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Polity-Uniform Civil Code, Shah Bano and Danial Latifi (Landmark Judgments-Part 3) !!!

Questioning the sanctity of personal religious laws and bringing the debate on a Uniform Civil Code to the forefront of the national discourse

  1. Mohammed Ahmed Khan v. Shah Bano Begum (Shah Bano)
  2. Can a Divorced Muslim Woman Claim Maintenance?
  3. Facts of the case
  4. Maintenance, Mahr and Muslim Law
  5. After the Judgement, the Juggernaut of Reactions and an Anticlimax
  6. The Overruling: Vote-Bank Politics at Its Worst
  7. The Danial Latifi Case and What Followed
  8. Feminism v. Secularism

IN APRIL 1985, the Supreme Court delivered a judgement on the maintenance a divorced Muslim woman would be entitled to receive from her former husband in the case of Mohammed Ahmed Khan v. Shah Bano Begum1 (Shah Bano).

It was not a unique case; in fact, it was rather ubiquitous—the very same court had judged similar cases earlier. And yet, the Shah Bano case was different. The circumstances of the case, the manner in which the court formulated its verdict and the publicity that it received altered the communal climate in India for all time to come.

Although it was the decision of a court, the Shah Bano case was deeply entrenched in the politics of contemporary India.

Its fallout marked the beginning of an ugly era of religious fundamentalism in India, with Islamic fundamentalists and right-wing Hindutva groups on either side of the religious divide. And though the case was a watershed in the protection of women’s rights in a largely chauvinistic nation, it also showed how the judgements of courts, which are in fact intended to resolve conflicts, can often transform into sources of conflict themselves.

India is a democratic republic founded on the principle that all its citizens are equal. Therefore, there is a common set of laws that binds all citizens, irrespective of religion, race, caste and so forth. However, when it comes to matters involving family affairs—marriage, divorce, maintenance and succession—there are different laws governing people of different faiths. These are known as ‘personal laws’ and administering them has often led to harsh and unfair results, particularly for women.

Consider this in light of the fact that the Constitution embodies an ideal that the state should endeavour to secure a Uniform Civil Code (UCC) across India, to eliminate this very regime of differential governance in family affairs.

In the 1970s and ’80s, there were several conflicts surrounding the personal laws governing Muslims alone as against the laws applicable to all Indians.

Section 125 of the Code of Criminal Procedure, 1973 (CrPC), which governs all persons, was one such area of conflict. According to this section, a First Class Magistrate could order a husband to provide a monthly allowance of up to 500 rupees to his wife/divorced wife (as long as she had not remarried) if he neglected to maintain her and she was unable to maintain herself. If the husband did not obey the magistrate’s order, he could be imprisoned.

The law aimed to bring swift relief to the women who were economically dependent on their husbands; it was a ‘benign provision enacted to ameliorate the economic condition of neglected wives and discarded divorcees’.

Section 127 of the CrPC provides that if a wife was paid any money on divorce under the personal law governing her, any order for maintenance passed under Section 125 was to be cancelled. The obvious purpose of this was to ensure that if a wife were provided for under personal law, she would not proceed against her husband under the CrPC as well and double-dip. This seems fair enough.

Yet, it gave rise to a quandary. Mahr is a marriage-gift given to the bride in Islam, settled upon before marriage. It may be given either promptly (immediately at the time of marriage) or deferred to a later date. In many cases the payment of mahr is deferred up to when the husband dies or the marriage is dissolved by divorce.

The Supreme Court faced a challenge in two cases:

Would the payment of mahr, regardless of how insignificant that payment was, absolve a Muslim husband from providing for his divorced wife under Section 125 of the CrPC?

In both cases, the court answered in the negative, stating that the payment of mahr was no bar to granting maintenance. If the mahr amount were insufficient, the court was free to order the payment of maintenance. Though significant, these decisions were relatively inconspicuous and did not receive much coverage in the mainstream media till the Shah Bano case emerged.

In 1978, a prosperous Muslim lawyer unilaterally divorced Shah Bano, his wife of over forty years by pronouncing ‘triple talaq’. The abrupt divorce was allegedly because of an inheritance dispute between Shah Bano’s children and those of her husband’s other wife.

Now, as mandated by Muslim personal law, the husband paid 3000 rupees (the pre-agreed mahr amount) to his divorced wife during iddat.

