There are, no doubt, striking resemblances between the Shah Bano case of 1985 and Shayara Bano case of 2016 as regards the plights of the victims. But the social outcome of the Shayara Bano case this year could be strikingly different from that of the Shah Bano case three decades ago when the high expectation of the reformation of the Muslim Personal Law had come to a naught.
Both the cases pertained to Muslim women. Both the Muslim women had moved the court to seek gender justice. In both the cases, these women were asking for the court’s intervention against certain provisions of Muslim Personal Law that discriminated against women.
Shah Bano had asked for maintenance from her husband (they were married for four decades) who divorced her (after uttering talaq thrice at the same time) on account of inheritance dispute among his children from his multiple marriages. Shah Bano’s maintenance plea was as per the Section 125 of the Code of Criminal Procedure, 1973 (CrPC) that states: a First Class Magistrate could order a husband to provide a monthly allowance to his wife\divorced wife (as long as she has not remarried) if he neglected to maintain her and she was unable to maintain herself. This provision is religion-neutral. It is a ‘benign provision enacted to ameliorate the economic condition of neglected wives and discarded divorcees’, as a court judgement had said.
Shah Bano’s husband pleaded in the court that he – along with his divorced wife -- were primarily governed by the Muslim Personal Law (given the fact that they were Muslims) which did not provide for maintenance beyond the iddat period (three months following the divorce). He argued that he was only obliged to pay Mahr ( gift given to a Muslim bride in consideration of marriage) and as he had done the same, he had no further obligation to maintain her. All India Muslim Personal Law Board (AIMPLB), which impleaded itself in the case, argued that Section 125 of the CrPC could not override the provisions of the Muslim Personal Law.
Shayara Bano was subjected to the same misery of instantaneous divorce based on triple talaq by her husband in October last year after 15 years of marriage. In her case, adequate maintenance was not the issue; she went on to challenge the very provision of instantaneous triple talaq (talaq-e-bidat) and two other evils associated with it – polygamy and nikah halala (a debased practice that forces divorced women willing to go back to their husbands to consummate a second marriage before returning to the original fold). Her petition wants the Supreme Court to declare all three discriminatory practices as illegal and unconstitutional as they violate the rights guaranteed by the Constitution under Article 14, 15, 21 and 25.
Shayara Bano’s husband has opposed her plea on the same ground that Shah Bano’s husband had done – being Muslims, they were governed by the Muslim Personal Law and triple talaq, polygamy and nikah halala are sanctified provisions under Muslim Personal Law.
In both the cases, the All India Muslim Personal Law Board (AIMPLB) has taken the patriarchal view and justified that ‘no maintenance to a divorced wife’ and ‘triple talaq as a mode to divorce wife’ were integral norms of the Muslim Personal Law. It made the preposterous contention that if the provision of triple talaq was banned, the Muslim husbands would be forced to kill or burn their wives! (Do such men deserve to live in a civilised community?) In any case, the AIMPLB insisted that it was beyond the purview of the court to adjudicate on the personal and family matters of Muslims.
In the Shah Bano case, all the three courts – the lower court, the high court and the supreme court – adjudicated that Section 125 of the CrPC did not make any exception for the Muslim community and therefore, it would override the provisions of the Muslim Personal Law.
In the Shayara Bano case, as the Supreme Court is hearing the matter, no decision has been taken yet. No decision is likely to be taken soon unless the Supreme Court constitutes a Constitution bench and holds its hearing on a priority basis. Given the Supreme Court’s predilections and earlier judgments in similar cases, the judicial outcome of the Shayara Bano case is most likely to go the Shah Bano way.
The societal outcome is, however, likely to be different in both the cases on several counts: in last three decades, the number of Muslim women who want Muslim Personal Law to be reformed has increased manifold. In 1985, when Shah Bano case became a major bone of contention between the Muslim clerics and the judiciary, the All india Muslim Personal Law Board (AIMPLB) was able to mobilise hundreds of thousands of Muslims on the streets who defended the obscurantist provisions of the law. But supporters of Shah Bano within the Muslim community who hit the streets were just a few hundreds.
That is why Rajiv Gandhi, the then prime minister, who had initially supported the Supreme Court judgement and had fielded Arif Mohammad Khan, a progressive Muslim MP, to defend the decision on the floor of Parliament, later changed his stance when he came to realise that his party would lose the major chunk of the Muslim vote bank. He pushed through a new law in Parliament to override the outcome of the Supreme Court judgment in the Shah Bano case. Ironically, the Act was named Muslim Women (Protection of Rights in Divorce) Act, 1986 where as it actually undermined the very rights the Muslim women had been granted by the Supreme Court in its Shah Bano judgement the previous year.
Like in 1985\86, AIMPLB still retains a large base among the orthodox Muslims who refuse to get out of the antiquated tradition (they are impervious to the fact that many Muslim-majority countries including Pakistan have reformed the Muslim Personal Law and have banned triple talaq and have provided for maintenance for the divorced Muslim women).
But, at the same time, the number of Muslim women and men supporting Shayara Bano today is many times larger compared to the corresponding figure during the Shah Bano case. The Bharatiya Muslim Mahila Andolan (BMMA), which has impleaded itself in the case in the Supreme Court in support of Shayara Bano, has more than one lakh registered members.
The Muslim clerics must know that the time has come for them to realise that they are not the sole spokesmen of the Muslim community. They succeeded in pressurising Shah Bano to disown the Supreme Court verdict and give up on maintenance in 1986, but they cannot repeat the feat in 2016. One-lakh strong Muslim women have come out in the open to challenge their authority. They have the support of the silent millions of oppressed Muslim women.
Shayara Bano case is most likely to be the catalyst to reform the Muslim Personal Law in India. That would be a blow for gender equity and justice. That would be a just victory for the underprivileged Muslim women over the patriarchal orthodoxy of the Muslim clerics.