The Supreme Court, the Media and the Uniform Civil Code Debate
 Flavia Agnes

I. Introduction:
    Periodical pronouncements by the Supreme Court, urging the state to enact a Uniform Civil Code (UCC) have received wide media publicity.  The myriad opinions expressed in support of the UCC are governed by three distinct undertones i.e. gender equality, national integration and concepts of modernity imbedded within notions of middle class morality. 
    The gender concerns project the demand for an all-encompassing and uniform code as a magic wand which will ameliorate the woes and sufferings of Indian women  in general and Muslim women in particular. This concern places gender as a neutral terrain, distanced from contemporary political processes.  From this point of view, the agency for change within communities becomes highly suspect.  Minority women are projected as lacking a voice and as an agency either in their own communities or through the process of litigation to claim their rights within existing structures or to bring in changes which are egalitarian and gender-just.  It projects the state intervention in the form of an enactment of a uniform code as the only option to bestow gender justice upon minority women.
    At another level, for the liberal, modern, English educated, Middle classes  (both from the majority and minority communities), the demand is laden with a moral undertone of abolishing polygamy and other `barbaric' customs of the minorities and extending to them the egalitarian code of the `enlightened majority.'  This position relies upon the western model of nation-state and liberal democracy and scorns simultaneous sexual relationships in the nature of polygamous marriages in the name of modernity but at the same time, endorses sequential plurality of sexual relationships (through frequent divorces), and also the more recent trends of informal cohabitations which have gained legitimacy in the west. 
    Within a communally vitiated political climate, the demand also voices concerns of `national integration' and `communal harmony' and projects Muslims as the `other' both of Hindus and the nation. At times the distinction between these two terms collapses and they become interchangeable.
It is indeed a matter of grave concern that this position, advocated by the Hindu right wing, received a boost through judgements pronounced by the Supreme Court of a secular state, and more often than not by the presiding Chief Justice, carrying either veiled or direct inferences which were often totally out of context to the issues litigated before it.   It is interesting to note that no matter what the core issue litigated before the apex court, the comments regarding the enactment of a UCC are always made in reference to ‘national integration’ and with either a veiled or direct insinuation against Muslim law.  Thus fiction is that Hindus are governed by secular, egalitarian and a gender just family code and it was high time that this code was extended to Muslims to usher in modernity and gender-equality among them.  This posture of the apex court gets affirmed when we examine the constitutional challenges to archaic provisions under the Hindu law.  For instance, in 1984, the Delhi High Court affirmed an archaic provision of restitution of conjugal rights under Hindu Marriage Law which was challenged on the basis that it violates the provision of equality under Art.14 and freedom under Art. 21.  Here, not only was there no mention of a UCC and ‘national integration’ but the court went further and ruled: “Introduction of constitutional law in the home is most inappropriate.  It is like pushing a bull into a china shop.  It will prove to be a ruthless destroyer of the marriage institution and all that it stands for.  In the privacy of the home and married life, neither Art. 21 nor Art. 14 have any place.”E1 Later in the same year, the Supreme Court affirmed this decision in Saroj RaniE2 and overruled the Andhra Pradesh ruling which had struck down this provision as unconstitutional.E3         
    While the blame for igniting the controversy must lie primarily with the Supreme Court, the blame for repeatedly fanning it and keeping the issue alive in popular parlance lies with the media as this controversy makes a ‘good copy.’ While the ShahbanoE4 judgement provided the first impetus for highlighting the polarized opinions into mutually exclusive segments - the one in support of a UCC as modern, secular, rational and gender just, and those opposing it as fundamentalist, orthodox, male chauvinist, communal and obscurantist, it has continued to frame the issue within these binaries even when the lines between these two sections have become blurred.  In the two decades since the Shahbano ruling the ground realities have changed considerably. The demolition of the Babri Masjid, the rise of the Hindu right-wing, the attacks on Christian and Muslim communities and more particularly the gruesome sexual violence upon Muslim women during the recent Gujarat carnage, the altered situation of Muslim women’s economic rights after the Supreme Court ruling in the Daniel LatifiE5 case  -  have all been  factors that  have necessitated a  re-examination of the earlier call for a UCC,  ostensibly to secure the rights of minority women.  Many progressive groups and some women’s organizations no longer support this demand. Even the Muslim intelligentsia which during the Shahbano controversy spoke out in favour of a UCC has changed its position in the context of a threatened Muslim identity.  What is even more relevant is that the Bharatiya Janata Party (BJP), the dominant segment of the ruling National Democratic Alliance (NDA) coalition itself has not fore-grounded the debate during the last five years that it has been in power.  Though this was one of the its major election planks (along with the building of the Mandir at Ayodhya and  abolition of Article 370 of the Constitution – a cultural  thrishul - the three pronged attack against Muslims), one doubts whether it will demand that  this be included  as  the  NDA    election manifesto as it goes to the polls later this year.  It is more likely that in the interest of electoral gains, the BJP may even abandon the Hindutva agenda itself and will mount its campaign upon issues of governance!
    Despite this, the polarization in the media continues and the same old controversy gets whipped up again and again and is savoured with relish by the English speaking urban, liberal, middle-class. And this class, which is otherwise indifferent to political processes of the country, becomes the ardent defender of the demand for the UCC.   Every time the Supreme Court makes a comment, what one sees in the media are images of purdah clad Muslim women and opinions of Muslim religious leaders opposing the demand.  Many times in the media reporting, the core issues litigated before the Supreme Court are blurred and the call for a UCC is projected as a pronouncement against the Muslim minority.
    My concern in this essay is to examine the core issues litigated before the court in each of these cases, their co-relationship to the demand for a UCC and the subsequent media projection of the cases which rendered the rulings as anti-Muslim  pronouncements.  The first and as yet the most widely acclaimed among these is the ShahbanoE6 judgement pronounced in 1985, by a Constitutional Bench headed by the then Chief Justice, Y. V. Chandrachud; the second, the Sarla MudgalE7 judgement  pronounced in 1995  by  the Division Bench headed by Justice Kuldip Singh  and the most  recent, by a Division Bench headed by Chief Justice V. N.  Khare in the John Vallamattom’s case pronounced in 2003.   The judgements are analysed not only within their legal entirety, but also in their social, political and economic ramifications to gender equality and minority identity.

