Minority Identity and Gender Concerns

Author(s): Flavia Agnes

Source: Economic and Political Weekly, Vol. 36, No. 42 (Oct. 20-26, 2001), pp. 3973-3976
Published by: Economic and Political Weekly
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Minority Identity and

Concerns
Gender
Recent developments in the realm of matrimonial legislation - the
path-breaking Supreme Court decision upholding the constitutional
validity of the controversial Muslim Women's Act and the passage
of the amendments to the Indian Divorce Act - are an interesting
study of the issue of gender justice and minority women in a
communally vitiated atmosphere.
FLAVIAAGNES
wo recent events which have farreaching implications for minority
women are contextualised in this
essay. In the first part, the path-breaking
Supreme Court decision delivered on of
September 28, 2001, upholding the constitutional validity of the controversial
Muslim Women's Act is discussed. In the
second part, the amendment to the Indian
Divorce Act passed by the Lok Sabha on
August 30, 2001 is contextualised. These'
two historic milestones lend validity to the
premise thatsmall and significant reforms
within personal laws governing minority
communities have greater relevance to
minority women than the rhetoric of
an all encompassing and overarching
Uniform Civil Code (UCC) with its communal undertones.
T

Muslim Women's Act

Following the controversial judgment
in the Shah Bano case, a new statute was
enacted in 1986, which prescribed certain
new remedies to divorced Muslim woman.
But since this statute, the Muslim Women'
(Protection of Rights on Divorce) Act,
1986 (MWA for short)was enacted amidst
protests from women's rights groups and
progressive social organisations, it was
viewed with suspicion and foreboding by
these sections. Hence the first response of
the protesting groups was to challenge its
constitutionality, rather than examine its
viability.
While the writ petitions were pending
in the Supreme Court, the act gradually
unfolded itself in the lower courts. Appeals from the decisions of various high
courts gradually started accumulating,
along with the original writpetitions. What
was intriguing was that while the writ
petitions were filed by groups agitating for
Economic and Political Weekly

women's rights, the appeals were from

husbands aggrieved by the verdicts of
various high courts. This fascinating
phenomenon provided the first indication
that perhaps the ill-famed act could be
invoked to secure the rights of divorced
Muslim women. Hence, it became expedient to examine whether the new act
provided Muslim women with a more
viable and feasible alternative to the prevailing remedy under S 125 CrPC by
invoking Islamic principles of a 'fair and
reasonable settlement'.
Confronted with this reality, perhaps it
might have been prudentfor advocates of
women's rights to reframetheir equations
to the controversial act. Through thejudgment delivered by the constitutional bench
of the Supreme Court on September 28,
2001, the argument of constitutional invalidity has been negated. A five-judge
bench headed by Justice G B Pattanaik
unanimously declared that the act was
constitutional. But ironically, throughthis
very act, the court has provided a greater
protection to Muslim women. It is in this
context that it has become imperative to
gain a better understanding of the impugned act and to develop a more conciliatory approach of renegotiating its
provisions to better serve the cause of
Muslim women.
The Muslim Women (Protection of
Rights on Divorce) Act of 1986 could be
termed as one of the most controversial
legislations of our times. Enacted amidst
protests from women's organisations and
Muslim intelligentsia, the act symbolised
the loss of secular values in public policy
and betrayed the communal tendencies of
the then ruling Congress government. The
act deprived Muslim women of the rights
granted under a secular provision, S 125
of the Criminal Procedure Code (CrPC)
on the basis of religion alone and thus
violated the constitutional mandate of

