Monday, July 4, 2022

Remembering the Shah Bano Case

The final nail in the coffin of secularism was driven in May 1986, when the parliament, dominated by Rajiv Gandhi’s government, passed the Muslim Women’s bill. This bill effectively took away from Muslim women the financial security that they had gained from the judgement delivered by the Supreme Court a year earlier in what is known as the “Shah Bano Case." 

The passage of the Muslim Women’s bill was Rajiv Gandhi’s most definitive act—he will forever be remembered as the prime minister who got the parliament to pass a law which made Islamic law the sole determinant of the fate of divorced Muslim women.

Shah Bano was the daughter of a head constable. In 1932, at the age of 16, she married her cousin Muhammad Ahmad Khan. The couple settled in Indore where Khan established a legal practice. After 43 years of conjugal life, and five children, Khan threw Shah Bano out of his house and started living with his second wife. He paid her Rs. 200 per month as maintenance for two years, and then he stopped, even though he had a decent income. 

In 1978, Shah Bano filed a case in a local court under Section 125 (Prevention of Vagrancy and Destitution) of the Criminal Procedures Code and pleaded that her husband (they were not legally divorced) should be made to pay her Rs. 500 per month. Angered by her lawsuit, Khan unilaterally divorced her by a provision available to him under the Muslim Personal Law. He deposited with the court Rs. 3000 that he claimed he owed to Shah Bano as mehr

The court ruled that Khan must pay Rs. 25 to Shah Bano every month. Shah Bano appealed in the Madhya Pradesh High Court that she could not survive on a sum of Rs. 25. The High Court raised the amount to Rs. 179 per month. Khan appealed to the Supreme Court, where he argued that being a Muslim, he was bound to the Islamic Law, which stipulated that he was obliged to pay maintenance only during the period designated as iddah (3 months). He had, he informed the Supreme Court, already fulfilled this obligation. 

In consideration to the claims made by Khan in his appeal, the Supreme Court ruled that the Section 125 of the CrPC could not be influenced by the religion of the parties involved, and that it was mandatory for an ex-husband to provide maintenance to his divorced wife if she had no means of supporting herself. The ruling deplored the fact that the Article 44 of the constitution, mandating universal civil code, “has remained a dead letter.” 

The judgement shocked the Muslim groups—they saw the judgement as an attack on Islam. A storm broke loose as political parties, which eyed Muslim votes, came together to protest. At first, Rajiv Gandhi supported the Supreme Court’s judgement but when the protests gathered momentum and became violent, he did an about-face. He had his government pass the Muslim Women’s bill. By passing this bill, he effectively finished secularism in the country. 

If India's constitution does not apply to cases like the Shah Bano Case, then the country is not secular. L. K. Advani was right in characterizing the secularism imposed on India by the Nehru-Gandhi dynasty as “pseudo-secularism,” which unfairly demonizes the Hindus while appeasing the fundamentalist groups in the minority communities.

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