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Shah Bano alibi for communal carnage
By Tahir Mahmood


"Ayodhya was an answer to Shah Bano", a lot of people have been virtually saying. And now it is being demanded that since sixteen years ago the Muslims had asked for and were given by the then 'pro-minority' government a special favour by an 'amendment' of the Constitution or a public law, the present pro-majority government must at least overlook if not abet their merciless annihilation in Gujarat and elsewhere. The absurdity of this argument, an all-time favourite with communalists, is now indeed crossing all limits.

  A fierce debate on the Gujarat mayhem is in progress on the Star TV. A BJP politician angrily tells the Congress participant : "Your party amended the Constitution to appease the Muslims when they rejected the Shah Bano decision to deny payment of a petty amount of maintenance to a poor widow." The Congress-man does not point out any untruth in this accusation every word of which is factually wrong. Instead he tries to meet it with a flimsy argument. Both the accuser and the accused are indeed terribly ignorant of the law and the facts. Both are demonstrating sheer legal illiteracy and poor general knowledge. No one on the debating panel or among the audience too, however, rises to set the record straight.

Right from 1985-86 votaries of communal politics have been using the false story of a Shah Bano-related 'Constitutional amendment' to cudgel the minorities and provoke the majority community against them in search of petty political gains. Generously sparing the Constitution, some of them have instead been talking of the 'amendment' of one or another public law of the country-- actually in force or even imaginary-- the Indian Penal Code, the non-existent "Civil Code" or whatever other law their wisdom or fancy could bring to their mind. The bogey has often been used as a defence for the vandalism displayed in the holy city of Ayodhya in December 1992 resulting into the criminal destruction of a religio-historic monument. "Ayodhya was an answer to Shah Bano", a lot of people have been virtually saying. And now it is being demanded that since sixteen years ago the Muslims had asked for and were given by the then 'pro-minority' government a special favour by an 'amendment' of the Constitution or a public law, the present pro-majority government must at least overlook if not abet their merciless annihilation in Gujarat and elsewhere. The absurdity of this argument, an all-time favourite with communalists, is now indeed crossing all limits.

The fact is that neither the Constitution nor any other law, major or minor, was ever amended to "appease" the Muslims as a result of their response to the Shah Bano case. The reality of Shah Bano judgment of 1985 and the subsequent enactment of the Muslim Women (Protection of Rights on Divorce) Act 1986 has to be seen in the proper perspective. Maintenance of divorced women is a civil-law matter governed in India for religious marriages among all the communities by their respective personal laws, and for the cases of civil marriages by the civil marriage law of 1954. The new Criminal Procedure Code of 1973 (CrPC) provided a temporary relief in this regard under which the former husband of any divorced woman could be ordered by a Magistrate to provide her a small sum as maintenance on a transitory basis till the matter was duly decided by a civil court under the regular law applicable to the parties. For the Hindus, Buddhists, Jains and Sikhs there were on the Indian statute-book the Hindu Adoption and Maintenance Act 1956 and the maintenance provisions of Sections 24-25 of the Hindu Marriage Act 1955. Any order passed under the new CrPC for a divorced woman belonging to any of these communities was to last only till a civil court gave a final decision under this statutory law. There was no parallel statutory law of maintenance for the Muslims whose personal law on the whole has remained uncodified in this country -- of course to their own detriment and for no rhyme or reason. Wrongly presuming that the uncodified Muslim law had no relief at all to offer to divorced women, temporary maintenance-orders passed for Muslim women under the new CrPC of 1973 were being treated as permanent and final in all respects. This was obviously legally incorrect. It was also prejudicial to the interests of Muslim women, as Muslim law had in fact a lot more to offer them than what they could get under the CrPC. On popular demand, then, Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act. Unlike the Hindu maintenance-law of 1955-56 which is for the civil courts to enforce through their notoriously time-consuming processes, jurisdiction to apply the newly enacted Muslim maintenance law was however given to magistrates to be exercised as per the quick procedures provided by the CrPC. This was indeed a plus point. Most certainly the new Act neither overruled the Shah Bano decision nor amended the Constitution, the CrPC, or any other law for that matter. Nor was there anything un-Constitutional in this exercise.

As regards the ratio of the Shah Bano case, it was indeed unassailable. What had annoyed the Muslims was the misuse of its inflammable asides by the anti-Muslim elements who were hell-bent to project the new ruling as the 'last nail in the coffin of Islamic law in India'. The common Muslims were driven to a misbelieve that by virtue of this decision their personal law was on the verge of extinction from the country. Labouring under this delusion, they over-reacted. The events of 1985-86 indeed made an unhappy chapter of the recent legal history of India. It could have been well avoided if ill-informed religious zealots among the Muslims had not jumped into the fray and their ill-intentioned opponents had not communally exploited the situation for nefarious purposes. 

The newly enacted Muslim Women Act attempted - albeit not wholly successfully -- to codify the Muslim law on divorced women's remedies. From the very beginning the courts applied it very generously. Case after case was decided under its provisions to grant quick relief to divorced women in the form of exorbitant one-time payments [while under the CrPC the ceiling of Rs. 500 a month as the maximum amount payable as maintenance to all the claimants together - wife, divorced wife, children and parents-- remained in force for another fifteen years and was removed only in 2001]. The anti-minority communalists, however, kept on shouting from the roof-top to make people believe that the new Muslim Women Act was an " anti-women, un-Constitutional and anti-national" measure. Enactment of a separate Hindu law of maintenance in 1955-56 was and remains, in their opinion, a wholly patriotic exercise but that of the Muslim maintenance-law thirty years later was not only absolutely unpatriotic but nothing short of treachery and treason that could never be pardoned. 

The very sensible viewpoint expressed by knowledgeable observers that the Muslim Women Act 1986 did not overrule the Shah Bano decision and that it is not at all un-Constitutional was upheld by the Supreme Court of India in the case of Danial Latifi v Union of India decided on 28 September 2001. It was emphatically held in that case that the new Act, far from upturning the Shah Bano ruling , had in fact given effect to the same. Also the court found nothing anti-women, anti-national or un-Constiutional in it. But, who cares ? The communal propagandists could care least about the apex court's view of the Act. In their opinion the audacity of the Muslims in respect of the Shah Bano case was and will remain in perpetuity a crime against the nation horrendous enough to justify destruction of their mosques, mass-killings and even a blanket exclusion from the State's rajdharma of protecting the lives and properties of its citizens. Whose writ then lies in the country? Do we, Indians, still believe in the rule of law?

All said and done, are the communalists prepared to ensure lasting peace in the country in return for an outright repeal of the Muslim Women Act 1986 ? Will they guarantee that innocent men, women and children will no more be butchered and burnt alive, that places of worship will not be vandalized, that human rights will not be thrown to dogs any more, that all citizens' fundamental rights and civil liberties will be equally respected, that religious tolerance and communal harmony will return to the beleaguered Nation now in turmoil? If they can come out with these guarantees in a manner believable by and acceptable to the international community one can reasonably expect that just a statute, even though Constitutionally valid and helpful to women, may not be regarded by the Muslims as indispensable. But, will any such guarantee be forthcoming from any quarter?

Dr Tahir Mahmood is professor of law, 
University of Delhi & ex-chairman, National Minorities Commission
 
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