India's Supreme Court's alimony order settled a fundamental question—a Muslim woman is Indian first, Muslim later

Ibn Khaldun Bharati in The Print

The spectre of gender justice continues to haunt the identity politics of Indian Muslims. These visitations shall not cease till the fundamental issue of the status of women in Muslim society remains unattended and unresolved.

Let me illustrate this point by citing what happened in the cause célèbre, the 1985 Shah Bano case. A Muslim woman from Indore, Shah Bano Begum, was married to her cousin, Mohammed Ahmad Khan, in 1932. They had five children. Khan became a prosperous advocate and got into polygamy by marrying another cousin of theirs in 1946. In 1975, he threw Shah Bano out of their house. She approached the court to seek maintenance under Section 125 of the Criminal Procedure Code (CrPC). Khan, a successful advocate, was arguing his own case. Upon being questioned by the court why he wouldn’t pay maintenance to the woman who was very much his wife, he pronounced triple talaq on Shah Bano and washed his hands off her. The scandalous story that the talaq happened inside the courtroom and during the proceedings has remained relatively unknown for reasons which could only be guessed.

This anecdote brings into bold relief two important facets that have shaped Muslim politics in India. First, the helplessness of the Muslim woman against arbitrary and unilateral divorce under the sharia law before the Narendra Modi government made triple talaq a criminal offence in 2019; and second, the cavalier attitude and utter disregard for the dignity of the court, with which Khan inflicted triple talaq was reflective of class characteristic that the Muslim ruling class had cultivated over the centuries of their rule.

Whether it be the issue of triple talaq, maintenance to divorced women, or the controversy over hijab, the secular laws, constitutional morality, and progressive judicial pronouncements have been coming up against the wall of antiquated religious laws of Islam that the Muslim identitarians defend as the last bastion against assimilation intothe Indian culture. They have had the phobia of losing their distinction of foreign origin and wouldn’t mind using regressive religious laws to safeguard their separateness. Syed Shahabuddin, their most articulate spokesman had said, “Ours is not a communal fight. It only amounts to resisting the inexorable process of assimilation. We want to keep our religious identity at all costs.”

So, according to its own website, “All India Muslim Personal Law Board was established at a time when then Government of India was trying to subvert Shariah law applicable to Indian Muslims through parallel legislation. Adoption Bill had been tabled in the Parliament. Mr. H.R.Gokhle, then Union Law Minister had termed this Bill as the first step towards Uniform Civil Code.” It was in 1973.

Thus, the 10 July verdict of the Supreme Court, which says that a divorced Muslim woman, like all other women, has a right to maintenance from her ex-husband under Section 125 of CrPC, has settled some issues but, more importantly, has revived many more.

The verdict has settled that Section 125 of CrPC continues to be applicable with regard to divorced Muslim women; and, more importantly, that it remains unaffected by the Muslim Women (Protection of Rights on Divorce) Act 1986.

This is a reiteration of the judgment of the 5-judges bench of the Supreme Court in the Shah Bano case, which said that the Muslim Personal Law couldn’t come in the way of a divorced woman seeking maintenance under Section 125. This law was applicable to all Indians without any discrimination on the basis of religion. It also re-confirms another judgment of the Supreme Court in the Danial Latifi Case, 2001, which upheld the validity of 125 CrPC notwithstanding the Act of 1986 whose overt purport was to nullify the Supreme Court’s judgment in the Shah Bano case.

But beyond all these legal issues, the 10 July verdict has settled a fundamental ideological and constitutional question — that is, a Muslim woman, like all other men and women, is an Indian first and a Muslim later. Therefore, what is hers as an Indian can’t be taken away from her because of her religion. It is a re-statement of her right to equality and justice as envisaged under the Constitution.

