10.

Personal Law and Communal Identities

^
Hyderabad during the riots, date not known

Not both the pre and post-Independence

surprisingly, d ifferent 'pers onal laws (By a curious feat of
'
. meaning,
feminist movements have seen the family and home as the term 'personal' when conjoined with law means the
th e single most important stnirture ordering women 's different family laws of different religious communities)
lives. In the^sysndes feminists had focussed on th e
lat e The issue of personal law became especially con trover-
dowry form as an expression of the subordination of siajJFor feminists in 1985, with what is now referred to as

women within the fam ily, and had seen dowrv-murd er as 'The Shah Bano case'. On the 23rd of April, a five
on e of the most brutal manifestations of violence ag ainst member Constitution Bench of the Supreme Court led
wom en. By the early /''p-^'tif attempts to analyse the by Chief Justice Chandrachud, ruled that a 75-year old
relationship of women to and within the family had led woman. Shah Bano, was entided to maintenance by her

to examining th e codi fication of wome n's rights in m ar- husband under Section 125 of the Criminal Procedure
riage, divorce, property, mamtenance. etc.. as in India Code. Shah Bano's husband, Mohammad Ahmed Khan,
m ost family law is differentiated on the basis of re ligion, an advocate, had divorced her after roughly a half-
as well as community. This entailed investigation into century of marriage. Ten years earlier, under pressure
 PERSONAL LAW AND COMMUNAL IDENTmES 161

from her husband, Shah Bano and her children had time of their marriage. According to Shah Bano, how-
moved out of the main house, into a sort of annexe. For ever, the mehr, a sum meant to be given to the bride as
two years her husband gave her Rs 200 per month, and 'a mark of respect', was 3000 silver coins. Meanwhile, the
then abrupdy stopped. In 1978 she filed an application magistrate ruled that Shah Bano was en tided to mainte-
in the Indore Magistrate's Court, under Section 125 of nance under section 125, but fixed the amount at a
the Criminal Procedure Code (Cr. P.C), asking that her ludicrous Rs 25 per month. She went on appeal to the
husband be ordered to pay her maintenance. Intended Madhya Pradesh High Court, which raised the amount
to prevent vagrancy due to destitution, this section enti- to Rs 179.20. Now Mohammad Ahmed Khan went on
des destitute, deserted, or divorced women to support appeal to the Supreme Court arguing that the High
from their husbands, provided they (the husbands) are Court judgement exceeded its jurisdiction and violated
not destitute themselves. Destitution thus defines the Muslim personal law as stated by the Shariat. In effect,
provisions in this section. The maximum amount al- several statements made up this contention: first, that as
lowed by it as 'maintenance' was Rs 500 a month, cer- a Muslim he was bound primarily by Islamic law; second,
tainly not adequate for both shelter and subsistence. that as maintenance from a husband related to the laws
Shah Bano asked for the maximum, on the grounds that of marriage and divorce, which in his case fell under
she was old and could not work to support herself. In Muslim personal law. Shah Bano's application should be
other words, under section 125 she had to show that judged by this law and no other; and third, that if
sh e was destitute in order to claim support from her marriage, divorce and maintenance regulations fell un-
Jiusb and. der personal law, then criminal law should not enter the
While Shah Bano's application was still pending, her picture atall. In support of these arguments, he pro-

husband decided to divorce her, using the triple taUiq, duced written statements acquired from the Muslim
which the Koran names the most lowly form of divorce.' Personal Law Board, which said that under the Shariat
At the same time, he deposited Rs 3000 in court, claim- the husband was not obliged to pay maintenance for
ing that he was returning the nwhr agreed upon at the more than three months after the divorce (the iddat

flitir

INDIAN
WOMEN

National Federadon of Indian Women solidarity demonstration with Pakistan feminists, around 1986
162 THE HISTORY OF DOING

five-member constitution Bench, led byJustice Chandra-

chud, did go ahead and comment on abuses on women
in the name of religion, and the advisability of a uniform
civil code.
judgement can be summarized as fol-
Basically, the
upheld Shah Bano's right to maintenance
lows: firsdy, it

from her husband both under Section 125 and under

Muslim personal law, quoting the two verses from the
Koran which were cited by Shah Bano's counsel, Mr
Daniel Latifi.' Secondly, it asserted that Section 125 'cut
across the barriers of religion', that
is, it transcended the

personal laws of the religious communities which any

married pair might belong to. Thirdly, it was critical of
the way women 'have been traditionally subjected to
unjust treatment', citing statements by both Manu, the
Hindu law maker, and the Prophet, as examples of
traditional injustice. And
finally, it urged the Govern-

ment frame a common civil code, because the consti-

to
tutional promise of a common or uniform civil code
would only be realized at the initiative of the
Government.
Neither the upholding of section 125 nor the criti-
cisms of personal law as unjust to women were particu-
larly new. Two earlier judgements upholding the rights

