This is the much delayed third part in our series on the Uniform Civil Code. In part one, we looked at how the British established religion-based laws to administer Indians. Part two examined Jawaharlal Nehru’s legacy—and his decision to reform Hindu laws but leave the Muslim code untouched. Today, we look at the creation of Muslim law in the colonial era—and the only post-independence intervention to change it: the Shah Bano judgement and the amendment introduced by Rajiv Gandhi.
Editor’s note: We couldn’t get to the remaining parts of this series as we were constantly waylaid by breaking big stories—which always receive precedence. Let’s hope we can wrap this up tomorrow:)
Researched by: Nirmal Bhansali & Rachel John
Muslim personal law: An origin story
A quick refresher: As we saw in part one, in order to effectively rule India, the British implemented a sweeping set of laws—and accompanying judicial system. This included separate family laws for different categories of Indians—that blithely ignored the immense diversity of identities and practices. To frame these laws, the British turned to the native elites—whose norms would now be imposed on all who were put into their particular “container.” Worse, English judges were tasked with interpreting these laws—which resulted in an unfortunate khichdi that was eventually codified in the 1930s/1940s. The truth is that there never was a uniform ‘Hindu’ or ‘Muslim’ or ‘Christian’ set of laws—except in the minds of the British.
The big picture: Until the early 19th century, many Muslims followed a variety of practices—a mish-mash of local customs and the shariat:
In 1884, data published in the Gazetteer of the Bombay Presidency classified Muslim castes both as strict and lax. One lax Muslim caste, the Pindharas, for example, still worshipped the local folk goddess Yellama. In Bengal, a sharp division between non-Muslim and Muslim appeared only during the British Raj. Till then, across rural Bengal, there existed a shared spectrum of divinity.
In 1866, the British judicial system elevated the Shariat over local customs. In the following decades, various High Courts disallowed the use of customary law. But they also reversed themselves—declaring the importance of customary law in 1913.
A Muslim identity: But at the turn of the century, the personal law became important—not to the rulers but to the ruled—i.e Muslim nationalists:
By then, a new kind of Muslim politics was emerging: one that spoke the language of modern nationalism and intended to carry the masses along. But for Muslim nationalism to take off, one required Muslims. This necessitated the creation of a Muslim identity — one that we would recognise today. Like Christian Europe before it, many Muslims in India started to identify much more strongly with orthodox faith and shed the mixed religious practices that characterised their past history.
A Muslim personal law: was established in 1937—around the same time when Hindu laws were codified. But where Hindu laws focus on customary usage, the Muslim law was supposed to reflect the strictures of the Shariat. The close linking of Muslim identity and law to the Quran was spearheaded by the Muslim League:
[I]n the 1930s, the Muslim League took up the case of codifying the Shariat as part of the law of British India. It sought to end the confusion in courts over which law would apply to India’s Muslims. Since the League would benefit politically from the emergence of a pan-Indian Muslim identity, it required the Muslim-ness of a person to be his primary identity. Here, identification with the Shariat – over and above customs of caste and region — was important. In the end, this politics would go on to produce the Shariat Act, which forms the basis for Muslim personal law in India today.
Key point to note: Muslim leaders used women’s rights to make a case for the Shariat Application Act. They noted correctly that the Quran gave women greater rights of inheritance than customary joint family laws—which denied women any share in family property (which remains true to this day for Hindu wives). In 1939, the League would pilot the Dissolution of Muslim Marriages Act—giving Muslim women the right to divorce their husbands—a right Hindu women would take at least another two decades to acquire.
But, but, but: The Muslim League’s underlying agenda was to lay the foundation for the two-nation theory. And that’s why Mohammed Ali Jinnah easily set aside the Shariat to protect the interests of powerful landed families of Punjab—exempting agricultural land from these inheritance laws.
The Nehru legacy: As we saw in part two, Prime Minister Nehru refused to reform Muslim law—even as he fiercely campaigned to make the Hindu code more progressive. He declared, “We do not dare touch the Moslems because they are in a minority and we do not wish the [H]indu majority to do it. These are personal laws and so they will remain for the Moslems, unless they want to change them.”
As a result, Muslim personal law remained frozen in time until the 1980s—as did the notion of Muslim identity:
With respect to the Muslim community, Nehru’s policies further perpetuated the image of Indian Muslims as ‘conservative and resistant to change’. Indeed, Nehru himself assumed they were so, without ever testing the proposition as Hindu opinion was tested. This served to tie Muslims even more closely to their personal law as a (if not the) critical marker of their religious identity, and as separate in the context of an Indian nationality that was supposed to be secular.
Point to note: Over the decades, other Islamic countries embraced reform—for example, outlawing ‘triple talaq’—a man’s power to divorce his wife by simply uttering the phrase thrice. But any such move was fiercely opposed in India (until recently) simply because it allowed the state to “interfere” in the personal law—and therefore the religious identity/freedom of Muslims.
The landmark Shah Bano judgement
Both the Supreme Court judgement and the legal amendment that followed have become a key part of the case for a uniform civil code. In popular belief, the Court stood on the side of feminism while the Rajiv Gandhi government sold out Muslim women. That’s partly but not entirely true.
First came Mrs G: In 1973, Indira Gandhi revised a number of laws contained in the Criminal Procedure Code inherited from the British. One of the clauses allowed abandoned or deserted wives and parents who were destitute to claim maintenance from their husbands or children. Some Muslim men ducked such claims by divorcing their wives—since the law did not require them to support ex-wives. To fix that loophole, Gandhi amended the definition of a ‘wife’ to include any woman who had been divorced and not remarried.
Key legal point to note: Under Muslim personal law, a husband is only required to pay a one-time settlement—and maintenance for the first three months after divorce—a period known as iddat.