equality. The act was also a clear departure

from the directive principle of enacting
a UCC.
The period between the pronouncement
of the Shah Bano judgment by a constitutional bench in April, 1985 upholding
the divorced Muslim woman's right of
maintenance under S 125 CrPC, to the
time the act was passed undera partywhip,
by the Congress government headed by
Rajiv Gandhi, in May 1986, was a turbulent one for women in general and Muslim
women in particular.Signaturecampaigns,
articles in the press, protest demonstrations and representations to the prime
minister could not stall the impending
enactment. A crucial right of subsistence
and survival seemed to have been cruelly
snatched away from an extremely vulnerable section, the divorced Muslim woman.
As the debate progressed, media projected two insular and mutually exclusive
positions, i e, those who opposed the bill
and supported the demand for a UCC as
modern, secular and rational, while those
in support of the new act and opposing
the UCC as orthodox, male chauvinist,
communal and obscurantist. Progressive,
modern and secular, in effect, also meant
nationalist, the opposing side being projected as anti-national. The judgment was
used by the Hindu right-wing to whip up
an anti-Muslim hysteria.
Ironically, the fury which was whipped
up, seemed to be divorced from the core
component of the controversy, a paltry
sum of Rs 179.20 pm, far too inadequate
to save the middle-aged, middle class, exwife of a Kanpur-based lawyer, from
vagrancy and destitution. The raging
controversy finally led Shah Bano herself
to make a public declaration renouncing
her claim. If this entitlement was against
herreligion, she declared, she would rather
be a devout Muslim than claim maintenance. A sad comment indeed, warranting
reflection from campaigners on both sides
of the divide.
The hurriedlydraftedand hastily enacted
statute was full of contradictions and
loopholes and seemed to have opened up
a Pandora'sbox. But despite its limitations,
the act was of immense historical significance, as the first attempt of independent
India, to codify the Muslim Personal Law.
But the positions across the divide were
so rigid by then, that they left no space
to contemplate upon this milestone in the
history of personal laws in India.
Once the act came into effect, the protesting groups were left with no option,

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3973

but to appeal to the judicial sensitivity, to

set right the wrongs caused to Muslim
women by the legislature. The first among
the public interest petitions challenging
the constitutional validity of the new act,
was by legal luminary Danial Latifi who
had represented Shah Bano in the controversial case before the Supreme Court.
Already in advancing years at the time of
Shah Bano case, the renowned scholar did
not live long enough to see the outcome
of his petition.

Ambivalence of the Act

Since the act was passed amidst protests
from rights lobbies, writ petitions challenging its constitutionality by these sections seemed to be in order. But difficult
to rationalise were the appeals, which
started accumulating from the rulings of
various high courts. Most of these were
filed by husbands who had felt aggrieved
by these decisions. If indeed the act was
deprivingwomen of theirpre-existingrights
and was enabling husbands to wriggle out
of their economic liability towards their
ex-wives, why were the husbands finding
themselves aggrieved by the orders passed
under a blatantly anti-women statute?
Lurking beneath this observation was a
faint suspicion that perhaps the ways in
which the act was unfolding itself in the
lower courts, was indicative of a different
reality, defying the premonitions. The
curiosity to solve this riddle has led to the
present exploration.
A seemingly innocuous clause, which
had missed the attention of protesters and
defenders alike, had been invoked by a
section of the judiciary, to pronounce
judgments, which provided greater scope
for protection against destitution.
Section 3 (1) of the Act stipulated:
Notwithstandinganythingcontainedin any
other law for the time being in force, a
divorced woman shall be entitled to:
(a) a reasonable and fair provision and
maintenanceto be made and paid to her
within the iddat period by her former
husband;
The above clause, along with the preamble:
An act to protect the rights of Muslim
women who have been divorced by, or
haveobtaineddivorcefromtheirhusbands
andto provideformattersconnectedtherewith or incidentalthereto provided sufficient scope for a positive and pro-women
intervention.
Though initially just a trickle, the judgments were a pointer towards a possibility.