A poster made by Saheli, a women's group

showing how religions can be used to entrap
and exploit women, Delhi 1985

period) with
: this, and with giving
his ex-wife her mehr,
his duties towardsher ended. Moreover, said the Board,
the Shariat did not deal with the question of how the
woman was to support herself after the iddat, and there-
fore the question was outside the purview of the court.
By the time the case was before the Supreme Court,
therefore, the distinction between maintenance on des-
titution (section 125), and maintenance on divorce
(which falls under personal law) was largely blurred. By
,

virtue of this the distinction between criminal and civil

law was also blurred: at the same time, criminal law was
banished from the territory of maintenance. Finally, the
entire problem of fema le destitution was itself placed
o utside the purview of the court, on the grounds tha t tRe'
t ext of personal law did not deal vnxh \\.} \
Perhaps if the judgement of the Supreme Courk on
Mohammad Ahmed Khan's petition had ignored these
points, it might not have been so controversial. It would,
however, have been hard for them to do so, because
these points were being argued before them, and coun-
tered by Shah Bano's counsel, who cited two verses fi-om
the Koran to show that the provision of maintenance was A Saheli poster on the theme of religious
regarded as a duty for the 'righteous'. In any case, the fundamentalism, Delhi, 1985
 PERSONAL LAW AND COMMUNAL IDENTITIES 1 63

The text of a Resolution adopted by women's It is unfortunate that people with vested interests
groups in Delhi on the Muslim Women's (Ri^t to have given this very human issue acommunal and
Protection on Divorce) Bill, 1986. religious colouring. Ruling party MPs who had sworn
in their elecUon manifesto to protect the rights of
This public meeting of Karmika organized on 22 March women, have here completely gone back on their
1986 at 10 a.m. and attended by various academicians, pledge. We ask: 'Are elecdon promises mere window
lawyers, journalists, doctors, teachers and social workers, dressing?' Should they not apologise to the public
resolves as under: whom they have betrayed?
We strongly protest against the Muslim Women's The other argument of the fundamentalists that
(Right to Protection on Divorce) Bill, 1986, intro- the Supreme Court has no right or authority to inter-
duced Lok Sabha recendy. The Bill is a charter
in the pret the Holy Koran is also highly misplaced. In the
of slavery to Muslim women and highly derogatory to codified law of Muslims, like Dissolution of Muslim
the dignity of all women. The Criminal Procedure Marriages Act, 1939, it has already been provided that
Code confers a statutory right of maintenance on a court may look into the relevant provisions of the
women in every case irrespective of creed or custom Koran. This judgement of the Supreme Court in the
if a person of sufficient means neglects or refuses to Shah Bano case is supported by the rulings of great
maintain his wife. The object behind this law is to save Muslim jurists like Imam Jafar and Imam Shafai who
women from being exposed to vagrancy or destitu- are accepted throughout the Muslim world as
don which, we all know, lead to other social prob-
as authorities.
lems. Surely no religion in the world would advocate We urge the Government to look into this issue
exploitadon of this deprived secuon and the neglect rationally and humanely as it has far reaching impli-
of women. The Holy Koran stipulates in Verse 11.241 cations and is even a threat to the unity of the nation.
which also provides: Aur talaq walon ke liye bhi munasif We appeal to the Honourable Prime Minister of India
taur per nano-napht hai. Yeh wajib hai perhezdaron par. and the Parliament to abandon the Bill as it is against
Maulana Ahmed Raza Khan Sahib, the well known basic human rights. The Bill, if passed, will take
authority on transladon of the Holy Koran has trans- women back by fifty years and thereby the country,
lated this verse as: 'To render divorced women appro- for women are, after all, nearly half the population of
priate reasonable maintenance. This is compulsory this country, be that Muslim, Sikh, Hindu, Christian
for the god fearing.' or Parsi.