II.     John Vellamathom Judgement  on  Testamentary Disposition for Charitable

Purposes  by  Christians:
Let me begin this exploration with the most recent and least known Supreme Court pronouncement.  On 21st August, 2003, the Chief Justice of India, Justice V.N. Khare gave a call for the enactment of the UCC.  The remarks for enacting the UCC were part of a ruling which held S.118 of the Indian Succession Act as unconstitutional and discriminatory. Who had filed this Writ Petition, what was the core issue before the court, whether it had any link to gender justice or national integration became immaterial in the wake of the renewed fervour to highlight the UCC debate. The newspapers and magazines solicited comments from two mutually exclusive groups - spokespersons of the Muslim religious leadership and women’s rights activists.  But before jumping into the bandwagon of UCC, few journalists and ‘experts’ paused to shed some light on the co-relationship between the Supreme Court verdict, gender justice, national integration and the Uniform Civil Code.
The Petitioner, a Roman Catholic priest had challenged S 118 of the Indian Succession Act which is reproduced below:   "Bequest to Religious or Charitable uses - No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the will of living persons."
The underlying principle contained in Section 118 of the Act indisputably was to prevent persons from making ill-considered death-bed bequest under religious influence.   This section had its roots in an ancient British statute of 1735 known as 'Charitable Uses Act, 1735' and was enacted to prevent persons from making ill-considered death-bed bequests under religious influence, at a time when the Church regulated all land transactions and wielded great influence upon its flock. Through this stipulated act, the British Crown sought to curtail and regulate the power of the Church over its flock. In 1888 the earlier statute was repealed and this provision was included in another statute titled, Mortmain and Charitable Uses Act, 1888. Ultimately, since the statute had lost its relevance (basically, since the Church had ceased to exercise such power over its people) the British Parliament, by an Act known as Charities Act, 1960 repealed this provision. 
Interestingly, despite the severe restrictions against bequests of land for religious-charitable purposes, the Mortmain statute had exempted gifts of land of any quantity for public parks, museums, universities, colleges or to any local authority etc.   The Indian Legislature, while enacting the Indian Succession Act, 1925, advertently or inadvertently, omitted to include these exemptions and hence S.118 of the Indian Succession Act was even more restrictive of personal freedoms than the parent statute.
Such archaic remnants of the English principles are found in almost all Indian (or for that matter, South Asian) statutes.  The Indian Contract Act, the Indian Penal Code, the Transfer of Property Act and many other statutes contain a generous sampling of irrational, outdated and sexist provisions which have been retained even after they have been either struck down or amended in the country of its origin. The exemption in favour of marital rapeE8 and the sexist provision of adulteryE9 under the IPC, the out-dated and sexist provisions of public morality under the Indian Contract ActE10 which prohibits ante-natal contractual agreements regarding settlements in favour of women in the eventuality of a divorce etc., are merely the tip of the iceberg.  Some of these have been upheld despite litigations challenging the constitutional validity of these stipulationsE11 or have been retained even after the relevant section has been amended.E12    
The Petitioner, John Vellamathom, a Roman Catholic priest, through the present petition, challenged the violation of personal freedoms on the ground that since the original statute upon which this stipulation was based had been repealed in England, there could not be any reasonable justification for retaining the same in the Indian statute.  Since the Division Bench of the Kerala High Court had already struck down this discriminative provision in 1998,E13 the task before the Supreme Court was a simple and easy one.
Answering the short question before it, regarding the Constitutional validity of S.118 of the Indian Succession Act, the Supreme Court ruled:

