sarla Mudgal vs.Union of India:-
Introduction :-
Marriages in India vary according to the region, the religion, the community and the personal
preferences of the bride and groom. Marriage is considered to be sacrosanct institution in the
country such as India. But as the times are modernizing and as we look at the bigger picture
the faithfulness and tranquility of this institution is being majorly questioned. Matrimonial
disputes are one of the most challenging areas for legal intervention within any system, what
makes the situation complex particularly in the Indian context is the fact that in the absence
of uniform civil laws, the personal laws of various religious communities continue to be
different, thus making the matrimonial disputes, especially in inter-religious marriages, even
more difficult to deal with.
As the Hindu Personal law supports monogamy on the contrary Muslim law permits as many
as four wives in India. This somewhere is the root cause of bigamy and the Hindu husbands
have started embracing Islam to avoid the provisions of Hindu law and protect themselves
from legal consequences of bigamy.
Facts of the cases and provisons
involved :-
In Sarla Mudgal vs. Union of India, there were four petitions which were filed under
Article 32 of the Indian Constitution which provides for right to Constitutional Remedies
through Writ petitions in Supreme Court.
There were two petitioners in the first writ petition 1079/89. First one being Sarla
Mudgal, Head and President of a registered society named ‘KALYANI’. This
organisation worked primarily for the welfare of needy families and women in
distress. Another petitioner was Meena Mathur, who was married to Jitender Mathur
and had three children. In early 1988, the petitioner got to know about her husband’s
second marriage with Sunita Narula alias Fathima, which they solemnised after
converting into Islam. The petitioner asserted that her husband converted to Islam just
to marry Sunita Narula and further to protect himself from Section 494 of IPC.
The next petitioner in the writ petition 347 of 1990 was none other than Sunita
Narula alias Fathima. She contended that she along with Jitender Mathur, who already
had a marriage alive with Meena Mathur, converted into and adopted Islam and
thereafter got married. A son was born to her. Further, she stated that after marrying
her, Jitender Mathur gave an undertaking in April, 1988 that he had reverted back to
Hinduism and will be maintaining his wife and children out of first wedlock. She
grieved for maintenance by her husband.
In Writ Petition 424 of 1992, another petition was filed by Geeta Rani, who was
married to Pradeep Kumar in 1988. She alleged that her husband was abusive and
violent. He used to beat her up and one day he abused and beat her so badly that led to
her jaw being broken. In December 1991, the petitioner learnt that Pradeep Kumar
married to Deepa, after conversion to Islam. The petition stated that the conversion
was only for the purpose of facilitating second marriage.
In Writ Petition 509 of 1992, Sushmita Ghosh, who was the petitioner, was
married to G.C. Ghosh according to Hindu rites in the year 1984. In April 1992, her
husband asked her to take divorce by mutual consent because he didn’t want to live
with her. The petitioner prayed that she was his legally wedded wife and she wanted
to live with him, so that divorce can be avoided. Later in time her husband claimed
that he had obtained a certificate dated June 17, 1992 that he had embraced Islam and
will soon marry another woman named Vinita Gupta. Hence it was prayed by the
petitioner that her husband must be stopped from entering into a second marriage.
Provions involved:-
SECTION 494 of Indian Penal Code is about marrying again during lifetime of husband
or wife. —Whoever, having a husband or wife living, marries in any case in which such
marriage is void by reason of it taking place during the life of such husband or wife, shall be
punished with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine[1].
In simple terms bigamy is an offence under Section 494 of IPC. This section makes both
male and female liable for the offence irrespective of their religion. As the Muslim males are
allowed polygamy, they are allowed to have up to four marriages under Muslim law but this
section 494 applies if a fifth marriage is conducted during the subsistence of first four
marriages.
The necessary ingredients of the Section 494 are as follows:-
having a husband or wife living;
marries in any case;
in which such marriage is void;
by reason of its (marriage) taking place during the life of such husband or wife.
Issue raised:-
Whether a Hindu husband, married under Hindu law, by embracing Islam, can
solemnise second marriage?
Whether such a marriage without having first marriage dissolved under law, would be
a valid marriage qua the first wife who continue to be Hindu?
Whether the husband would be guilty of the offence under Section 494 of Indian
Penal Code?
Arguments advanced :-
Petitioner’s Argument: All the petitioner’s involved in the case collectively
argued that the respondents converted to Islam so that they can hold a second
marriage and further they can protect themselves from the consequences of Section
494 of the Indian Penal Code.
Respondent’s Argument: All the respondent’s asserted that once they converted to
Islam, they can have four wives despite having the first wife who continues to be
Hindu. They also argued that due to the conversion they are not liable under Section
494 of IPC and are not bound by the applicability of Hindu Marriage Act, 1955.
Judgement :-
The Supreme Court held that a Hindu marriage solemnized under the Hindu Marriage
Act can only be dissolved on any of the grounds specified under the Act. Until the
first marriage is dissolved as per the Act, none of the spouses can contract a second
marriage. The Court laid that conversion to Islam and marrying again does not
dissolve the Hindu marriage by itself. Therefore, the second marriage by conversion
would be in violation of the Hindu Marriage Act.
In the case of Sarla Mudgal, all the four ingredients of Section 494 were satisfied that
is when a Hindu husband who marries for the second time after conversion to Islam.
He also has a wife living and then too marries again. The said marriage is void by the
reason of it taking place during the life of the first wife. The court therefore held that
the second marriage of a Hindu husband after his conversion to Islam as a void
marriage in terms of Section 494 of IPC. The court thus ruled that an apostate
husband would be guilty under section 494 of IPC.
Conclusion :-
Sarla Mudgal case is one of the landmark cases in the matrimonial aspect that prevail in
India. The judgement discussed the ambit of Section 494 and gave it a new point of view that
how conversion alone cannot just dissolve the marriage. It is important to take into
consideration the Hindu Marriage Act and the grounds mentioned in it for dissolution of
marriage. Hence, the ruling in this case where a person cannot convert into other religion and
leave the spouse from first marriage also acts like a bright light in darkness where equal
status is given to all the citizens and ensuring that the people have a faith in the judicial
system prevailing in the country.