of Muslim Women to maintenance under section 125 Code mil help the cause of national integration by remov-
had been made, by the Supreme Court, in Bai Tahira vs ing disparate loyalties to laws which have conflicting
AJi Hussain Fissali, 1979, and Fuzlumbi m K.Khader Ali, ideologies. No community is likely to bell the cat by
1980.* Chiefjustice Krishna Iyer had delivered the judge- making gratuitous concessions on this issue ... we
ments, and in both he had urged the need for judicial understand the difficulties involved in bringing
reform in Muslim personal law. Yet neither of the earlier persons of different faiths and persuasions on a
two judgements used the 'in any case' arguments of the common platform. But a beginning has to be made
later judgement, which might have allowed misreading: if the constitution has to have a meaning. (Empha-

for example, having decided that Section 125 was con- sis added) ^
sistent with Muslim personal law, it was unnecessary to
assert that, in any case, section 125, being part of crimi- Put like this, it was clearly possible to infer that the
nal law, cut across the 'barriers' of religion. Alternatively, judges were saying that Muslim personal law was bad, but
having decided to uphold the jurisdiction of section 125, 'the Muslim community' preferred unjust laws, so some-
as superceding personal law,it was unnecessary to inter- body (in this case the State) would have to impose
pret the Shariat. justness on them. It was similarly easy to infer that
Given that the judgement ruled that Section 125 Cr. imposition was to be made not for the sake of justice
P.C. and the Shariat were mutually consistent, it was alone, but also for the cause of 'national integration'.
certainly odd that a common civil code was urged on And ft^om this it was also easy to infer that national
grounds which appeared to contradict the ruling: integration required Muslims to abandon 'loyalty' to

Islam and Islamic personal law.

A belief seems to have gained ground that it is for The judgement was widely criticized on a variety of
the Muslim community to take a lead in the matter grounds: overall, feminists, liberals and secularists were
of reform of their personal law. A Common Civil critical of it for having brought issues of religion and
164 THE HISTORY OF DOING

Activists in Delhi demonstrate in the old city against Activists on a peace and anti<ommunal march in
the use of religion to divide womer Ayodhya, take a moment off to rest.

personal law into what was essentially a question of In August 1985, a Bill seeking to exclude Muslim
secular, criminal law. Further, said some feminists, in- women from the purview of Section 125 came up in

stead of dealing with the general issue of personal laws Parliament. Sponsored by a Muslim league M.P., G.M.
and how they affected women's rights in any depth, the Banatwala, the Bill was clearly in response to the Shah
judgement focussed on Muslim personal law alone. Bano petition and the feminist espousal of her cause, for
Commenting on this in an article, Madhu Kishwar con- itwas introduced while her case was being decided upon
cluded: 'By singling out Muslim men and Islam in this by the Supreme Court, just about a month before the
way, justice Chandrachud converts what is essentially a judgement. The government decided to oppose the Bill,
women's rights issue into an occasion for a gratuitous and briefed a Muslim minister, Arif Mohammad Khan,
attack upon the community.'^ to argue against it in Parliament, on the grounds that
Muslim religious leaders concurred in the view that section 125 was intended to prevent vagrancy, and as
the judgement represented an attack on their commu- such was not interfering with the personal laws of any
nity. The ulema (scholar-priests) issued difatwa (procla- community. Arif Mohammad, however, diverged from
mation) that was against the teachings of Islam. Wide
it his brief, delivering an impassioned plea for a humane
publicity was given to the fatwa, and within a few months reading of the Shariat.

the whole issue took the form of a communal agitation, Muslim liberals, feminists and social reformers began
claiming that Islam was in danger. Muslim communalists campaigns all over India, but especially in Maharashtra,
demanded that the Supreme Courtjudgement be repeated to publicise the upholding of Section 125 and to demand
and Muslim women be excluded from section 125; jump- improvements in the legal rights of Muslim women
ing into the fray, Hindu communalists upheld the judge- against polygamy, and to maintenance. At the same time
ment, gleefully arguing that it supported their contention outraged ulemzis denounced Muhammad Arif Khan say-
that Muslims were 'barbaric' and 'anti-national'. ing that as a layman he had no right to interpret the
 PERSONALLAW AND COMMUNAL IDENTITIES 165

