Shah-Bano-eng

Shah Bano, MW Act, and Mataa
Perhaps to the surprise of many, in-depth analysis of the
ambiguous and ill-drafted Muslim Women Act, so hastily pushed
through Parliament in early 1986, may produce provocative and
exciting insights — as demonstrated by decisions of some of the
judges called upon to interpret and apply that statute in cases coming
before their courts. There is, unquestionably, an interpretation of the
Act which will actually do what the title asserts it was intended to do
— protect and preserve the rights of divorced Muslim women. Inter
alia, this means that it will not be necessary to strike down the entire
Act as unconstitutional, although at least sections 4, 5, and 7 must be
eliminated.
It is quite shocking to note that the petitions challenging the
constitutionality of the Muslim Women Act, filed in the Supreme
Court immediately after its enactment have not been called up for
hearing during the course of more than eleven years! Meanwhile, the
problems escalate and the intolerable (and unconstitutional)
inequality introduced by denying to Muslim divorced women, simply
on the basis of their religion, access to the relief provided to all other
Indian divorced women by section 125 of the Criminal Procedure
Code, 1974, is cruelly exaggerated by the diverse interpretations of
the Act reached by the various High Courts: in some States a divorced
Muslim women may obtain “provision” (mataa) for the post-iddat
period; in others she can get nothing beyond maintenance for the
iddat period.
The Muslim Women (Protection of Rights on Divorce) Act is a
central statute; it must be interpreted and applied uniformly
throughout the Republic of India. The only way to ensure this
uniformity is for the Supreme Court to pronounce on the matter. It is
not even necessary for that Court to wait for a party to bring a case
up in appeal; the Supreme Court must be reminded of the Writ
Petitions that have been pending before it for more than a decade,
and encouraged to call them up for immediate hearing.
As the documents collected in the second part of this volume
demonstrate, there has from the beginning been impressive and
informed support from within the Muslim community for the change
introduced in the Criminal Procedure Code in 1974, extending the
minimal protection against destitution afforded by these provisions to
encompass the destitute divorced woman. Likewise, in 1986 there
was impressive opposition from within the Muslim community to the
ill-conceived and politically-motivated Muslim Women (Protection of
Rights on Divorce) Act, rushed through Parliament with little debate
and a three line whip. The government of the day, for its own
reasons, listened to only one side of the argument, and women, not
for the first time, were made the scape-goats of male political greed.
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