It may be recalled that it was on the question of the Muslim-first identity that the Muslim leadership of the 1980s — which wasn’t ideologically much different either from the Muslim League of the 1940s or the identity minoritarians of the 2020s — waged a vicious communal campaign against the jurisdiction of the Supreme Court and the competence of its judges to adjudicate in the matter of Muslim Personal Law. Their objection was religious. They contended that the judges, not being Muslim themselves, lacked the primary qualification to adjudicate in the “sacred” law. Their rhetoric touched such a feverish pitch that a cabinet minister in the Rajiv Gandhi government, Ziaur Rahman Ansari, while speaking in Parliament, used casteist slurs against the judges. Such impunity they had. They eventually succeeded in bending the government to their will. A law was enacted to nullify the Supreme Court’s judgment.

In less than four decades of having won Pakistan, they had struck again. The spectacle of the government with the largest-ever majority, going down in abject capitulation before the dictates of the vote-bank politics, left the entire nation aghast and humiliated. It revived the fear of the return of the barbarians in a country that had just become independent after centuries of foreign rule. No historian can deny that the Shah Bano case was the inadvertent catalyst in the mainstreaming of Hindutva, the ideology of cultural nationalism and political Hinduism. Since this movement crystallised around the Ram Janmabhoomi-Babri Masjid case, the announcement for tabling a Bill in Parliament to overthrow the Supreme Court’s judgment in the Shah Bano case, and the unlocking of the disputed structure at Ayodhya, in early 1986, had such a stamp of choreographed synchronisation that it’s hard to dismiss it as a mere coincidence. It’s undeniable that the government was trying to effect a cynical balancing between the two communities.

What needs an answer, however, is whether the Muslim leadership were a party to this disingenuous deal. Did they give a tacit assent for the unlocking of the disputed structure, and the construction of Ram temple on the site, as a quid pro quo for the massive public victory that the government had handed them? If so, did they renege on the understanding by whipping up emotions and making a mountain out of the Babri mole?

Changed situation

All that was then. Now, no one is surprised at the stoic indifference with which the Muslim leadership has received the 10 July verdict, a reiteration of the 23 April 1985 verdict. The agitation against the earlier judgment had shaken the country, and the repercussions that followed caused a permanent bend in the course of Indian politics. But the situation has changed. Much water has flown in the Ganges since. The nation has become stronger, and its leadership can’t be browbeaten in the manner it was done in 1985-86. The old Muslim leadership has been discredited, and is slowly disappearing. The ubiquitous slogan, Islam-in-danger, has vanished from public discourse. And, though communal fault lines remain, and the ideological issues regarding nationalism are not yet settled, the Muslim community has evolved enough as to not unabashedly uphold regressive religious laws, and challenge a progressive judgment of the Supreme Court by brazenly questioning its authority.

What next?

Now that the Muslim Women (Protection Of Rights On Divorce) Act, 1986, has effectively, if not technically, been read down, shouldn’t it also be taken off the statute to right the wrong that was committed, under communal duress, against both the Muslim woman and the Indian polity? To begin with, this Act was more about politics and less about law. The Muslim communalists had won their first victory after winning Pakistan. They had put the Indian state in its place and taken a decisive step toward securing the state-within-state, which would confirm their rule over the Muslim community, defined by the juridical ghetto of the personal law.

Euphoric with victory, but lacking intellect and acumen, they failed to notice how the conscientious law minister, Ashok Sen, embedded the phraseology that subverted from within the stated purpose of the law. Section 3(a) says, “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.” Thus, the amount for maintenance had to be paid “within the iddat period (three months)” and not only for the said period. The Muslim leadership had taken the community to war with the state to limit the maintenance only to three months. That was the crux of the matter. Their fanatic frenzy was vanquished by the cool conscience of superior wisdom.

Both the operation of this law and the later judgments that it didn’t supersede the CrPC 125 make it superfluous. It should be annulled, and so should be the mother of all such laws, the Muslim Personal Law (Shariat) Application Act, 1937, in fulfilment of the constitutional obligation for the Uniform Civil Code.