Shariat,and joined in a massively orchestrated campaign to be linked as representing a Hindu communal on-
to repeal the judgement and support Banatwala's Bill. slaught on Indian Muslims. Syed Shahabuddin, one of
Over one lakh demonstrated in Bombay and at least as the leaders of the Babri Masjid Action Committee and a
many in Bhopal, and there were a spate of smaller member of the Janata Party, shot to prominence as a
demonstrations all over the country; in Hyderabad there leader of the agitation against the judgement, organiz-
was a bandh; in Lucknow the Muslim Personal Law ing a petition against it, which was signed by over 300,000
Board announced that true Muslims should no longer Muslims.' In state elections in December 1985, Sha-
go to the Courts for redress, but should come to the habuddin trounced his Congress-Iopponent from the
Shariat Courts which they were opening. As against this, Kishenganj constituency, despite an all-out Congress-I
only a few hundred demonstrated in favour of the judge- effort towin Muslim votes by putting up the secretary of
ment. Muslims who did so were often assaulted: the the Jamat-ul-ulema-e-Hind, and bringing two hundred
Talaq Mukti Morcha, which was launched in November ulemas to canvass for their candidate.
in Kolhapur (Maharashtra), and which decided to On February 1, 1986, the district magistrate before
march through the districts of Maharashtra publicising whom the Babri Masjid-Ram Janmabhoomi case was
the judgement with a poster exhibition, was forced to pending, decreed that the shrine be opened to Hindus
call off its march because the marchers had been as- for worship. The V.H.P. celebrated this with 'victory
saulted in so many places. They were greeted by black Muslims took out 'mourning processions'
processions'.
flags in Miraz, threatened by a mob of four hundred in and soon clashes between the two groups
in retaliation,
Parbhani, stoned at Nanded and Jalgaon, and in Ahmed- began which escalated into riots in Delhi, Srinagar and
nagar they were surrounded by a mob of ten thousand, various parts of Madhya Pradesh. Riots spilled over also
brandishing black flags, who stoned them, forcing them
to call off the rest of the march.
KiMARI
To understand why tJTg issue became so very heatedi

one has to loo k at the context in which it arose. The

1980s witn essed a steep rise in c ommunal violence all
over Xndia, both Hindu-Mulsim and Hindu-Sikh The .

November 1984 riots were particularly alarming: not

only wa s Mrs Gandhi's assassination treated as a comm u-
nal issue by the Congress-I, but no attemp t at all was
made~either to punish the guil ty, or even to investigate
the charges ot political and"poIice invo lvem ent in th e
riotsTTIIe^enie that Hindu communalism was acquiring
increasing legitimacy in the eyes of the state was further
strengthened by the Ram Janmabhoomi agitation which
was launched in U.P.
In October 1984 the Vishwa Hindu Parishad, a rela-
tively new Hindu communalist organization, launched
a full-fledged agitation demanding that a shrine in the
precincts of the Babri Masjid in Ayodhya be declared the
birthplace of Ram, and a temple built on the spot. The
question of worship at the shrine<um-Masjid had been
a source of conflict since the late nineteenth century
and, pending a court decision on the issue, the whole
place was locked up. The court case was revived by a
'Hindu' advocate, and in the meantime, the Vishwa
Hindu Parishad (V.H.P.) led a 200,000 strong march to
Ayodhya in 1984, to 'liberate' the shrine, and performed
hundreds of fire-rituals all over the Hindi-speaking belt
in 1985, to mobilize around their demand for a Ram
Janmabhoomi temple to be built within the precincts of
the mosque. Alarmed by the growing strength of the
V.H.P.-led agitation and the threat it posed, several DemonsU-ating against the Ram Janmabhoomi
Muslim religious leaders and politicians formed a Babri agitation with the slogan 'Ram's presence is

Masjid Action committee, to defend the status quo. everywhere, do not instigate violence
The Babri Masjid issue and the Shah Bano case began in his name,' Delhi, 1989
166 THE HISTORY OF DOING

to Pakistan. Alarmed by their loss in Kishenganj and tion of Indian Women and the Dahej Virodhi Chetna
seeing a further loss of credibility in Muslim eyes, the Manch courted House on the
arrest outside Parliament
Congress-I began to backtrack on their assurance of same day. On the next day, February 26, Arif Muhammad
Muslim women's rights under Section 125, announcing Khan resigned fi-om his post as Minister of State for
that they were considering a review of thejudgement and Energy in protest at the change in the Government's
would introduce a Bill on the lines of Banatwala's Bill. stand on Section 125. His wife, Reshma Arif Khan, joined
To many this announcement appeared as an utterly in campaigns against the Bill.

cynical willingness to sacrifice the rights of Mushm Opposition to the Bill took the form of public meet-
women on the anvil of political expediency. Immedi- ings, demonstrations, a concerted press campaign, and
ately, Muslim reform groups and women's organizations lobbying. Interestingly, however, the campaign against