Having been driven out of her matrimonial home in Madhya Pradesh, Shah Bano filed a petition under Section 125 of the CrPC before the Judicial Magistrate at Indore. She sought maintenance from her former husband, who she claimed had an annual professional income of about 60,000 rupees. The magistrate ordered the husband to pay Shah Bano a paltry twenty-five rupees every month as maintenance.

When Shah Bano appealed to the Madhya Pradesh High Court in 1979, the maintenance amount was revised to Rs 179.20 every month. It was then that Shah Bano’s former husband, Mohammed Ahmed Khan, petitioned the Supreme Court in 1981 to challenge the high court’s decision.

The case could have been a straightforward one. There were already two Supreme Court decisions precisely stating that the court could order a maintenance payment under Section 125 despite the payment of mahr. However, when the matter came up before a two-judge bench of the court the judges were of the opinion that the existing judgements were not robust and had not been correctly decided.

Therefore, a five-judge Constitution Bench was formed to resolve the issue. Interestingly, of these five judges, four were Hindus and the fifth, Justice O. Chinnappa Reddy, ‘rejected any religious label’.

Mohammed Ahmed Khan argued that according to Muslim law, a husband’s liability after divorce extended only up to the iddat period—this would therefore override the general law embodied in the CrPC.

Moreover, the order for maintenance under Section 125 was liable to be cancelled under Section 127, since he had tendered the mahr as a payment ‘on divorce’.

The Supreme Court eloquently framed the agonizing questions before it in the Shah Bano case:

Is the law so ruthless in its inequality that, no matter how much the husband pays for the maintenance of his divorced wife during the period of iddat, the mere fact that he has paid something, no matter how little, absolves him forever from the duty of paying adequately so as to enable her to keep her body and soul together? Then again, is there any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’?

The Constitution Bench delivered a unanimous verdict.

First, the court alluded to the religious neutrality of Section 125 of the CrPC, stating that whether the spouses were ‘Hindus or Muslims, Christians or Parsis, pagans or heathens’ was ‘wholly irrelevant’.

Its interpretation was that the underlying purpose of Section 125 was to protect dependents from vagrancy and destitution—thus it saw no reason to exclude Muslims from its sweeping ambit.

Then, the court distinguished between the subject areas covered by Muslim personal law and Section 125 of the CrPC. According to it, Muslim personal law did not address the situation envisaged in Section 125. Yes, the personal law mandated that mahr should be paid during iddat, but it did not contemplate a scenario where the divorced wife was unable to maintain herself after the period of iddat ended. In such a scenario, she would be entitled to seek maintenance under Section 125 of the CrPC.

Thus, using deft interpretative tools, the court reconciled Muslim personal law and Section 125. In any event, the court stated that if there was a perceived conflict between the two, the CrPC would override the provisions of Muslim personal law.18 The court refused to accept the argument that the order for maintenance under Section 125 could be cancelled under Section 127, simply because the husband had made a payment to the wife at the time of divorce, under Muslim personal law.

It asserted that mahr was not a payment liable to be made to a Muslim woman ‘on divorce’. Exploring the meaning of mahr, the court concluded that it was an amount that a wife was entitled to in consideration of marriage—it could not be construed as a divorce payment.

The mere fact that mahr was sometimes paid at the time of dissolution of the marriage (by death or by divorce) did not imply that the payment was ‘occasioned by’ the divorce. By thus defining mahr as a marriage payment, rather than a divorce payment, the court emphasized that the payment of mahr could not bar courts from also awarding maintenance.

To support the view that awarding maintenance would not go against the tenets of Islam, the bench also interpreted sections of the Quran to mean that husbands were duty-bound to maintain their wives. The court confirmed the maintenance amount awarded by the Madhya Pradesh High Court (Rs 179.20 every month), and also awarded to Shah Bano the legal costs of the appeal, which it fixed at 10,000 rupees.

The operative part of the judgement was followed by deep dissatisfaction over the legislature’s failure to establish a UCC for all citizens, in accordance with Article 44 of the Constitution.

It expressed anguish that Article 44 had remained a dead letter and stated that concrete steps were needed if the Constitution of India was to ‘have any meaning’.

The court seemed to have used the absence of a UCC to justify its interventionist approach in an issue of religious policy: The role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable.

But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. These aspects of the Supreme Court’s judgement were relatively non-controversial. It was not the decision itself, but the manner in which it was taken, that provoked public controversy.

This is precisely why, although two Supreme Court judgements had largely already said what was said in the Shah Bano case, the latter was the cynosure of widespread attention from the media and civil society.

