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Some passages from Mohammad Ahmed Khan vs. Shah Bano Begum and Others, Supreme Court Criminal Appeal No. 103 of 1981: This appeal, arising out of an application filed by a divorced Muslim woman for maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to creat an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction. (Engineer 23). “Under section 125 (1) (a), a person, who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the Court to pay a monthly maintenance to her at a rate not exceeding five hundred rupees… ‘wife’ includes a divorced woman who has not remarried” (Engineer 23). Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure, not of the civil laws which define and govern the rights and obligations of the parties belonging to particular religions…. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially prophylactic in nature, cut across the barriers of religion. True, they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws… (Engineer 25). There can be no greater authority on this question than the holy Quran, “the Quran, the Sacred Book of Islam, comprises in its 114 Supras or chapters, the total of revelations believed to have been communicated to Prophet Muhammed, as a final expression of God’s will.” (The Quran Intepreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 of the Quran show that according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives. The Arabic version of those Aiyats and their English translations are reproduced below…. English version: Aiyat No. 241 For divorced women Maintenance (should be provided) On a reasonable (scale) This is a duty on the righteous…. The correctness of the translation of the Aiyats is not in dispute except that, the contention of the appellant is that the wort Mata in Aiyat No. 241 means ‘provisions’ and not ‘maintenance’. That is a distincition without a difference. Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aiyat, 241, the exhortation is to … the more pious and the more God-fearing, not to the general run of the Muslims (Engineer 28-9). It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. There is not evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell that cat by making gratuitous concessions on this issue. It is the state which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, has the legislative competance to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformed has to be assumed by the courst because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of the courts to bridge the gaps between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from cases to case (Engineer 33).
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