the day the 1986 Muslim Women (Protection of Rights on Divorce) Act was passed by Parliament, many of us wore black bands. The Act kept Muslim women out of the purview of CrPC 125, a provision that made it mandatory for husbands to provide maintenance to deserted/divorced women. By passing the Act, Parliament had conveyed a stark message: Our lawmakers had decreed that Muslim women were not entitled to the protection given by law to all Indian women. Muslim women were therefore not equal citizens.
The Supreme Court has now reversed that message. By striking down the practice of instant, unilateral triple talaq as unconstitutional on grounds of equality, it has asserted that Muslim women are equal citizens. It has been a long fight for Muslim women to achieve this recognition—which becomes all the more final because it comes from the apex court.
But in 1986, the finality and majesty of the apex court was repudiated by Parliament when it passed the Muslim Women Act. The SC had granted maintenance under Sec. 125 of the CRPC to an old Muslim divorcee Shah Bano, just as it would have to any other divorced woman. Shah Bano had fought tenaciously for maintenance all the way from the magistrate’s court in Indore to the SC, because she knew it was her legal right as a divorced woman, Muslim or otherwise.
She stuck to her guns even in the face of massive protests against the judgment by Muslim men on the streets, organised by the All India Muslim Personal Law Board. The latter were furious because the judgment made references to Prophet Muhammad, but it soon became obvious that their fight was to uphold the age-old right of Muslim men to divorce their wives on a whim, giving them a pittance.
Thirty years later, the Board again upheld this very right in its initial affidavit filed in the SC in the current case. That it was forced to file subsequent affidavits assuring the court that it would issue “advisories” against triple talaq was a last-ditch effort to stave off the abolition of this right. Those familiar with the functioning of the Board, especially Muslim women, knew better than to take such assurances seriously. Even when the Muslim Women Act was being passed, the Board had made tall promises of using Wakf money to support poor Muslim divorcees.
Talking to this reporter after a violent rally had forced her to repudiate her legal victory, Shah Bano had laughed cynically at these promises. “These men will do nothing for women,” she had said. Recounting her life story, the spirited old woman explained why that long-drawn out legal fight for maintenance, which was in actual terms a measly amount (` 179.20) had been so important to her. She had spent her youth slaving at her husband’s house, looking after his bedridden mother and her children single-handedly, while he pursued higher studies abroad. When he became a successful lawyer in Indore, he married a young woman more suited to his taste than the illiterate one he had returned to. When Shah Bano protested, she was driven out with her children. And when she filed for maintenance for herself and her children, she was divorced instantly.
Shah Bano’s story is not very different from the stories of Muslim women similarly divorced. The 62-year-old didn’t challenge her divorce, despite her strong sense of having been treated unjustly. But over three decades later, Muslim women are not afraid to challenge the one practice that makes them constantly vulnerable. In fact, even at that time, Shahnaaz Shaikh, a young victim of triple talaq from Mumbai, had challenged the Muslim Personal Law itself in the SC. But the case got lost as the movement to replace the Babri Masjid in Ayodhya with a Ram Mandir was started, supposedly as a backlash to the way then PM Rajiv Gandhi’s government had appeased Muslim Ulema.
Tuesday’s judgment marks a big step forward from l’affaire Shah Bano in another important way. At that time, Muslim women were not considered worthy enough to be consulted before changing a law that vitally affected them. “The community” was seen as hurt by the Shah Bano judgment, but women weren’t seen as being part of that community. This reporter can never forget the anguished responses of deserted and divorced Muslim women, who like Shah Bano, had been doing the rounds of courts for years for maintenance. These were poor, illiterate women, conscious they were a burden on their parents. “How can a modern young man like Rajiv Gandhi do this to us?” they asked. “Can’t divorce be made as difficult for us as it is for Hindus?”
Today, Muslim women have on their own moved court to abolish the practice they hate. They’ve made it clear that there exists no Muslim community without them. This victory is therefore theirs alone. The BJP and its supporters have been quick to take credit for it. This fear of the Hindutva party wading in to “rescue” Muslim women is the main reason that many progressive young Muslims, who otherwise are quick to welcome court pronouncements and affirm their faith in the judiciary, have maintained a deafening silence today.
There’s no doubt that the BJP sees triple talaq as an important electoral issue. But this win would have come about even without the Centre’s unequivocal affidavit against triple talaq. Indeed, the Attorney General’s enthusiasm to do away with all forms of talaq finds more than one disapproving mention in the Chief Justice’s order. Interestingly, even while invoking the Constitution, all three judgments quote the Quran extensively to show that triple talaq goes against Islam.
Neither the Centre, itching to enact a Uniform Civil Code, nor the Ulema, who are equally anxious to condemn the judgment, can ignore this.
Mumbai-based freelance writer