The Shah Bano judgement was laced with undertones suggesting that the court was critical of Muslim personal law, especially in the context of its treatment of women. For instance, the court stated that a Muslim husband enjoys the privilege of being able to discard his wife whenever he chose to do so, ‘for reasons good, bad or indifferent. Indeed, for no reason at all’.21 The court added that the Prophet was ascribed the statement, ‘hopefully wrongly’, that a woman was made from a crooked rib, and if you tried to bend it straight, it would break—therefore treat your wives kindly.

There was sensational press coverage, vociferous protests and counter-protests by members of civil society, and immense indignation among many Muslim theologists as a result of the Supreme Court’s observations in the Shah Bano case. The main repercussion of the judgement was the opening up of a deep divide not only between Hindus and Muslims, but also among different sections of Muslims.

Conservative Muslims opposed the judgement while liberal Muslims, Hindus and advocates of feminism backed it. The agitation of the conservative Muslims, though, received greater visibility and had a wider impact than protests by liberal Muslims.

What caused the outrage amongst conservative Muslims? A combination of factors. Several Muslims were upset that five non-Muslim judges, with backgrounds in secular law, took it upon themselves to interpret sections of the Quran—a challenge even to scholars of Muslim law.

Muslim clergymen believed that it was most inappropriate for a secular court to interpret religious law and that it would set a bad precedent. That the bench relied on western interpretations of the Quran did not help the judgement gain legitimacy. There was a strong perception that the Shah Bano decision, rather than being a simple maintenance award, was unduly critical of Muslim law and Islamic practices.

The court’s contemptuous tone and uncharitable comments (such as the ‘crooked rib’ remark) did not go down well with Muslim conservatives. They were apprehensive that the judgement would compromise their identity and autonomy. They were suspicious that it was a step towards assimilating them into mainstream Hindu culture. They questioned the state’s commitment to the values of pluralism and heterodoxy.

Perhaps the most logical criticism of the judgement on secular grounds is the fact that the court could have decided in Shah Bano’s favour based on constitutional principles, without interpreting Muslim law (which was done in two cases before Shah Bano).

The court ventured into hazardous territory when it invoked its own interpretation of the Quran. The court’s appeal to enact a UCC in the Shah Bano judgement was counterproductive. Until the judgement, Muslims were willing to consider the idea of a uniform set of laws governing family affairs.

However, the Shah Bano decision introduced scepticism amongst some Muslims that a UCC would mean a majoritarian code of rules. And yet, it is very unfair to criticize the peripheral elements of the court’s judgement without acknowledging the values of gender equality, and the protection and independence of women that the court espoused in the crux of its judgement. Several people saw the judgement as a vindication of the rights of women in Islamic law.

Shah Bano constitutes one of the few accolades earned by the highest court of the land—which has historically been perceived as a male-dominated court—in the area of women’s rights. The scathing reactions of a large segment of Muslims led to an anticlimax; a total volte-face.

Having come under tremendous pressure from her community, Shah Bano affixed her thumbprint on a letter retracting her involvement with the cause—a fight that persisted over seven years and took her everywhere, from the Court of the Judicial Magistrate to the Supreme Court. She dissociated herself from the Supreme Court judgement, allegedly because she was ‘explained’ that her salvation would depend upon whether she sought maintenance or not.

The protests and counter-protests over the Shah Bano judgement persisted. Initially, the Rajiv Gandhi-led Congress Party which had won the parliamentary elections of 1984 by a sweeping majority, favoured the judgement. However, after suffering losses in state elections in some Muslim-dominated regions, the government changed its approach. It succumbed to vote-bank politics.

There were calls among Muslim conservatives asking for the Parliament to pass a law nullifying the Supreme Court judgement in the Shah Bano case. Despite a spirited defence of the judgement in Parliament by Muslim leader Arif Mohammed Khan, the Rajiv Gandhi government crumbled under pressure and enacted the Muslim Women (Protection of Rights in Divorce) Act, 1986 (the MWA).

Contrary to its name, the MWA actually undermined the far-reaching protection granted to divorced Muslim women in Shah Bano and other similar judgements. It was more in the nature of a ‘dissolution of rights in divorce’ act rather than a ‘protection of rights in divorce’ act. According to the MWA, mahr and maintenance were to be paid to a divorced Muslim woman only during the threemonth iddat.

It effectively deprived Muslim women of the right to file a maintenance petition under Section 125 of the CrPC.

What divorced women who were financially dependent on their husbands were expected to do after the expiry of iddat was anyone’s guess. Muslim as well as Hindu supporters of the Shah Bano decision were miffed at the haste with which the MWA was enacted.