^
Solidarity widi Shah Bano, Delhi, 1985

began to lobby the government against this an- the Bill was not carried out under a single, joint action
nouncement but were unsuccessful. Qji-the-23lh_Qf umbrella, even temporarily, as the anti-dowry and anti-
Fe bruary the_Muslim W
omen (Protectio njj f Rights on rape agitations had been. Instead a series of different
Divorce) was in ^oHuced which excluded divorc ed
Bill identities and blocs appeared, constituted separately for
lyl uslim womenTr o nTthe
purvi ew of Section 125, stating each form of opposiuon. Public meetings in Delhi, for
that th e obligation of fheir^Hisbanda to-maintain them example, were generally organized separately by differ-
endpciw\thjj\]ree mnnth<; idd gtpenod. after which th eir ent women's organizations, such as Karmika or the
would have
fa milies to fi"pp"''t themxiljailing thi s, their Mahila Dakshata Samiti. For demonstrations, on the
locaUi^qfBoard. other hand, women's groups in Delhi formed into sepa-
The introduction of dieBill caused a considerable rate blocs. The autonomous women's groups came to-
furore. Hearing that it was due to be introduced on the gether to organize a demonstration on March 7,
25th, about 150-200 women from the Janwadi Mahila demanding that the communalisation of women's issues
Samiti, the Mahila Dakshata Samiti, the National Federa- cease, and a uniform civil code be framed. A loose
 PERSONAL LAW AND COMMUNAL IDENTITIES 167

Exerq>ts from an open letter muktiars are making noises as is their wont, as if Islam
(dated February 28, 1986) to the would decline, if women in distress were kept con-
Prime Minister from Justice V.R. Krishna Iyer on tentedl What a travesty of truth! Many hundreds of
the question of personal laws liberalMuslims and many organisations of Muslim
and other women have, to my personal knowledge,
Sec. 125 Cr P.C. is obviously a secular provision de- applauded the Shahbano ruling and have been out-
signed to salvage all divorced damsels in penurious raged by the reversal of the ruling through the legis-
distress, regjirdless of religion, from the throes of lative process. It is a grievous error to exalt the
desparate destitution, which may drive them to pros- strident few reactionaries and pachydermic commu-
titution and other survival alternatives. This provision nalists as the sole representatives of the masses of
is sustained by Art. 15 of the Constitution and applies women. Women's status is at stake; kindly discover
women equally
to all Illusory alternatives driving the truth before it is There is bitter disap-
too late.

Muslim women to seek maintenance from their par- pointment among Muslims and total disenchant-
ents and from the Wakf Board (most of which have ment among women consequent on the surrender of
litde in the kitty) are clearly and substantially dis- the Prime Minister to a handful of surrogates in
criminatory. You could as well put Hindu and Parsi Parliament whose 'sound and fury' scare him and
and Christian women under the same handicap and make him deaf to the deeper feelings of the broader
drive them to their religious trusts. Why pick on community.
Muslim women? They are the major victims, as statis- What is more, there is a terrible danger of Hindu
tics show from a study of applications for mainte- communalism being whipped up on this score. The
nance under Sec. 125 Cr. P.C. temperature is hotting up. Bigots on both sides are
You will easily appreciate that this provision has no busy. I implore you not to let down our secular stabil-
relation to liability to maintenance under the per- ity, the political motive being transparent.

sonal law. The jurisdiction is different, the jurispru- Let me tell you that the bill is a sin against the
dence is different, the measure and procedure are Quran and the Constitution of Wakfs. Many Islamic
different. One is rooted in family law, the other in scholars hold that the Koranic command to husbands
public order and social justice. To confuse between to pay upkeep expenses to divorcees beyond the
the two is to be guilty ofjudicial cataract. Sec. 125 Cr. period of iddat is clear. Again, Wakfs are religious and
P.C. is of British vintage broadened by the benign charitable trusts by pious muslims to perform speci-
Parliament. The 21st century is a summons to move fied holy acts for their spiritual benefit. It will be
forward progressively, not to retreat regressively, sacrilege to divert these funds for maintenance of
frightened by 6th century primitivism. Sec. 125 res- other people's wives. Many Wakf Boards are them-
cues needy divorcees, rendered homeless, from selves poor and it is an illusion to make them caretak-
moral danger, resorting to means of livelihood con- ers ofjilted and jettisoned wives the whole project
. . .

trary to peace, tranquillity and social health. Such a is a legislative tamasha? Please don't stultify our great

