Sharia, Shah Bano Verdict and its impact on the Indian Muslim women
SHARIA LAW, SHAH BANO VERDICT AND THE INDIAN MUSLIM WOMEN
INTRODUCTION
Since the inception of human
collectives, some rudimentary form of legal principles and law has existed to protect the community, not just from
external threats but also to ensure the well being and security of its members
and to deal with them, if they cause any harm to each other. Once society
developed, and Religion was introduced, it became the source which established
the principles on which, the way of life of an individual was to be determined
and how society was supposed to deal with any violations of the natural or
religious laws. The grip and rules of religion, thus differs from region to
region and community to community.
To understand the personal laws of Muslims,
i.e. the Sharia, it is important to understand the conditions and context in
which Prophet Mohammad led to the birth of Islam and how the society at that
time interpreted it. Historically Arabia was a land of tribes, nomads (Bedouin)
and lawlessness, it had never seen any form of government or regulation what so
ever. And amidst such barbaric condition, women were nothing but mere sex
objects, and the only purpose they had was that of producing children, from
tradition of burying an infant daughter alive, to the son inheriting his
father’s wives (except his birth mother) upon his death, women mostly had to resort to prostitution in
order to survive.1
In his book The Loom of History, H.
Muller summarizes how in Mohammed's Arabia there was no state
– there were only scattered independent tribes and towns. The Prophet formed
his own state, and he gave it a sacred law prescribed by Allah. Thus Islam emerged
as a monotheistic religion, with the core principle being emancipating men and
women from all forms of slavery by submitting themselves to the one true God,
i.e. Allah.
SHARIA
As per the Oxford Dictionary, ‘Sharia’ or ‘shariat’ is defined as the Islamic canonical law and based on the teachings of the Qur’an and the traditions (sayings and actions) of the Prophet (Hadith and Sunna), prescribing both religious and secular duties, and sometimes retributive penalties for law breaking. The understand and knowledge of the Shariat is called fiqh (Islamic jurisprudence) which is derived from four sources: The Qur’an, Sunna, Ijma and Qiyas. Fatwa (legal opinion of scholars/judges) have also become an important addition to the Islamic legal system.
While Qur’an is the primary canonical text of Islam as its considered to be the word of God spoken through Prophet Mohammad, 300 out of 6000 verses that it contains deals with legal principles, the second source is the Sunna which literally means the ‘path already walked upon’, it refers to the practices and customs followed by the Prophet, these were collected together, and the complied text is known as ‘Hadees/Hadith’. Later on, the legal scholars of that time had developed ijtihad i.e. they relied on rationality to interpret the existing laws and thus formed the third source, the Ijma. The fourth source, Qiyas referred to the already existing principles which were applied to similar situations by applying the means of reasoning and logic.2
First introduced by Arab traders in
700 C.E and later through the various Medieval Muslim Empires, by the time
Islam gained momentum in the Indian
Subcontinent, a unique culture had developed. As many of the Muslims were local
converts, they mostly adhered to their traditional customs and added the Sharia
laws to their daily lives and conflict resolution mechanism, thus creating a
unique system which gave the women an opportunity to seek redressal through Muslim
laws, when their previous legal system failed them.
WOMEN
IN SHARIA'S PURVIEW
Till the time Prophet was alive, he
revered women to be as equal as any man, not just in terms of their status in
God’s eyes, but also in the arena of economy and politics. His first wife Khadija, was one of his closest advisers, and the first Muslim of the world, and upon her
death it was Prophet’s youngest wife, Aisha who not just survived him for 48
years, but also, in accordance of how he had reportedly told his followers they would receive half their religion from her,
it is believed that she supervised the compilation of two-third of the Sunni
Hadith. The advent of Islam was nothing less than miracle for the women of
Arabia at that time; not just it gave them the status of human being, but also
managed to provide them with some form of agency and independence.
The Qur'an and the Sunnah emphasized
the spiritual equality of all Muslims. Islamic law recognized a woman's right
to choose her own marriage partner, and it set limits on the practice of
polygamy. A man could have as many as four wives, if he could provide for and
treat them equally. Islamic regulations also defined marriage as a contract
between a man and a woman or a man and a woman's legal guardian (wali).
They also required the groom to pay the dowry directly to the bride. In
addition, the Qur'an and Sunnah specified that women are entitled to inherit
wealth from her father as well as her husband as men can only give away 1/3rd
of their wealth away, and that married women should be able to control their
own money and property. These sources further stated that husbands must support
their wives financially during marriage and for a certain period (iddat) after
a divorce. Thus, Islam was the first religion in the world to introduce the
concept of Contractual Marriage and Prenuptial Agreements and the free will of
a woman to get divorced.
Though in the initial days of Islam,
women were not subjected to traditions of veiling or neither were they barred
from public spaces or praying in mosques or access to education and employment,
it was the pre-existing
patriarchal notions, practices and social structures of the people of the
society of Arabia as well as the lands that the Muslims later conquered which
imposed such restriction on women. Scholars, who were exclusively males,
interpreted the religious texts in a light which gave subjugation of women a
religious sanction. Fathima, Mohammad’s daughter who was mostly involved in the
domestic chores was idealized, and Aisha whose act of Challenging Ali, led to
the battle of camels, was subtly rebuked by many, and thus became the basis
which led to a tradition that women should not engage in politics, although
many reformist consider it an act of Autonomy, which must be upheld and
practiced.