3974

They affirmed that the new act was to

protect the rights of divorced Muslim
women andnot deprive them of theirrights.
They further stressed that any ambiguity
within clause (1) (a) of Section 3, must be
interpretedin such a manneras to reconcile
with the proclamationcontained in the title
of the act. Banishing divorced women to
a life of destitution would not amount to
protecting their rights as stipulated by the
statute, they declared.
Suddenly, the lump sum provisions for
future security, which the courts were
awarding within the framework of Islamic
principles, seemed to be a better safeguard
against destitution, than the meager sums
which women were entitled to underS 125
CrPC through a monthly recurringentitlement. A reading of thejudgments indicates
that the act had rid itself of the agenda of
alleviating vagrancyanddestitutionamong
divorced women and had extended itself
to the claims of women from a higher
social strata, than merely those who live
below poverty line.

Conflictsand Concerns
The signals from the courts were clear
and the Muslim leadership was quick in
its.response. By August 1992, Syed
Shahabuddin (MP) had introduced a private members' bill to cleanse the statute
of its so-called ambiguity. The statement
of objects and reasons summarised the
need for an amendment as follows:
The enactment (Muslim Women's Act)
was accompanied by a national controversy and thatcontroversyhas not abated
even now. In fact, a plethoraof ordersand
judgments from the level of the lower
courtsto thatof the high courtshave added
to theconfusion,while its constitutionality
itself remains under challenge in the
SupremeCourt.A sense of uneasepersists
in the minds of the Muslim community.
At the time of its passage through the
parliament,a largenumberof amendments
were proposed but either they were not
pressed or they were voted out because it
was felt that in the then-existingpolitical
situation, the bill should be passed as it
was and later amended, if necessary.
The statute enacted in haste, at the insistence of the conservative leadership,
seemed to have boomeranged.
The women's rights lobby lagged behind. It seemed to be unmindful of the
tidings from the courts. It did not reformulate its equations to the act in the wake
of these rulings. The initial strategy of
challenging the constitutional validity of

the act persisted. In the public mind the

new act continued to hold a negative
connotation.
In the intervening period of 15 years,
neither the Supreme Court nor the parliament indicated any urgency to settle the
scores one way or the other. If at all there
was an unease within the Muslim community in respect of the act, as claimed by
Syed Shahabuddin in the introduction to
his bill, it did not surface nor spill over
to the political arena. The community was
seized of more pressing matters, particularlyafterthe demolition of the Babrimasjid
on December 6, 1992, the riots which
followed and the various commissions
which were set up to investigate into these
events. So the issue of women's maintenance was pushed to the back seat by
everyone concerned. The act provided
virtually two different sets of remedies
depending upon the high courtunderwhose
jurisdiction the woman resided. While in
some states she was entitled to a fair and
reasonable provision in addition to maintenance during 'iddat' period, in others,
her right was restricted to maintenance for
the iddat period.
After the long inertia,the Supreme Court
was ready to hear the matter. The entire
group of cases, more than 25 in number,
revolving around the issue of Muslim
women's maintenance, were listed for
hearing in the last week of August 2000.
Arguments on behalf of women revolved
aroundthe constitutional validity of the act
and its un-Islamic characteristics and premises. Opposing them was the All India
Muslim Personal Law Board (AIMPLB),
the architect and ardent supporter of the
controversial act, defending its constitutionality. The AIMPLB's concern was the
apparent wrong interpretations by the
various high courts.
The purpose with which this probe of
judicial pronouncements of the intervening period was embarked upon, was to
assess the emerging trends. But, along the
way, the study exposed the level of uncertainty and subjectivity that govern judicial
pronouncements and belied the popular
notion that an enactment, at the very least,
provides certainty and uniformity. The
judicial pendulum swung from one end of
the spectrum to the other, spreading confusion along the way. The study validates
a legal maxim pronounced by the renowned jurist, Justice Krishna Iyer, way
back in 1980, that a socially sensitised
judge is a better statutory armour against
gender outrage, than long clauses of a