The fallout: Muslim leaders were upset at the time—and Gandhi addressed their concerns by amending a different part of the criminal code. This allowed a judge to cancel any claim of maintenance if the woman had already received the amount due to her under the personal law.
The first two ‘Shah Banos’: Before the landmark case, the Supreme Court had made similar rulings in two other cases—in 1979 and 1980. In both cases, the Court said that the man still had to pay maintenance required by the criminal code—if the amount paid under the personal law was inadequate: the “sum paid at the time of divorce must be...realistically sufficient to maintain the ex-wife and salvage her from destitution.”
The 1985 Shah Bano case: was very similar to the two that preceded it:
- Shah Bano married Mohammed Ahmed Khan in 1932.
- In 1975, he drove her out of the house—and in 1978, she filed a petition for maintenance under the criminal code.
- Khan responded by divorcing Shah Bano—and paying her a one-time settlement of Rs 3,000 as per Muslim law.
- She moved the High Court—which awarded her a monthly maintenance of Rs 179.20.
- Khan appealed the ruling in the Supreme Court—arguing he had already paid what was due under the personal law.
- The Court rejected his appeal and upheld the High Court’s ruling. And then all hell broke loose.
The primary cause: for the uproar was not the ruling per se—but its language. Unlike previous judgements, the bench—made of up of five Hindu men—waded into questions of religion and the need for a uniform civil code. Example:
The 1985 judgement began by referring to the ill treatment of women in Islam, noting that “it is alleged that the “fatal point in Islam is the degradation of woman.” The justices went on to observe that “[t]o the Prophet is ascribed the statement, hopefully wrongly, that ‘Woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore treat your wives kindly’.”
To be fair, the justices merely said that Islam and other religions have been accused of misogyny—but that bit of hair-splitting did little to douse the fires. Not making things better: the Court’s attempt to interpret verses from the Quran—cited by the defence lawyers.
The final straw: was the Court’s unequivocal appeal for a uniform civil code:
It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” There is not evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law.
A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell that cat by making gratuitous concessions on this issue… We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning.
The fallout: Muslim leaders were incensed at what they viewed as an attack on the Shariat. Thousands attended rallies, strikes and meetings. On the other side, Hindu nationalists mobilised in favour of the judgement under the BJP banner—while the Rajiv Gandhi government waffled. It first supported the Supreme Court ruling—insisting it did not constitute interference in Muslim law. But it soon wilted under political pressure and introduced a bill to overturn the Court ruling.
Muslim Women Bill: The bill flatly stated that when both partners are Muslim, only the personal law will be applicable:
It stipulated that a Muslim husband was to support his divorced wife only for the three-month period of iddat. Thereafter, any responsibility for her support, in the event she could not support herself, would fall on her children, her father, her brothers and sisters and so forth, and finally on the Muslim community at large.
The Rajiv Gandhi legacy: When opposed by women leaders within his party, Rajiv’s defence sounded eerily similar to that of his grandfather. Here’s then minister for women Margaret Alva’s account of one such conversation:
“I pleaded with the Prime Minister to stand firm…I persisted. ‘Your grandfather had the courage to stand up to Hindu right-wing groups and bring in the Hindu Code Bill despite their opposition. Today everyone has accepted it. Please do not tarnish your image,’ I begged. Rajivji was upset. ‘Yes, my grandfather was a Hindu dealing with Hindu law. Here I am a Hindu dealing with Muslim law. Do you see the difference?’”
Rajiv then laid the blame on Muslim women, declaring:
Do you know that educated Muslim women like Najma Heptulla and Mohsina Kidwai are pleading for this law? Get me 50,000 Muslim women to oppose this move at Rajpath, like you did at Bangalore, and I will concede your demand.
But, but, but: The Muslim community was split over the issue. Supporters of the ruling “felt the Supreme Court judgement was in accordance with the basic principles of Islam, and thus did not constitute interference in Muslim personal law.”
But Rajiv only consulted Muslim leaders who opposed the ruling—choosing to pay attention to the voices that most suited his political needs:
Nehru advocated the reform and codification of Hindu personal law in the 1950s in order to achieve national unity and integration. On this basis, the progressive view prevailed with the government’s sanction. Rajiv Gandhi feared the erosion of minority community support for the Congress Party; therefore, his government sanctioned the conservative Muslim position.
FYI: The Congress party lost two key by-elections in 1985—which were seen as a result of losing the Muslim vote.
Key legal point to note: A number of experts have argued that the Muslim Women Act has secured the right to alimony:
[Rajiv] had also cunningly (in a good way) inserted section 3(1)(a) which spoke of “a reasonable and fair provision and maintenance to be made and paid” by a Muslim husband to his divorced wife. In effect, the act did not nullify the concept of alimony and upheld the Shah Bano judgement. In fact, the act actually strengthened the position of Muslim women, since unlike the secular alimony law, which had a ceiling of Rs 500 per month, the Muslim Women Act had no upper limit, thus making men liable to potentially even higher maintenance payments than they would have if they had been subject to India’s secular alimony law.
But other studies show that these gains are mostly theoretical—since Muslim women rarely file maintenance claims afforded by the law.
The bottomline: In part four, we will look at the current debate over the uniform civil code—shaped by this tumultuous history of the past 251 years from the colonial courts to the Supreme Court.
We highly recommend two pieces by Shoaib Daniyal in Scroll: One looks at the history of the Muslim personal law; the second argues that Muslim law has been reformed over the years—in gradual but significant increments. Rina Verma Williams’ ‘Postcolonial Politics and Personal Laws’ offers a nuanced analysis of the Shah Bano case—and how Rajiv Gandhi handled the controversy. BBC News and Al Jazeera look at how Muslim women rallied against triple talaq.