Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (41 page)

A. Economic Support after Divorce: Shah Bano and Its Aftermath

Legislators required men to support their indigent ex-wives in Section 125 of the new Criminal Procedure Code adopted in 1974, in response to concerns that the various personal laws provided inadequate or delayed support for indigent divorcées. This appeared to extend the obligation of Muslim men to maintain their ex-wives beyond
iddat
, the period to which the courts had so far restricted this obligation, until they gained independent economic support through employment or remarriage.
⁶⁰
The resistance of conservative Muslim legislators led the government to add a qualification in Section 127(3)(b) of the Code that a magistrate may cancel an alimony decree under Section 125 if the husband has paid the amount due to his ex-wife under their personal
law. It was not entirely clear whether Section 127(3)(b) exempted Muslim husbands from providing support to their ex-wives beyond
iddat
or merely deducted the maintenance they provided based on their personal law from the amount that would be decreed under Section 125. While the wording of Section 127(3)(b) suggested the former interpretation, the adoption of the section in response to the demand of certain conservative Muslim legislators to deduct dower payments from the husbands’ obligations suggested the latter construction.
⁶¹
Various litigants argued the alternative interpretations in cases that were considered between 1974 and 1985, and most
ulama
supported the restriction of husbands’ obligations to the
iddat
period.

The high courts varied in their responses to the maintenance claims of Muslim divorcées between 1974 and 1985. The husbands were required to pay permanent maintenance in more of these cases until 1985, and three judgments of the Supreme Court from 1979 to 1985, including one by a Constitution Bench in
Mohammad Ahmed Khan v. Shah Bano Begum
(1985), lent this interpretation authority.
⁶²
The courts required Hindu and Christian husbands to pay alimony in all postdivorce maintenance cases after 1974, in contrast with their varying responses in such cases involving Muslims.

The verdicts granting Muslim women alimony between 1974 and 1985 relied on one or more of the following arguments: that Section 125 applied to all Indians, insofar as the legislators meant Section 127(3)(b) to only deduct amounts that the man provided his ex-wife following his personal law from the obligations that Section 125 imposed; that Section 125 should supplement Muslim law if Muslim law is taken to require husbands to provide maintenance only through
iddat
, since the latter law did not consider the possibility of vagrancy among divorcées; and that the Qur’anic verses about
mata
required husbands to provide permanent maintenance.
⁶³
The first two arguments took criminal law to supplement the rules of Muslim law in some contexts. The third justified permanent alimony with reference to Islamic norms and accepted certain reformist interpretations of Islam’s founding text, breaking with the predominant judicial practice of reliance on authoritative commentaries, textbooks of Muslim law, and case precedent.
Bai Tahira v. Ali Hussain Fisalli Chothia
(1979) and
Fuzlunbi v. Khader Vali
(1980), the Supreme Court’s first two alimony verdicts, made the first argument, interpreting Sections 125 and 127(3)(b) of the Code with reference to Article 15(3)
of the Constitution, which stipulates that nondiscrimination based on ascriptive identity does not preclude special provisions for women and children.
Shah Bano
, the most publicized personal-law judgment, supplemented the first two arguments with the third, relying on an unusual translation of
mataun bil-maroof
(usually rendered as “fair provision” or “customary provision”) as “maintenance on a reasonable scale,” and interpreted the relevant Qur’anic verses to require husbands to provide for their ex-wives until their death or remarriage.

