Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (42 page)

The high courts responded differently to these alimony plaints, much as they had before the MWPRDA was passed. Minimalist courts interpreted the MWPRDA to require nothing of the ex-husband but maintenance during
iddat
and the payment of dower, resisted interpreting the Qur’an otherwise, and left it to legislators to resolve tensions between such alimony guidelines and the Constitution.
⁷⁶
Some of them drew more from interpretations that
mata
is optional to restrict alimony rights than from the MWPRDA;
⁷⁷
others granted maintenance for just three months even if the marriages began before the MWPRDA’s passage,
⁷⁸
though not if lower courts had ruled in favor of alimony before the MWPRDA was passed.
⁷⁹
In most of these cases, the courts did not direct natal kin or
waqf
boards to support the divorcee, although the MWPRDA called for the one or the other to assume maintenance responsibilities after
iddat
. In the few cases in which they required this, the courts did not ensure that this responsibility was fulfilled.
⁸⁰

Other courts ruled in favor of more generous provision for Muslim divorcées. The majority of them found justification for their verdicts in the MWPRDA’s call for “fair and reasonable provision,” which they took to apply to the period until the divorcée’s remarriage or death, the claims to protect Muslim women’s rights in the act’s preamble, and by reading the act in light of the constitutional rights to life, dignity, and equality.
⁸¹
Some courts considered such provision compatible with the Qur’an,
⁸²
and others took the MWPRDA to override uncodified Muslim law in this regard if the latter indeed restricted maintenance rights to
iddat
.
⁸³
Yet other courts grounded alimony decrees on the argument that the mandate of Section 125 of the Code for the husband to provide permanent maintenance overrode the MWPRDA.
⁸⁴
In some cases in which women were given maintenance beyond
iddat
, the maintenance payments were well in excess of 500 rupees per month, which was the maximum that could be decreed under Section 125 until this ceiling was removed in 2001.

The Supreme Court resolved the differing signals given by high courts in
Danial Latifi
(2001), in which the lead lawyers who had represented Shah Bano earlier successfully argued that Muslim men owed their ex-wives permanent alimony even after the MWPRDA’s passage. The legal team led by Latifi argued for the confirmation of
Shah Bano
based on the preamble and Sections 3(1)(a) and 4 of the MWPRDA, and the understanding of
mata
its members had offered in the earlier case, not basing their argument on constitutional rights or criminal law alone. The NCW and some women’s organizations intervened on behalf of the petitioners, arguing that the constitutional rights to liberty, equality, equal protection, and nondiscrimination required the court to give the commonly applicable alimony law (Section 125 of the Code) priority over both the MWPRDA and uncodified Muslim law. and to overrule Sections 3(2), 4, and 5 of the MWPRDA, which they felt discriminated against Muslim women, while also claiming that Qur’anic
mata
authorized alimony.
⁸⁵
The AIMPLB argued that
Shah Bano
had misinterpreted
mata
, which was required only of the virtuous and need not sustain the woman for the rest of her life, and that the MWPRDA had overturned
Shah Bano
. The Indian government, then led by the BJP, also argued for restricting Muslim men’s maintenance obligations because this was the intention behind the MWPRDA, and it felt this would aid its efforts to portray Muslim law and the Muslim community as incapable of reform.

