A humane reading

LAST WEEK'S RULING by a Constitution Bench of the Supreme Court - and earlier by lower courts in different parts of the country in recent years - affirming divorced Muslim women's right to maintenance for the rest of their lives unless they remarry, marks a welcome departure from the regressive pressures experienced by this community in the mid-1980s on the question of alimony. The S.C.'s interpretation, upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act of 1986 should, however, be viewed as a judicial fiat intended to foreclose any scope to reopen the painful controversy that ensued after its verdict in the sensational Shah Bano case in 1985. Towards that end, the S.C. applied an imaginative interpretation, bringing the whole question of alimony under the right to life under Article 21 of the Constitution. The law that governed all the different communities until a separate act was passed for Muslims in 1986 was the Code of Criminal Procedure (CrPC) of 1973. It guaranteed under Section 125 payment of maintenance for divorced women who had no means of sustenance. But consequent upon the Shah Bano case, the Muslim Women's Act provided for maintenance for divorced women in that community only for the three-month period of iddat commencing with the date of the pronouncement of divorce. If the S.C. has, notwithstanding the 1986 Act, arrived at the judgment upholding the right to maintenance, this is by reading into the latter the substance of Section 125 of the CrPC.

It is significant to note that in the Shah Bano case, as well as in several previous and subsequent instances, the Judiciary has upheld the right to maintenance of divorced Muslim women. It did so by invoking the spirit of the Constitutional provisions, where minority rights are not viewed necessarily in conflictual terms with the personal laws of different communities, the Directive Principle of State Policy (Article 44), besides the provisions of the CrPC. If, however, the Shah Bano case was made out to be, as it were, a bolt from the blue, it was on account of the increasing communalisation of the polity that took its toll on the national arena right through the 1980s. The political and legislative history pertaining to the 1986 Act was likewise an instance of the liberal wing in the political spectrum yielding ground to religious extremism for short-term and opportunistic gains.

The broader implications from last week's ruling are clearly in the nature of the affirmation of the centrality of Constitutional values. Therefore, the Judiciary should perhaps discourage the tendency to seek recourse to the judicial route to resolve disputes that are essentially in the domain of political culture and political values. There is no gainsaying the need, however, for judicial firmness when called upon to adjudge contentious questions of a historical and philosophical nature. The S.C.'s verdict a few years back on the essence of ``Hindutva'' as no more than ``a way of life'' was in stark contrast to such a predisposition. For the judgment abstracted from the wide currency and real import of the phraeseology of Hindutva as it obtained then, whereas, the S.C.'s role could not have been more critical in the political climate vitiated by the ascendancy of majoritarianism and the selective targeting of various minority communities. It is not surprising that this judgment is in fact often quoted by ideologues of the Sangh Parivar in their favour.

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Section  : Opinion
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