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complex statute with all the protections Rs 7,500 as maintenance during the iddat
writ into it.
period [P K Saru v P A Halim]. Soon
In a significant number of cases, a several high courts followed suit.
Inthe yearsthatfollowed, the full benches
concerned and sensitive judiciary, carved
of Punjab and Haryana and Bombay, the
out a space for the protection of women's
rights from what appeared to be an erro- division benches of Bombay, Kerala,
neously conceived, badly formulated and Madras and single judges of several other
blatantly discriminatory statute, without high courts upheld this view. The courts
invoking a political backlash. Endorsing ruled that even when a wife has some
the spirit of Islam and the shariah and source of income the right under S 3 of
reflecting the sensitivity of the Prophet, the MWA is not extinguished.
The positive interpretations have ushwho is hailed as the greatest champion of
women's rights the world has ever seen, ered in a new era of protection of rights
the courts read into the statute, notions of within the established principles of Musjustice and equity. Doing precisely what lim law. But the struggle has not been easy.
the act in its title proclaimed, i e, protection Women had to fight every inch of the way
of rights of divorced Muslim women, the due to the ambiguities caused by callous
judiciaryturnedwhathadinitially appeared drafting. The act provided ample scope to
to be a misnomer and a mockery into a husbands to exploit the situation which led
factual reality and ushered in a silent to protracted litigation beneficial to husrevolutionin the realmof Muslim woman's bands and a nightmare to women. But
rights. It would indeed have been tragic women withstood the ordeal with courage
if these concerted efforts were invalidated and determination, with patience and
through a single stroke of pen from the perseverance. After a decade and a half,
the end result of this persistent struggle are
apex court.
The most significant issue which
clearly visible.
For the women, the crucial right of
emerged out of the enactment, revolved
around the stipulation of 'a fair and rea- survival hinged upon interpretations and
sonablk provision'. Drawing on the Is- explanations of simple words like 'within/
lamic concept of 'mataaoonbil ma'aroofe' for' 'and/or' 'maintenance/provision',
(fair and reasonable provision), several disjunctures and conjuctures of words and
high courts opened a new portal for the phrases. Through this labourious process,
protection of divorced Muslim women. the criteria for the civil right of divorce
The remedy, which the courts so carefully settlement has been taken out of the earlier
craftedout of the controversial legislation, legal premises such as 'unablity to mainin fact, seems to provide a bettersafeguard, tain', 'prevention of vagrancy' 'a dole
than the earlier anti-vagrancy provision to hold together body and soul'. The high
under S 125 CrPC.
courts delivered women from the liability
The first significant judgment on this of recurring monthly dues, which hinged
issue was pronounced by Justice M B upon post-divorce chasity. Several judges
Shah, then presiding over the GujaratHigh declared that 'provision' contemplates
'future needs' and that the parliament has
Court, on February 18, 1988 (Arab
AhemadhiaAbdulla v ArabBail Mohmuna replaced one set of obligations of a Muzlim
Saiyadbhai [AIR 1988 Guj 141]. But even husband with another. The ruling of the
before this, the dice was cast in women's apex court finally put its seal on these
favour, by a woman judicial magistrate in explanations and interpretations.
Lucknow on January6, 1988. The woman
Viewing these developments from my
concerned, Fathima Sardar, was awarded perspective as a matrimonial lawyer, the
Rs 85,000 as maintenance during iddat statute introduces a new principle in the
period, 'mehr' entitlement and fair and realm of Indian matrimonial law, that of
reasonable provision.
lump sum settlements at the time of diFollowing the judgment of the Gujarat vorce. This is the aspiration of a divorced
High Court, the Kerela High Court upheld woman from every community, in place
this view in Ali v Sufaira (1988(2) KLT of an extremely restrictive, recurring
94) and Aliyar v Pathu (1988 (2) KLT monthly entitlements, which are difficult
172). These judgments were pronounced to enforce. Furtherthe woman would have
in the months of July and August 1988, to withstand the test of chastity and nonrespectively. In another unreportedjudg- maintainability for each month she is
ment, the Kerala High Court upheld the awarded maintenanceand the husbandhas
woman's right to Rs 3,00,000 as fair and the immese power to wield this sword at
reasonable provision and also awarded any point of the recurringliability.
Economic and Political Weekly

