Advocacy Paper in Support of the Supreme Court in the Shah Bano Case
The status of Muslim women in India continues to be a hot topic. In this paper, it shall be argued that Indian Muslim women, especially those who shall be left destitute, are by justice and by right, deserve financial support from their ex-husbands, even beyond the iddat period. This was the position of the Supreme Court in the Shah Bano case.This position shall be justified by showing that this is in agreement with India’s constitution and the criminal code; with the Universal Declaration of Human Rights; and the Islam faith itself.It should be recalled that in 1978, Shah Bano, a Muslim woman, was divorced by her husband. Shah Bano was around 60 or 70[1] when the divorce happened. Shah Bano, a housewife, filed a case asking for financial support from her husband. The case eventually reached the Supreme Court who in turn turned to the criminal code.
The criminal code, specifically article 125-127, does provide that husbands should give financially support to divorced, destitute women (Jenkins). It should be noted that in India, the criminal code applies to everyone, irrelevant of religion. This code is different from personal laws which apply only to a certain group of people. India, because of the large number of “minorities,” allows for different personal laws[2] to govern the Muslims, the Hindus, and the Christians. Thus, there are the Muslim personal law, the Christian personal law, and the Hindu personal law which somehow gives certain autonomy among these groups of people. The Supreme Court eventually decided in 1985 that the husband should give financial support to Shah Bano, a decision which caused a good number of the Muslim population in India to protest.
The Indian Muslims supported by their leaders like the Ulama (Engineer) claimed that according to their personal laws, wives can only be supported by their husbands for up to three months, i.e,, within the period of the iddat (Jenkins). Beyond this is not anymore the responsibility of the husband. Instead, responsibility is now vested on the female’s relatives (Jenkins) or in cases of financial incapacity of the female’s relatives, to the State Wakf Board (Jenkins). As such, to provide support to Shah Bano beyond what this period is not anymore justified.
They claimed that the decision of the Supreme Court is in transgression of their personal laws and therefore not to be upheld. Muslim groups in turn proposed the Muslim Women Bill (Protection of Rights on Divorce) which states that a divorced woman shall be entitled to “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband” (Muslim Women Act of 1986, article 3.1.a). Probably because of the political pressure that such a bill has caused on the government that was largely Hindu, the bill was ratified to be a law in 1986 (Engineer).The Indian Constitution states in its Preamble that “social, economic, and political justice” (in Jenkins) shall be secured by the Republic for its citizens.
It is clear that a woman who spent her life rearing her children and being a housewife without having to work to earn a living will unjustly be a destitute if her husband divorces her. This was the case of Shah Bano. By justice, it is but fair that her ex-husband supports her financially up to a fair period as to when she probably marries again.Article 39 of Directive Principles states that “that the citizen, men and women equally, have the right to an adequate means of livelihood” (in Jenkins). Again, it is clear that a woman who will be left destitute after a divorce is left without any adequate means to economically support herself.
Criminal Procedure Code Article 125 is even more straightforward. It states that “the former husband of the divorced woman has to maintain her, if she is destitute and has no means of her own for her survival and he has to maintain her until she remarries or she dies” (Engineer). This straightforwardness urged the Supreme Court to turn to this code. It seems plain and simple that Shah Bano is indeed the divorced destitute woman being described in this code and as such deserves the financial maintenance of her former husband.The Universal Declaration of Human RightsThe relevant articles are the following:Article 16.1: Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at its dissolution.Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.In the Shah Bano case, we could say that a woman left destitute after a divorce is not empowered to enjoy her rights as a human being compared to the man who, assumedly, has more finances than the woman.
In such a case, Shah Bano would have been left with less dignity if her former husband did not financially provide for her.On a larger scale, the Muslim Women Act has been interpreted on occasion to continually benefit destitute divorced women. Some judges have interpreted the provision in the act to mean that the former husband must provide for the woman in the form of a lumpsum within the iddat period “so as to benefit the divorcee beyond iddah period” (Engineer). Nevertheless, there were times when this was not so. Hence, there were judges who interpreted this provision to mean that former husbands are to support their divorced destitute former wives only until the iddat period and not necessarily to benefit the woman after the period (The Hindu). As such, there are instances when Muslim women have been unjustly discriminated in India in the sense that they, being Muslim divorcees, do not get a fair amount compared to non-Muslim divorcees.
According to the Qu’ranQu’ran 2:231 (in Badawi) states thus: “When you divorce women, and they reach their prescribed term, then retain them in kindness and retain them not for injury so that you transgress (the limits).” In this passage, it is clear that Muslim men are to divorce their wives with grace. They are explicitly to retain them so as not to injure them. Now, to divorce a woman who in turn will be destitute because of the divorce and would not receive any compensation beyond three months is obviously injuring her. It was said that Muhammad himself never divorced any of his wives.
ConclusionIt seems plain that the original decision of the Supreme Court to demand financial maintenance for Shah Bano from her former husband is just and fair. As we have shown above, such an act is justified not only by Indian laws and an international declaration but by the Qu’ran itself.
