In the ongoing battle in the Supreme Court over the legality of ‘Triple talaq’, it is being said that the BJP is witnessing its Shah Bano moment.
For the uninitiated, the Shah Bano case of the mid-80s remains a blot in India’s vote-bank politics because the then government overturned a Supreme Court judgement to contain a community’s opposition. If critics are to be quoted, the Rajiv Gandhi-led Congress indulged in Muslim appeasement by denying a Muslim woman rights under India’s secular laws.
So at a time when Narendra Modi-led BJP government is facing a similar wrath for supporting abolition of Triple Talaq, here’s a look at the infamous Shah Bano case:
An illiterate, purdah-clad woman dragged her husband to court in 80s
Indore-based Shah Bano and Mohammed Ahmed Khan were married for four decades. Their relationship began to strain after Khan married Shah Bano’s cousin. Khan eventually asked 62-year-old Shah Bano to move to a shanty in an adjacent lane with her three daughters and two sons.
A simple, illiterate, purdah-observing woman, Shah Bano moved a local court asking Khan to pay her maintenance. Khan, who had studied in Bahrain and was an affluent High Court and Supreme Court lawyer, in turn divorced her through Triple Talaq and argued to the court that he needn’t pay her money now that she had ceased to be his wife.
Their daughter Siddiqua Ahmed recently told Indian Express that circumstances made her mother so tough that she told her husband ‘Vakil saab, if I go to court, you will never be able to wear your black coat again’. Bano would eventually win and Khan indeed never wore the coat again.
The court battle: All Bano wanted was Rs 179 per month
- The local magistrate asked Khan to pay his ex-wife Rs 25 per month. Bano moved the Madhya Pradesh high court asking the sum be revised, and it was raised to Rs 179. But Khan moved the Supreme Court challenging it.
- Bano sued Khan for maintenance under the Criminal Procedure Code (CrPC) Section 125, which grants a woman maintenance until she remarries or dies.
- Khan told SC that their marriage was governed by the Muslim personal laws which didn’t call for maintenance beyond the three-month post-divorce iddat period and he was only obliged to pay Mahr money which he already had – Rs 3,000.
- All India Muslim Personal Law Board (AIMPLB) impleaded itself in the case and said that Section 125 of the CrPC could not override Muslim personal law.
- Contradicting it, all the three courts – the lower court, the high court and the supreme court – held the view that the said Section did not exempt Muslims and was thus applied to them
- Shah Bano won her case in 1985, when the SC ruled Bano was entitled to maintenance like any other Indian woman
The SC made a case for uniform civil code that irked many…
The bench rued that Article 44 of the constitution has remained a dead letter. “There is no evidence of any official activity for framing a common civil code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies…Justice to all is a far more satisfactory way of dispensing justice than justice from case to case,” the bench observed.
Bano’s victory was short-lived as a political blizzard broke out
The judgement offended the Ulema who thought the SC was interfering in their personal laws. Massive processions against the judgment were staged across India.
Bano’s son Jameel told Hindustan Times in 2011, “Even in Indore there was a lakh-strong rally which passed in front of our house. Even if every rallyist threw a pebble each, our kuchha house would have crumbled.”
Soon, Rajiv Gandhi visited the family and asked Bano to refuse the maintenance, said Jameel. Given the mounting pressure from all sides, the family obliged. Bano held a press conference to announce that she was forsaking the maintenance because it was against the Shariat and that the SC should withdraw its judgement.
Bano, who died of brain haemorrhage in 1992, explained her U-turn: “I did it because the priests told me that the judgement was interference in the Shariat. When I asked for maintenance I did not know that it was haram (forbidden) in Islam. I am an illiterate old woman so how was I to know all this. I thought I was doing the right thing but they have explained to me that it was wrong so now I understand.”
Rajiv Gandhi put politics before Muslim women rights…
In 1985, the Congress was in a soup over serious charges of corruption when Shah Bano case became international news. Many in the party pressured Rajiv Gandhi to enact a law overturning the SC judgement else the party would face defeat in the next polls.
And Gandhi did just that.
He brought the Muslim Women (Protection of Rights on Divorce) Act, 1986 that asks Muslim husbands to make a one-time payment during divorce. This is because the Muslim theologians argued that the Quranic verse 2:241 used the word mata which means (one-time) provision at the time of divorce.
…and has been repeatedly bashed for it
The move was slammed by the opposition and liberal Muslims, but defended, of course, by some including the the AIMPLB. These two quotes from a 2004 debate in the Outlook sum it up well:
Balbir Punj, convenor, BJP think tank said “Rajiv Gandhi’s yielding to mullahdom was a continuation of a ‘secular’ trend set by his predecessor and maternal grandfather Nehru who legislated the Hindu Code Bill to reform Hindu society. But he left the Muslim society undisturbed in its medieval mindset.”
On the other hand, Kamal Faruqui, a member of All India Muslim Personal Law Board, said Gandhi simply “honoured the wishes of the common Muslims“. And that if he didn’t enact the law, there would have been riots.