With debates on the merits and demerits of triple talaq an ongoing process, the shadow of the famous Shah Bano case has some lessons for us
With debates on triple talaq an ongoing process, the Shah Bano case resurfaces time and again not only in Parliament but even in the media. Recently, during an interview with a news portal, a former Union Minister described the Shah Bano case as being related to triple talaq. Although the latter did surface during the parliamentary debate on the Shah Bano case, it was not an issue and the judgement did not say a word on triple talaq. The core issue in the said case was related to the provision of “maintenance” by a Muslim husband after he divorced his wife. Being a witness to this debate in the Lok Sabha, I was prompted to write on this subject.
Mohammad Ahmad, a resident of Indore, Madhya Pradesh, divorced his 62-year-old wife, Shah Bano, in 1978. The case was finally heard by the Supreme Court in April 1985. The court ruled that under Section 125 of the Code of Criminal Procedure (CrPC), a divorced Muslim woman was entitled to receive maintenance from her husband. The court also observed that Section 125 overrides the personal law. The court, while referring to interpretation of Verses (Aiyats) 241 and 242 of the Quran, contended that “there is an obligation on Muslim husbands to provide for their divorced wives.” The court observed that: “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter.” It provides that: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India....” (Mohd Ahmad Khan vs Shah Bano Begum, 1985). On May 10, 1985, GM Banatwala, the then Member of Parliament from the Muslim League, moved the Code of Criminal Procedure Bill for amendment of Section 125 and 127. Speaking on the Bill, Banatwala argued that “under Islamic law, a husband is bound to maintain a divorced wife only during the period of Iddat, which is nearly three months and not thereafter.”
Arif Mohammad Khan of the Congress and the then Union Minister supported the Supreme Court judgement. A few weeks later there was a wave of protest in States such as Kolkata, Patna, Mumbai, Delhi, Kanpur and Hyderabad among others. “One must admit”, conceded Asghar Ali Engineer, a social activist and the then director of the Institute of Islamic Studies, that this “agitation is the biggest ever launched by Muslims in post-independent India” and that “another parallel is impossible to find.”
A 19-member delegation of the All India Muslim Personal Law Board (AIMPLB), led by former president Maulana Abul Hasan Ali Hasani Nadwi, met the then Prime Minister Rajiv Gandhi and handed over a memorandum stating: “The Muslim community regards this judgment of the Supreme Court as a clear interference with the Shariat (Muslim personal law) and their freedom of religion and conscience contained in the Articles 25, 26 and 29 of the Constitution…The Supreme Court in its judgement has misinterpreted two isolated verses of the Quran, quoted by it out of context, and has ignored other verses …”
Ziaur Rahman Ansari, the then Union Minister of State for Environment, during his three-hour speech (delivered in two parts) in the Lok Sabha, lambasted the court’s judgment and described it as prejudice, discriminatory and full of contradictions. He wondered how there is going to be a complete national integration by merely changing the Muslim personal law.
After Rahman’s intervention, no one from the Congress opposed his views in Parliament despite the persistent Opposition from its MPs, who were in support of the judgement. Tahir Mahmood, then a teaching faculty at the Delhi University observed: “The provision of modern Hindu law that a Hindu wife, who ‘ceases to be Hindu’ (by conversion to Islam or Christianity) cannot claim maintenance from her Hindu husband (Hindu Adoption and Maintenance Act 1956, Section 18 read with Section 24) is too progressive to earn any criticism. But the rule of Muslim law that a wife, who has been subjected by her husband to the indignity of divorce, need not look to him for maintenance beyond a certain limit must earn strictures in foul language.” Is this, indeed logical?
On the contrary, Shailendra Nath Ghosh, in an article (April 5, 1986) claimed: “While Egypt, Iran, Iraq, Turkey, Libya, Qatar, Indonesia, Sudan, Tunisia, Jordan, Syria, Yemen and even Pakistan have made new marriage, divorce and compensation laws, Indian Muslims persist in defending practices…” He wondered if the prevailing practices are just the opposite of the teachings of the Quran and Hadith.
Prof Mahmood, an authority on Islamic law, who was also quoted in the Shah Bano case judgement, asserts: “If anybody has said that a Muslim woman in any of the Islamic countries can seek maintenance from her former husband after the expiry of the period of iddat with or without the help of the court, it is absolutely baseless.” (Sunday Observer, March 9, 1986).
