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For all the Shah Banos

Constitution, not community’s code, should decide religion-based disputes.

Written by Tahir Mahmood | Updated: April 27, 2015 12:17 am
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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.

The writer is former chair, National Minorities Commission

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More From Tahir Mahmood
  1. P
    Apr 28, 2015 at 1:57 am
    Mr. Tahir - "Na stree swatantramarhati, said Manu, the law giver: the woman does not deserve independence." Before you use the Manu's sloka from Manu smurti you shall read it complete stanza. It clearly says that Sthavire raxti Putra, so this no swatantrata or dependence doesn't mean slavery but taking care in all respect be it physical, mental or economical for a women at her all stages of life. When she is daughter & not married it is responsibility of father or parents, after marriage it is husband and if she becomes widow and old it shall be sons. Does Muslim personal law give to their women?
    1. Prof Bharat
      Apr 28, 2015 at 7:40 pm
      thanks for correct interpretation, prof bharat gupt, see details bharatgupt
      1. A
        Apr 27, 2015 at 2:50 pm
        The AUTHOR should have added that according to hadith, the word "TALAQ" or divorce is hated by Almighty.
        1. A
          Apr 28, 2015 at 9:22 am
          1. H
            Apr 27, 2015 at 10:27 pm
            It is essential to understand about the religion before talking about it. The concept of community living started when the human race come out of caves and started farming. Then the powerful people set a rule and regulation and punishment in case of its violation for common people. To give it more authentic implementation and securing prosperity for self, the powerful people put God in center. Thus, the irrevocable system of governance came into existence to which, we called religion. However, after Buddhism the world goes into social turbulence and rejects the supremacy of God and after the struggle of several years established new system of governance and that is democracy. Thus, in Indian democracy we have protected the religious liberty to avoid the struggle between powerful and poor and try to achieve peace. However, as the democracy curtail the power of powerful therefore powerful wants the rule of religion. Therefore, it is in the interest of poor that the conversion must left to individual instead of enforcing it through the interpretation of law. If somebody wants monthly maintenance then he/she should go to that religion where it is permissible using clause of religious liberty, instead of enforcing on them the legal conversion. This will ensure the peace and prosperity to poor if they adhere to the true democracy and not the technologically imposed democracy by the powerful.
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