Hello World! A Landmark Verdict by the Supreme Court of India

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From Shah Bano to Shabano Bano

In December 2009, Supreme Court of India delivered a landmark verdict in favour of the divorced Muslim women. Indian Civil Code grants alimony and maintenance to the divorced women just as in any civil law in the democratic world. However, orthodox Islamic clerics had pressed the government to keep the Muslim women out of this by asserting that Islam allows for maintenance only during the period of Iddat of three months or till the delivery of the child if the woman is pregnant. This had a drastic effect in the case of Shah Bano in 1986, who was divorced by her husband and she approached the court to seek maintenance under Sections 125-128 of Criminal Procedure, which grants alimony and maintenance to the divorced woman and which had included the Muslim women under its purview in 1973. The Supreme Court granted her the maintenance, but this generated an outrage in the orthodox clerical section of the Indian Muslim society and to appease the orthodox section, then Rajiv Gandhi government had to pass a legislature to keep the Muslim women out of the purview of Sections 125-128 of Criminal Procedure. Rajiv Gandhi had come under severe criticism for this from the progressive sections of the society and Shah Bano had to go without maintenance. This legislature had sealed the fate of the divorced Muslim women in India, as it was generally assumed that they could not get maintenance beyond the term of Iddat under pressure of the orthodox clerics.

The progressive sections of the society and the women rights activists had been challenging this change in legislation on grounds that it violates the rights of the individual in a secular and welfare state .

In June 2008 the case of Danial Latifi came before the court and it was ruled that fair maintenance includes the period beyond Iddat as well and the Constitutional validity of the verdict was upheld. This was despite the opposition that the case of Shah Bano had ensued.

The counsels Indira Jaisingh and Kapila Hingorani had argued that the religion of the divorced woman was of no consequence and the provisions of Section 125 applied to the women of all religions, who were entitled to fair maintenance for life unless they remarried. They also contended that keeping the Muslim women out of the purview of this provision discriminates between women and thus violates the provisions of Articles 14, 15 and 21 which provide for equality of all human beings and grant equal protection before law of all human beings regardless of gender, class, religion, caste, creed or colour.

In November 2009, Shabano Bano approached the Supreme Court for maintenance as her husband had divorced her. The High Court of Madhya Pradesh had dismissed her case on grounds that in light of the legislature formulated in 1986, she was not entitled to maintenance beyond the period of Iddat. She approached the Supreme Court and the apex court upheld her case, rejecting the earlier verdict of the High Court.

The Supreme Court noted that the Indian Constitution does not discriminate between individuals on the basis of religion and the court will not interpret the religious texts, but will go by the provisions in the Indian Constitution. it is time that the self-appointed custodians of the Muslim law, most of them housed in the Muslim Personal Law Board spent time in a progressive interpretation of the law insofar as gender rights and protection is concerned. Unfortunately even the women appointed to the Board from time to time are regressive in their outlook, and believe in the status quo where the legitimate rights of women are denied in the name of religion. There is sufficient flexibility in the religion for ensuring that the divorced Muslim woman receives maintenance from her husband, not just during the Iddat period but also for the rest of her life. Of course, as in all laws this will come to an end if she remarries at any stage (See full report).

In face of the opposition from the orthodox Islamic clerics and the politically motivated legislature passed earlier, this is a landmark verdict by the Supreme Court and must be commended. The right to the practice of religion in a democracy does not mean encroachment upon democratic rights in the name of religion. It should be the responsibility of all communities in a democracy to uphold democratic rights above their retrograde religious practices.

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Comments
18 Responses to “Hello World! A Landmark Verdict by the Supreme Court of India”
  1. Chitra Nayak says:

    That was a nice article which provides an insight into the verdict. This must help many, as it would be a great relief for those who are confused about their future.

  2. Aafke says:

    They are twisting thing around again arent’ they? It’s not that Islam forbids maintenance for widows, or divorcees. It’s that was not the custom in the olden days, and in those days it seems that the companions and contemperaries off the prophet happily divorced and re-married. None of this nonsense we see nowadays, that a non-virgin woman has no marketvalue. The divorced women and widows remarried all the time.
    So if that has changed, then why can’t the rules for maintenance chance as well to follow suit?