As a broad Muslim coalition opposed
Shah Bano
, Parashar and Sunder Rajan assumed that this coalition was united in its resistance to the requirement of alimony. Contrary to this assumption, the majority of
ulama
and the political elites allied with them did not protest the first two Supreme Court alimony decrees that interpreted criminal law statutes with reference to the Constitution. These decrees could be considered compatible with the view in some schools of Islamic law (of which the Ithna Ashari and the Shafi‘i are present in India) that
mata
was mandatory. Although the predominant Hanafi interpretation was that
mata
was optional and most
ulama
believed that it was meant to be a lump sum (rather than a periodic) payment that need not provide for the divorcee’s material requirements until her death, five years before
Shah Bano
some Hanafi
ulama
supported a proposal for legislation that would give the courts the discretion to require
mata
and determine its amount.
⁶⁴
They did so in response to
Bai Tahira
and the widespread sense that the growth of indigence among divorcées needed to be addressed.
⁶⁵
Danial Latifi, a prominent reformist lawyer, responded similarly to
Bai Tahira
, and declared that it was consistent with the Qur’anic verses regarding
mata
.
⁶⁶
The early judgments in favor of alimony among Muslims thus led to a convergence of opinion among certain major Muslim reformers and conservatives on the courts’ right to decree
mata
. However,
Shah Bano
brought these actors into conflict with one another, and particular features of this judgment pressed most
ulama
to oppose changes in alimony law.

Various individuals and organizations long engaged with Muslim law were involved in
Shah Bano
when the case reached the Supreme Court. Some conservative Muslim organizations, including the AIMPLB, intervened in the Supreme Court on behalf of the husband, who claimed that his obligations towards his ex-wife ended with
iddat
. They argued that Section 127(3)(b) of
the Code excluded Muslims from the purview of Section 125, that
mata
was a requirement only for the virtuous rather than for all Muslim men, and that it was meant to be a lump-sum payment that need not sustain the woman for long. Although some
ulama
were prepared to consider
mata
mandatory a few years earlier, the majority of them were unwilling to concede now that the courts might legitimately declare it to be so. Danial Latifi brought a familial tradition of advocacy of Muslim law reform and an extensive knowledge of Islamic traditions to bear on his representation of the woman. His grandfather, Badruddin Tyabji, and his uncle, Asaf Ali Fyzee, were authors of major textbooks of Muslim personal law and advocates of innovative Islamic legal reasoning; his aunt, Begum Sharifa Hamid Ali, had pressed successfully to ban child marriage and attempted to amplify Muslim women’s matrimonial rights. Latifi had earlier defended communist insurgents and trade unionists, and appeared in cases to clarify minority cultural and educational rights.
⁶⁷
He framed his petition within Islamic legal traditions, and argued that alimony was in keeping with the Qur’anic verses regarding
mata
, as interpreted by Imam Shaf‘i and Imam Ja‘far al-Sadiq, the founders of the Shafi‘i and Ithna Ashari schools. Recognizing that he was advocating the application of non-Hanafi interpretations to Hanafis, he presented this as a legitimate exercise in
takhayyur
, which followed the precedent that Indian
ulama
had set when they imported Maliki provisions to increase Muslim women’s divorce rights in the 1930s.
⁶⁸

Shah Bano
incorporated Latifi’s arguments, as well as the claims of earlier Supreme Court decisions that maintenance rights should be understood in light of the growth of indigence among divorcées. But Justice Y. V. Chandrachud, the main author of the judgment, went well beyond these arguments and rejected important Islamic understandings of postdivorce maintenance. He suggested that the Qur’anic verses were self-explanatory and that the alternative Hanafi interpretation merited no consideration, and found in Section 125(3) of the Code a justification for the whole section to take priority over Muslim law if the latter did not require alimony.
⁶⁹
By referring early on to the view that the “fatal point in Islam is the degradation of woman,” though without endorsing it, he indicated the larger problem of religious norms upholding gender inequality. (The reference just before that to the statement in the
Manu Smrti
that woman does not deserve independence was
perhaps meant to establish that this entirely Hindu bench was equally critical of all of India’s various religious traditions). Moreover, Justice Chandrachud argued for a UCC, citing Tahir Mahmood, a prominent scholar of Indian Muslim law, who called for the formation of a UCC through a confluence of the major personal law traditions, much as certain Muslim leaders had imagined around the time India became independent.
⁷⁰

