From Shah Bano to Shakila

THE CALCUTTA HIGH court's ruling that divorced Muslim women are eligible for maintenance allowance until they are remarried is not only a landmark verdict but also a progressive interpretation of the law. The court has unequivocally declared that the obligation to provide maintenance allowance does not end with the period of iddat, which traditionally runs for a mere three and a half months after a divorce is effected. In doing so, Mr. Justice Basudev Panigrahi has adopted an extremely liberal construction of the provisions of the controversial Muslim Women (Protection of Rights on Divorce) Act 1986. His judgment interprets the expression ``iddat period'' in a broad and generous manner, extending it ``till the time the divorced Mohammedan woman remarries''. According to the court, the very fact that the Act provides for ``all reasonable and fair provisions and maintenance'' implies that Muslim women must have sufficient means of livelihood after divorce.

The judgment will benefit large numbers of poor and illiterate women, acting as a safeguard against their becoming helpless or vulnerable after being divorced. There are bound to be those who will quibble - and such regressive voices have already begun to make their presence - that the ruling has gone beyond a literal interpretation of the statute. Similarly, some Islamists, who favour a narrow and patriarchal interpretation of Islamic texts, may see the judgment as an interference with their personal laws. However all those who believe in the empowerment of women and are in favour of legal reforms which promote gender justice ought to welcome the ruling unreservedly.

The judgment followed an appeal by Shakila Parveen, divorced by her husband who said talaqthrice and denied maintenance by a lower court on the ground that she was not entitled to alimony after the iddatperiod. Shakila's plight was not unlike that of Shah Bano, the 75-year-old divorcee who claimed maintenance from her husband under a section of the Criminal Procedure Code under which destitute, deserted or divorced women are entitled to receive support from their able husbands. The Supreme Court upheld Shah Bano's petition in a 1985 judgment which provided three heterogeneous arguments for reaching its conclusion that she was entitled to maintenance: the priority of criminal law (Section 125 of the Cr.P.C) over personal law, the justification found in the Koran itself for maintenance and the necessity of taking steps towards the establishment of a common civil code.

The Muslim Women Act, which was introduced in Parliament the next year following protests from Muslim religious leaders, was directed specifically at undoing this judgment. What the Calcutta High Court has now done is to interpret the Act - which sacrificed the empowerment of Muslim women on the altar of political exigency - in a fashion which safeguards some of the rights and interests of divorced Muslim women. It would be a shame if the Shakila ruling evokes the kind of angry and unthinking opposition that followed the Shah Bano judgment. Such irrational passions are particularly out of place when progressive reinterpretations of personal laws are accepted in many Islamic countries. Only three years ago, the Bangladesh High Court decided a maintenance case on the lines that were dramatically similar to the Supreme Court's judgment in the Shah Bano case. It would be a good thing if the Calcutta High Court ruling is not exploited by those who seek to expand their political constituencies by playing on religious and sectarian sentiment. It has taken 15 long years for the country to traverse from Shah Bano to Shakila and it would be a pity if another progressive judgment becomes the victim of regressive politics.

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