provision founded on the secular values of our

is Parliament. Already the Supreme Court Judges have
Republic and is expressly contemplated in Art. 25, been insulted by Minister Ansari in Parliament.
which empowers the State to make provision necessi- May 1 conclude with a prayer to you on behalf of
tated by public order, morality and health. To con- Indian women, human rights defenders, secularist
tend that Sec. 125 is for or against any religion is a radicals and constitutional advocates?
crass caricature of the scope and purpose of the law. The bill to kill the Shabano decision of the Su-
To invoke 'religion in danger' to resist a provision preme Court is the unfortunate political product of
based on the constitutional concern for public order, a creative genius for multi-dimensional injustice. The
morality and health envisioned in Art. 25 is to draw bill is inan injustice to our Republic's secular princi-
the red herring across the trail. Three decisions of the ple; it is an injustice to women's basic rights and,
Supreme Court, which have consistently affirmed this therefore, violative of human rights; it is an injustice
approach, are enough authority to negative the fun- to the egalitarian policy in our Constitution in Arts.
damentalist distortion. Masculine obscurantism, 14 and 21 and 25; it is a vindicative injustice to Muslim
Muslim or Hindu, should accept the law laid down by women selling the soul of the State's humanism to
the highest Court explaining the raison d'etre of the obscurantist fundamentalists; it is an injustice to the
measure. holy Quran which insists on payment of maintenance
True, some ayatollahs of India and their political of divorced women in distress; it is an injustice to the
168 THE HISTORY OF DOING

21st century because it throws us back to the 6th because it is fraught with potential for litigation be-
century to buy Islamic votes through the noisy illusion tween close relatives. It is an injustice to pragmatic
of electoral support of fundamentalists whose hold working of the law because, functionally speaking,
on the liberal muslim intelligentsia and the suffering the provisions lead the destitute to several cases in
masses of women is marginal; an ultra vires
it is search of a pittance; it is an injustice to national
injustice to the law of Wakfs because Wakfs are not stability, because the secular credibility of the Govern-
trusts to look after privatised wrongs inflicted by irre- ment will be a casualty. The dictate of the social
sponsible talaqs; it is an injustice to family integrity dialectic of India today leaves no choice.

coalition across India was formed between autonomous and the other, that as different groups of women have
women's groups, Socialists, Maoists and social reformers, different interests, there is no 'real' basis on which they
to put together a signature petition against the Bill. CPI can work together.
and CPM influenced women's organizations formed a As the previous pages have shown, however, the situ-
separate coalition, organizing a rally on April 18,and ation in which the agitation against the Shah Bano
joindy addressing a memorandum to M.P.s, urging them judgement took place, and the form which it took, were
to vote against the Bill. Several diflferent lobbying groups such that lines of response or even counter —
were formed, representing different strands of opposition —
campaigns were to a certain extent already given. At a
to the Bill: liberal, feminist, progressive, and Muslim. time when Hindu communalism was on the upswing,
While the first three marked an evident need for and when there was no developed movement against
separate ideological formations, the last showed the con- communalism, the concurrence of the Shah Bano and
straints which the communalisauon of the issue had Ram Janmabhoomi agitations did create a strong pres-
imposed on Muslim suporters of Shah Bano's case. The sure on most Muslim opponents of the Bill, whether
lack of any noticeable opposition to the Ram Janma- reformist, feminist or Marxist, to find a way in which they
bhoomi agitation from non-Muslims, especially Hindus, could uphold the rights granted under section 125 while
had left large sections of Muslims feeling more vulner- making it clear that they affirmed their Muslim identity.
able than ever. Many Muslims who had earlier cam- An interesting point of comparison here is the situation
paigned for a change in their personal law, now became of the 1930s: at a time of rising communal conflict
ardent supporters of it. Among them was Dr Tahir between Hindus and Muslims, when the All India
Mahmood, an expert on Muslim personal law. Though Women's Conference and other women's organizations
he had earlier pleaded for reform of Muslim marital and raised demands for a unform civil code, Muslim women
divorce laws, as well as for a uniform civil code, in the felt forced to choose to focus on demands for changes

revised edition of his book he withdrew his chapter on within their own personal law. Ironically, what they
the need for a uniform civil code, and hailed the Bill as demanded was that the Shariat be taken as authoritative,
welcome. It is not surprising, then, that those Muslims /because customary law treated women badly: 'The
who opposed the Bill felt impelled to form ranks within //Muslim Women's organizations have condemned
their own community. The Committee for the Protec- W customary law as it adverseVf affects their rights, and have
don of the Rights of Muslim Women, for example, which \demanded that Muslim Personal Law [Shariat] should be
was formed solely in order to oppose the Bill, decided to ^^de applicable to them.'*
limit its membership to Muslims, allowing Muslim men In 1937, the Muslim Personal Law (Shariat) Applica-
to join but not non-Muslim feminists. tion Act was passed, making the rules laid dovm by the
For most of the autonomous women's groups this was Shariat for marriage, divorce, maintenance, inheritance
a hard decision to accept, because it appeared to lend and intestate succession applicable to aWMuslim women,
legitimacy to the idea that the rights of women could be 'notwithstanding any custom or usage to the contrary.'
defined by the religious community they belonged to, Like the Widow Remarriage Act of 1856, the Shariat
instead of arguing that religion and rights were separate (Application) Act, while conferring better rights on some
and distinct. By implication, it also lent some support to Muslim Women, curtailed the rights of others: for example,
two other arguments that feminists have had to contend it superseded the aliyasanthana law followed by some of
with: one, that there is no such thing as a common the Mapillaas of Kerala, which was based on matriliny.
category of women, because they are differentiated by Interestingly, the Muslim Women's Bill of 1986, which
caste, class and community, and therefore any definition took away the Muslim women's right to maintenance
of rights has also to be based on these differentiations: from their husbands (to the limited extent provided for
 PERSONAL LAW AND COMMUNAL IDENTITIES 169

