Shah Bano case
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The Shah Bano case is infamous in India and has generated political controversy in the country; it is sometimes described as an example of appeasement of the vote bank for political gains.
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Brief of the Case
Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. The Muslim personal law (marriage, gifts, inheritance, adoption and a few other civil laws are under the purview of personal laws in India - they are different for Christianity, Islam and Hinduism) allows the husband to do this without his wife's consent: the husband just needs to speak the word Talaaq (pronounced as "talaakh") thrice before witnesses for a valid divorce.
Shah Bano, because she had no means to support herself and her children, approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court invoked Article 125, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony.
The orthodox Muslims in India felt threatened by what they perceived as an encroachment of the Muslim Personal Law, and protested loudly at the judgement. They formed an organization known as the All India Muslim Personal Law Board and took out agitations in large numbers.
The Indian Government's Reaction
In 1986, the Congress (I) party, which had an absolute majority in Parliament at the time, passed an act that nullified the Supreme Court's judgment in the Shah Bano case. This act upheld the Muslim Personal Law and writ as excerpted below:
Every application by a divorced woman under section 125… of the Code of Criminal Procedure, 1973, pending before a magistrate on the commencement of this Act shall, notwithstanding anything contained in that code… be disposed of by such magistrate in accordance with the provisions of this Act.
Critics strongly contend that this Act was passed in order to appease minorities and safeguard the Muslim vote bank.
Consequences
The Shah Bano case generated tremendous heat in India. It proved that fundamentalist minorities can exert pressure on government and judicial decisions. The mainstream media disapproved of the decision. The opposition reacted strongly against the Congress party's policies (which, according to BJP, reflect "Pseudo-secularism".)
The case has led to Muslim women receiving a large, one-time payment from their husbands during the period of iddat, instead of a maximum monthly payment of 500 Rs (around 10 US Dollar per month). Cases of women getting lump sum payments for lifetime maintenance are becoming common.
Critics of the Shah Bano case point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by the Indian orthodoxy.
The Shah Bano case once again spurred the debate on the Uniform Civil Code in India. Ironically, the Hindu Right led by parties like the BJP which had strongly opposed reform of Hindu law in the 50's became ardent supporters of the rights of Muslim women. Women's organisations were forced to rethink strategy and realise that for Muslim women, their identities as Muslim's is often as important as their rights as women.
Personal Laws
For a country like India where religion plays an important role in politics, the Shah Bano case is not the sole example of the appeasement of minorities or of bending the law. The existence of personal laws is, in itself, an indicator of a constitutional bias towards maintaining religious harmony. They have been part of the Civil Law since the British Raj. The importance of personal laws lies in the fact that India is a secular nation with a sizeable concentration of several different religious groups. However, personal laws have been criticized for their orthodox approach and for disadvantaging women. Religious rights and women's rights remain at conflict due to the disparities in religious laws. The likelihood that a common civil code for India may be introduced in the future seems bleak as even a discussion of the topic evokes strong reactions.
Judicial craftsmanship has ensured that The Muslim Women's [Protection of Rights on Divorce] Act hasn't completely violated the rights of women. High Courts have interpreted "just and fair provision" that a woman is entitled to during her iddat period very broadlly to include amounts worth lakhs (hundred thousands) of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination of the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Thus, the Supreme Court held that the maintainance obtained by Muslim women during the iddat period must be a lump sum that they can survive on for the rest of their lives.
External links
- The Shah Bano legacy (http://www.hinduonnet.com/thehindu/2003/08/10/stories/2003081000221500.htm)
- Shah Bano: Muslim Women's Right (http://homepages.uc.edu/thro/shahbano/allshahbano.htm)