Shah Bano to Shayara Bano: Religious laws fail women

Last Updated: Fri, May 20, 2016 18:17 hrs
shah bano

The recent cases of Aafreen Rehman in Jaipur and Shayara Bano in Uttarakhand have once again brought into focus the oppressive nature of Muslim, but indeed all religious community, laws, especially Hindu marriage laws which get enshrined as already secular because they are in the majority.

These cases shows all signs of ending the Shah Bano way where there will be legal rights and protections granted but which will mean nothing as it has not and will not be enshrined in Muslim personal law. If we remember, the Supreme Court offered a brilliant judgement for her which was diluted by a vote-seeking, male-appeasing Rajiv Gandhi.

The Uniform Civil Code argument will come up again and there will be much hand-wringing on all sides. The Liberal-Lefties are worried about the timing of this with a Hindu fundamentalist government in power. The debate is the same one, the positions the same tired ones.

What will not be asked, as usual, are more fundamental questions about why marriage exists as an institution at all and why women of all religious communities in India have little or no say in who they marry, when, how and why.

Within the family as the People’s Union of Democratic Rights told us long ago in its report Inside The Family, the family is a structurally unequal institution and the people who suffer the inequality are women and children. Neither of these two questions will be asked and will be deemed impractical. 

The masses are not that evolved, it will be said. We need to build consciousness. But really how much do we know about these “masses”? French philosopher Jacques Ranciere in his book The Philosopher and His Poor has shown how thinkers through the ages have spoken on behalf of the poor, the masses, the people while actually knowing nothing about them. 

We know nothing about how Muslim women feel and when women like Aafreen and Soraya tells us, we barely listen. We just use their voices as a point of departure to have silly arguments of our own.

Muslim women, or women of any minority community, are doubly silenced. They must subordinate their voices, as Black women were forced to do once upon a time during slavery in the United States, to the larger cause which is that of the beleaguered minority community in a majoritarian state. 

But why does this have to be an either/or question? Why can’t Muslim or Christian or Sikh women speak out even as they remain critical of majoritarian politics? We have had many voices of this kind in India from Shah Bano to Soraya. These are not the ludicrous voices that lend themselves to appropriation by majoritarian forces like Ayan Hirsi Ali’s or Irshad Manji.

It is important to note that Soraya has asked for her rights on the grounds of her fundamental rights as an Indian citizen and not from with Muslim personal law or any BJP-appropriatable stuff about the Uniform Civil Code, though she also points out that other Muslim countries have evolved their codes to prohibit practices oppressive to women (as triple talaq) as have other minority communities within India. 

This is a key point as it frames the debate within the secular and not within the religious. She invokes her right to life, to liberty, to equality before the law and to the right not to be discriminated, just like anyone else.

There are other progressive judgements that one can turn to apart from Shah Bano, like Shamin Ara vs State of UP, also an apex court judgement and Shabana Bano vs Imran Khan which upheld maintenance under Section 125 of CRPC until the husband pays lump sum maintenance.

The Central government report based on a high-level Committee appointed by the previous UPA government, which is ready and which the Supreme Court has demanded from the Centre to be able to legislate on Soraya’s case, cites these cases. 

Most judges would have probably not heard of them and certainly not on Muslim cases as the knowledge and sources on Muslim law, personal and otherwise, is dismal. It is a little known fact that Mulla’s Principles of Mohamedan Law cites various laws as if they are codified laws when none of them are!

We need to listen more to voices like Soraya’s and Aafreen’s (she has also approached the Supreme Court though she alleges men’s misuse of the Quran) and restore to the body politic the languages of the secular and the democratic. Women know those languages best because they suffer from the lack of them the most. In all communities.

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Ashley Tellis is a freelance academic and writer

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