Muslim women were infuriated that the government of the day treated the opinion of one segment of conservative Muslims as representative of all Muslims.

Shahjahan, a Muslim feminist, famously protested in front of the Parliament in New Delhi, stating that if Muslim women were not treated like citizens of India (because of the enactment of separate laws for them), they should be allowed to form another country called Auratstan (literally ‘the land of women’). Right-wing Hindus, on the other hand, were distressed because Muslims were getting preferential treatment.

In 1994, a few years after it was enacted, there was an unsuccessful constitutional challenge to the MWA in the Supreme Court. A writ petition was filed under Article 32 of the Constitution, invoking the Supreme Court to declare the MWA as void and arbitrary, and also to consider enacting a UCC for all citizens of India.

The Supreme Court dismissed the petition, stating that such matters were within the domain of the legislature, not the judiciary.

Meanwhile, several high courts began interpreting the MWA to endorse the proposition that divorced Muslim women be entitled to maintenance not only during the three-month iddat, but also after that.

They asserted that the MWA only specified that the mahr amount had to be paid as a lump sum to the divorced wife during iddat; the amount, however, should be sufficient for the wife’s future maintenance. Other high courts concluded that the husband’s liability under the MWA was limited to the period of iddat, after which the divorced wife (if she could not maintain herself) would have to approach her relatives or the Muslim Wakf Board for maintenance.

The Supreme Court ended this divergence of opinions in Danial Latifi vs  Union of India (Danial Latifi). Danial Latifi, a senior advocate and an authority on Islamic law, who had in fact represented Shah Bano in the Supreme Court, challenged the constitutional validity of the MWA.

He argued that the MWA contravened the right to equality (Articles 14 and 15) as well as the right to life (Article 21) guaranteed by the Constitution.

Rejecting this challenge, the court emphasized that the MWA ensured that a husband would not only maintain his divorced wife during iddat, but also pay a lump sum that would amount to a reasonable and fair provision for her future. Although the Supreme Court went against the obvious legislative intent behind the enactment of the MWA, it interpreted the law so as to truly protect Muslim women.

Divorced Muslim women could now seek a lump sum settlement from their former husbands under the MWA, which would serve as their maintenance during iddat as well as provide for their future. In Danial Latifi, the Supreme Court exercised greater restraint than in Shah Bano.

It refused to strike down the MWA, yet protected the rights of divorced Muslim women through an astute use of interpretative tools. Keenly aware of the repercussions of the Shah Bano judgement, the court handled the case with ‘restraint and diplomacy’.

In another case, the Supreme Court said that even if a divorced Muslim woman (who had not remarried) filed a petition under Section 125 of the CrPC, the petition would not be dismissed on the technicality of failing to make a claim under the MWA.

The conjoint effect of two recent decisions of the Supreme Court is that a divorced Muslim woman is free to either seek maintenance under Section 125 of the CrPC or claim lump sum alimony under the MWA.

Many decades after the Shah Bano case, which gave relief to divorced Muslim women, and the MWA, which deprived them of that relief, Indian courts have unshackled and expanded the rights of divorced Muslim women. Now, a divorced Muslim woman can file a petition either under the CrPC (for recurring maintenance) or through the MWA (for lump sum settlement), seeking fair and reasonable provision for the rest of her life.

Although mired in controversy, the Shah Bano judgement can arguably be considered as the ‘greatest contribution’ to the development of Muslim law. However, its aftermath revealed some harsh realities about what happens when women’s rights and religious tenets collide in a democracy.

The hurried codification and enactment of the MWA proved that gender equality would succumb to the realities of pluralism.

Feminism will languish low in the priority list of governments when it is pitted against a large vote share. Indeed, the Shah Bano judgement uncovered conflicts at intricate levels—between the emancipation of women and their belonging to a minority community, between safeguarding religious traditions and ushering in a democracy that applies a uniform set of civil laws to all citizens regardless of religious affiliations, and between lawmakers and courts (on who would have the last word in areas where law and religion overlapped).

The bright side is that the law of the land today gives two meaningful remedies to protect divorced Muslim women from poverty and destitution. But the journey to this position has been an arduous one.

From right-wing Hindutva politics to appeasing minorities, from defiled places of worship to communal riots, much water has passed under the bridge. Although Shah Bano didn’t eventually claim her alimony from her former husband, there are many divorced Muslim women who will. It can only be hoped that the next Shah Bano case is met with responses rather than reactions by the political class.


August 12, 2017

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