At the time when the Supreme Court judgment, awarding maintenance to the 74-year old Shah Bano, was being vociferously opposed on the streets by many Muslim organisations, our Party strongly defended the judgment and the rights of divorced Muslim women.  Inside parliament, our MPs including the late Saifuddin Chowdhury made strong and eloquent interventions on the issue.  AIDWA organised a procession of more than 2000 Muslim women from all over the country demanding that the Supreme Court judgment be honoured.  An AIDWA delegation met the then prime minister, Rajiv Gandhi, and handed over a memorandum signed by thousands of Muslim and non-Muslim men and women demanding his government’s support for the judgment.  Most unfortunately, despite the fact that he had assured the delegation of his support, he compromised not only the position of his government on a legal issue but on the question of a secular and gender-just approach to women’s issues.  It must be kept in mind that Sec. 125 under which maintenance is granted is part of the Criminal Law procedure which is actually out of the purview of the Personal Laws of different communities.  Despite this, not only did various Muslim organisations fight tooth and nail against the judgment but they also succeeded in forcing the government to pass a law taking Muslim women out of the purview of this particular section of the law.  This act of the government had very serious repercussions and gave the Ramjanmabhoomi movement launched by the Sangh Parivar a tremendous boost.

Since then, the Sangh Parivar has regularly demanded the enactment of a Common Civil Code but, unfortunately, neither they nor eminent jurists nor other organsations have actually tried to formulate the provisions of such a Code and submit them for discussion and debate.  While our Party, in principle, believes that patriarchal and unjust laws need to be changed or done away with, we are also opposed to the communalisation of this issue which is unfortunately what has occurred.

AIDWA had taken an early initiative to organise a workshop on ‘Equal Rights, Equal Laws’ where members of all communities had spoken about the injustice that women suffered from the way in which personal laws were interpreted and implemented in India and many reforms were demanded.  Unfortunately, no government (including BJP governments) addressed these issues sincerely.  The campaign for a Common Civil Code, however, continued to figure prominently in Sangh Parivar campaigns and BJP manifestoes.

After the Shah Bano issue, the All India Muslim Personal Law Board (AIMPLB), an umbrella organsation of representatives of several Muslim sects, came into prominence and soon adopted for itself the mantle of representing all Muslims. This has been hotly contested by leaders of various Muslim communities, organisations and also eminent Muslim jurists and lawyers.

Recently, issues pertaining to the way in which Muslim Personal law is interpreted and implemented in India are once again the focus of much public attention and debate.
In April, Shayara Banu approached the Supreme Court to ban the practice of ‘talaq in one sitting’ (Talaq e Biddat).  She had been divorced through the sending of a letter by her husband of 15 years. She has challenged not only this form of divorce but also the heinous practice of ‘halala’ that is closely connected to it and also the right of Muslim men to polygamy.  Halala is a practice in which a woman divorced by a man in one sitting has to undergo if her husband later regrets his action and the couple wants to re-unite. For this to happen, she has to marry another man, consummate the marriage with him and then be divorced by him in the same manner.  It is not difficult to imagine the humiliation and abuse that this inflicts on the innocent victim. It is also a fact that often the second husband refuses to divorce her leading to further misery.  
In his widely recognised ‘Outlines of Mohammadan Law’, the jurist Asaf Fyzee writes “ There is complete unanimity of opinions that in Islamic parlance the term ‘Bidat” is used for all those practices which originated after the Holy Prophet (pbuh).”  It is well-known that the Caliph Omar found this practice, which had become quite common despite the fact that it had no Quranic sanction, abhorrent.  He frequently flogged men who had taken recourse to it.  He also ‘punished’ them by insisting on halala being performed before the couple could re-unite.  It is a tragic irony that his pronouncement, in fact, punished the victim of the talaq in more ways than one.

No Muslim country permits the unfettered usage of Talaq e Biddat.  Most insist on the practice of talaq that becomes final only after the third pronouncement with a gap of 3 months between the first and the third so that there is adequate time for reconciliation and counseling.  In India, the Shia community does not recognise Talaq e Biddat or   halala. In fact, the model nikah nama devised and widely used by Shia clergy lays down a definite procedure for divorce over several months and also strengthens women’s right to demand divorce.  The Tableegh Jamaat (Sunni) also does not recognise triple talaq in one sitting.  Recently, important Barelvi clerics have also given an opinion (fatwa) that Muslim women can insist on including their right to ask for a divorce in their nikah namas.  Many organisations of Muslim women and also women’s organisations fighting for equal rights of all women have been agitating for decades against the practices of triple talaq in one sitting, halala and polygamy.  The last, though sanctioned by the Quran, is not an unqualified but a conditional right.  
It is most unfortunate that the AIMPLB, in the affidavit that it has filed in the Supreme Court challenging its very right to ‘interfere’ in matters of Personal Law, has resorted to the most retrograde, untrue and patriarchal assertions. For example, it says that “Shariah grants the right to divorce to husband because men have greater power of decision-making.  They are more likely to control emotions and not take a hasty decision”.  Further, in 78 (c) of its affidavit, the Board states that ‘legal compulsions of time-consuming separation proceedings and expenses may deter him (the husband) from taking the legal course.  In such instances, he may resort to illegal, criminal ways of murdering or burning her alive.’ Such statements are truly shocking, misleading and a justification for criminal behaviour.  There are innumerable instances of talaq being pronounced for frivolous reasons and due to drunkenness.  Since the Quran itself promotes a form of divorce that will take a few months, the very irresponsible resort to such false and provocative statements is most condemnable.
The affidavit also defends polygamy and says that it is ‘a blessing not a curse for women.’  Its contention is that polygamy prevents promiscuity.  Of course, there is not an iota of evidence in support of this.  In fact, all the facts available show that the two have nothing to do with each other.

It is very interesting that after having stated that the Supreme Court has no right to interfere with the interpretation and implementation of Personal Laws, the Board goes on to state that the rights of Muslim women have been protected by the  ‘Muslim Women (Protection of Rights on Divorce) Act 1986 which has been upheld by the Supreme Court.’

Finally, the Board gives away the truth regarding its own character by stating in para 46 of its affidavit that “India is a patriarchal society, and therefore personal laws of all communities are aligned with the patriarchal notion…”  In other words, its interpretation of Personal Laws has little to do with religious scriptures or with the concept of justice and everything to do with strengthening patriarchy.
It is important to note that the AIMPLB’s intervention in the court has come in for strong criticism and outright condemnation from very large numbers of Muslim intellectuals, jurists, commentators and community leaders.  Women’s organisations of all kinds have been unanimous in their condemnation.  This is something that is not reported widely in the media which finds it more convenient to concentrate on the projection of the AIMPLB as the ‘true’ representative of Muslim opinion.

The CPI (M) is committed to the struggle for equal rights of all women.  We extend our full support to our brave Muslim sisters who are displaying tremendous courage in challenging patriarchal norms and interpretations.  We believe that the Supreme Court and the judiciary generally has not only the right but also the duty to see that constitutional provisions guaranteeing the equal rights of all citizens are used to protect the rights of women of all communities.  

The final word comes from none other than Shayara Bano herself.  She says “Shah Bano got a ruling in her favour from the Supreme Court but it was later overturned by the government, denying divorced Muslim women their right to maintenance. Had her case been a success, it would have been one battle less for us.”