The Complex Route to Gender Equality for Muslim Women in Divorce and Alimony Issues

By Grace Mubashir, New Age Islam

24 July 2024

The Challenges Faced by Muslim Women Navigating Divorce and Alimony Underscore Broader Societal Implications of Legal Interpretations and Cultural Practices. The Intersection of Personal Laws, Constitutional Guarantees of Equality, And Judicial Interpretations Play Crucial Roles in Shaping These Issues in India.

Main Points:

1.    The Shah Bano case in the 1980s brought significant attention to the plight of Muslim women seeking alimony post-divorce.

2.    The courts have ruled that Muslim women can seek additional alimony under CrPC 125, reflecting a growing recognition of the need for comprehensive financial security measures post-divorce.

3.    While legal advancements are crucial, societal attitudes and entrenched cultural norms continue to pose significant challenges.

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Representative Photo

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Historical Context and Legal Milestones

The Shah Bano case in the 1980s brought significant attention to the plight of Muslim women seeking alimony post-divorce. Shah Bano Begum, after being divorced at 62 following a 42-year marriage, sought financial support from her husband. The Supreme Court initially ruled in her favour, advocating for alimony under Section 125 of the Code of Criminal Procedure (CrPC), which applies universally across religious denominations. However, the subsequent political backlash led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, effectively limiting Muslim women’s alimony rights to the iddah period.

A five-judge bench headed by Chief Justice YV Chandrachud, father of today's Chief Justice DY Chandrachud, changed even the political history of India by Mohd. Ahmed Khan v. Judgment in the case of Shah Bano Begum (1985 SCR (3) 844). In 1978, his 62-year-old wife, Shah Bano, married her husband, Adv. A suit was filed for recovery of costs from Muhammad Ahmad Khan. They lived together for 43 years. The husband went all the way to the Supreme Court to establish the argument that he is entitled to receive expenses only during the Iddah period (three lunar months) as per Islamic Shariah as he is divorced. Rejecting all his arguments, the Supreme Court strictly held that Shah Banu Begum is entitled to costs under CrPC 125. Not only did it place secular law above religious law, but it was fair to ensure the protection of Muslim women in a secular country.

Against that ruling, religious leaders organised Sharia protection rallies in all parts of the country. Religious leaders and religious politicians joined them and organised an agitation against the humanitarian decision to pay expenses to the woman who lived with them for 43 years.

Prime Minister Shri Rajiv Gandhi surrendered to the fundamentalists of Islam. The Muslim Divorcee Protection Act 1986 was passed to override the Supreme Court ruling. Rajiv Gandhi's Law Minister Ashok Sen introduced the bill in the House that day. The Muslim unification of that time and the creation of laws that favoured religious fundamentalists led to the strengthening of Hindutva politics. They campaigned on a large scale against this "Muslim Appeasement Policy". Ram temple stone-laying and Ayodhya were burnt.

The 1986 Act is an unjust law that was achieved by subjugating the political leadership by men standing united against Muslim women in independent India. Although the Act of 1986 had many other features, the way it came about was enough to determine the political future of India and history recorded that religious supremacy subjugated political leadership. The boost it gave to Hindutva politics was not insignificant.

This legislative move was seen as a political strategy to appease the Muslim community while ostensibly adhering to Shariah law. Under Shariah, maintenance is provided only during the iddah, after which responsibility shifts to family heirs or the state Waqf Board. This framework, however, often leaves divorced women in prolonged legal battles for sustenance, ignoring their health, age, and living conditions.

Recent Judicial Developments

Recent court rulings, including the 2024 Supreme Court decision, reaffirm that Section 125 of the CrPC applies to all religious groups, highlighting the constitutional imperative for uniformity and non-discrimination. The judgment allows Muslim women to claim alimony beyond the Iddah period, challenging previous interpretations that restricted such claims to either Shariah or civil law provisions. This marks a significant shift towards aligning religious practices with constitutional values, ensuring equitable outcomes for all Indian citizens.

In this case, the Supreme Court has reiterated that the judgment rendering the Shariat Application Act, 1937, inapplicable is fair. In 2010 and 2024, the Supreme Court issued the same verdict as in 1985. But to override the 1985 judgment, the government made a law in 1986 for male subjects. The Supreme Court has issued three important judgments in a way that undermines the essence of the 86 Act. But the fundamental change from 1985 to 2024 is that the religious clergy or religious politicians are not ready to question the justice of the Supreme Court. This shows that even when the religious priesthood takes anti-women positions, the Ummah rejects it. It is also hopeful that no organization like the Congress Party, which led the drafting of the law in 1986, or the Jamaat-e-Islami, Muslim League, Muslim Personal Law Board, etc., which supported it at that time, is taking a position against the 2024 ruling.

The Issue of Mehr and Financial Security

Mehr, or dower, is a traditional Islamic marriage provision meant to secure a woman's financial future. However, in India, the amount often remains meager, inadequate for long-term support post-divorce. This disparity complicates the debate over whether Shariah provisions suffice for modern financial realities. The courts have ruled that Muslim women can seek additional alimony under CrPC 125, reflecting a growing recognition of the need for comprehensive financial security measures post-divorce.

Societal and Cultural Challenges

While legal advancements are crucial, societal attitudes and entrenched cultural norms continue to pose significant challenges. Education and advocacy are essential to shift public perceptions and foster a more inclusive legal framework that respects and protects women's rights across all communities. Ensuring that men recognize and act on the financial dependence of homemakers is also vital for gender justice and economic empowerment.

If the figures after the 1980s are revised, it can be seen that the rate of polygamy is coming down sharply, and it will be realized at the practical level that the Muslim community is a society that is turning its back on the right of polygamy. But the political leadership is taking the approach of supporting the Muslim clergy to insist on a right that is completely useless. According to Section 494 of the Indian Penal Code, only one marriage is allowed to a person. This section is meant to punish a person who has married more than once. Section 82 of the Indian Penal Code, which came into force on July 1, is similar.

Conclusion

The journey toward gender equality for Muslim women in matters of divorce and alimony is fraught with complexities rooted in legal interpretations, cultural traditions, and political considerations. As legal precedents evolve, so too must societal attitudes and legislative frameworks to foster a more just and inclusive society for all Indians. The judiciary's role in upholding these principles is paramount in ensuring that every woman can assert her rights with dignity and equality under the law.

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A regular columnist for NewAgeIslam.com, Mubashir V.P is a PhD scholar in Islamic Studies at Jamia Millia Islamia and freelance journalist.

 

URL:   https://www.newageislam.com/islam-women-feminism/gender-equality-muslim-divorce-alimony/d/132774

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