The Shah Bano case [Md

N 42 DLR(1990) futwe.7 Secondly Saga of DivorcedWomen: Lucy Carroll' ONCE AGAIN SHAH BANO MAINTENANCE, AND THE SCOPE FOR ,lt"{.g]kfiffu CONTRACTS One measure of the ensuing controversy is Justice Iyer's summation of the after--cffects of the decision which, hyperholc passionate proponent of a of one side of the debate notwithstanding, neatly captured the post-judgement mood in a few sentences:l Chief Justice Chandrachud was wife. Thirdly, it -Shahdeen Muslim religious and political The Shah Bano case [Md. leadership. Ahmed Khan v. Shah Bano Begum, The back and fortli between AIR. 1985 SC 945; 1985 Cr. L.J. 875; 1985 2 SCC 5561 is undoubtedly Justice Iyer and Mr. Rizvi is certainly one of the most controversial judicial not illuminating enough to deserve pronounce-ments in recent Indian lengthy quotations. Nevertheless, one history. The judgement endeavoured to is tempted to cite their exchange as scale those heights in the realm of one indication of the razor-sharp edge Indian polity which had never been of the tensions in the two opposing attempted before, and in doing so it camps. Justice Iyer's rejoinder to Riziv defied the underlying tensions of the is full of snide and more'3 Indian multicultural, multi-religious, Whether such an extensive critic and multi-ethnical polity with a excrcise in diatribe is necessary breathtaking audacity. The decision, for what is virtually dubbed as a by offering a new dimension to legal vituperative trash is more than I regulation of marital relationship, can say..............I am imprcssed generated bo0r reasoned discourse and with rage which is writ large in unexpected politico-emotional every page...........The flaws and posturinS, with effects reaching far faults copiously brought our hy beyond the ordinary parameters of Riz.vi did not in the least irritate legal con&oversy. me but taught me the pssibilitY holy to be Thcse quotes, selected from Consequently, in India E n':iir as a divorced wife ma;- ar'':& of maintc*rc frm, women's rig matters which i her husband or ex-hu-sbaC. rr may be. This ditference I-,x um validating maintr wives through clearly_spelled out b;- \-amuuuufo marriage contracE 125 for claiming Ahmed) However, in trc rc ai;sesrsg 5ilu* Alllmi. "s lmd Bano, Mr. Naimuddin ,;more definite wrote: in his rympfucr & Statutory obligation EmrES,m arbitrary and capricios :rllmro to maintain his cryx-rrnnmq divorced wife can u': E repugnant to Muslim [-r* m. E spirit of the HOLY QLrLl"* rr Islam. (p.62) And also, "Whether x continue !o subject our wfurs. same humiliating condition bo:zum,dl the erroneous concept of lar iH i&r difference between sects(E 488 of the relevant Acts of Bangladesh, rcsPcctive:l. fu by tb $.d numerous such verbal blows traded all controversy generated over India in 1985-86, illustrate the Bano case does not have a d::-;- m personally vilified, the Court's pitfalls one can easily stumble into in immediatc relevance f61 lanE,*-i<u, authority to pronounce on dealing with issues as sensitive as Neverthcless, certain simila-.::sr r Islamic jurisprudence was maintenance of Muslim women.4 lhe arena of social legislaricr: :,: u challenged....... the interpretaRepcrcussions of this issue in two countries in recent 1:'.m tion by the Court of certain Bangladesh, as far as I can gather from (particularly in amelioralrru u Quranic verse which enjoined legal writings, are much more conditions of women6) aui-: r payment of 'mata'by a divorcer- detached and reasoned. For example, possibility of a mutualll' be-'-'::lr;cu husband on the divorcee-wife Syed Muntazim Ali's article titledThe exchange of exPerience in -rro came in for fulmination and Shah Banu Case and the Law of spheres. Somc of the st:l=:-:r4 condemnation. The social Maintenance (39 DLR (1987) Journal blocks on the path to modernizeiuml stresses, a radio-active fall--out of 56l has dealt with the problem within both Bangladesh and lndia ae rmroe*tn confrontational politics, proved the terms of a legal-positivist particular views of religious fEEFh harmful !o human solidarity. and this similarity of consram4 discourse. Justice Iyer's views, naturally, It has been pointed out by Syed