    Why is it that a change for the worse for women is never regarded as against Islam, while a change for the better is immediately denounced as ”non-islamic”???

    Seems a male selfishness is in play here, not Islam.

    Your conclusion is excellent!

  3. Archana says:

    Aafke,
    You are right – the orthodox Islamic clerics interpret the Quran that way and they build a pressure on the Muslims as well as on the government to deny the women their rights. Worst part is, the women appointed to the Muslim personal law Board also collaborate with these clerics, as Supreme Court noted.

    You are right that anti-women laws are not opposed as anti-Islamic by the orthodox clerics; only pro-women laws are opposed.

    Thanks for appreciation!

  4. Hilal Ahmad says:

    This time I dont agree with you on the reasons
    1. Islam is the first religion which has recognised the alimony of the women in the form of Meher and that is to be paid in any case. Provision which is not there in any religion so on the basis of right to equality it should be given to all the women of the country which is not there.
    2. The maintenance given under CrPC sec 125 is not willfully it is faught in the court of law which takes many years and the woman who has got resouces can do this or else succumb to the procedure of the law. While in case of Meher it is willful act and with the consent of the two parties entering in the marriage.
    3. The maintenance makes the position of women very unsafe and resulting in bride burning which is not the problem of muslim women.
    4.As far as the problem of maintenance is concerned what about millions of parents deserted by their children and no civilisation is under question in India.
    5.Then why worrying about Indian muslim women only in case of divorce, and all the court cases are challenging the Islamic concept. The religion is not the basis while allowing the maintenance. But it does come when reservation is asked by the economically backward muslims as in the case of Andhra Pradesh verdict on reservation to the muslims.
    6. Equality in Indian constitution has been flauted when Muslims, Christians and Parsis have been denied reservations on the grounds of religion. There are Sweepers, Carpenters, Fisherman and many others such jobs are not given reservations on the ground that they belong to above mention religion. See Art.341(3) of our Constitution.
    7.Democracy is also truncated for Muslims as they can not even contest election on all the Seats, the seats reserved for SCs is available only for Hindus,Sikhs,Buddhists and Jains.
    8. India is the only country in the world where reservation is avilable to the majority community and minorities have been by design kept out of it.
    9. This is the reason why equality on grounds of religion in India does not appeal me much
    9.I feel Courts should not flout the Muslim Personal Law which is also as per Constitution of India and are given under fundamental right.
    As it is casgating muslims on one ground or other has become in thing,

  5. Archana says:

    Hi Hilal,
    Thanks for your response. Please consider the following –
    1) Technically speaking, Meher is not alimony. It’s another matter that Indian Muslims defer the payment of Meher till divorce. And this is precisely because the orthodox Islam doesn’t provide for maintenance to divorced women. Hence, deferring of Meher till divorce acts as a security for some time to the women. But the Meher amount is not often high enough to see her through her life, especially if she is from a poor family or if she doesn’t have relatives to support her. Besides, this system makes her dependent upon others.

    2) All other women in the country are entitled to alimony and maintenance under Section 125.

    3) Delay of allocation of maintenance, bride burning etc are also illegal – we are talking about the legal position here. There are people who break the law and don’t live their lives according to secular democratic norms, but at least in other women’s case, the laws are there. But the Muslim women are being denied the access to these laws by the orthodox clerics. It’s nowhere mentioned that bride burning is Muslims’ problem.

    4) There is a law that people are supposed to take care of their parents. Again I want to say – I am talking about the legal position, not what people actually do. If the law is there someone can go to court, but if the law is not there, the person can’t even ask for justice in court.

    5) Sikhs, Buddhists and Jains are not majority – they are also minorities. And there are reservation for Backward Castes Muslims. Ansari Muslims come under the reserved category.

    6) If you ask my position on caste and reservation, I would say abolish all castes in all religions and give jobs only to the best qualified people regardless of social group affiliations. If there is no caste in any religion, there is no need for reservation.

    Tell me, how many people in India, even those who belong to what are called the lower castes, are willing to abolish caste? Caste is a powerful political tool in their hands, as also in the hands of the powerful upper castes, so no one wants to abolish caste. Whether someone belongs to the upper caste or lower caste, everyone wants to use it for one’s selfish ends. This is today’s reality of caste system.

