Asserting the empowering nature of Islamic laws on marriage, Amina Shervani, a resident of Gurgaon has moved the Supreme Court, seeking to oppose the PIL filed by BJP leader and Supreme Court Advocate Ashwini Kumar Upadhyay for uniformity in personal laws regulating divorce, maintenance and alimony for Indian citizens.
Amina affirms that the provisions regulating Muslim marriages, divorce and alimony under the Muslim personal law are rather beneficial. She explains that the contractual nature of Muslim marriage helps Muslim women impose such conditions on their marriage, that safeguard their interests in the face of uncertainties of marital life.
The application filed through Advocate Fuzail Ahmad Ayyubi and drawn by Advocate Rashmi Singh states, “Muslim marriage is contractual in nature and as such the parties to it are allowed to impose conditions for regulating their matrimonial relations. Such conditions can be imposed before the marriage or at the time of the marriage or even after the marriage. The agreement has to be legal and as per the provisions of Muslim law. The option to impose matrimonial conditions under Muslim law provides protection to Muslim women and safeguards their interests in the face of uncertainties of marital life. Additionally, such marital conditions provide adequate sustenance to Muslim women after dissolution of marriage as well as during the marriage.”
Rights under Islamic marriage agreements
The application further proceeds to elucidate provisions like Mehr (customary consideration for Muslim marriage), types of divorce, etc., available under the Muslim personal law.
Through the marriage agreements under the Muslim personal laws, the applicant states, Muslim women have a right to Mehr. Further, the marriage agreement allows Muslim women to- divorce the husband on the happening of certain contingencies, leave the husband’s house in case of ill-treatment or disagreement, claim fixed or separate maintenance in certain circumstances, impose a condition on the husband to provide maintenance for the children of his wife’s former husband or to provide some special allowance to the wife by way of maintenance.
The application holds that the resolution of matrimonial disputes through mediation is provided for under Islamic matrimonial jurisprudence. It further adds that the Islamic dispute settlement protects the parties, especially women, from hardship and humiliation.
The application goes on to state and explains the various methods available to Muslim women for obtaining a divorce.
Background
The writ petition for uniformity in personal laws was filed by BJP leader and Supreme Court Advocate Ashwini Kumar Upadhyay last year. The petition was based on the premise that the grounds of divorce in the country are neither gender-neutral nor religion-neutral and are hence discriminatory.
The petition further explained that Hindus, Buddhists, Sikhs and Jains have to seek divorce under the Hindu Marriage Act, while Muslims, Christians & Parsis have their own personal laws.
On December 16, the Supreme Court agreed to issue notice on the petition, however, it expressed disinclination towards interfering with personal laws. “You are asking us to encroach upon personal laws and remove the distinction that they create,” the judge had said.
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Rushda Fathima Khan is the Staff Reporter for The Cognate.
