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A Relook at the Shah Bano Case Lest We Forget It

 

By V.M. Khaleelur Rahman for New Age Islam

03 April, 2012

The Supreme Court judgment, delivered on April 23, 1985, in the Shah Bano Begum case, created an unprecedented controversy in 1985 and 1986 in our country. Indian Muslims protested strongly, en masse, against it by holding rallies, meetings and processions throughout the country and expressing their views in the press. In spite of a detailed debate on this issue and passing of the historic “Muslim women (protection of rights on divorce) Act 1986”, some politicians, writers and even people connected with the judiciary, mostly non-Muslims, continue to ask even today, why the Muslims opposed the Supreme Court judgment in the Shah Bano case and criticise them. Most of the people consider it as the handiwork of Muslim clerics.

I would like to place some well known facts here for reference as this judgment will continue to be referred to in the press, if not for anything, at least for the sake of denigrating the Muslim community here and so we must remember what actually happened in the case and thereafter.

Shah Bano was married to an advocate Mohammed Ahmed Khan with a maher of Rs.3000/- They had three sons and two daughters. It seems that they lived together for about 43 years, of course with incompatibilities. She was an uneducated woman. The Rs.3000 maher fixed (which may be equivalent to quite a large amount now) and other informations indicate that they hailed from middle class families. In 1975 Shah Bano was sent out of the house. It is not clear if she occupied the house again or lived in another house of her husband or in her own house as after the judgment when the controversy erupted, a Hindu lady tenant living in the house where Shah Bano lived complained to the police and some political leaders that she was harassed by Shah Bano and her son for paying rent to Ahmed Khan who was her Land Lord.

Shah Bano filed a petition in the judicial first class magistrate’s Court at Indore under Section 125 of the Criminal Procedure Code for maintenance of Rs.500/- per month. The pity is that under this over-adored or over-praised Section the maximum amount allowable for maintenance is only Rs.500/- The judicial proceedings were dragged on for long. Meanwhile Ahmed Khan divorced her on November 6, 1978.

Let the critics of the Muslim Personal Law note that after three years of the filing of the petition by Shah Bano, the Magistrate ordered Ahmed Khan under Section 125 Cr. P.C. to pay a monthly maintenance of a “princely sum” of Rs.25/- in 1979. Even a “Panchayat” of some mediators would have done justice to her in a far better manner. Then Shah Bano appealed to the Madhya Pradesh High Court and got it increased to Rs.179.20. Ahmed Khan approached the Supreme Court but this amount was upheld there with a judgment which hurt the feelings of the Muslim community.

Immediately after the Supreme Court judgment Maulana Asad Madani visited Tamil Nadu. A meeting was held in Vaniyambadi. He delivered his religious discourse in his inimitable style in sweet Urdu. He referred to the age-old relations of the Jamiat-ul-Ulema-e-Hind and the Congress leaders, particularly during the freedom struggle of our country. He drew the attention of the people to the sacrifices made by eminent Ulema during the freedom fight and the support extended by them to Mahatma Gandhiji. It was a very inspiring speech in a highly nationalistic manner.

After the speech, an advocate of Madras High Court Mr. Mohammed Ghouse asked him what he thought of the Supreme Court judgment in the Shah Bano case. His reply was surprising to the audience there. He said that “Court kay faisalon say kya hota hai?” Wazeer-e-Azam Janab Rajiv Gandhi nay vada kya hai aur yaqeen dilaya hai ki woh Muslim Personal Law may mudakhilat naheen karayngay” (What happens from Court judgments? Prime Minister Mr. Rajiv Gandhi has assured us that there will be no interference in the Muslim Personal Law) Then he proceeded on to other questions put to him by a few persons there.

The fact was that the then Rajya Sabha member Maulana Asad Madani and other Ulema of his ilk were actually unaware of what had happened in the apex court. It was something different that he started opposing it after sometime in line with others,

It was not any Maulana or a religious leader who was responsible for the controversy, actually a right one which brought so many things before the people on the Shah Bano judgment. As far as I know, it was none other than Mr. A.G. Noorani who first came out with a thought provoking and well discussed article, published not in any religious periodical but in a popular women’s fortnightly “Femina” under the caption “Excuse me, my Lords”. He strongly criticized the manner in which the judgment was delivered, insulting Islam and re-interpreting Islamic laws without any necessity. He further opined that the judgment flouted the intent of the legislature, brushed aside the precedent and administered its gratuitous advice on a uniform civil code.