The entirely Hindu
Danial Latifi
court aimed to provide a fair verdict, while avoiding the protest that had followed
Shah Bano
, and its members were forthcoming about their approach to the case.
⁸⁶
It navigated the conceptual and political difficulties posed by the case primarily along the lines that Latifi suggested, not feeling bound by the legislative intent behind the MWPRDA (the focus of the Indian government’s intervention) or the predominant interpretation of
ulama
(the AIMPLB team’s emphasis), while resisting the pleas of the NCW and the women’s organizations to give criminal law priority over Muslim law and to overrule certain sections of the MWPRDA. Justice Rajendra Babu, who led the bench, and Justice Shivaraj Patil wished to bring a sense of “justice, equity and good conscience” to bear on the case, following an established standard of judicial construction since colonial times. This made them disinclined to deny Muslim women alimony even though this was the legislative intent behind Section 127(3)(b) of
the Criminal Procedure Code and the MWPRDA. Justice Babu especially felt compelled to support alimony because the Muslim women to whom he had spoken after the MWPRDA’s passage shared his sense that a denial of support to indigent divorcées was unjust. Both he and Justice Patil felt it would be unwise to give Section 125 of the Code priority over Muslim law, offer an independent interpretation of the relevant Qur’anic verses, accept a particular interpretation of
mata
, or call for a UCC, as they feared that such approaches would lead to a reprise of
Shah Bano
’s aftermath—widespread conservative Muslim protest, followed by legislative overturn of Muslim alimony rights. They were the more disinclined to rely heavily on criminal law because this would have only provided support to women facing the prospect of indigence, rather than giving all Muslim divorcées alimony. Justice G. B. Pattanaik, who voiced many Hindu nationalist stereotypes about Muslims, felt uncertain about whether to promote women’s rights in Muslim law or consider Muslim law incapable of reform. Justice Babu convinced him and the other members of the Court to follow the course that he had plotted.

Danial Latifi
interpreted matrimonial law in view of the fact that most Indian women focused on their domestic roles to the detriment of their professional careers, which made them economically dependent on their husbands. It assumed that this made divorce more damaging to women, making monetary compensation necessary.
⁸⁷
The bench said that the introduction of the MWPRDA in
Shah Bano
’s aftermath made it appropriate to interpret the act’s usage of the words “maintenance” and “provision” in light of how they were used in
Shah Bano
—maintenance to refer to
nafaqa
(support during
iddat
), and provision to
mata
(other support). The Court preferred this interpretation to overruling
Shah Bano
, as the act aimed to do because it was the only construction of the act consistent with both the criminal law regarding alimony and constitutional rights. This interpretation also made it unnecessary for the Court to overrule any of the act’s provisions.
⁸⁸
Justice Babu felt comfortable construing statutory law in light of the Constitution, since he felt this was the judiciary’s mission, but would not have been at ease interpreting the Qur’an and other Islamic texts similarly. The incorporation of Islamic norms about the economic consequences of divorce in a statute thus made judges more willing to adopt a reformist interpretation of this aspect of
Muslim law, contrary to the fears of many when the MWPRDA was passed that it would close the door to Muslim alimony.

Understanding conjugality as an important source of economic obligations, and stepping beyond the predominant view in Islamic traditions that natal bonds are more consequential,
Danial Latifi
found it “difficult to perceive that Muslim law” would place the responsibility to compensate a divorcee entirely on people unconnected to the matrimonial relationship, such as the woman’s natal kin and
waqfs
, which the MWPRDA deemed responsible for the woman’s maintenance beyond
iddat
.
⁸⁹
It thereby justified its understanding that the act obliged the man to offer his ex-wife provision until her remarriage or death, while holding natal kin and community trusts responsible to support divorcées if their former husbands failed to do so. The Court did not venture to interpret the Qur’an, but found support for its verdict in the way
Shah Bano
had interpreted
mata
. It felt comfortable directing husbands to provide
mata
on a monthly basis if they found this more feasible, although
mata
was meant to be a lump-sum payment.
⁹⁰

Thus,
Danial Latifi
interpreted legislation meant to end the requirement of alimony among Muslims in a way that recognized this obligation without departing from personal law. In fact, it made the alimony claims of Muslim women potentially stronger than those of non-Muslim women insofar as the judgment, unlike Section 125 of the Code, did not place a ceiling on maintenance payments or make alimony available only for women facing imminent vagrancy. (The legislature removed the ceiling that criminal law had placed on maintenance amounts later in 2001). Its interpretation of the MWPRDA became authoritative in the lower courts thereafter. Thus, Sunder Rajan’s assessment that the MWPRDA was “regressive” and the act’s ironic appellation by Okin as the “The Protection of Muslim Husbands’ Rights on Divorce Bill” did not accord with the act’s consequences.
⁹¹
However, many lower courts did not grasp the consequences of
Danial Latifi
and continued to restrict Muslim divorcées’ maintenance to a three-month period, requiring the Supreme Court to reiterate the status of Muslim alimony law eight years after this verdict.
⁹²
The Supreme Court also clarified in 2007 that Muslim divorcées retained the right to seek maintenance under criminal law, but could gain their ex-husband’s economic support through the usually faster route of the family courts only if they pleaded under the MWPRDA.
⁹³

