SHAH BANO CASE

SHAH BANO CASE The Shah Bano case resulted in the controversial enactment of the Muslim Women's (Protection of Rights in Divorce) Act of 1986. Introduced by Prime Minister Rajiv Gandhi's Congress ministry, the act jeopardized India's system of secular law, while it circumvented the Shariʿa code governing the Muslim community. The priority of minority rights over women's rights was at stake in this important case, which has seriously undermined Muslim women's maintenance rights.

The case began in 1985 in Indore, Madhya Pradesh, where Shah Bano, a sixty-two-year-old destitute woman, filed a suit for nonpayment of alimony against her husband, Ahmed Khan, from whom she had been separated for forty-six years. Shah Bano asked for a monthly alimony of 500 rupees, based on Section 125 of the Criminal Procedure Code, 1973 (CrPC 1973). Citing the Shariʿa, Ahmed Khan promptly divorced her, repaid 3,000 rupees of her dowry (mehr), and ceased all alimonies. The battle was taken to the Supreme Court, where Chief Justice Y. V. Chandrachud upheld Section 125, as it did not conflict with Qurʾanic injunctions (chapter 11, suras 141–142) on women's property and maintenance rights. The chief justice also urged the creation of a uniform Indian civil code that would remove "disparate loyalties to laws which have conflicting ideologies."

Conservative Muslims protested against the Court's authority over the Qurʾan, whipping up fears over state encroachment of minority rights. A heated debate ensued over minority rights and women's rights, but the prospect of protracted, expensive legal battles at first daunted many activists. In February 1986, to allay the fears of a nervous Muslim electorate on whom the Congress depended for votes, Rajiv Gandhi shepherded the Muslim Women's (Protection of Rights in Divorce) Act of 1986. Outside Parliament, the leftist All-India Democratic Women's Association and the moderate National Federation of Indian Women joined hands with local Mahila Dakshata Samiti to protest the bill. Arif Mohammad Khan, a Muslim Cabinet minister, resigned in protest, but Muslim Congresswoman Begam Abida Ahmed staunchly defended the bill.

The Act of 1986 redefines the legal grounds for Muslim women's maintenance, while jeopardizing both their secular and religious rights. It thus dilutes Section 125 (CrPC 1973), which stipulates that women are entitled to alimony from ex-spouses. Women have since presented petitions that the act also violates the Indian Constitution, Article 14 on legal equality, and Article 15 prohibiting religious discrimination. Second, the 1986 law also circumvents the Qurʾan, which protects women's property and maintenance rights. Third, it places a new legal onus on the largely defunct Muslim welfare board (waqf ), as it now requires her natal family to support a divorced or separated woman; and if this fails, it requires the waqf to do so. Since the waqf is governed largely by conservative men, Muslim women's rights have been substantially eroded. The clerical leaders of the All-India Muslim Personal Law Board have frequently resisted government interference in Muslim laws, but they have acceded in this case, despite the act's blatant negation of the Shariʿa, which requires the husband to maintain a woman, not the waqf. Moreover, if government funds were used by the waqf, this would constitute state interference in religion.

Inheritance and marriage customs vary according to region and community. In the nineteenth century, liberal Hindu, Muslim, Parsi, and Christian reformers supported uniform legislation to remedy child marriage, perpetual widowhood, and denial of divorce, resulting in such measures as the 1891 Age of Consent Bill and the Sarda Act of 1930. Muslim law was originally mediated through a Qazi, a judicial expert on Shariʿa law, but the abolition of this post in 1864 left legal disputes unsolved. In an era of sectarian and national consciousness, Muslim purists charged that women's Qurʾanic rights were forgotten when Muslims adopted Hindu customs. In 1937 the Shariʿa Act was passed to protect Qurʾanic laws favorable to women, while it helped Muslim jurists (ulama) to weed out non-Hindu practices. The Act of 1986, on the other hand, has eroded women's rights, pitted Muslim liberals against religious leaders, and promoted political opportunism.

Sita Anantha Raman

See alsoFamily Law and Cultural Pluralism ; Women and Political Power

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