Having traversed thus far, what now

remains now to be seen is the response of
the All India Muslim Personal Law Board
to thejudgment. It must be highlighted that
the Muslim Women's Act was enacted at
the behest of community leaders. The
contentious issue was that Islam does not
impose a recurring liability upon the divorced husband and claims have to be
settled within the period of iddat.The issue
was not denial of rights to women as is
popularly made out, but of providing alternative ways in which this right could be
reframed. Retrospectively admitting that
the act is faulty, only because of its positive
interpretations of safeguarding women's
rights within the well established Islamic
principles of mattaaoonbil ma'aroufe may
not augur well for the Muslim religious
leadership in the present context.
The admission by Syed Shahabuddinin
the introduction to the private member's
bill in 1992 that "...at the time of its
passage...a large number of amendments
were proposed but either they were not
pressed or they were voted out because it
was felt that in the then existing political
situation, the Bill should be passed as it
was..." is reflective of political opportunism rather than religious conviction and
would be rather difficult to defend.
In the present climate, when the Muslim
leadership is confronted with several grave
concerns in respect of its identity andimage
both nationally and globally, one hopes
that the apex court ruling will not provide
fuel to a campaign for depriving its
womenfolk of their basic right of survival.

Amendment to Indian Divorce Act

For the debate on Christian women's
rights, the scene changes from the judiciary to the legislature. The amendment
passed by both houses of parliamentin the
last week of August, 2001 is a culmination
of two decades of struggle of Christian
women to bring changes into the archaic
and outdated act which is a relic of India's
colonial past. Enacted in 1869 the act
continued to oppress Christian women for
a century and a half. The amendments are
a milestone in the direction of 'reform
from within' in the realm of personal laws.
Though the task was tedious and needed
a constant dialogue between the law
minister, Christian women's groups and
the church hierarchy, the effort was well
worth the while.
The most significant aspect of the bill
is to make cruelty, adultery and desertion

