Thursday, 3 December 2015

When Congress stumped the mullahs : Revisiting the Shah Bano judgement

Shah Bano (image source : Hindu)

The story as it goes..

In 1978, Muhammad Ahmad Khan, a well-known lawyer from Indore, decided to stop giving maintenance money (a mere Rs 200/month) to his 62-year old wife Shah Bano, who he had thrown out of his house after taking a second wife for himself. When she petitioned a local court to guarantee her a fixed maintenance amount, shrewd lawyer that he was, the husband decided to divorce her. Now, under the Muslim Personal Law (applicable to Indian Muslims in personal affairs), a divorced woman is only eligible for maintenance upto the period of her iddat (usually 3 months), and thus, by divorcing her, Mohammad Ahmad ensured that he wouldn't be under any legal compulsion to give her any money after the first 3 months were over!

When the Madhya Pradesh High Court repudiated his maneuver and ordered him to pay Rs 179.20/month, Muhammad Ahmad filed a petition in the Supreme Court, claiming his "right" under the Muslim Personal Law to not give monthly alimony to his ex-wife. As expected, the Supreme Court unanimously rejected his appeal. Several of the ulema (religious authorities) saw this as a violation of God's laws and an intrusion into the personal laws of Muslims. Under the umbrella of All India Muslim Personal Law Board (AIMPLB), Ali Miyan and other prominent ulema launched a vigorous campaign against the judgement. Fearing the loss of Muslim votes, Congress passed the infamous "The Muslim Women (Protection of Rights on Divorce) Act 1986" nullifying the Supreme Court judgement, effectively allowing Muslim men to divorce their economically-destitute wives without having to provide for their maintenance except for the first three months.

The Act was roundly criticized as regressive and a blatant case of minority appeasement. BJP (whose predecessor Jan Sangh and ideological fountainhead RSS had incidentally fought tooth and nail against the rights of Hindu women during the Nehruvian era) accused the Congress of placing its own self-interest ahead of the rights of Muslim women. Ever since, the Act has become a symbol of vote-bank politics and a byword for minority-appeasement, especially of the Congress.

Behind the scenes - What really happened

So, are Muslim women today devoid of their alimony rights in India ? Fortunately, not, and the reason is a legal maneuver from Congress, worthy of a John Grisham novel. Under pressure from influential Muslim groups, Rajiv Gandhi agreed to scrap the Supreme Court ruling, but in the very Act that was supposed to nullify the judgement, a paragraph was deftly introduced that would strengthen and validate that very verdict, paving the way for far-reaching reforms in Muslim alimony laws in India. Arif Mohammad Khan (India's Minister of State at that time; he later resigned in protest against the Act) recounts that when the Law Minister Ashoke Kumar Sen handed him a draft copy, he was astounded that the Act overturned everything that the ulema were demanding, and was in fact, an improvement over the Supreme Court's decision itself! Section 3(1)(a) of the Act requires :

"a reasonable and fair provision and maintenance to be made and paid to her within the iddah period by her former husband".

Since the maintenance was supposed to be paid "within" the iddah period (3 months) and not "for" it, the Act effectively required the husband to pay the entire life-worth of alimony as a single lump-sum amount inside 3 months of divorce! Moreover, it provided no maximum ceiling for the alimony amount (which was Rs 500/month in the original SC verdict). This loophole was no accident; it was deliberately inserted to dilute the Act's effects. Arif recounts Sen pleading him “ keep quiet. None of them has understood this provision.” 

The courts, of course, understood it perfectly and have since, interpreted the phrasing liberally, granting in some cases, lakhs of rupees as alimony to Muslim women. Implicitly acknowledging this honourable deceit, the Supreme Court, in 2001, remarked : 

“though it may look ironical, the enactment [Muslim Women Act] intended to reverse the decision in Shah Bano’s case actually codifies the very rationale contained therein”.

Outwitted, the ulema of AIMPLB were advised by Ali Miyan against further protest as the blame for getting the "defective" Act passed would, otherwise, be upon them. Thus ended an epic saga of patriarchal bigotry, judicial integrity, populist demagoguery, legislative ingenuity and ultimately, an enduring legal reform.

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