SHAH BANO
CASE AND THE MUSLIM WOMEN PROTECTION ACT
By the time Islam spread to the world
and created a dominant position, most of its values of equality, and religious
rules which would have led to advancement
and well being of women had already been altered or completely
misunderstood. Thus, generations after generations which had internalized these
misinterpreted version of rules and regulations, as only the clerics were given
the authority to read and interpret the Holy Text, led to a systematic
structure of women oppression as the existing conditions of oppressive cultural
practices, poverty, illiteracy, political repression and patriarchy just
added fuel to the fire.
The British administration and India
had introduced a number of regulations to improve the existing condition of
women in India, many of which were later adapted by the Indian Government after
gaining independence. One such progressive law, was the Section 125 (Maintenance
Act) of the Criminal Procedure Code, according to which women of any religion
was entitled to receive an amount upto Rupees 500 if they had no other means to
sustain themselves upon being divorced from her husband.
 |
| Shah Bano |
Though this system of economic protection already existed in the form of Mehr in Muslim Community, the ground reality was that the amount was not enough, thus acting as a hollow ritual, with its aim of providing economic security to women, long forgotten. Shah Bano, a 66 year old divorcee, filed for compensation from her husband under Sec 125, after her husband stopped providing her with the promised monthly amount of Rs 200, though the lower courts ruled in her favour, her ex-husband, a renowned advocate appealed to the Supreme Court which, in turn, ruled in her favour as the act was fundamentally secular in nature and hence, any women could seek redressal through it.
The judgments and the concluding remarks of
the Bench led to a huge hue and cry among the Muslim community throughout the
world, clerics visited Shah Bano, creating an unruly pressure on her that how
her act of involving the court in the personal matter would not just set up a
precedent, but also how it went against the Sharia at the first place. On the
one hand while it brought the concept of Universal Civil Code in the central
discourse, it also led to a sense of fear among the minority community.
Shah Bano, withdrew her claim from the court,
and accepted rupees 2000 instead of the 2000 silver coins that was promised to
her as the mehr, though the orthodox community celebrated her act of withdrawal,
the undue pressure on government and vote bank politics eventually led to the
enactment of the Muslim Women (Protection of Rights on Divorce) Bill in 1986,
according to which a divorced woman shall be entitled to "a
reasonable and fair provision and maintenance to be made and paid to her within3 the iddat period by her former husband”.
The Act now met a backlash from the Hindu
community as they termed it as an appeasement policy of the Congress government
and how it was discriminatory for men from other religion as they were supposed
to provide maintenance for the rest of their lives. While the Muslim community
got divided between the liberal reformist who believed that the Act would now
throw Muslim Women under the bus, and
the orthodox who did not want any kind of interference in the laws of the
Sharia.
What must be taken into consideration
is the basis on which both the Shah Bano Verdict, and the Act were opposed, especially by men; they were
more focused on the supremacy of law
(orthodox muslims) or the plight of the man providing the maintenance
(non-muslims), neither group thought of the actual well being of the women
involved, as they were technically left with no means but to run from their
frugal relatives to Waqf Boards which are mostly destitute themselves. It was
only on the part of the Women’s Right Activists or the liberal Reformist Muslims
who tried to make the legal provisions safe and suitable for women.
CONCLUDING
REMARK
However the provisions of the Act left
it open for liberal interpretations and as commented by F. Agnes4,
‘reasonable and fair provisions' was
interpreted in the form of a one-time lump sum payment which was good enough to
serve the interest of the women.
It has been four decades since the judgment was passed
and almost three since the Act was Enacted, however due to lack of awareness, Muslim
women across the country are rarely able to seek redressal through either of
the provisions, and even if they do, lawyers mostly seek compensation under the
CrPC. As pointed out by T. Shahnaaz, “the rights granted to women could easily be
suppressed at the hands of patriarchy despite religious sanctions”. Though
women are glorified as highly respectable member of the society, upon whose honor
and dignity, the pride of the society depends, the truth that we see and live
is far from it, no matter what religion do we belong to.
What women all over the world must understand
is that how they have a composite layered identity, they aren’t just a
representative of their religion or their race, they are first and foremost a
human being and must be treated like any other human, with equality and and
with dignity, we aren’t above anybody but then, we don’t have a natural lower
status . Unless and until, we don’t protect our own interests, our own well
being as women, no other identity of ours matter. After all, self preservation
is one of the most basic law of nature and everyone has the right to protect
themselves, but again, not at the expense of someone else’s rights or life. After all, Matriarchy would prove to be as oppressive, as problematic as its counterpart Patriarchy. The world belongs to every organism, every object equally and thus must be achieved and celebrated.
BIBLIOGRAPHY
AND NOTE
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