Article 44 of the Constitution lays the directive principle: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” In recent times, there have been some important developments, which make the situation conducive for bringing in the UCC.

Since the anti-CAA agitation of 2019-20, the Muslim community has been most effusive in the expression of love for the Constitution. Their public discourse, earlier conducted in religious idiom, is now full of constitutional jargon. Furthermore, the way the INDIA bloc parties made the Constitution the central debating point in the run-up to the recently concluded Lok Sabha election, clearly shows that there is a sincere eagerness to live by the Constitutional ideal and morality. Gender inequality, as institutionalised under the Muslim Personal Law, is clearly against constitutional morality, and therefore, it is hoped that the Muslim leadership and the liberal-secular parties would campaign for the UCC so that such evil practices as polygamy, unilateral and arbitrary divorce, denial of inheritance and property rights, etc., should be abolished in accordance with the moral standards of the Constitution.

The moral influence of the last 10 years of the Modi government has done the groundwork for the UCC. Now it is conceded that Muslim Personal Law is not the same as sharia and, more importantly, sharia is not the divine law. So, it’s not the domain of the ulema. Parliament can legislate and the courts can adjudicate in the matter. With this clarity, one of the emotional barriers to the integration of the Muslim community, the Muslim Personal Law, should be removed. This would be the corollary to the abrogation of Article 370 and precursor to the reform of Aligarh Muslim University.

'Indian Muslim Women are no longer subject Only to the Shah Bano legislation': A brief history lesson

 

Here is a concise summary of Section 125 of the Indian Code of Criminal Procedure (CrPC):

Section 125 - Order for Maintenance of Wives, Children and Parents

Key Points:

• A Magistrate can order a person with sufficient means to provide monthly maintenance to:His wife who is unable to maintain herself
• The Magistrate can order interim maintenance and expenses of the proceedings to be paid during the pendency of the maintenance application.
• Failure to comply with the maintenance order can result in the Magistrate issuing a warrant to recover the amount or sentencing the person to up to 1 month of imprisonment.
• A wife is not entitled to maintenance if she is living in adultery, refuses to live with her husband without sufficient reason, or is living separately by mutual consent.
• The nature of proceedings under Section 125 is civil, not strictly criminal, and the provisions are to be construed liberally for the welfare of the wife and children.

'On Luton and Islamists': Tommy Robinson

 

Ayaan Hirsi Ali: The Growing Threat of Radical Islam

 

Lies, More Lies and an insecure BJP

 

'Multiculturalism is a miracle of stupidity': Jordan Peterson

 

Nupur Sharma quoted a Hadith

 

Malala's love for The Hijab

 

The Hijab Controversy

 

21: Minimum Marriage Age for Indian Women

 

Taliban's Islamic emirate is based in Quetta & Pakistani fighters fight alongside : Afrasiab Khattak

 

Love Jihad in Canada

 

The road to Ram’s temple: If Congress party believed in real secularism, Ayodhya movement would never have happened

Let Muslims join in building the temple and when it is ready let both communities come together to build a mosque on the other bank of the Saryu river writes Tavleen Singh in The Indian Express


The bhoomi pujan of Ram Temple in Ayodhya will be held on August 5. (Express file photo)