A charitable disposition of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety, or any other object beneficial to the mankind has specifically been acknowledged not only in different religious texts but also in different statutes.  Charitable purpose includes relief to poor, education, medical relief, advancement of objects of public utility, etc.  Charitable purposes are philanthropic and since a person's freedom to dispose of property for such purposes has nothing to do with religious influence, the impugned provision treating bequests for both religious and charitable purposes is discriminatory and violative of Article 14 of the Constitution.  Assuming that the purpose of Section 118 of the Act is to prevent bequest of property under religious influence, there is no justification in restricting testamentary disposition of property for charitable purpose. Once it is held that the underlying purpose for enacting the said provision was merely to thwart influence exercised by people professing religion resulting in death-bed disposition, having regard to the fact that such a contingency has adequately been taken care in other provisions under the Act, the purpose and object of the Act must be held to be non-existent.


Based on this reasoning, the Supreme Court struck down S. 118 of the Indian Succession Act as being unreasonable, arbitrary and discriminatory and, therefore, violative of Article 14 of the Constitution.  While striking down the provision, the Court also relied upon the Declaration on the Right to Development adopted by the World Conference on Human Rights of which India is a signatory and on Article 18 of the United Nations Covenant on Civil and Political Rights, 1966 which provides as follows:

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief or belief in worship, observance, practice and teaching. Freedom to manifest ones own religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedom of others.
As one can observe from these discussions, the question before the court was not of gender justice or national integration, but that of personal freedom of a Christian Priest.  Contrary to popular belief, through this Petition, the Petitioner-Priest sought to protect his right of religious freedom and the right to follow the dictates of one’s religion. While defending cultural plurality of belief, worship and practice by invoking the United Nations Covenant on Civil and Political Rights, 1966, the court ruled in favour of religious minorities, by upholding their right of religious-charitable bequests.   The court held that violation of this right amount to discrimination under Article 14 of the Constitution.
And yet, this judgement became popularly known as the one in favour of the Hindu-right-wing’s anti-minority demand for a UCC. How did this happen?  The blame lies not just with the courts and the media but also with the Petitioner-Priest.  In order to strengthen his case, the Petitioner advanced a rather unwarranted argument that it is an essential and integral part of Christian Faith to contribute for religious and charitable purpose, and the stipulation under S.118 violates the right to freedom of conscience guaranteed under Articles 25 and 26 of the Constitution of India. 
It is in this context that the court explained:

Article 25 provides freedom of 'profession' meaning thereby the right of the believer to state his creed in public and freedom of practice meaning his right to give it expression in forms of private and public worships.  A disposition towards making gift for charitable or religious purpose may be a pious act of a person but the same cannot be said to be an integral part of any religion. It is not the case of the petitioners that the religion of Christianity commands gift for charitable or religious purpose compulsory or the same is regarded as such by the community following Christianity. Disposition of property for religious and charitable purpose is recommended in all the religions, but the same cannot be said to be an integral part of it. If a person professing Christian religion does not show any inclination of disposition towards charitable or religious purposes, he does not cease to be a Christian. Even certain practices adopted by the persons professing a particular religion may not have anything to do with the religion itself. Article 25 merely protects the freedom to practice rituals and ceremonies etc., which are only the integral parts of the religion. Article 25 of the Constitution of India will, therefore, not have any application in the instant case.

