Fair entitlement

Ever since the Shah Banu case in the mid-eighties, maintenance for divorced Muslim women in India has remained an extremely sensitive issu...

Ever since the Shah Banu case in the mid-eighties, maintenance for divorced Muslim women in India has remained an extremely sensitive issue, mired in minority/majority politics. The political dispensation had, at that juncture, chosen to manage the crisis by enacting the rather inappropriately termed Muslim Women (Protection of Rights on Divorce) Act in 1986. Under the new law, the community’s women were rendered ineligible to the provisions of Section 125 of the Criminal Procedure Code, which guaranteed maintenance for all divorced women in the country. Instead, Muslim women were only entitled to receive a maintenance allowance for the customary iddat period of three months. It is in this context that the recent Calcutta High Court judgment ruling that divorced Muslim women will be entitled to maintenance until they marry again is something of a landmark.

Not only did it recognise the right of an individual to justice, it also tried to address the unprecedented suffering that many Muslim women experience as a result of being deserted by their husbands or divorced arbitrarily through triple verbal talaq and even postal talaq. The story of Sakila Parvin, who fought the present case doggedly, ever since she was divorced by her husband in 1993, could be that of many others now waging a lone battle for existence with little or no support from their families or their community.

Interestingly, the Calcutta High Court used the provisions of the controversial Muslim Women (Protection of Rights on Divorce) Act in arriving at its conclusions. It observed that the trial court, which had earlier let Sakila Parvin down in her quest for a fair settlement, had wrongly interpreted this law. The Act has a proviso that “all reasonable and fair provisions and maintenance” were to be made to the divorced woman, and the High Court felt that this must be constructed liberally.

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Interestingly, in many Islamic nations there have been significant and substantive reform in personal law to ensure, among other things, that divorced women are not left in a limbo. Under the 1961 Family Law Ordinance enacted in Pakistan in the sixties, for instance, not only was polygamy no longer considered an unhindered or unchallenged right of men, maintenance was recognised as the due entitlement of the divorced woman and was not limited to the iddat period. What makes divorce particularly traumatic for Muslim women in India is the fact that they are more likely than not to be poor and illiterate, and therefore without the means to support themselves.

Desertion by the husband could literally spell the end of the world for them. Their plight must, therefore, be of utmost concern to the leaders within the community who have often taken intransigent and unreasonable positions on the issue. It is time to recognise the need for change, the need to keep up with the times, the need to value individual rights.

Already, there are significant stirrings, with many Muslim women openly voicing their unhappiness over the treatment that has been meted out to them. The struggle of Sakila Parvin for justice is just one more instance of this.