International Association Of Independent Journalists Inc.

[IAIJ]

*Maintenance of Muslim Women: From Shah Bano to the Present – A Critical Examination*



By Mustafa Al-Husayni, India



The maintenance of Muslim women post-divorce lays bare the stark incongruities between religious personal laws and the secular legal framework of India. This perennial debate, crystallized by the landmark Shah Bano case of 1985, continues to expose the deeply entrenched patriarchal biases within the Indian legal and political system. The recent Supreme Court judgment reaffirming Muslim women’s right to maintenance under CrPC Section 125 after divorce is a necessary yet belated correction to decades of systemic injustice.


*The Shah Bano Case*


In 1985, Shah Bano, a 62-year-old Muslim woman, sought maintenance from her husband after he divorced her through the practice of triple talaq. The Supreme Court’s decision to grant her maintenance under Section 125 of the Criminal Procedure Code (CrPC), which is designed to apply universally to all citizens, was a watershed moment. This judgment unmasked the glaring
inadequacies and inherent injustices of the Muslim Personal Law, which restricts a divorced woman’s right to maintenance to the iddat period—a mere three months post-divorce.

The Supreme Court’s verdict was not merely a legal pronouncement; it was a clarion call asserting that the rights of Muslim women cannot be subsumed under archaic and patriarchal religious laws. It underscored the imperative for a uniform civil code, as envisaged in the Indian Constitution, to ensure equal rights for all citizens. However, the reaction from conservative Muslim factions and the All India Muslim Personal Law Board (AIMPLB) was one of vehement
opposition, revealing their rigid interpretation of Islamic law.


*Political Capitulation: The Congress Government’s Betrayal*


The political repercussions of the Shah Bano case were swift and regressive. The Congress government, led by Prime Minister Rajiv Gandhi, capitulated to pressure from Muslim conservatives and enacted the Muslim Women (Protection of Rights on Divorce) Act in 1986. This law effectively nullified the Supreme Court’s progressive judgment by decreeing that maintenance for Muslim women would be governed by Islamic law rather than the secular
provisions of the CrPC. This move was a blatant attempt to secure the Muslim vote bank at the expense of women’s rights and justice.

The enactment of this law was not merely a political compromise. It reinforced the patriarchal stranglehold of conservative religious bodies like the AIMPLB over personal laws, ensuring that the progressive voices within the Muslim community advocating for gender justice were effectively silenced.


*The AIMPLB*


The AIMPLB has consistently championed a patriarchal interpretation of Islamic law, weaponizing religion to suppress women’s rights. Their stance on the Shah Bano case and subsequent legal battles reveals a viewpoint that is profoundly at odds with the egalitarian principles of Islam. The Board’s selective interpretation of the Quran and Hadith disregards the rights and dignity accorded to women, fixating instead on maintaining male dominance within the family and society.

The AIMPLB’s resistance to change is not about protecting religious freedom but about preserving their power and the patriarchal status quo.


*A New Dawn: The Supreme Court’s Recent Judgment*


In a much-needed and belated move, the Supreme Court recently reaffirmed that Muslim women are entitled to maintenance under Section 125 of the CrPC even beyond the iddat period. The bench of Justices B.V. Nagarathna and Augustine George Masih ruled that the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, do not override the secular law of
maintenance under the CrPC. This judgment is a significant victory for gender justice and a blow to the patriarchal forces that have long dominated personal law jurisprudence.

The court’s decision underscores that the right to maintenance under Section 125 is a secular right available to all women, irrespective of their religion. It reaffirms that personal laws cannot supersede the fundamental rights guaranteed by the Indian Constitution. This ruling challenges the AIMPLB’s stance and sets a progressive legal precedent.


*The Anti-Islamic Nature of Current Interpretations*


The Muslim Personal Law, as propagated by bodies like the AIMPLB, is fundamentally anti-Islamic. The conservative interpretations of Islamic law perpetuated by these bodies contradict the true spirit of Islam, which upholds justice, equality, and the dignity of all individuals,
including women.


• Islamic Principles on Maintenance*


Islam, in its purest form, enshrines the right of maintenance for divorced women far beyond the narrow interpretations of the AIMPLB. The Quran and Hadith provide clear directives that emphasize justice, compassion, and the well-being of divorced women:

1. **Quranic Injunctions:** The Quran explicitly instructs men to provide for their divorced wives. In Surah Al-Baqarah (2:241), it is stated: “For divorced women, maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous.” This verse unequivocally mandates that divorced women are entitled to financial support.

2. **Prophetic Traditions:** The Hadith literature further supports the rights of divorced women to maintenance. The Prophet Muhammad (PBUH) emphasized the importance of treating women with kindness and ensuring their financial security. For instance, a Hadith narrated by Aisha (RA) states: “The best among you is the best to his wives, and I am the best to my wives.” This underscores the moral and ethical obligation of men to provide for their divorced wives.

3. **Islamic Jurisprudence:** Classical Islamic jurisprudence, across various schools of thought, recognizes the right of divorced women to maintenance. Scholars like Imam Abu Hanifa, Imam Malik, and Imam Shafi’i have all acknowledged the obligation of the husband to support his divorced wife, highlighting that this duty extends beyond the iddat period in cases of need.


*Reinterpreting Religious Teachings: A Path Forward*


Rather than advocating for a Uniform Civil Code, it is essential to amend personal laws by reinterpreting religious teachings with an egalitarian approach from a liberal perspective. This approach recognizes the potential for progressive interpretations within Islam that uphold justice, equality, and the dignity of women.

1. **Egalitarian Interpretation of Islam:** Islamic teachings, when interpreted through a lens of justice and equality, offer robust support for women’s rights. By focusing on the fundamental principles of compassion, justice, and dignity in the Quran and Hadith, it is possible to develop personal laws that are fair and just.

2. **Liberal Perspective:** A liberal perspective encourages critical thinking and reform within religious frameworks. This approach challenges patriarchal norms and advocates for interpretations that align with contemporary values of human rights and gender equality.


3. **Community Engagement:** Reform must come from within the community, involving scholars, activists, and ordinary citizens. Engaging in open dialogue and education about the true egalitarian principles of Islam can shift societal attitudes and lead to meaningful change.


*Conclusion: A Long Road Ahead*


The maintenance of Muslim women post-divorce remains a critical issue reflecting the broader struggle for gender justice within India’s legal and societal framework. The Shah Bano case exposed the deep-seated patriarchal biases in personal laws and the political system’s willingness to sacrifice women’s rights for electoral gains. The recent Supreme Court judgment is a step in the right direction, but much more needs to be done to dismantle the patriarchal structures upheld by bodies like the AIMPLB.

India must move towards a truly just and equitable legal framework that guarantees equal rights for all its citizens. By reinterpreting religious teachings with an egalitarian approach and from a liberal perspective, we can ensure that personal laws evolve to reflect the true spirit of justice and equality inherent in Islam. The struggle for gender justice is far from over, but the recent judicial developments offer a glimmer of hope for a more just and equitable future.