Had the Petitioner not pressed the argument of violation of rights under Article 25 and 26 of the Constitution, he would still have won the case and secured his rights (and that of others in his community) of testamentary bequests for religious-charitable purposes.  At the other end, even if the issue had been raised, the Court could have answered the issue in the negative and the matter would have ended there.  But out of the blue, Chief Justice Khare went on to add a comment, totally out of context to the core issue before  him in the following words:

Before I part with the case, I would like to state that Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Article 25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution.  It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to take step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.

The link between the Christian priest’s personal freedom to make a bequest of religious-charitable nature and the issue of national integration through the enactment of a UCC was not explained and a reader was left guessing.  But this comment provided the fuel for the media to interpret the judgment as one of anti-minority and pro-UCC rather than a judgement in defense of personal freedoms and cultural plurality.   And ironically, the next day and through the weeks that followed, the news papers were flooded with reports and editorials on UCC with quotes from Muslim religious leadership and Muslim intelligentsia on one end and women’s rights activists at the other, while the judgment itself was of relevance neither to the Muslim identity nor women’s rights. 


III.  The Sarla MudgalE14  Judgement on  Conversion and Bigamy

The second significant judgement on this issue is the Supreme Court verdict on conversion and bigamy by Hindu men in the Sarla Mudgal case.  Here again, neither Muslim law nor rights of Muslim women were the core issues before the court.  The court was examining the validity of a Hindu marriage contracted between a Hindu man and a Hindu woman, and the subsequent marriage, by this man to a subsequent woman, also a Hindu, contracted after a fraudulent conversion to Islam.  But the parties to both marriages continued to be Hindus and practiced Hindu religion and rites. It was not the claim of any of them that they are now Muslims. So in a nutshell, the court was examining the rights of two Hindu wives of a bigamous Hindu husband.  There was no Muslim before the court and the gender inequality within Muslim law was not an issue.  But unfortunately, the judgement and the media publicity that followed focused primarily   the issue of UCC in the context of nation, national integration and minority identity.
    And yet, in the much publicised judgement delivered by Justice Kuldip Singh, the Court commented:
Since Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a common civil code for the whole of India. ....  Those who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation, the Indian Nation and no community could claim to remain a separate entity on the basis of religion.  In this view of the matter no community can oppose the introduction of common civil code for all citizens in the territory of India. 