Ahmad Hasan, quoting an expert opinion from the Ministry of Justice of the United Arab Emirates (UAE), contends that, “...living allowance given to a woman after divorce extends up to three months. This has been an accepted fact all through the Islamic history. All well-known schools of Islamic law are unanimous on this” (March 9, 1986). Another researcher, Nadia Barakat from the Ministry of Justice, UAE, known for her contribution to “family laws”, maintains:...[A]ccording to jurists, the Quranic injunction ‘Tasreeh bin Ahsan’ did provide for a compensation amount. (However) it was left to the Muslim judge....to rule how much compensation should be payable to a woman who, in the opinion of the judge, does not have any means to support herself. This, of course, did not apply to a divorced woman who had relatives capable of supporting her (March 9, 1986).
After a great deal of consultation with the Muslim intellectuals, academia, the Muslim Personal Law Board (MPLB) members, particularly Maulana Abul Hasan Ali Nadwi, then president of MPLB as also Muslim MPs, Rajiv Gandhi decided to introduce the Muslim Women (Protection of Rights on Divorce) Bill. It intended to exclude the former husband of a divorced Muslim woman from the liability of maintaining her beyond the three months of iddat and instead said that it should be maintained by her father or brother. It excluded the Muslim women from Section 125 and 127 of the CrPC to ensure that the apex court judgment on Shah Bano case did not apply to them. Amid strong resentment from a section of members from the then ruling Congress as well as Opposition parties, the Muslim Women (Protection of Rights on Marriage) Bill was introduced in the Lok Sabha on May 5, 1986.
While Arif Mohammad Khan resigned from the Council of Ministers in protest against the introduction of the Bill, several heads rolled to check the dissidence in the Congress. Justice VR Krishna Iyer, retired judge of the Supreme Court, in a letter dated February 29, 1986, to Rajiv Gandhi wrote: “The Bill is a sin against the Quran. Many Islamic scholars hold that the Quranic command to husbands to pay upkeep expenses to a divorcee beyond iddat is clear.”
The outpouring sympathy shown by non-Muslims for Muslim women was seen with scepticism and suspicion rather than appreciation. There were claims by many that the Supreme Court judgement in the Shah Bano case will enhance secularism and national integration in the country. Asghar Ali Engineer argued that the Shah Bano case had adversely affected the Hindu-Muslim relations besides causing harm to secularism. Justice VR Krishna Iyer, in a letter dated February 28, 1986, to Prime Minister wrote, “The best gift for national integration and incendiary communalism is the anti-secular, anti-Shah Bano Amendment Bill now under way. Please desist.”
Mahmood argued: “There are maintenance provisions also in the Hindu law enactments (1955-56), Hindu Adoption and Maintenance Act (1956). The CrPC has not repealed them. Nobody has ever regarded the maintenance law under the Hindu law statues as un-Constitutional. How can, then, a codified Muslim law on maintenance be called un-Constitutional? Similarly, if special laws applicable to Hindus do not make them ‘separatists’, how can a special law enacted for the Muslims make the Muslims ‘separatists?’”
Pondering on the issue of national integration and citing examples of some of the past Acts, Rajshekar, an eminent journalist, questioned the rationale for adhering to religious identity. When the Hindu Marriage Act was passed in 1955 and the Hindu Succession Act in 1956; there was already an Indian Succession Act. If the intention then was for Common Civil Code, they could have straight away called the Hindu Marriage Act as the “Indian” Marriage Act and the “Indian” Succession Act with suitable amendments if necessary. This would have taken care of all Indians. Still, they passed the Hindu Marriage Act and the Hindu Succession Act exclusively for themselves. Where was their sense of “national integration” at that time?
Describing the merits and shortfalls of the Muslim Women Act, Prof Mahmood wrote: “The Muslim Women Act … does not leave divorced Muslim women in a ‘total state of vagrancy’ or to ‘beg from door to door’, as is claimed by some of its critics. … Under the 1986 Act, a Muslim divorced woman can be awarded by the criminal courts Rs 50,000 (or five lakh or more, there being no statutory ceiling) — as a lump sum or payable in installments — never to be re-opened in a civil court.” Yet, it is believed, said and propagated that the Act has “taken away” from Muslim women all that the CrPC had “given” them along with other women and has left them to “beg” from “door to door.”
(The writer is author of Wings of Destiny: Ziaur Rahman Ansari-A Life)
