Nowhere have the contradictions posed by an Islamist solution become more evident than in the case of a South Asian Muslim divorcee who sought support from her husband through the court system. To examine the case of Shah Bano is to call attention to the pivotal yet problematic role of one mode of governance, the judiciary, as it functions in the three major Muslim states of South Asia: India, Pakistan, and Bangladesh.

Two points that emerge when one looks at women as an independent category and the judiciary as a crucial dimension of governance. The first is that women are made to represent the cultural norms shared by men and women alike throughout Muslim South Asia. The second is that court cases involving women’s legal rights not only reflect boundary markings between Muslim and other communities, they also heighten tensions about their maintenance, even as they complicate notions of what it is to be both Asian and Muslim in the late twentieth century of the common era.

In 1986, the Indian state headed by Rajiv Gandhi set a dangerous precedent of catapulting to Muslim hardliners. The Mohd. Ahmad Khan vs. Shah Bano Begum & Others case and the subsequent legislation passed by the Rajiv Gandhi government in 1986 is often remembered as a pivotal moment in India’s political history.

It all started when Shah Bano, the 62-year-old Muslim woman, filed a petition in court in April 1978 demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh. Shah Bano’s husband Khan divorced her by uttering triple talaq later in November stating he was not obliged to pay her any maintenance as she is not his wife under Islamic law.

The two were married in 1932 and had five children — three sons and two daughters. Shah Bano’s husband had forced her to move out of the residence three years before, after living with Khan and his second wife.

Shah Bano, who went to court against her husband, filed a claim for maintenance for herself and her five children under Section 123 of the Code of Criminal Procedure, 1973. In August 1979, Shah Bano won the maintenance case in the local court, which ordered Khan to provide her with the maintenance of Rs 25 per month. However, Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce.

Years later, Shah Bano filed another plea seeking for revised maintenance in Madhya Pradesh High Court. In April 1985, in a historic judgment, the Supreme Court ruled in favour of Shah Bano and upheld the decision by the High Court stating that she was entitled to be paid for maintenance by her husband.

As the Supreme Court upheld the right to alimony in the case, the judgement ignited a political controversy regarding the claim of the judicial overreach in cases that are attached to Muslim personal law. The historic judgement, which had laid the ground for Muslim women’s fight for equal rights in matters of marriage and divorce in regular courts, did not go well within the Muslim community.

Rajiv Gandhi succumbs to pressure of Muslim hardliners

The Muslim hardliners, clerics pushed the then Rajiv Gandhi government, elected in 1984, to pass the Muslim Women (Protection on Divorce Act), 1986. This law overturned the Supreme Court’s verdict in the Shah Bano case. The 1986 Muslim Women (Protection on Rights of Divorce) Act diluted the Supreme Court judgment and allowed maintenance to a divorced woman only during the period of iddat, or till 90 days after the divorce.

The Muslim Women Act in 1986, virtually pitted women’s individual rights against the rights of a religious group and the latter with their street veto power were capable of enforcing the law will over a weak, minority appeasing government led by Rajiv Gandhi.

Most importantly, it took 33 years to correct the historic blunders made by the Rajiv Gandhi government. In 2019, the Narendra Modi government passed the Muslim Women (Protection of Rights on Marriage) Act, 2019 in the Parliament of India criminalising triple talaq and delivered justice to several crores deserted Muslim women just like Shah Bano.

Arif Mohammad Khan – most vocal opponent of Rajiv Gandhi’s Muslim appeasement

The then Prime Minister Rajiv Gandhi, who had towed the line of Muslim hardlines in an effort to appease the community, had surprisingly faced resistance from within his government in the form of Arif Mohammad Khan.

Arif Mohammad Khan, who was the Minister of State in Rajiv Gandhi government, had passionately defended the Supreme Court judgment in the Shah Bano case on the floor of the Parliament. However, with Muslim hardlines began to pressurise Rajiv Gandhi, the government took an u-turn to bring a law to bypass the apex court’s judgement in the Shah Bano case.

As Rajiv Gandhi gave into the pressure of the clergy to reverse the SC decision, a dejected Arif Mohammad Khan decided to walk out of the Rajiv Gandhi Cabinet and also quit the Congress party.

In an interview recently, Arif Mohammad Khan, who is currently serving as the Governor of Kerala had mentioned how he was pressured by the Congress party to withdraw his resignation. The four-time former MP Khan had said that Congress leaders Arjun Singh and Narasimha Rao had asked to withdraw his resignation.

Reportedly, PV Narasimha Rao had said to Arif Mohammad Khan that he was absolutely right to resign morally but politically it was going to become inconvenient for the party and the leadership if he did not take the resignation back. Khan had also recounted how PV Narasimha Rao, a minister in the Rajiv Gandhi government, had remarked that it was not the duty of their party to uplift Muslims and if “they want to lie in the gutter, let them be”. 

References:

opindia.com - OpIndia Staff