attitudes may also offer lesscss o were assailed with the marching Muntazim Ali that section 125 of the leam from each other's exP€rsil trenchancy of a zealous believer b!, Criminal Procedure Code of India, and solutions. for example, S.A.H.Rizvi. Reviewing after the enactment of the (new) In light of this affinitY, thtu rm Justice Iyer's book The Muslim Criminal Procedure Code 1973, is essay frst endeavours to indicse iiEni Women (Protection of Rights on substantially different from the the issues are being frama dl Divorce) Act he wrotc:2 comparable section 488 of the resolved in India in the poo-Snch I do not find scholarliness and Criminal Procedure Code of Bano phase, and on the basis d e objectivity anywhere in. rhe work. What are found instead are vituperative rhetoric, wholcsale abuses and tfueats to Muslim and digs at and filibuster against rhe a case-law in Bangl an indicator of ar of my vulnerable errors. It dawned on me that little point is for our legislrcr: u "(p.64) knowledge of a heathen is poor determine. level, Ca: u et technical On a equipment for writing a book on a sensitive subject too handled. suggestion for an !o maintenance f( Bangladesh. In section 125 of the most recent developments suggrr th Indian Act, unlike section 488 of the the issue of maintenance for &qd Bangladesh Act, the meaning of the Muslim women is most likel-v to word 'wife' encompasses la dirprced another day, another battle ro wifc' for the purposes of maintenance. the Supreme Court in the In India tlp 'of Muslim divor< enough judicial produce a lrst section 125 of tht Code of 1973. L Hussain, AIR indefatigable prq social legislation, Iyer9 propounded for those laws r achieve particr Writing for a D Supreme Court, J Welfare law be effective the salutary served by t when the ber sections lik the spirit of Constirutior meaning ol P.363) In this case Personal Law or (i.e., the main isr Bano case), was decisive point to therefore, it wa However, the p raised, at least by The Shah B known to require here. The politic decision was the The Muslim Wo Rights on Divor Act, in tune wit (Protection of tr proclaimed in its "An Act to prc Muslim women divorced by, or hr from, their husba matters conne( incidental thereo' 1 42 DLR(19%) ,i- future.7 Secondly, it draws attention to Lucy Carroll's8 very sensible suggestion for an alternalive approach !o maintenance for a divorced Muslim wife. Thildly, it also posits that recent case-law in Bangladesh can be taken as an indicator of an incipient liberal era women's rights in family law matters which is now primed for validating maintenance for divorced wives through the mechanism of of -i-'- *'ives has atta:neJ i.:: :r.-':::--t:a'i -: of an ex- public conscien;e a :.:: i :: a is in section 3 which purports to lay down the parameters husband's obligations. The section precludes the possit'i1ii1'ol sa l,rq--:s tie :;;-e Mahr or other properties of Unlike the generalll a. i3r::: Muslim women to be given to interpretation of tlre Snaria sr-l=;.! states: offhandedly dismiss:n; divorce-(l) to which the post-iddat ma:rtrr-=.;e Notwithstanding anything was not an issue of legal interest or her at the time of contained in any other law for the time being in force, a divorced woman shall be enritled to marriage conEacts. I In India, the issue of maintenance ' of Muslim divorced women attracted enough judicial notice in 1979 to produce a first leading case under section 125 of the Criminal Procedure Code of 1973. In Bai Tahira v. Ali Hussain, AIR 1979 SC 362, the indefatigable proponent of progressive social legislation, Justicc I.V. Krishna -a-; ' consequence, the Act, by laying down a scheme for prov ision and maintenance, clearly recognized the validity of post-divorce rights of q (a).a reasonable and- fair Muslim woman. Arguably, the provision and mainten-ance avenues offered by the Act for to be made and paid to her within the iddat period by her former husband; (b), (c), (d) and (2), (3), (a) The Act also provides, in section 4, that if the divorced woman has not remarried, and requires maintenance, ensuring that right may be controversial, tortured and probably impractical, yet tltc substantive right of maintenance