Let me make clear at the outset that I support the building of that temple in Ayodhya whose consecration takes place next week. It should have happened decades ago. It did not because of the pseudo-secularism that the Congress party has long adopted as its creed. The founding principle of this evil creed was that under the safety blanket of ‘secularism’ it was alright to abuse all secular tenets and principles if this helped win elections. It is important here to remind you that this is the second time that a shilanyas is being done of a Ram temple in Ayodhya. The first one was done by Rajiv Gandhi in 1989 when he began his election campaign in Ayodhya with the promise of Ram Rajya.
Not a secular slogan at all, but considered necessary at the time because of his foolish decision to allow Muslims their own personal law based on the Shariat. This decision enraged even secular Hindus, so the promises of a Ram temple and Ram Rajya were made in the hope that Hindus would fall back into the Congress party’s ‘secular’ arms. Rajiv ended up losing the election. But this was a last-ditch attempt to show that although he had pandered to the very worst kind of Islamist Muslims in the Shah Bano matter, he was still a good Hindu. Actually, he was a Parsi because in India it is the father’s religion that counts. Had the Congress party been truly secular, it would have shown the courage to resist the pressure from the Islamists who demanded that they be allowed to use the Shariat as their personal law. Had Rajiv Gandhi stood by the principles of real secularism, he would never have interfered in the Supreme Court’s order that said divorced Muslim women had the same rights as divorced Hindu women.

If the Congress party believed in real secularism, the Ayodhya movement would never have happened. It was after it started mixing religious fundamentalism with politics that the Bharatiya Janata Party realised that this was a game that they could play much better. So it was that in 1990 Lal Krishna Advani converted a Toyota truck into ‘Ram’s chariot’ and set off from Somnath for Ayodhya with the demand that a temple be built where Ram was said to have been born. Millions of Hindus believe that this Ayodhya is the same as the Ayodhya of antiquity, and that where Babur built his mosque is the exact spot where Ram was born. So, there should never have been a dispute at all and instead of a demolition the mosque could have been respectfully moved, stone by stone, onto the other bank of the river Saryu. But, this would have deprived many political leaders of electoral gains, so it was not allowed to happen.


Political leaders were not the only culprits. Religious leaders were just as bad, and it needs to be said that Muslim religious and political leaders, who took such an implacable stand against the Ram temple, did more to harm their community than anyone else. They were obdurate, unyielding and unreasonable and many still are. The same Muslim leaders who insist that they will continue to fight for restoration of the Babri Masjid at the very spot where it once stood said not one word when the magnificent Hagia Sophia cathedral in Istanbul was converted into a mosque just last week.

Asaduddin Owaisi has objected publicly to Prime Minister Narendra Modi going to Ayodhya to attend the shilanyas. He argues that it would be against the secular principles of the Constitution for him to attend a consecration that is specific to one religion. What intrigued me about the certainty with which he argued his case in TV debates was that he seemed to forget that Islam puts secularism in the same basket as apostates, heretics and heathens. It is only Indic religions that do not make any distinction between believers and unbelievers and only Indic religions like Buddhism and Jainism that are fundamentally atheistic.

When Congress leaders behave as if secularism was their personal gift to India, they forget that it was not an idea needed in India because the king was always not just secular but above caste. And, there has never been a Shankracharya who had his own army like the Pope once did. As a result of so much muddled thinking and a political culture that allows anything to be done for the sake of winning elections, we have now come to a pass when in these Hindutva times the supporters of Narendra Modi openly spread hatred against Islam and Muslims. The distinction between Pakistani and Muslim has been slowly erased in the past six years and the word ‘Paki’ has become a term of abuse. It is an ugly time but if our political leaders still have in them a modicum of honesty let them make the Ram temple in Ayodhya a symbol of healing.

Let Muslims join in building the temple and when it is ready let both communities come together to build a mosque on the other bank of the Saryu river. India needs a process of healing now almost more than it ever has before. Let it begin in Ayodhya next week and let the Prime Minister show us that he truly believes in his own slogan ‘Sabka saath, sabka vikas, sabka vishwas’.

Is it Islam or its followers that need reform?

Discussion is in Urdu

Part 1

Part 2

Part 3

Part 4

Tarek Fatah

Islam, Quran, Sharia and Refugees

Hindu Nationalism versus Islamic Fundamentalism

Tarek Fatah vs Rabbani

In Urdu.

Tarek Fatah on Sharia, Education, Kerala, Sufism, India and Islam

On the difference between a Muslim and an Islamist

How have the British Muslim men involved in the Rotherham child sex grooming gang been treating their own wives?

