By Flavia Agnes
Sep 11, 2016
The All India Muslim Personal Law Board
(AIMPLB) has given to the Supreme Court its opinion on triple Talaq and
polygamy. As expected, media reports have reacted to the absurd and indefensible
statements made by the Board, but the positive aspects in the affidavit seem to
have gotten buried beneath the flurry.
The affidavit starts on a positive note by
stating that the Supreme Court in the 2002 Shamim Ara ruling has already dealt
with the issue of instant, arbitrary triple Talaq, and has laid down the test
of “reasonable cause” and “prior reconciliation”, and goes even further to
state that the principle laid down in the Shamim Ara ruling is the law of the
land and a binding precedent.
Even while stating that the Shamim Ara
ruling does not accurately reflect the Shariah law, the affidavit accepts the
judgment by stating that the Board does not wish to reopen the discussion on it
in these proceedings but ends with a rider that it reserves its right to
“interpret” the Shamim Ara ruling in future. This appears to be a feeble
objection to the historic ruling, especially since the board accepts that the
proper course open to Shayara Bano — petitioner in the current case — was to
challenge the arbitrary triple Talaq and claim her rights in a local court by
invoking the 2002 ruling.
Fourteen years have gone by since the
ruling, and the volume of case law accumulated through the decisions of various
high courts which have relied on the Shamim Ara ruling makes it difficult for
the Board to feign ignorance about it as the principle of stare decisis will
apply when the Board wakes up to challenging this ruling.
What does this imply for Muslim women who
are sent such arbitrary Talaqnamas by post? While trial courts have been
relying on this ruling when Muslim women approach them to claim their rights,
the community has been hesitant to challenge the Fatwas that triple Talaq are
valid, discouraging women from approaching the courts. The Board’s affidavit, in
paragraph six, sends out a clear signal that a Muslim woman has every right to
challenge the triple Talaq sent to her by her husband relying upon the Shamim
The fact that the Board has accepted the
principles laid down in the Shamim Ara ruling is the most positive aspect of
the affidavit, and this should be hailed. After pleading that Shayara Bano had
the right to challenge the triple Talaq in a local court in a duly affirmed
affidavit by a person no less than its secretary, it will be difficult for the
Board to retract from this position in future. Now Muslim women can defend
their rights against instant Talaq pronounced on them, as the Board has given
The second positive aspect is the
acceptance that a Muslim woman who has been subjected to domestic violence has
the right to claim relief under the Protection of Women from Domestic Violence
Act (PWDVA), 2005. This helps break yet another prevailing myth that Muslim
women are not entitled to relief under PWDVA. There is a clear direction to
Muslim women who are victims of domestic violence to claim relief under the
progressive statute, which helps women claim maintenance, protection,
injunction, residence, compensation and child custody through summary
proceedings in a magistrate’s court.
Further, remedies under this Act can be
claimed not only during the marriage but at any time thereafter. The Board does
not seem to restrain Muslim women from claiming relief under this statute even
after their marriage has been dissolved. Acknowledging the rights of Muslim
women for remedies under this civil statute is sufficed to clear any
misconception which the media may harbour.
The third positive point: In the event that
Shayara Bano wished to end her violent marriage by accepting the Talaqnama
sent by her husband, she has the option of exercising her rights under the
Muslim Women (Protection of Rights upon Divorce) Act, 1986. The agency of the
Muslim woman and her multiple choices under various legal provisions, which are
seldom highlighted, are captured in a nutshell.
The affidavit chides Shayara Bano for
rushing to the Supreme Court by way of a PIL without first benefiting from the
remedies available to her against her husband in a local court. In fact, it is
on these grounds that the affidavit claims that the PIL should be dismissed
ad-limine (at the initial stage).
The affidavit further states that these
alternate remedies are more apt as the appropriate judicial authorities can
give effective and adequate remedy. These statements help to clear the
misconception that a divorced Muslim woman has no rights under the existing
The affidavit further states that
provisions of maintenance after divorce have been codified in the Muslim Women
(Protection of Rights on Divorce) Act, 1986, and the constitutional validity of
this Act was upheld in the Danial Latifi ruling of 2001.
The Board was a party to these proceedings
and had opposed the wider interpretation provided by the Supreme Court. But
today it seems to accept this judgment and urges Muslim women to reap its
Unfortunately, due to the negative
projection of these important milestones, Muslim women were not able to
sufficiently reap the benefits of these rulings. The affidavit seems to clear
the misconception surrounding these important rights.
It would have been better for the Board to
confine itself to these legal positions rather than contradict what is stated
in the opening paragraphs, by invoking obscurantist authorities to uphold
arbitrary, instant triple Talaq. Unfortunately, by making sensational and
outlandish comments about the necessity of validating this practice, the Board
has played into the hands of Hindu communal elements, especially before the UP
elections, and provided fodder to mount its vitriolic campaign against the
After affirming that the principle laid
down in the Shamim Ara ruling is the law of the land and is binding, these
contradictory and atrocious comments were totally unwarranted.
Since the main objective of the media is to
secure the rights of Muslim women, it would do well to publicise the fact that
the Board has encouraged Muslim women to safeguard their rights by using the
existing laws available to them.
Flavia Agnes is a women’s rights lawyer