    7) If you don’t grant maintenance to a Muslim woman after Iddat and if she doesn’t have a significant amount of Meher, how is she going to survive? Why do you want to make your divorced women so weak and dependent legally?

    I am talking about legal position here. I know that there are people in other religions who don’t follow the democratic laws and don’t give the women their share. But at least there are laws for them which allow the women to go to court and ask for justice. But if you don’t allow the laws to be made in the first place, this means that Muslim women can’t even go to court and ask for justice.

    I know a Muslim man who was against maintenance for Muslim women till recently, but when a woman in his own family was divorced, he wanted all the details of this verdict so that he could file for maintenance for this woman in court. This shows how useful this verdict is. You may be good to your wife and I truly wish for an everlasting happy marriage for you, but every husband is not like you.

    Please think about all this with a cool head.

    • yakub says:

      Hi Archana,

      Regarding point 7) if the women is well qualified B.Tech ,done Masters in U.K having around working experience of 5yrs.She can easily maintain herself but instead she if wants maintenance after iddat period ,does this apply to such women.Which article of the section i use so that she should not blackmail like this.Please help,men and his family can also get tortured by cunning wife Like 498a (Legal terrorism).Please suggest,humble request.

  6. oby says:

    Well firstly, Yeah! for India. I think they have made the correct decision to treat all women in the same manner despite religious affiliation. The irony is, if Muslims did not consider non virgins (ie: divorcees and widows) as damaged goods then getting married again might be much easier, thus relieving the first husband of the need for longterm support. So the man wants a virgin on one hand and yet is not willing to support a former partner put out of the running for remarriage by his male dominated cultural attitudes about female purity that masquerade as Islam. He tries to give her the shaft coming and going! Pity.

    I think that in the USA treats all women as equal and does not ever make a distintion due to religion.

    Your point that the women in power to help change the situation agree with it to me says that they are puppets of the board. What woman, thinking of her daughter, would agree that such a situation is fine? My guess is that pressure comes to bear on their attitudes/decisions. this defeats the point of having a woman sit on the board…why bother?

    Above all, it seems to me that by allowing Muslims to manage themselves via a different law and not be answerable to the Indian Civil Code, at least in domestic situations, they have made it near impossbile for the women to change their situation in life…they might as well live in a Muslim majority country because it seems, legally at least, they have the same lack of rights. As a human being it feels so wrong to me that all the people should not be governed by the same rules and thereby have the same possibilities in legal outcome(at least theorhetically).

    Thanks Archana…

  7. Suyash says:

    कोर्ट के इस फैसले से भारत की मुस्लिम महिलाओं को बहुत मदद मिलेगी।

    हर धर्म में कट्टरवादियों ने औरतों और कमज़ोर वर्गों के शोषण के लिए ईश्वर की वाणी का सहारा लिया है।

    जब तक हम नैतिकता के लिए धर्म पर निर्भर रहेंगे तब तक ऐसी घटनाएँ होती रहेंगी। संसार का कोई धर्म भेदभाव से मुक्त नहीं है।

    वोट बैंक की राजनीति ने समाज में उन लोगों की स्थिति मज़बूत की है जो धर्म को अपने फ़ायदे के लिए इस्तेमाल करते हैं।

    दुख तो इस बात का है कि बुद्धिजीवी भी धर्म और सत्ता के इस मेल के बारे में बात करने से बचते हैं।

  8. Archana says:

    Thanks Suyash,
    You are right that the Muslim women in India will be helped by this verdict of the Apex Court.

    I agree with you that in every religion the orthodox section has taken the help of the sacred word to exploit the weaker sections of the society and to oppress the women and no religion of the world is free from this.

    You note that these incidents will keep on happening as long as we depend upon religion to derive our sense of morality.

    You are very right that the politics of vote bank has only strengthened the hand of those people who use religion for their own benefit.

    You also rightly note that the unfortunate part is that even the intelligentsia avoid talking about this nexus between religion and power.

    Oby,
    Thanks for your comment. You are right that the women on the Muslim Personal Law Board are influenced by the orthodox Ulema to take retrogressive stand against their own Muslim sisters and daughters.