Cultural accommodation could serve to advance Muslim women’s alimony rights further. The role that the Qur’an gives
maroof
(custom) in determining the extent of
mata
could be used to include in Indian Muslim law the customs of matrilineal Indian Muslim groups that give divorcées significant property rights, much as customs that give women shares in matrimonial property were incorporated into Islamic law in Indonesia.
⁹⁴
The MWPRDA’s requirement that men provide “fair and reasonable provision” to their ex-wives could also be interpreted to give divorcées shares of matrimonial property. The
Danial Latifi
court did not consider these possibilities since the petitions did not raise them, but courts may do so in the future given that the language of the MWPRDA and the Qur’an’s
mata
verses lend themselves to such an interpretation whereas Section 125 of the Code does not. The considerable sums that the courts awarded a few Muslim divorcées with wealthy ex-husbands suggest that this might be possible.

Danial Latifi
’s provision of alimony without overruling aspects of Muslim law or independently interpreting Islamic traditions limited the room for resistance. The changed political context since
Shah Bano
also deterred protest. The Hindu nationalists had grown much stronger partly by criticizing Muslim resistance to personal-law reform, violence against Muslims had increased, and the national government provided greater tacit support for anti-minority violence under the BJP’s leadership from 1998 to 2004. They had also cultivated greater international tolerance of their attacks against Muslims in the post–September 11 context by presenting the violence as meant to counter terrorism and ensure security. Moreover, modernist and feminine interpretations of Islamic traditions and Islamic law had gained greater support, and the influence of conservative Muslim elites had declined. As they were concerned not to provide the Hindu nationalists an excuse to launch further violence against Muslims and wished to retain what they could of their status as reputable interpreters of the call of Islam in the eyes of Indian Muslims, conservative Muslim elites muted their opposition to
Danial Latifi
. This rendered a legislative overturn of Muslim alimony rights unlikely.

B. Unilateral Male Repudiation

The courts often assessed the validity of unilateral male repudiation when considering the claims of Muslim women for maintenance from their husbands.
This was because until 1973 all courts recognized such maintenance rights only during the course of a marriage or during
iddat
if they took the marriage to have ended, and many courts took that position even thereafter, especially between 1986 and 2001. The man often responded to the woman’s maintenance claims by declaring that he had already divorced the woman or that he was divorcing her right then, to minimize his obligations to her. The desire to minimize economic obligations increased the tendency of Muslim men to repudiate their wives irrevocably and with immediate effect. Judges considered immediately irrevocable
talaq
valid in colonial times and followed this precedent until the 1970s, when they introduced some conditions for the validity of unilateral repudiation. There was no legislation about repudiation, and adjudication on this issue was based on Islamic legal traditions, the Qur’an, and colonial precedent.

Some judges in the 1970s said that the
talaq-ul ba’ in
was incompatible with Islamic traditions and should be considered revocable, drawing from the mode of repudiation that the Qur’an recommends,
hadith
that report the Prophet Muhammad to have treated the triple
talaq
as revocable, and various reputable commentaries. Justice Krishna Iyer said so in an
obiter dictum
in
A. Yousuf Rawther v. Sowramma
(1971), in which he added that repudiation required judicial approval with reference to the grounds the man cited, as did Justice Khalid in
Mohammed Hanifa v. Pathummal Beevi
(1972). Justice Baharul Islam proceeded further in
Jiauddin Ahmed v. Anwar Begum
(1978) to declare repudiation revocable when initially pronounced, even if it is declared in an irrevocable form. The latter judgment cited Qur’an 4: 35 and some recent commentators to conclude that “the correct law of talaq as ordained by the Holy Qur’an is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters—one from the wife’s family and the other from the husband’s. If the attempts fail, talaq may be effected.”
⁹⁵
It thus established two conditions for the validity of unilateral repudiation—the husband pleading a reasonable cause (without specifying how judges should assess the cause) and reconciliation having been tried. The judgment rendered the contested divorce invalid, making the man liable to provide his wife maintenance from the point when he ceased to do so.