Indian Muslims are at least as human as any other religious people. All, whatever their religion or faith, are first human beings created in the same manner by God. No person on the basis of his colour, creed, nationality or any other such thing can be superior to any other person. The differences we see among the people are for the sake of identification only. The person who is dearer to God is the one whose character is good. This is what Islam teaches. How can all the Muslims together think of doing any injustice to anybody or approve any injustice?

The tone and tenor of the Supreme Court judgment irritated the Muslims most. It made them feel alien in their own country and directly and indirectly insulted their religion and national identity so much that they actually revolted against it. The minority Muslim community finding itself in a dilemma over the outbursts of remarks made by the Chief Justice of the Supreme Court Mr. Y.V. Chandrachud sought a suitable remedy by a democratic process. They did not indulge in any hooliganism in blatant violations of the rule of law or the Constitution as was done on December 6, 1992 when the historic Babri Masjid was “martyred” in the presence of the entire world in a brutal manner. They as law abiding citizens of this country knocked at the door of Parliament for justice. They were right and hence got justice in the manner they wanted.

Indian Muslims, no doubt, felt that the divorce of Shah Bano of Indore by her advocate husband in her old age was unfortunate as divorce, according to Prophet Mohammed (sal-am) was “permissible only as a last resort” and that “kingdom of God trembles when it is pronounced”. In the holy Quran and traditions of the Prophet there are many guide-lines for this undesirable act. There are also no two opinions about the “triple divorce” on one sitting being a practice of the days of ignorance (ayyamul jahiliyya). The holy Quran has given in clear terms the method and a system for honourable separation of the couple if unfortunately it becomes inevitable.

Islamic scholars always preach about the undesirability of divorce. Perhaps because of their attempts divorce like polygamy is less prevalent among Muslims. But unfortunately it seems to be on the increase now. It is time for the community to gear up its preaching machinery and make people realise that compromises and adjustments are necessary for a happy married life.

There are different countries in the world, where people belonging to Christianity, Islam, Hinduism and other faiths live. The laws of every country differ from those of any other country, to whichever religion it may belong. The same laws are not in force even in those countries where religion is just the same one. It is just the question of how a religious group or people or any other group want them. It is actually a democratic and fundamental right of people who have laws of their choice. If anybody thinks that only a common civil code should be in force or be made applicable to all in a country like India where different religious people live in considerable numbers, it is a wrong notion, detrimental to national interests and also integrity. Things like Sati, child marriage, caste outrages, etc. are of course in a different category for which sanction cannot be given on religious or customary grounds. In the same way the dowry system among Muslims which is responsible for many evils should be discouraged in all possible ways.

If law alone can rectify the society and if there is any example of any people eradicating evils in any country only by enacting laws in a particular way, one can consider it. But the facts are different. Various laws, totally different in nature, have been helpful to the people in the world. Sometimes laws have been ineffective also as in our own country, the laws on matters like dowry, polygamy, family planning, etc. could not bring the desired results and are considered to be failures. One is not in a position to say with confidence what laws should be enacted in a multi-lingual, multi-racial and multi-religious country like India.

There is the dire necessity of giving every religious community a feeling of “at home” in our country, which is possible only by following the well chalked out philosophy of unity in diversity. Any attempt for “uniformity” in laws relating to personal affairs of different religious communities can be rightly considered as an attempt of interference in their personal laws and denial of the fundamental rights guaranteed in the Constitution. What is more important is national unity and integrity, and not necessarily the uniformity. Let the Indian garden be more beautiful with its colourful flowers of different attractive shades. Actually Indian strength is in its composite culture. That is why the great founding fathers of our Constitution have drafted it in a manner agreeable to all. If any changes are necessary in any personal law, they should come from within that community in accordance with its traditional and religious ethos.