is now beyond dispute. This certainly is a major step. It may be of interest to mention here that the issue of maintenance during the iddat is susceptible to numerous interpretations. The relevant Quranic versc has been translated into she is to receive such maintenance from her would-be-heLs. Ifihe wouldIyer9 propounded the appropriate spirit be heirs are not able to dispense the for those Iaws whose purpose is to requisite maintenance, the Magisrate English as "Lodge them (i.e., your achieve particular social goals. could, then, direct her parents to divorced wives during their iddat) Writing for a Division Bench of the provide the maintenance. If the parens where you are lodging according to also fail, it would next be the turn of your means......."The word 'lodge' in Supreme Court, Justice Iyer stated: Welfare laws must be read as to her relatives to assume the role of the this Quranic verse includes both be effective delivery systems of provider of maintenance. Not to leave lodging (Sukna) as well as the salutary objecs sought to be the divorced Muslim women in the maintenance (nafaqa)------such is the served by the Legislature and when the beneficiaries are weaker sections like destitute women, the spirit of Article l5(3) of the Constitution must belight the meaning of the section. (id., P.363) In this case whether the Muslim Personal Law overrides section 125 (i.e., the main issue in the later Shah Bano caie), was not framed as the decisive point to be rulcd upon and, therefore, it was not dealt with.lo lurch even if all the above fail, orthodox Hanafi interpretation. But assuming obviously that in the two other Sunni Schools, Maliki and meantime the helpless woman Shafii, are of the view that the another to the Magistrate against her children (would-be heirs), her parents, obligation of the divorcer-husband is confined to providing sukna (lodging) and not nafaqa (food, clothing, other necdssities). The fourth school, the ordained ordcr) or seek from them her maintenance money, the Act brings in the State Wakf Board as the provider Hanbali, goes even further in,denying both sukna and nafaqa during the iddat to the irrevocably divorced woman who is not prcgnant.l l concerned was readily and tirelessly filing away one application after her relatives, (in that legislature- of last rcsort. The MagiStrate may, according to the Act, direct the State However, the pointing flags were Wakf Board to provide the requisite raised, at least by Justice Iyer. maintenance when all else has failed The Shah Bano case is too well known to require further elaboration here. The political aftermath of the decision was the quick enactment of The Muslim Women (Protection of Rights on Divorce) Acq 1986. The Act, in tune with its emphatic title lsection 4(2)1. This Act clearly seemed .a political victory for the Muslim male. His right not to be encumbered by the woman he has divorced (exercising his right to divorce without cause) was The enactrlrent of rhe Act, as indicated, settled the issue of the obligations of a Muslim divorcerhusband in India in terms of providing maintenance and provision for his divorced wife. Or so it seemed till ttre lrst reported case. The first reported case conceming The Muslim Women (Protcction of Rights on Divorce) Act, 1986 came deemed te have been preserved. The from the Kerala High Court. Given its Rights on Divorce) Muslim husband's obligation was proclaimed in its preamble that it was reaffirmcd to be the maintenance to be "An Act to protect the rights of provided during the iddat and the rich tradition of innovative approach to issues of social significance, it is (Protection of Muslim women who have becn 'mehr'. not surprising that the Act should first be tested in Kcrala. In Ali Vs. Sufaira, But the enactment of such an Act 1988(2) K.L.T. 94 (in which a itself, one may suggest, is a clear number of identical Criminal matters connected therewith or indication of the fact that the issue of Revisional appeals were consolidated), incidental 0rereto". The gist of the Act maintsnance of divorced Muslim it was contended on behalf of the divorced by, or have obtained divorce from, thet husbands and to provide for