Yasmin Alibhai Brown in The Independent


The Pakistani Muslim men – three brothers and an uncle – who groomed, raped and destroyed young girls in Rotherham have been given long sentences. Two local white women have also been convicted of supplying girls to the men. The reactions to these verdicts are instructive. Racists are red with righteous rage; this is what happens, they say, when you let “coloureds” into the country. Many anti-racists, just as blindly furious, assert race and ethnicity have nothing to do with what happened. The white female procurers are their alibis. The rapists’ relatives and community leaders stand by their men. They believe the blokes took what was freely offered by trashy females – children, daughters. Muslims who condemn the exploitation, in their eyes, bring shame on the community. That’s how twisted their values are.

The one question nobody asks is how these men have been treating their sisters and wives. Most of them behave just as abominably and cruelly indoors as they do outside when they prey on young flesh. They want control; they abjure equality. Some – a small minority – do feel a kind of love for the women and girls in the family but many have monstrous views on sexual equality and feminine desire. Home is a cage in which no pleasures are permitted, where hopes and freedoms expire. Activists have sought to free these women for decades. The terrible truth is that as society becomes more permissive, the number of caged birds increases. One caveat: I am not saying all Muslim girls and women are oppressed. What I am saying is that sexual predators from traditional Pakistani families and many other minority communities think all women and girls are low-life. I was looking at my wedding pictures the other day. On a cold, snowy December day, in 2000, I married my English husband in Ealing Town Hall. On the steps we had photos taken. It was freezing cold but I was in a silk sari, as was my mum. My Asian friends in their finery were shivering and smiling happily. The most striking, gorgeous person in the crowd was Humera (not her real name), who had stayed with me several times over the previous two years. She was from a northern town and had escaped a forced marriage. Her family had made her marry a man from Pakistan who had then raped her nightly for months. A social worker helped her escape. I heard of her case and offered to have her live with us for a while. The bruises on her thighs and breasts took months to heal.

She was one of countless such victims, all hidden and hopeless. Forced marriage has since been outlawed and girls have some protection and awareness of their rights but now we have Sharia courts in this country, which condone wife beating, marital rape, compulsory or child marriages, polygamy, paternal ownership of children and extreme sexism. Pre-pubescent Muslim girls are married on Skype. Imams praise this technology, which allows families to trade in their daughters – girls between the ages of six and nine among them. How did our rulers let this happen?

Political scientist Elham Manea, herself a Muslim, has written a new book, Women and Shari’a Law: the Impact of Legal Pluralism in the UK. She investigated 80 faith “councils”, which settle disputes and make quasi-legal decisions. According to Manea these courts are more hardline even than in Pakistan and many of their religious leaders issue horrendous advice. For example, a senior cleric in a British Sharia council pronounced that there was no “right age” for a girl to marry: “As you know, the earlier the better”. Humera’s family were not given religious authorisation to do what they did to her. Imams in the 1990s were conservative but not inflexible Islamicists. Today the human-rights abuses are validated by dozens of Muslim leaders as well as by influential Islamic institutions. Though forced marriages are a curse in Hindu and Sikh families too, they do not have systemised, pervasive doctrines to back their heinous behaviours.

Why is this even important when we are discussing the Rochdale crimes against white British children? Am I trying to deflect attention from those horrors? On the contrary; I am making vital connections. We should find out how those close to the three brothers and the uncle were treated. Was terrible violence meted out to them, too? Should we not know that? More than 1,400 vulnerable white children were abused in Rotherham. Thousands of others are being discovered in other towns. The numbers would shoot up if we also counted the family victims of the groomers.

Grooming and domestic rape often go together. Police and journalists need to be as concerned about the latter as they now (thankfully) are about the former. Families and communities will resist such probes, lob accusations of racism and “insensitivity”. But it has to happen. Females of all backgrounds should be protected from sexual savagery and misogynist Sharia courts. There must be one law for all.