The great pious Islamic scholars and highly respected personality Maulana Abul Hasan Ali Nadwai, the supremo of the Muslim Personal Law Board and other members of the Board were responsible for representing the Muslim community to the late Prime Minister Mr. Rajiv Gandhi and getting the Muslim Women (protection of rights on divorce) Act 1986 passed in Parliament.

When the Muslim Women Act was passed in Parliament, the Maulana made it clear that there should be no victory processions or any other such sort of jubilation.

Many legal experts including an unorthodox and liberal minded senior advocate of Madras High Court Mr. Habeebullah Badsha have appreciated the Act. Mr. Badsha says: “though the Supreme Court judgment was supposed to have been a boon for Muslim women, the majority of the Muslim women criticized it. As a result of this unexpected unity and sentiments of outrage expressed by Muslims, the Parliament passed the Muslim Women (protection of rights on divorce) Act. There was uproar against this Act and the government was criticized for having yielded to the so called fundamentalists among the Muslims. Time has however proved that the Act has proved more beneficial to Muslim women than Section 125 of the Criminal Procedure Code, because Courts have been awarding heavy amounts of compensation to divorced Muslim women. This relief is not available under Section 125 of the Cr. P.C.”

Tamil Nadu Muslims also joined the national mainstream in extending their support, not blindly but based on reason and rationality, to the Muslim Personal Law Board. Many meetings and seminars were held and great Islamic scholars and eminent legal experts like Dr. Tahir Mahmood were invited to address them.

The Tamil Nadu Muslim Graduates Association was in the forefront in ascertaining the Muslim points of view on the subject. A seminar organized by it on “The Rights of Muslim Women” was well attended and highly successful. The papers presented mostly by Muslim women in different walks of life highlighted the undeniable fact that Islam provides enough safe-guards for women.

Mrs. Muthahirunnisa was in the lime light. Not only she took part in various gatherings, but also brought out a book, of course, after sometime, on the importance of Islam.

When the Muslim delegation under the leadership of Maulana Nadwi sahib approached Mr. Rajiv Gandhi and apprised him of the feelings of the Indian Muslims who constitute at least 15% of the Indian population with a rich national and religious heritage, spread among different linguistic and cultural groups, contributing for the betterment of our country in every field of activity and expressed what actually had happened in the Supreme Court and what they wanted as a remedy, he was convinced, he was convinced because of his unbiased thinking capacity and promised to do justice to the Muslim community. He fulfilled his promised like an honest and forthright gentleman, which he definitely was.

We frequently come across remarks made by some people criticizing the Muslim Women’s Act 1986 and asking why monthly maintenance is opposed by Muslims. One wonders how can a rational divorced woman demand or accept any “pittance” (maintenance) from her former husband who has already divorced her, particularly when one of the humiliating conditions for giving maintenance is that a divorcee who receives maintenance from her former husband is expected to go to bed with him if he so desires. This is something, to say the least, most undesirable and cannot be tolerated by any respectable woman. It is also against Islamic norms and perhaps against any other religious or social codes.

It is also note-worthy that Shah Bano appealed to the Supreme Court that the verdict be withdrawn because it amounted to interference in the Muslim personal law. There is also reason to believe that the “kanyadan” system of marriage among Hindus is responsible for the thinking that monthly maintenance should be given to the divorced woman by her former husband. In the Muslim society even after marriage a girl’s relations with her parents and other relatives are not severed but remains intact as it was before her marriage.

Islam undoubtedly provides enough safe-guards for all including women who enjoy an exalted status in Islam. Only Islam has given an enviable social and dignified position and rights to women.

My question to all those who still harp on the importance of the Shah Bano judgment and consider the Muslim Women Act as a setback to Muslim women even though it has paid rich dividends is: What was it that Shah Bano got from Section 125 Cr. P.C. after a long legal battle of about 10 years and what is it that a Muslim divorcee cannot get under the provisions of the Muslim Women Act 1986?

We Muslims strongly believe that Islam is the solution for all ills of the society.

URL: http://newageislam.com/islamic-sharia-laws/v.m.-khaleelur-rahman/a-relook-at-the-shah-bano-case-lest-we-forget-it/d/6982

 

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