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3975

independent grounds of divorce, thus settle an errantwoman's propertyin favour the interest of women are not sacrificed.
In November 2000, a delegation comreleasing the Christian women from the of her husband/children has also been
prising of Majlis representativesalong with
century-old shackle of having to prove deleted.
The struggle for amending the archaic Jyothsana Chaterjee of Joint Women's
dual grounds of adultery along with cruelty or desertion in order to obtain a di- statute has been long and chequered with Programme, Delhi and Virginia Saldhana
vorce. Christianmen could obtain divorce the orthodox and conservative opinion of Women's Commission of the Catholic
upon a single ground of adultery. In 1997, within the variouschurchesthwartingevery Bishops Conference of India (CBCI) met
the Bombay High Court had struck down move to modernise the statute since the the law minister and urged him to include
this provision as discriminatory against 1960s. Met with repeated opposition from eight more amendments along with the
women. Kerala and Andhra Pradesh High the churches, around 1983 Jyotsna
three already suggested by him. The
Courts had also similarly struck down Chatterjee of the Joint Women's
meeting was facilitatedby BeatrixD'Souza,
this provision. But through the amend- Programme, Delhi, initiated a sustained Lok Sabha MP from the Samata Party.
ment, Christian women all over India will campaign to obtain consensus of all the Majlis representatives also met the CBCI
be rid of this discrimination.
churches for a new bill along the lines of representatives and urged them to consent
Anothersignificant aspect of the amend- the Special MarriageAct. After the struggle to these amendments as they did not hinge
ment is making available the remedy of of a decade, a new bill was finally ready upon any religious tenet and were in fact
mutual consent divorce to a Christian and was sent to the prime minister's office matters of practical concern for women.
couple for the first time in the history of in 1993, where it lay gathering dust till the These amendments were then circulated to
modern India and thus doing away with country entered a new millennium.
all Christian MPs seeking their active
the need of proving a matrimonial fault.
When Ram Jethmalani was the law support in parliament. When the bill was
While all other communities could avail minister, he took it upon himself to finalise introducedin parliament,in its earlierform
of this facility for last several decades, a the bill. But the bill, finalised by the present with only three amendments, due to this
Christiancouple desiring a divorce had to NDA government, met with opposition campaign, it was referred to a select comcollude and fabricate false grounds of from the churches as it included certain mittee headed by the congress MP Pranob
matrimonialfault against each other, adul- provisions which would lay the clergy Mukherjee to explore the possibilities of
tery being the most oft used among them. susceptible to penal provisionsby the state. including the other eight amendments to
Usually the husband would accuse the In the final draftingthe law departmenthad the bill. Through yet another winding
wife of adulteryand in the hope of a decent added provisions which had not been process the consent of the community
settlement the wife would consent. In this endorsed by the community hence it raised leaders was sought so that it did not raise
absurdfarse played in court rooms on oath, an alarm. In the present communally vi- furthercontroversy. Finally a new amendthe couple, their lawyers and the judges tiated atmosphere, the church felt that it ment bill was drafted which met with the
were all consenting parties! Now finally could be misused against the clergy. After cabinet approval in mid-August and was
thecouple can opt for an honest andstraight- the unceremoniousdepartureof Jethmalani passed by the Rajya Sabha on Monday,
forward divorce with consent.
front the ministry, one felt that the issue August 27, 2001 and by the Lok Sabha on
Inching its way towards gender justice, had been shelved. But the new law min- Thursday, the August 30, 2001.
the ceiling set upon maintenance that it ister, Arun Jaitley picked up the threads.
While the Gazette Notification heraldshould not exceed one-fifth of the In September 2000, he made an announce- ing the changes are still awaited, there is
husband's income has been removed. The ment that the controversial bill would be a sense of jubilation among thousands of
amendments have also deleted the provi- shelved and the government would only Christians whose cases are pending in
sion of confirming every decree passed by introduce amendments to the most blatant various courts across the country. With
the districtcourt in a subsequent procedure provisions of the Indian Divorce Act.
these amendments, the Indian Divorce Act
in the high court which rendered the proThe church responded to the news with will very closely resemble the Special
cedureof obtainingdivorce doubly cumber- the traditional apprehension asking why Marriage Act. The only discriminatory
some for a Christiancouple and amounted the government had changed its course aspect of the new bill is that the period
to 'procedural unreasonableness'.
midway. Any move from a right-wing of separation for a divorce by mutual
The amendmenthave also expanded the government with a declared anti-minority consent is two years while underthe Special
jurisdiction of courts to entertain petitions stand becomes a suspect. For the women's Marriage Act and the Hindu Marriage Act
in both the place of marriage as well as organisations, this would mean a major it is one year.
the place of last residence. While under setback to the struggle which spannedtwo
These developments provide an interestall matrimonial statutes the dual jurisdic- decades. The challenge then was to bring ing study in the realm of genderjustice for
tion was conferred,a Christiancouple could all stakeholders to the negotiating table to minority women within a communally
file for divorce only at the place of last work out common grounds of reform. At vitiated atmosphere. The process is slow
residence. For women this would invari- this stage, Majlis, a women's rights group and gradual and each juncture a new stratably be the place of their husband's resi- from Mumbai stepped in and initiatedfresh egy will have to be evolved. But rights of
dence which would make it impossible for rounds of negotiations with the Church women which is a complex issue, enthem to file for divorce if, after separation and the state. If by amending the existing trenchedin broaderpolitical processes must
they moved back to their natal home where bill the purpose of gender justice would evoke a complex response. The positive
the marriage had been performed.
be served, there would be no problem in outcome of these two campaigns will
The blatantly sexist provision entitling shelving the controversial bill. The tight- hopefully pave the way for many more
a husband to claim damages from the rope walk was that while ensuring that struggles for empowerment of women in
adulterer or the power of the court to minoritysentiments arenot trampledupon, the years to follow. [3Z

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