Conservative Muslims, including the strongest Muslim religious and political organizations, responded to
Shah Bano
with the most extensive mobilization concerning personal law in India since the 1950s, because they objected to the court independently interpreting the Qur’an rather than following the commentaries that the Indian courts had recognized since the nineteenth century; prioritizing commonly applicable criminal laws over provisions of the personal laws; recommending that the legislature introduce a UCC; and suggesting that Islam degrades women. These features of
Shah Bano
led Latifi himself to call them “exuberances of expression offensive to Muslim sentiment,” and Tahir Mahmood, whose call for a syncretic UCC
Shah Bano
had quoted approvingly, to abandon this position once the Hindu nationalists appropriated it.
⁷¹
It was opposition to these features of the judgment, rather than to the requirement of alimony, that united the coalition against
Shah Bano
, as Rina Verma Williams noted.
⁷²
The
ulama
who considered the adoption of the interpretation that
mata
was obligatory, as well as various Muslims who favored more extensive reform, felt compelled to oppose such an argument when an entirely Hindu Supreme Court bench offered it, added the suggestion that Islam might be inimical to women’s dignity, and pointed toward a UCC. Some reformist Muslims supported the judgment (although some like Latifi had their misgivings about it), and many Muslim women did so too. But opposition to the judgment was much more widespread among Muslims.

The breadth of the coalition against
Shah Bano
and community pressures induced Shah Bano herself to renounce the alimony that the court had decreed in her favor. It temporarily reduced the influence of the reformist Muslims and rights activists who favored the verdict, and led a national government facing erosion in its support to introduce the MWPRDA in 1986 to contain conservative Muslim mobilization. The act was an alternative to a private member’s bill introduced by G. M. Banatwala of the Indian Union
Muslim League, which would have exempted Muslims from Section 125 of the Code. The act’s incorporation of certain phrases in Banatwala’s bill, the consultation of AIMPLB leaders in framing the act, and the parliamentary and public debate prior to the legislation suggested that it was meant to overturn
Shah Bano
. When presenting the bill, the Union Law Minister, Ashoke Kumar Sen, said that
Shah Bano
’s interpretation that Muslim law requires men to provide their ex-wives maintenance beyond
iddat
did not reflect the predominant view among Indian Muslims or the nature of Islamic law in most Muslim-majority countries, and that its call for a UCC ignored Ambedkar’s assurance to the Constituent Assembly that such a code would be introduced only based on the consensus of the various concerned communities. He pointed out that the bill was meant to clarify that it was the natal kin of indigent Muslim women or community
waqf
(trusts), rather than the former husbands, who would be expected to provide these women economic support beyond
iddat
.
⁷³
A large number opposed the act in parliament, through signature campaigns and public demonstrations, based on the same understanding of its consequences.
⁷⁴

Nevertheless, some of the MWPRDA’s provisions did not clearly imply that Muslim men would not be required to support their ex-wives beyond
iddat
. While Section 3 restricted the man’s maintenance obligations to
iddat
, Sections 3(1)(a) and 4 called for the man to pay for his ex-wife’s “fair and reasonable provision” (perhaps in addition to maintenance) for an unspecified length of time “within the
iddat
period.” The latter sections lent themselves to the interpretation that the man should make a lump-sum payment to support his ex-wife for an indefinite period within three months of pronouncing divorce. AIMPLB officials expressed their concerns about the bill’s ambiguities to Rajiv Gandhi, the prime minister, as did some legislators critical of the bill’s possible restriction of alimony.
⁷⁵
The law minister nevertheless had parliament pass the bill without amendment, with the aid a Congress Party whip. Because of its ambiguous drafting, the passage of the act did not end litigation over Muslim alimony law.

Lawyers contested the MWPRDA’s possible restriction of the husband’s maintenance obligations to
iddat
in a number of maintenance cases filed on behalf of Muslim divorcées between 1986 and 2001. They did so with reference to (a) the wording of the MWPRDA that they took to dictate alimony, (
b) the alleged incompatibility of inadequate provision for indigent women with the constitutional rights to life and dignity (Article 21), (c) the presumed incompatibility of authorizing different alimony rights according to religious group membership with the rights to equality and nondiscrimination (Articles 14 and 15 of the Constitution), and (d) the putative legislative intent to apply Section 125 of the Code to all Indians.