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Encyclopedia > Shah Bano case

The Shah Bano case is infamous in India and has generated political controversy in the country; it is sometimes described as an example of appeasement of the vote bank for political gains..

Contents


Brief of the Case

Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. The Muslim family law (marriage, gifts, inheritance, adoption and a few other civil laws are under the purview of personal laws in India - they are different for Christianity, Islam and Hinduism) allows the husband to do this without his wife's consent: the husband just needs to speak the word Talaaq before witnesses for a valid divorce. (There are different classifications on Talaaq). There are also different aspects as well as other norms of Talaq which differ from sect to sect in Islam. Some sects also have a condition in in which a Talaq is valid. They believe that during the Talaq the woman should be have purified herself from menstruation and her husband should not have had any sexual relationship with her during that period. A Muslim (Arabic: مسلم) (sometimes also pronounced Moslem) is an adherent of Islam. ... Indore is the commercial capital of the Malwa region and the central Indian state of Madhya Pradesh (MP). ... Madhya Pradesh (मध्य प्रदेश) is a state in central India. ... 1978 (MCMLXXVIII) was a common year starting on Sunday (the link is to a full 1978 calendar). ... Family law is an area of the law that deals with family-related issues and domestic relations including, but not limited to marriage, civil unions, divorce, spousal abuse, child custody and visitation, property, alimony, and child support awards, as well as child abuse issues, and adoption. ...


Shah Bano, because she had no means to support herself and her children, approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony. The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. ... In many countries alimony, maintenance or spousal support is an obligation established by law that is based on the premise that both spouses have an absolute obligation to support each other during the marriage (or civil union) unless they are legally separated, though in some instances the obligation to support...


The orthodox Muslims in India felt threatened by what they perceived as an encroachment of the Muslim Personal Law, and protested loudly at the judgement. They formed an organization known as the All India Muslim Personal Law Board and took out agitations in large numbers.


The Indian Government's Reaction

In 1986, the Congress (I) party, which had an absolute majority in Parliament at the time, passed an act that nullified the Supreme Court's judgment in the Shah Bano case. This act upheld the Muslim Personal Law and writ as excerpted below:

"Every application by a divorced woman under section 125… of the Code of Criminal Procedure, 1973, pending before a magistrate on the commencement of this Act shall, notwithstanding anything contained in that code… be disposed of by such magistrate an accordance with the provisions of this Act."

The Government with its absolute majority passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 to dilute the secular judgment of the Supreme Court. The Statement of Objects and Reasons of this Act (i.e. the objective of the Act) needs a mention. According to the stated objects of the Act, where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law...But where a divorced woman has no relatives or such relatives..has no enough means to pay the maintenance the magistrate would order the State Waqf Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only. 'Read about 'The iddat of divorce' A waqf is a religious endowment in Islam, typically devoting a building or plot of land for Muslim religious purposes. ...



Critics strongly contend that this Act was passed in order to appease minorities and safeguard the Muslim vote bank.


Consequences

The Shah Bano case generated tremendous heat in India. It proved that fundamentalist minorities can exert pressure on government and judicial decisions. The mainstream media disapproved of the decision. The opposition reacted strongly against the Congress party's policies (which, according to BJP, reflect "Pseudo-secularism".) Pseudo-secularism in a societal setting is the state of implicit non-secular trends in the face of pledged secularism. ...


The case has led to Muslim women receiving a large, one-time payment from their husbands during the period of iddat, instead of a maximum monthly payment of 500 Rs (around 10 US Dollar per month). Cases of women getting lump sum payments for lifetime maintenance are becoming common.


Critics of the Shah Bano case point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by the Indian orthodoxy.


The Shah Bano case once again spurred the debate on the Uniform Civil Code in India. Ironically, the Hindu Right led by parties like the BJP which had strongly opposed reform of Hindu law in the 50's became ardent supporters of the rights of Muslim women. Women's organisations were forced to rethink strategy and realise that for Muslim women, their identities as Muslim's is often as important as their rights as women. Uniform civil code is a term originating from the concept of a civil law code. ... BJP could mean one of Indias largest political parties, the Bharatiya Janata Party British Journal of Photography British Journal of Psychiatry British Journal of Pharmocology This is a disambiguation page — a navigational aid which lists other pages that might otherwise share the same title. ...


Personal Laws

For a country like India where religion plays an important role in politics, the Shah Bano case is not the sole example of the appeasement of minorities or of bending the law. The existence of personal laws is, in itself, an indicator of a constitutional bias towards maintaining religious harmony. They have been part of the Civil Law since the British Raj. The importance of personal laws lies in the fact that India is a secular nation with a sizeable concentration of several different religious groups. However, personal laws have been criticized for their orthodox approach and for disadvantaging women. Religious rights and women's rights remain at conflict due to the disparities in religious laws. The likelihood that a common civil code for India may be introduced in the future seems bleak as even a discussion of the topic evokes strong reactions. The British Raj was a historical period during which the Indian subcontinent, or present-day India, Pakistan and Bangladesh were under the colonial authority of the British; also included from 1886 was Burma. ...


Judicial craftsmanship has ensured that The Muslim Women's [Protection of Rights on Divorce] Act hasn't completely violated the rights of women. High Courts have interpreted "just and fair provision" that a woman is entitled to during her iddat period very broadlly to include amounts worth lakhs (hundred thousands) of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination of the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;". The Court held this provision means that reasonable and fair provision and maimntenance is not limited for the iddat period (as evidenced by the use of word, "within" and not "for"). It extends for the entire life of the divorced wife until she remarries. A lakh (also spelled lac or laksha) is a unit in a traditional number system, still widely used in India and Bangladesh, equal to a hundred thousand. ...


External links


  Results from FactBites:
 
The Hindu : The Shah Bano legacy (407 words)
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.
Shah Bano was entitled to maintenance from her ex-husband under Section 125 of the Criminal Procedure Code (with an upper limit of Rs.
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.
  More results at FactBites »

 
 

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