Demonstrating against the Muslim Women's Bill, Delhi, 1986

by Section 125), also conferred a new right upon them through Parliament on the 6th of May 1986, after an all
which non-Muslim women do not have any equivalent night debate.The Congress-I had issued a party whip
of: the right to maintenance from the Waqf Board, that instructing all its M.P.s to vote for the Bill, no matter
is, the body which administers communally-held lands what their opinions on the matter were. This must have
(granted for charitable purposes, or the benefit of the been the first time that a whip had been issued on a
community). One of the not-so-odd fallouts of the agi- matter concerning women.
tation against the judgement has been that after the Bill For feminists the agitation around Muslim women's
was enacted there have been a spate of lower and higher rights to maintena nce consisted of a series of bitter
court judgements granting divorced Muslim women much lessons. Discovering the ease with which a 'community
higher sums of maintenance, payable by the Waqf Board, in danger' resorts to fundamentalist assertions of self,

than have been granted before. among which, invariably, control over women is one of
Not that this is in anyway ajustification of the Bill-tumed- the such assertions to be made, feminists w ere
first

act. Byj[erripvi«g^en the minor obligation which Section confronted v>ith the associated discovery of the ease with
125 imposed on husbands who had abandoned or di- w hich t state chose to accommodate commu-
he Indian
vorced their wives, the Act made it legitimate for Muslim nalism-Xby takmg no action against the Ramjanmab-
husbands to simply leave their wives stranded. The curtail- hoomi agitation), and balance this by a concession to
/ \ment of the jurisdiction of Section 125, moreover, not only fundamentalism (allowing personal law to cut into the
set a precedent for doing away with any checks on mistreat- application of uniform laws such as Section 125). For
V.._Hi^nt of women under personal law, it also laid the foun- some years prior to this agitation, feminists had revived
dation for excluding specific groups or communities from demands for a uniform civil code to replace religion
~7 culpability for acts which abet crimes relating to women. It based and differentiated family laws ('personal law') on ,

i s e.speriallv. sifrnifirnnt thnt it n'as ip thp rn nrse of th is the grounds that such laws sanctioned the oppression of
7t^2^t\^njh^\ thf Hf piand for legalizing sati was first made . women. Twojnitiatives against existing per sonal laws
Despite strong opposition to the Bill, it was forced had received widespread support and publicity from
170 THE HISTORY OF DOING

feminists all over the country : MaryRoy's petition against Bill espoused a classic liberal democradc view of secular-

(Jhnsuan personal law, and Shahnaz Sheikh's petition ism as a system which separated religion from polidcs,
against Muslim personal law. Filed someUme in the early which disallowed religious definitions of the rights of the
eighdes, in the Supreme Court, Shahnaz Sheikh's ped- individual, and which allowed ft-eedom of religious prac-
tion argued that Muslim personal law should be declared dce only in so far as it did not cut into the rights of the
violadve of Ardcles 13, 14 and 15 of the Indian Consutu- indivudual. Zoya Hasan, of the Committee for the Pro-
Uon, whic h guarantee equality before law and prohibit tection of the Rights of Muslim women, for example,
di scriminadon on the basis of sex, religion or rac e. A criticized the Bill on the grounds that it could hardly be
great deal of pressure was put on her by conservative and called secular to pass a law which severely restricted the
fundamental sections of Muslim society to withdraw this rights of the religious, while the memorandum drafted
petiUon, but she did not do so. The peution attracted by the committee argued that 'by offering concessions
considerable press attendon —so much so that some to communal/sectarian groups with a view to short-term
feminists feared that the peduon would be adversely political or electoral gains', the 'secular fabric of our
affected by the publicity which surrounded it. After the society' was being frayed.* The signature petition jointly
Shah Bano judgement the issues raised by the peudon organized by feminists, social reform and far left groups
lapsed into obscurity. In effect, the agitadon interrupted argued further, that all personal laws 'have meant in-
developing criUques of personal law and moves towards and subordinate status for women in reladon to
equality
some form of uniform civil code. men', and therefore religion 'should only govern th e
At the same dme the agitadon posed certain issues relationship between a human being and god, a nd
which were to become increasingly important for femi- should not govern the relationship between man a nd
nists in the years to follow. First of all, there was the man or man and woman .''"
quesdon of secularism, its definidon and pracdce, in As against this, the government definition of secular-
pardcular by the state, and its reladon to religious free- ism appeared to be radically different. According to the
dom. By and large, opponents of the Muslim Women's Prime Minister, Rajiv Gandhi, 'secularism is the right of