    The obvious reference to Partition and to the choice to remain in India is targeted towards the Muslim minority as Parsis and Christians did not have any choice in the matter. The discourse of choosing to remain in India after Partition has long been a warning to Indian Muslims from the Hindu Right.  The reference to civilized and human in relation to the UCC suggests that those who oppose the code (read Muslims) are barbaric and uncivilized.  The comments also seem to suggest that a secular and gender just family law governs Hindus and that Muslims as a community are the uncivilized enemy to national integrity because they follow their own personal law.  
Kapur and CossmanE15 have argued that the language of the judgement in deflecting attention away from the continuing religious and discriminatory aspects of Hindu personal law and in attacking the Muslim community is disturbingly similar to the     political rhetoric of the Hindu Right.   In this view, all religious communities must be treated the same and it is the dominant Hindu community which is to be the norm against which equality is judged.
    But the norm of monogamy of the Hindu society, which was the issue under scrutiny before the apex court, escaped all public debate.  The spotlight was turned on polygamy of Muslim men and the plight of Muslim women and solution offered to liberate Muslim women was the immediate enforcement of a UCC.  There was also a hint that the uniform code would render Hindu marriages more stable by curbing the bigamous tendencies of Hindu men.   A reading of the judgement seemed to indicate that the only breach of monogamy among Hindus was by conversion to Islam.  To quote from the judgement, ".... there is an open inducement to a Hindu husband, who wants to enter into a second marriage to become a Muslim..."    
    The norm of Hindu monogamy presumed by the judgement needs further scrutiny.   Monogamy was introduced among the Hindus through the Hindu Marriage Act in 1955.  Prior to this, Hindu men were absolved of the criminal consequences of bigamy under S.494 of IPC. After 1955, a Hindu wife could divorce her husband on the ground of bigamy and also prosecute him under the penal law. 
    The right to dissolve the marriage on the ground of bigamy is also available, to a Muslim wife under the Dissolution of Muslim Marriages Act.  The additional relief that the Hindu wife can avail of is criminal prosecution for bigamy.  But since only the first wife can initiate prosecution, a popular notion prevails that a Hindu husband can remarry with the consent of his wife and at a practical level, this notion is not far from the truth.  So although on paper the position of a Hindu wife appeared slightly better than a Muslim wife, in respect of her husband's bigamy, the statistics of bigamous marriages among Hindus and Muslims are comparable. By declaring that the earlier marriage was valid, the only legal remedy (apart from a petition for divorce on the ground of bigamy) that the litigating women were entitled is a prosecution for bigamy. 
    It is in this context that judicial attitude towards bigamy by Hindu men has to be posed as the central issue.  The judgement seemed to indicate that the judiciary has dealt severely with all breaches of monogamy among the Hindus and the only loophole through which a husband can escape is conversion.  But an examination of the decisions of the Supreme Court and the various High Courts reveal that bigamy of the Hindu male persists despite statutory restrains and judicial attitude has been extremely lax towards Hindu bigamy.
    Ten years after the provision of monogamy was introduced, the Supreme Court dealt with the case of Bhaurao Lokhande.E16 The lower courts convicted the errant husband. But the apex court acquitted the husband on the ground that essential ceremonies for a valid Hindu marriage i.e., vivaha homa and saptapadi (invocation before the sacred fire and seven steps round it) had not been performed in the second marriage.  The court ruled that the bare fact of a man and a woman living as husband and wife does not give them the status of husband and wife unless valid ceremonies of a marriage have been performed and hence such cohabitation would not warrant conviction under S.494 of IPC.
    The Supreme Court followed this principle in 1966 in Kanwal RamE17 and in 1971 in Priya Bala.E18  While acquitting the errant husbands, the Supreme Court reaffirmed that proof of essential ceremonies is a precondition for conviction.  The court further ruled that this condition must be met even when the husband and the second wife admit the marriage or the fact of cohabitation.
    In the intervening period of 30 years from Bhaurao in 1965 to Sarla Mudgal in 1995, the various High Courts not only followed the trend  set by the Supreme Court, but in  their zeal advanced the logic to absurd ends, stumping out all hopes of justice and fairness in  criminal prosecutions.  Ceremonies performed in a temple, registration with the caste panchayats or temple authorities or even with a civil registrar fell short of the degree of clinching proof, which the first wife was expected to produce.   The paternity of the child of a second marriage if proved could only lead to its bastardisation and not proof of bigamy by its father. The complainant wife could also lay herself open to the risk of invalidating her existing marriage.E19
    In all these decisions, the court ignored the reality of a pluralistic Hindu society and thrust upon it an absurd notion of uniformity.  The second marriages of lower castes were judged by the yardstick which can only be applied to marriages of upper caste virgin brides.  The lower castes did not follow the Brahminical rituals and also permitted divorce and remarriage prior to the Hindu Marriage Act and followed distinct ceremonies to distinguish the first and the second marriage.   Hence a remarriage of a lower caste person could never meet the high judicial standards set by the courts in co-ordination with the provisions of the Hindu Marriage Act.
    A discernible pattern emerging from prosecution for bigamy is conviction by the lower judiciary and leniency by the apex court.  The higher judiciary rescued the errant husbands by applying the standards of Brahminical rituals of homa, saptapadi and kanyadan.  The complexities of bigamous Hindu marriages and the afflictions of both the first and the second wife were addressed neither by the courts nor by the media while the focus continued to remain on Muslim bigamy.  The Supreme Court declined to address the issue of various fraudulent means which the husbands' adopt to escape the stipulation of monogamy under the Hindu Marriage Act and restricted itself to a pronouncement on unpatriotic approach of the Muslim community in holding on to their own personal law.