  9. Mahmood says:

    I am a religious Muslim and I have received religious Islamic education, but I believe in democratic rights at the same time.

    I believe that no one in a democracy should be forced to
    follow or not to follow a religious law. Hence, if a Muslim woman goes to the Muslim Personal Law Board, her case should be decided according to the law followed by the Borad and the decision given by the Personal law Board should be followed by all parties concerned.

    On the other hand, a Muslim woman must have the right to follow the democratic process and seek justice from the courts according to the Indian Civil Code. If she goes to the court and is granted maintenance by the court, then the decision should be binding on her husband, who should pay her the maintenance according to the directives of the court.

    In this matter, I want to emphasise that the woman who is divorced by her husband, faces hardships of both psychological and physical nature and no amount of money is enough for her compensation. Hence, according to the spirit of Islam, the husband must pay maintenance to the divorced woman as the Indian court directs him.

    The husband and the orthodox Ulema in this case have no right to force the Muslim Personal law on a divorced Muslim woman who wants to seek justice through the democratic system of India.

    I also feel that if the orthodox Ulema and a section of the Muslim society don’t want the husband to pay the maintenance to the divorced woman, then it is the responsibility of the Ulema and other Muslims to pay the obligatory maintenance to such divorced Muslim women.

    If they want to follow the true spirit of Islam, then this is what they should do and not force a miserable condition on such women, which is against the spirit of Islam. The way these orthodox Muslims and the Ulema are interpreting the divorce law is against the true spirit of Islam, which advises the believers to treat the women well.

    I also want to add here that Shah Bano was divorced in her old age, after she had spent her entire life caring for her husband and his home and bringing up his children. If a husband divorces such a wife in old age, this is absolutely against the spirit of Islam and such a divorce should not have been regarded as valid in the first place. Such a wife should receive care and maintenance for her lifetime from her husband, rather than getting the unfair treatment that Shah Bano received.

    In this sense, the orthodox Ulema’s handling of Shah Bano’s divorce was not following Islam and the State shouldn’t have accepted this divorce in the first place.

  10. John Burgess says:

    I believe a multicultural democracy cannot permit the laws of particular religion (any religion) to hold a privileged position over secular, democratic law. This includes ‘family law’.

    I think it was an error in short term thinking to permit family law and family law courts to be established. It was probably necessary, politically, to allow this privileging, in order to create India at Partition, but its incompatibilities with democratic values has become apparent over time.

    The problem is that religious laws are often in conflict with democratic values. Religions tend to be hierarchical; democracies tend to be more ‘flat’, with equality for all members as at least the goal. Different religions’ views of men and women, of the place of children, of how elders are to be treated… they are ripe for conflict with concepts such as equality under the law.

    When the come into conflict, secular laws must prevail to ensure that all are treated equally.

    Yes, India has some special circumstances; all countries do, though. The way Brahmin widows are treated, for example, is not what most people would consider just, but it sanctioned to some extent, unfairly, by ‘family law’. Similarly, Muslim women do not receive just treatment under ‘family law’. Perhaps if dowries (ie, Islamic Meher) were set to cover a woman’s life-long expenses in the event of a divorce, those laws could be just. But they’d be so expensive that no one could afford to marry.

  11. Hilal Ahmad says:

    Dear Archana,
    I am saying something very different, what I am emphasising is that equality and democracy are not for Indian Muslims. I have quoted several such examples that Muslims dont have right to equality and democracy is also fragmented for them.
    Sec 125 of CrPC is not for divorced women only but for all the people who are unable to maintain themself.
    The provision may be good but why only Muslims are targeted that they are in sensitive towards their women folk. It is not true it is only lack of knowledge about the Islam and its provision for women.
    My other submission is that no one voices for so many things which I mentioned in my last writing but they do make issues on one or two incidents on maintenance and all.
    What hurts me most is that the real issues of muslim marginalisation is under played or ignored totally, but these issues are highlighted and then muslim cause is left under the pretext that nothing can be done to orthodox muslims. Take care of other Socio,Economic and political issues treat muslims as equal and then come for issues which are for the good of all the man kind.

