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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