Tahir Mahmood - For all the Shah Banos
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
