An article in today’s online edition of Indian Express (‘Shah Bano to Shabana Bano‘) praises the reformist track record of the Supreme Court in matters concerning divorce and maintenance of Muslim women. A perusal of the judgement delivered in the case of Shabana Bano v. Imran Khan shows the subtle yet refined lines of legal reasoning drwan out by the judicial system since the Act became law.
The present law as interpreted by our Supreme Court is that a divorced Muslim woman would be able to claim maintenance under Section 125 of the Criminal Procedure Code, 1973 as long as she does not re-marry. This case only builds upon another existing case (Daniel Latifi v. Union of India, 2001) which held that a Muslim woman is entitled to a lump sum at the time of divorce.
It is shameful to see that an organ of government which is supposed to be an arbiter of justice is at the fore-front of reforming Muslim personal laws. In the Shabana Bano case it dwelt upon the meanings of relevant Muslim treatises to determine what would be the adequate standard of protection to be given to a divorced Muslim woman.
Deliberating upon the nature of Muslim personal law, and the protection which should be given to divorced women is the role of the Parliament. All Parliament did instead was to pass a regressive law which has not been touched in its 24-year long existence. Except for some Private Member Bills introduced in Parliament, and stray discussions here and there, no substantive discussions have been witnessed in parliament over the issue.
We should indeed be thankful that the Courts have deftly side-stepped the Muslim Women Act to bring Muslim women on a more egalitarian plane. An indicator of the uselessness of the law can be seen by the fact that less than a hundred cases on maintenance under this law seem to have been decided by High Courts and the Supreme Court (Manupatra search). For a law which has continued to affect minorities for more than two decades, a clearer indicator of the sheer futility of its existence cannot be imagined.
It seems ironical, but also tragic that a law created ostensibly to protect the rights of Muslim women has been used so little by the targeted group itself.