  12. Archana says:

    John,
    Thanks for your very balanced comment. You are right that it was a mistake to create separate Personal Law Board. In fact, as Suyash says, this was a dangerous vote bank policy used after the Constitution was adopted and this Board was formed only in 1972. On one hand the orthodox Muslim men wanted to control the Muslim community and on the other hand, some political factions wanted to use this control to their own political advantage. As you say, the harmful effects of this are visible now.

    You are right that Meher’s amount to equate the maintenance can never be done realistically, as this will make marriage impossible. In a democracy, as you say, every one has to understand that religions are undemocratic in many ways and in such situations where religion comes into conflict with democracy, the latter has to be upheld. This is the only way democracy can survive.

    Mahmood,
    Thanks for your modernistic interpretation of Islamic view of divorce and maintenance, which I think clarifies many misconceptions about what Islam believes about these situations and how wrong the orthodox Muslims are in interpreting divorce and maintenance in Islam.

  13. Archana says:

    Hi Hilal,
    You should not become emotional about it. Muslims are not being targeted. Rather a democratic approach is being found out for the Muslim women which exists for others as well. Muslims do not include only men, but also women that is half of the population. So it’s only fair that their conditions are discussed. And there is no reason that orthodox men should keep all these women out of the right that the State has granted them. It is not our intention to say that only Muslims are insensitive to their women. Rather we are only saying that Muslim women should be given their due. There is no need to be emotional about it. If you are a modern person and you believe in democracy – which I am sure you do – I don’t see why you should not want the Muslim women to avail of these rights.

    As Mahmood has suggested, the orthodox Ulemas are interpreting these laws wrongly because as Suyash says, they want to control the Muslim population. As an educated and a modern person, you should counter the wrong policy of the Ulemas. If people like you also support them, this can never be countered.

    As John says, a democratic society must keep democracy above the redundant practices of all religions. This is the responsibility of all communities – whether Hindu, Muslim, Sikh, Christian or any other.

    Of course the socio-economic problems of Muslims and of everyone else are also important and they must be discussed. It is for educated people like you to bring those issues to the attention of the public and we will be most willing to discuss them. We are not shrugging off our responsibility from discussing them.

    As for your point about caste-based reservations, I have said that I am for a completely caste less society – there should be no caste and no reservation in all religions. Let the jobs go to only the most qualified people regardless of caste, religion or any other social group identity. Can you convince people of this? I think it’s a tough task. But we have to make a beginning.

  14. Hilal Ahmad says:

    Dear Archana
    I am not at all immotional. As far as Ulmas are concerned they are neither representative of muslims nor are they have any hold on muslim population. They are the most oppurtunist class in all the societies.
    My contention is that the society which is under dire poverty and very less educated due to what ever reason, can not understand these things when the muslim society is believing that the rules which are framed are those which are not helping them much. The serious affairs are not dealt with and the comissions after commissions are formed with no reports implemented.
    The society grows as a whole and any society which is backward can not under stand why the Courts are thwarting any such move which is good for all but on these contentious issues they come up with decision which is for a very mature and educated society.
    I personally dont ve any problem. And I am sure that I will be least benifitted for the cause which I am forwarding.
    Try to understand The God begins when the reasons end. The more Socially,Economically and Politically developed society the more easier it will be to educate them that these welfare schemes are good for the whole society. This is my personal experience and thinking. I may be wrong but seeing me against these Laws which are for the benifit of all the citizens of India is, may be my expression problem.

  15. Archana says:

    Hi Hilal,
    You are right that efforts should be made to educate the society and provide them the basic amenities such as health care, hygienic living conditions, professional skills, proper working conditions, employment opportunities etc. These are problems not only of the Muslims but of the Indian society as a whole. The beggars who roam the streets don’t have any religion and there are no schemes for them.

    It is for each one of us to think how these aims have to be achieved in the society. If the programmes are not implemented, if there is corruption, if the politicians are taking advantage of the underdevelopment of the society, we all have to speak against all this. The situation in India has deteriorated so much because the people have allowed the deterioration to set in and they have become part of the system that causes the deterioration. If the people don’t allow this to happen, it won’t happen.

  16. Chitra Nayak says:

    Archana
    I am finding it difficult to comment on your other blog as the window won’t open . Look into it.

  17. Truly no matter if someone doesn’t know afterward its up to other people that they will help, so here it takes place.

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