IV.   Shahbano JudgementE20 and Rights of Divorced Muslim Woman:
    The earliest among the three judgements discussed in this essay, was delivered by a Constitutional Bench headed by the then Chief Justice Y.V. Chandrachud in 1985 in the Shahbano case. This judgement set the tone for communalization of the demand for an UCC and for projecting the Muslim law as backward and anti-women.  Until then, and more particularly in the fifties when the debate around the Hindu Code Bill was raging, it was the Hindu law that was projected as ‘archaic and anti-women’ and in comparison, the laws of the minorities were far more progressive and modern. 
    The ruling is significant also because, among the three rulings on UCC, this alone had a Muslim woman at its centre and hence the controversy it created surpassed the others. In fact the media debates following the subsequent ruling were only churning up the old hash and remarketing it as new debates.  The facts of the case are now history and hence do not merit an elaborate discussion at this juncture.   For the purpose of this essay, it would suffice to mention that the Supreme Court elected to comment upon Islam and the Muslim Personal Law while deciding the right of maintenance under a secular and uniform statute, for the first time since independence. But this was not the first instance of the apex court upholding the right of a Muslim woman for maintenance under S.125 Cr.PC.  Two significant decisions of the Supreme Court delivered by Justice Krishna Iyer in 1979E21 and 1980E22 had placed the divorced Muslim woman's right of maintenance under this provision upon a secure footing without arousing a political controversy.  These decisions examined the right of Muslim woman from the context of  social justice.
    The unwarranted comments and the uncalled for call, for a UCC, while debating the rights under a secular statute in the Shahabano rulling evoked a communal backlash.   Relenting to the pressure exerted by the Muslim orthodoxy, the government introduced the Muslim Women's Bill that sought to exclude divorced Muslim women from the purview of S.125 Cr.PC.  This move by the ruling Congress Party headed by Rajiv Gandhi, came to be projected as the most glaring instance of the defeat of the principle of gender justice for the Indian women as well as the defeat of secular principles within the Indian polity. 
    This move met with severe opposition from secular and women’s rights groups.  As the debate progressed, the media projected two insular and mutually exclusive positions i.e. those who opposed the Bill and supported the demand for a UCC as   modern, secular and rational, while those in the opposing side as fundamentalist, orthodox, male chauvinist, communal and obscurantist.  To be progressive, modern and secular was also to be nationalist and conversely the opposing faction could be labeled as anti-national.  As the controversy escalated, the Muslim was defined as the other, both of the nation and of the Hindus.  Muslims, in turn could be mobilised to view this as yet another threat to their tenuous security.  The rigid approach of the Muslim leadership provided further fuel to the Hindu right wing forces in their anti-Muslim propaganda.  The Muslim intelligentsia distanced itself from the opinion of the Muslim religious leadership and approached  the government with a petition supporting the judgement and opposed the proposed Bill.
    Ironically, the fury which was whipped up, seemed to be divorced from the core component of the controversy, a paltry sum of Rs.179.20 p.m. far too inadequate to save the  73 year old ex-wife of  a successful Kanpur-based lawyer, from vagrancy and penury.  The raging controversy and the communal turn of events finally led Shah Bano herself to make a public declaration renouncing her claim; strengthening the popular misconception that Islam subverts economic rights of women.   If this entitlement was against her religion, she declared, she would rather be a devout Muslim than claim her right of maintenance. A sad comment indeed, warranting reflection from campaigners on both sides of the divide.  
    The statute, passed under a party whip, led to a further strengthening of the Muslim appeasement theory in judicial discourse and in popular media at one end and crystalised the anti-UCC position among Muslim religious leadership at the other.     Once the Act came into effect, the protesting groups were left with no option, but to appeal to the judicial sensitivity, to set right the wrongs caused to Muslim women by the legislature. 
    The hurriedly drafted and hastily enacted statute was full of contradictions and loopholes. But despite its limitations, the Act was of immense historical significance, as the first attempt of independent India, to codify the Muslim Personal Law. But the positions across the divide were so rigid by then that they left no space to contemplate upon this milestone in the history of personal laws in India.   It is when the dust raised by the controversy settled down that one could examine the relevance of this statute titled, Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA for short) to the divorced Muslim woman. But since it was enacted amidst protests from women’s rights groups and progressive social organisations, it was viewed with suspicion and foreboding by these sections.  Hence the first response of the protesting groups was to challenge its Constitutionality, rather than examine its viability.
    While the writ petitions were pending in the Supreme Court, the Act gradually unfolded itself in the lower courts. Appeals from the decisions of various High Courts gradually started accumulating, along with the original writ petitions. What was intriguing was that while groups filed the writ petitions agitating for women’s rights, the appeals were from husbands aggrieved by the verdicts of various High Courts. Since the Act was passed amidst protests from rights lobbies, writ petitions challenging its Constitutionality by these segments seemed to be in order. But difficult to rationalise were the appeals, which were filed by husbands, that started accumulating from the rulings of various High Courts.  
    If indeed the Act was depriving women of their pre-existing rights and was enabling husbands to wriggle out of their economic liability towards their ex-wives, why were the husbands finding themselves aggrieved by the orders passed under a blatantly anti-women statute? Lurking beneath this observation was a faint suspicion that perhaps the ways in which the Act was unfolding itself in the lower courts, was indicative of a different reality, defying the premonitions.   This fascinating phenomenon provided the first indication that perhaps the ill-famed Act could be invoked to secure the rights of divorced Muslim women.  Hence, it became expedient to examine whether the new Act provided Muslim women with a more viable and feasible alternative to the prevailing remedy under S.125 Cr.P.C. by invoking Islamic principles of a ‘fair and reasonable settlement’. 
    A seemingly innocuous clause, which had missed the attention of protesters and defenders alike, had been invoked by a section of the lower judiciary, to pronounce judgements, which provided greater scope for protection against destitution.  Section 3 (1) (a) of the Act stipulated that a divorced Muslim woman is entitled to -  a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.  This clause, along with the preamble  - An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands   ….”,   had been invoked by the judiciary in defense of Muslim women’s rights.
    Though initially just a trickle, the judgements were a pointer towards a possibility. They affirmed that the new Act was to protect the rights of divorced Muslim women and not deprive them of their rights.  They further stressed that any ambiguity within clause (1) (a) of Section 3, must be interpreted in such a manner as to reconcile with the proclamation contained in the title of the Act.  Banishing divorced women to a life of destitution would not amount to protecting their rights as stipulated by the statute, they declared.
    Suddenly, the lump-sum provisions for future security, which the courts were awarding within the framework of Islamic principles, seemed to be a better safeguard against destitution, than the meager sums which women were entitled to under S.125 Cr.PC through a monthly recurring entitlement. A reading of the judgements indicates that the Act had rid itself of the agenda of alleviating vagrancy and destitution among divorced women and had extended itself to the claims of women from a higher social strata, than merely those who live below the poverty line.  The statute enacted in haste, at the insistence of the conservative leadership, seemed to have boomeranged.
    In a significant number of cases, a concerned and sensitive judiciary, carved out a space for the protection of women’s rights from what appeared to be an erroneously conceived, badly formulated and blatantly discriminatory statute, without invoking a political backlash. Endorsing the spirit of Islam and the shariah and reflecting the sensitivity of the Prophet, who is hailed as the greatest champion of women’s rights the world has ever seen, the courts read into the statute, notions of justice and equity. Doing precisely what the Act in its title proclaimed, i.e. protection of rights of divorced Muslim women, the judiciary turned what had initially appeared to be a misnomer and a mockery into a factual reality and ushered in a silent revolution in the realm of Muslim woman’s rights. It would indeed have been tragic if these concerted efforts were invalidated through a single stroke of pen from the apex court.
    The most significant issue which emerged out of the enactment, revolved around the stipulation of ‘a fair and reasonable provision’. Drawing on the Islamic concept of mataaoon bil ma’aroofe  (fair and reasonable provision), several High Courts opened a new portal for the protection of divorced Muslim women. The remedy, which the courts so carefully crafted out of the controversial legislation, in fact, seems to provide a better safeguard, than the earlier anti-vagrancy provision under S.125 Cr.PC.
    The first significant judgement on this issue was pronounced by Justice M. B. Shah, then presiding over the Gujarat High Court, on 18th February, 1988.E23  But even before this, the dice was cast in women’s favour, by a woman judicial magistrate in Lucknow on 6th January, 1988. The woman concerned, Fathima Sardar, was awarded Rs. 85,000/- as maintenance during iddat period, mehr entitlement and fair and reasonable provision.  Following the judgement of the Gujrat High Court, the Kerela High Court upheld this view in two significant rulings.E24  These judgements were pronounced in the months of July and August, 1988 respectively.  In another unreported judgement, the Kerala High Court upheld the woman’s right to Rs.3,00,000/- as fair and reasonable provision and also awarded Rs.7,500/- as maintenance during the iddat period.E25  Soon several High Courts followed suit.
    In the years that followed, the full benches of Punjab and Haryana and Bombay, the division benches of Bombay, Kerala, Madras and Calcutta and single judges of several other High Courts  upheld this  view. The courts ruled that even when a wife has some source of income the right under S.3 of the MWA is not extinguished.
    But the controversy  regarding the Constitutional validity of the Act prevailed and   not just the media, but also  secular and progressive groups and women’s rights lobbies continued to drum the same old tune that the Act has deprived divorced Muslim  women of their crucial rights.  Also certain High Courts had given a contrary ruling and rights of Muslim women varied depending upon the High Courts under whose jurisdiction they happen to reside.  Finally, the entire controversy was laid to rest and uniformity was assured through a ruling of the apex court   pronounced on 28th September 2001.   A five judge bench headed by Justice G. B. Pattanaik unanimously declared that the Act is Constitutionally valid and upheld the positive interpretations given by various trial courts in respect of fair and reasonable settlement for a life time!


