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The Shah Bano legacy


THE SHAH Bano case was a milestone in the Muslim women's search for justice and the beginning of the political battle over personal law. A 60-year-old woman went to court asking maintenance from her husband who had divorced her. The court ruled in her favour. Shah Bano was entitled to maintenance from her ex-husband under Section 125 of the Criminal Procedure Code (with an upper limit of Rs. 500 a month) like any other Indian woman. The judgment was not the first granting a divorced Muslim woman maintenance under Section 125. But a voluble orthodoxy deemed the verdict an attack on Islam.

The Congress Government, panicky in an election year, caved in under the pressure of the orthodoxy. It enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. The most controversial provision of the Act was that it gave a Muslim woman the right to maintenance for the period of iddat (about three months) after the divorce, and shifted the onus of maintaining her to her relatives or the Wakf Board. The Act was seen as discriminatory as it denied divorced Muslim women the right to basic maintenance which women of other faiths had recourse to under secular law.

The Bharatiya Janata Party saw it as `appeasement' of the minority community and discriminatory to non-Muslim men, because they were still bound to pay maintenance under Section 125, Cr. PC. However, lawyers who have seen the Act in operation say that there is good reason to take another look at the Act. It contains provisions which have left it open to liberal interpretation. Flavia Agnes, a Mumbai-based lawyer, says that liberal interpretation has not been wanting. Clause A in Section 3 (1) of the Act says that a divorced woman shall be entitled to "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.'' The injunction that `a reasonable and fair provision is made' and `maintenance paid' leaves enough scope for gender-sensitive judgments.

Ms. Agnes cites a slew of rulings in States such as Kerala, Maharashtra, Gujarat and Andhra Pradesh, which have awarded sums as maintenance, and `reasonable and fair provisions' in the form of a one-time lump sum payment that Muslim women have never received before. Apart from this, Ms. Agnes says, the 2001 ruling of the full constitutional bench of the Supreme Court in the Daniel Latifi case, in effect, gave Muslim women a law on maintenance. While the 1986 Act appears to have worked better than it was expected to, what remains a concern to many is the inherent discrimination in excluding divorced Muslim women from a provision of law outside the realm of personal law, which is applicable to all other women.

A.M.

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