Demonstrating against the Muslim Women's Bill, Delhi, 1986

 PERSONAL LAW AND COMMUNAL IDENTITIES 171

everj;_religion_tocoexist with an other religion. We ac- Roy and Shahnaz Sheikh were demanding reform of
kno wledge thisbyallowingeveryreligion to have its own personal laws which affected them direcdy, it was argued
secularjaws.'" If this statement is not to be dismissed as that none of them represented the 'real' desires of 'real'
mere nonsense, then the only meaning to be extracted Muslim women. So much pressure was put on Shah
from it is that he defined personal laws as being secu- Bano that she gave up the right she had fought for for
—
lar presumably on the grounds that as religion here so many years, asking the Supreme Court to record that
defined the between human beings
relationships she now stood against the petition they had upheld, and
(rather than between humans and god) it was on 'secu- abjuring the maintenance the court had accorded her.
lar' terrain. Hgligion, then, could formujatejecular ism. As in the agitation agains trape, the problems and needs
Another implication of this statement was that all of wo men were soon lost sight o f in the discourse of
"

had the right to representation within the law

'religions' community'. Ev en worse, in this agitation, sett ing a
and, indeed, had the right to make their own laws. While trend for others to follow, the individual woman was
to a certain extent these rights were not new, the su- smothered by a newly constructed symbol of the 'real
premacy they accorded to personal law re-affirmed the woman '. This positing of the 'real woman , in opposition
colonial codification of religion-based family laws and to the feminist, began to be widely made tor the tirst Ume
ran counter to the constitutional promises of offering in t he history of the contemporary women's movem ent

options from personal laws and attempts to move to- in the mid-nineteen-eighties, and it is revealing that it
wards uniform rights. arose in the course of communal-fundamentalist self-as-
The second major issue which feminists were c on- s ertion. In the agitation around sati which followed ha rd

fr onted with was ^t he question of representation or , on the heels of the Muslin^ Women's Rill agitation, the
representativeness. Though the Committee for the Pro- issue of secularism, religious representation, the In dian
tection of theRights of Muslim Women was formed nation-state and the symbol of 'the woman', as defi ned
Muslim
partly to bypass this issue (by offering solely her e, were expanded even further, and used as sticks to
support for Shah Bano and Section 1 25) and both Mary, beat feminists with.

NOTES

1 One of several methods of divorce permitted by Lakum ayatehee la Make clear His Signs
Islam, the triple talaq is the easiest, requiring only AJlakum
that one party say 'I divorce you' thrice. Taqeloon To you: in order that you
2. Most of the information in this section has been may understand
compiled from press clippings from various na-
tional dailies. References are only being given for (as in AIR 1985 Supreme Court 945. Henceforth re-
quotations, and for sources other than newspa- ferred to as S.C. 945).
pers. 4. AIR 1979 S.C. 362 and AIR 1980 S.C. 1730.
3. The same verses were also quoted in the S.C. 5. S.C. 945, Para 32.
judgement, and cited by Arif Mohammad Khan in 6. Madhu Kishwar, 'Pro Women or Anti-Muslim?:
his plea for a humane reading of the Shariat. They The Shah Bano Controversy'. Manushi, 32 (Vol 6,
are: No.2) Jan-Feb. 1986
Ayat 241 English Version 7. See India Today, Jan 31, 1986, 'The Muslims:
Wali'l motallaqatay For divorced women A Community in Turmoil'.
Mata un Maintenance (should be 8. Preamble to Muslim Personal Law (Shariat) Appli-
provided) cation Act, 1937.
Bil maroofay On a reasonable (scale) 9. Memorandum of the Committee for the Protec-
Haqqan This is a duty tion of the Rights of Muslim Women, Mainstream,
Alal muttaqeena On the righteous Vol XXIV No.27, March 8, 1986.
10. Extract from the opening statement of the peti-
Ayat 242 don.
Kazaleka yuba Thus doth God 11. Quoted in brochure for film 'In Secular India',
iyyanullaho made by Mediastorm.