V.  Muslim Women, Dominant Ideologies and the Media:
    Law is not merely a statute, but its essence lies in the manner in which it is unfolded in law courts.  The empty words of a statute come to life in the trial courts where they are contested, interpreted and validated.  Right from 1988, the courts have engineered women’s rights through innovative interpretations, ushering in a new set of rights within the established principles of Muslim law.  The lower judiciary gave a clear verdict in favour of a ‘fair and reasonable provision’ for the divorced Muslim woman.   Several judges in trial courts declared that `provision’ contemplates `future needs’ and that the Parliament has replaced one set of obligations of a Muslim husband with another.  The claim under the MWA does not operate through a rider of sexual purity or post divorce chastity, unlike S.125 of Cr.PC the original provision under which Shahbano was awarded maintenance.  The  judicial pronouncements delivered  divorced Muslim women  from the cumbersome burden of recurring monthly  dues,  which hinged upon post-divorce  chastity.  The historic ruling of the Constitutional Bench in Daniel Latifi case finally put  its  seal of approval on the interpretations given by the lower judiciary. 
    But rather unfortunately, within the communally vitiated atmosphere, the advances made by divorced Muslim women under the provisions of  the MWA  have been  invisibilised and glossed over by the media.   During the Shahbano controversy, the denial of rights of a meagre maintenance dole was lamented by all and sundry, not withstanding the fact that the  maintenance  awarded to the wife of  an advocate with a flourishing practice was just Rs.25/- in the first instance and  Rs.179/-  in  appeal.   So long as the debate could be used as a stick to beat the community with, these minor details didn’t seem to matter. What did matter is the fact that a communal campaign could be mounted upon a patriarchal paradigm and thereby legitimised. 
    The demand for a UCC was couched as a ‘liberal and modernizing mission.’  The irony lay in the fact that the groundwork for mounting this campaign was laid by the women’s movement, with genuine gender concerns, but firmly located within the cultural ethos of the mainstream. Within this framework, a similar appeasement of Hindus, by strengthening coparcenaries by various legislative measures, could be deliberately ignored.  The ‘modernizing mission’ is an important tool for establishing racial and communal superiority and is used constantly by dominant classes and hegemonic cultures.
    During the colonial rule, the introduction of the Anglo-Saxon legal structure was seen by the British administrators as an important forte of its civilizing mission.  Through this structure, it was projected that the Hindu society could rid itself of its barbarism and enter an era of ‘civilisation.’  An image of the cruel and superstitious native who needed Christian salvation was deliberately constructed by the Evangelists. 
    Lata Mani, in her path-breaking work on the colonial Sati discourse comments:

