(Illustration: Saurabh Singh)
ON JULY 10, the Supreme Court delivered a far-reaching judgment on the rights of Muslim women. In a carefully argued opinion, the court held that rights available under Section 125 of the Code of Criminal Procedure (CrPC)—that deals with maintenance for wives, children and parents—shall be available to all married women, including Muslim women. With this judgment, the court has ended the pernicious divide between Muslim women—who had to apply for maintenance in case they were divorced under Section 3 of The Muslim Women (Protection of Rights on Divorce) Act, 1986—and everyone else. That Act was specifically designed to undo the apex court’s judgment in the Shah Bano case (1985). In that judgment, the court had put Muslim women on an equal footing with those from all other communities and had granted them the same rights under Section 125 of the CrPC, the secular law available to everyone.
The history of Muslim women’s fight for equal standing when it came to the right of maintenance is well-known. Briefly, under Muslim Personal Law, a husband (or ex-husband) is under no obligation to his wife except providing for her during the iddat period—a specified period of time that must elapse before a Muslim widow or divorcee may legitimately remarry, usually three lunar months—and giving her the mahr when the marriage was originally contracted. Mahr is bride wealth or an agreed upon sum of money. A strict interpretation of the 1986 law ended the obligations of the husband when the iddat period ended. There was no provision for the woman for the rest of her life. In Shah Bano’s case, a woman who had been married for nearly half-a-century was handed a pittance by her husband and when the lower court increased that sum notionally, even that was not acceptable to him and conservative Muslim opinion in India.
Over the years, the vice-like grip of the 1986 Act has loosened somewhat. But with multiple family courts, district courts and high courts, the law on maintenance for Muslim women was an uncodified sprawl of conflicting judgments. On July 10, the apex court put an end to that. While hearing an appeal from the Telangana High Court, the Supreme Court ruled that Section 125 of the CrPC shall apply to all women. In case of a divorce, a Muslim woman can opt for maintenance under Section 125 of CrPC or the 1986 Act and the choice lies with her. There is a crucial difference between the 1986 law and July 10’s judgment: earlier, if a Muslim woman wanted to avail the rights available to her under Section 125 CrPC, her husband (or ex-husband) had to agree, otherwise those rights were denied to her. That is history now.
The court also put an end to the practice of lower courts relying on the 1986 Act or CrPC depending on their interpretation of the cases at hand. It said that all courts had to conform to the observations made on the judgment delivered on July 10. With this, the saga of the rights of Muslim women that began with Shah Bano has finally come to a positive end.
How should the judgment be interpreted, especially the key portions that lay down the law and emphasise the “harmonious construction” between the 1986 Act and Section 125 of the CrPC? The first, normal, interpretation in terms of India’s judicial history would be to say that ever since Shah Bano, the Supreme Court has repeatedly emphasised the rights of Muslim women in multiple judgments, even if it has not outlawed the 1986 Act. Even in the Danial Latifi case (2001), where it upheld the validity of the 1986 law, the court was at pains to emphasise that the rights of divorced Muslim women were not illusory. But this begs another question: when it has been obvious for long that the legislative intent of the 1986 Act was to undo Shah Bano, why has the apex court not declared that law as unconstitutional? After all, many laws have met that fate once the court is convinced that they violate constitutional parameters? The answer is that when it comes to those areas, ones where the law and politics clash especially when a minority is involved, the court treads on them gingerly. The “harmonious construction,” even when it is obvious that, ultima ratio, Section 125 CrPC will prevail, is a reflection of such politics. What has changed?
Under allegedly left-liberal governments, the rights of Muslim women were a matter for that community to sort out while under a conservative government, the rights of these extremely marginalised women, when they are operationalised, become a tool for majoritarianism. The idea that all Indians can enjoy the same rights and are subject to the same set of laws is anathema to the left and liberal sections of India
The second interpretation of the judgment delivered on July 10—and others like it since 2014—is to blandly state that these are signs of “creeping Hindutva” within the portals of the judiciary. This is the favoured “interpretation” of liberals and leftists alike. It won’t be surprising if such an “interpretation” is offered in the coming days. But these claims can be turned on their head: a “political interpretation” indeed exists but one that is not liberal or leftist in flavour. Simply put, it goes like this: undoing regressive laws and practices by the judiciary needs an enabling political environment. In this case that has been provided by a conservative government, one that is not hostile to the changing jurisprudence of the highest court. This is likely to be countered by liberals and leftists by saying that this emphasis on the rights of Muslim women is nothing but a part of majoritarianism that is entrenched in India.
On the face of it, this style of argumentation and counter-argumentation is an endless regress. But in reality, it is not. These changes in the law or their absence were simply a product of the politics that prevailed in India from Independence until the 21st century. Many positive and progressive elements, such as the Directive Principle that mandates a Uniform Civil Code (Article 44), remained a dead letter while others, such as the right to education (outlined in Article 41, another Directive Principle) were selectively legislated. It all depended on the politics of the day. Under allegedly left-liberal governments, the rights of Muslim women were a matter for that community to sort out while under a conservative government, the rights of these extremely marginalised women, when they are operationalised, become a tool for majoritarianism. The idea that all Indians can enjoy the same rights and are subject to the same set of laws is anathema to the left and liberal sections of India.
One can safely say that the worst aspects of the 1986 law are now a dead letter even if the husk of that Act remains. It is a sad reflection on Indian politics that for 38 years Muslim women had to suffer in the name of secularism. It is this kind of nasty politics that has twisted Indian secularism beyond recognition. The court, as is the case in such matters, restricted itself to a very specific part of the law, the bigger question now is about the possibility of reform in the law of marriage, divorce, inheritance and all the issues that fall under the purview of a potential Uniform Civil Code (UCC). Earlier this year, the Uttarakhand legislative Assembly passed a UCC Bill. There are other states that are studying drafts of such a code. It will be interesting to see if a nationwide UCC can be enacted in the years to come.
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