Shah Bano case

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The Shah Bano case is an infamous divorce lawsuit in India and has generated political controversy in the country. It is sometimes described as an example of appeasement of the vote bank for political gains. This case caused the Rajiv Gandhi government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the secular judgment of the Supreme Court and, in reality, denied even utterly destitute Muslim divorcees the right to alimony from their former husbands.

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[edit] Brief of the Case

Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. The Muslim family law (marriage, gifts, inheritance, adoption and a few other civil laws are under the purview of personal laws in India - they are different for Christians, Muslims and Hindus) allows the husband to do this without his wife's consent: the husband just needs to say the word Talaaq before witnesses for a valid divorce. There are different classifications on Talaaq. There are also different aspects as well as other norms of Talaq which differ from sect to sect in Islam. Some sects also have certain prerequisities for a Talaq to be valid. They believe that during the Talaq, the woman should have purified herself from menstruation and her husband should not have had any sexual relationship with her.

Shah Bano, because she had no means to support herself and her children, approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony.

The orthodox Muslims in India felt threatened by what they perceived as an encroachment of the Muslim Personal Law, and protested loudly at the judgement. Their spokesmen were Muslim community leaders Obaidullah Khan Azmi, MJ Akbar and Syed Shahabuddin, They formed an organization known as the All India Muslim Personal Law Board and threatened to agitate in large numbers in all major cities. The then Prime Minister, Rajiv Gandhi, agreed to their demands and cited the gesture as an example of "secularism".

[edit] The Indian Government's Reaction

In 1986, the Congress (I) party, which had an absolute majority in Parliament at the time, passed an act The Muslim Women (Protection of Rights on Divorce) Act 1986 that nullified the Supreme Court's judgment in the Shah Bano case. This act upheld the Muslim Personal Law and writ as excerpted below:

"Every application by a divorced woman under section 125… of the Code of Criminal Procedure, 1973, pending before a magistrate on the commencement of this Act shall, notwithstanding anything contained in that code… be disposed of by such magistrate an accordance with the provisions of this Act."

The Government with its absolute majority passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 to dilute the secular judgment of the Supreme Court. The Statement of Objects and Reasons of this Act (i.e. the objective of the Act) needs a mention. According to the stated objects of the Act, where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law. But where a divorced woman has no relatives or such relatives, and does not have enough means to pay the maintenance the magistrate would order the State Waqf Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only.

Critics strongly contend that this Act was passed in order to appease minorities and safeguard the Muslim vote bank.

[edit] Consequences

The Shah Bano case generated tremendous heat in India. It proved that fundamentalist minorities can exert pressure on government and judicial decisions. The mainstream media disapproved of the decision. The opposition reacted strongly against the Congress party's policies (which, according to BJP, reflect "Pseudo-secularism".)

The case has led to Muslim women receiving a large, one-time payment from their husbands during the period of iddat, instead of a maximum monthly payment of Rs. 500 (around 12 US Dollars) - an upper limit which has since been removed. Cases of women getting lump sum payments for lifetime maintenance are becoming common.

Critics of the Shah Bano case point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by the Indian orthodoxy.

The Shah Bano case once again spurred the debate on the Uniform Civil Code in India. Ironically, the Hindu Right led by parties like the Jan Sangh which had strongly opposed reform of Hindu law in the 50's, in its metamorphosis as the Bharatiya Janata Party became an advocate for secular laws across the board. However, their opposition to the reforms was based on the argument that no similar provisions would be applied for the Muslims on the clumsy claim that they weren't sufficiently advanced.The pressure exerted by orthodox Muslims caused women's organizations and secularists to cave in. This was strange because the Congress government at the center enjoyed an absolute 2/3rd majority.

[edit] Personal Laws

The existence of personal laws is, in itself, an indicator of a constitutional bias towards maintaining religious harmony. They have been part of the Civil Law since the British Raj. The importance of personal laws lies in the fact that India is a secular nation with a sizeable concentration of several different religious groups. However, personal laws have been criticized by Feminists for their orthodox approach and for disadvantaging women. Religious rights and women's rights remain at conflict due to the disparities in religious laws. The likelihood that a common civil code for India may be introduced in the future seems bleak as even a discussion of the topic evokes strong reactions.

Judicial craftsmanship has ensured that The Muslim Women's [Protection of Rights on Divorce] Act has not completely violated the rights of women. High Courts have interpreted "just and fair provision" that a woman is entitled to during her iddat period very broadlly to include amounts worth lakhs (hundreds of thousands) of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination of the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;". The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of word, "within" and not "for"). It extends for the entire life of the divorced wife until she remarries.

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