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Islam, Women and Feminism ( 27 Apr 2015, NewAgeIslam.Com)

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For all the Shah Banos





By Tahir Mahmood

April 27, 2015

Na stree swatantramarhati, said Manu, the law giver: the woman does not deserve independence. And it is alleged that the fatal point in Islam is the degradation of woman [as British orientalist Edward Lane once said].” This is how Y.V. Chandrachud, a former Supreme Court chief justice speaking for a constitution bench, began his Shah Bano judgment. Decided on April 23, 1985, the case has kept its proponents and opponents engaged for three decades while the apex court has reiterated its stand in several  rulings, the latest being Shamima Farooqui, decided on April 6.

To tackle the problem of destitution of deserted wives, the old CrPC of 1898 had empowered magistrates to enforce payment of maintenance by their husbands. With the fast-growing numbers of divorcees since the enactment of the Hindu Marriage Act, 1955, the new CrPC, 1973, extended the same relief to them. This development raised the question whether the provision would apply to Muslims, who had religious rules on divorce. No, said Muslim religious leaders, who believed that women’s post-divorce rights were extremely restricted under their professedly divine law. The late Justice Krishna Iyer of the SC did not agree and enforced the new provision for Muslim divorcees in Bai Tahira, 1980, and Fuzlunbi, 1982. Muslim leaders then decided to challenge his views.

A Muslim lawyer from Indore divorced his 60-year-old wife, Shah Bano, and a maintenance application filed on her behalf under the CrPC was decided in her favour. She was awarded a petty monthly allowance by the lower court. But her husband, instigated by the religious leadership, fought the case right up to the SC. The Muslim Personal Law Board intervened, insisting that the CrPC law could not be applied to Muslims due to a conflict with personal law.

Admitting the appeal, judge Murtaza Fazal Ali referred it to Chandrachud for a decision by a larger bench. The chief justice then constituted a five-judge bench and, speaking for it, upheld Iyer’s stand. He took pains to convince Muslims that the CrPC law was in tune with true Islamic law and concluded his judgment with a lament for the lack of a uniform civil code.

He generously cited two of my works. “I have quoted you on some vital points,” he said to me during an accidental meeting a few days after the case was decided. It was indeed a great honour. Though proud of it and in full agreement with the court’s decision, I said that the obiter in the judgment had been insensitive to the known idiosyncrasies prevailing in society. In another chance meeting years later, the learned judge also agreed that the obiter was unnecessary and avoidable.

Shah Bano created a storm. Agitated that vested interests had projected it as a death knell for personal law, Muslims demanded “corrective” legislation. In a bid to enhance its pro-minority image, the government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. The bill, apart from its confusing wording, was repugnant to true Islamic law. I conveyed my critique to its architects but Parliament was drawing to a close and they were in a hurry to achieve victory. They agreed to suitably amend it later — a promise that was never fulfilled.

Muslim leaders were not, however, destined to have the last laugh. The constitutional validity of the 1986 act was challenged before the SC. It took 15 years to decide the matter. By then, many high courts had interpreted the act in conformity with the spirit of Shah Bano. In Danial Latifi, 2001, the SC decisively ruled for all time that Shah Bano had not been superseded by the act; it must in fact regulate its implications and application.

Under the Constitution, religious liberty is a qualified right, subjected to the “other provisions of the Constitution”, which include all other fundamental rights and duties. As specified in the Constitution, people’s right to religious freedom does not restrict the power of the state to regulate or restrict, inter alia, “political” activities associated with religion. It is these provisions, not any community’s astha or aqida (religious belief, right or wrong) or claim to hegemony, that should guide the courts in deciding religion-based disputes. Taking a uniform stand in accordance with the Constitution on all such matters, be it personal law, disturbing social bonhomie or anti-minority atrocities, should be as important to the courts as expressing concern about the lack of a uniform civil code.

Tahir Mahmood is former chair, National Minorities Commission