Tradition was not the ground on which the status of women was being contested.  Rather the reverse was true - women in fact became the site on which tradition was debated and reformulated.  What was at stake was not women but tradition.  Women were neither subject, nor object but the ground …E26

In another context, while discussing the  discourse around Rukhmabai case on the colonial legal remedy of restitution of conjugal rights (decided by the Bombay High Court in 1884), Sudhir Chandra argues that it was not simply a ‘civil war’ involving different groups within the Indian society but within the colonial ambience, a war between the rulers and the ruled in which  the two sought to distinguish their respective institutions, ideals and values with regard to women, marriage and family in order to claim superiority over the other.  The issue of law and justice, which figured prominently in the ensuing controversy, deepened the civilizational encounter between the ruled and the rulers.E27 
    This discursive practice of using women’s rights and status in society as the ground on which tradition is reformulated was also deployed by the nationalist project to emancipate India from colonial rule. As was the case in the nineteenth century, tradition became the site for the elaboration of state power and in this instance, the power of the national state. 
The conflicts and contests between the orthodox/reactionary, the imperialist, and the reformist helped to carve out a new woman for the new nation.  As Partha ChatterjeeE28 points out that the distinctiveness of the national culture and tradition was built around the conceptualization of a new form of femininity. This process inaugurated a new patriarchy to which the new woman was subjected. It explicitly distinguished itself from the patriarchy of indigenous tradition. The new woman, the ‘bhadramahila’, respectable woman was contrasted with the characteristic of the ‘common’ woman who was coarse, vulgar, loud and quarrelsome, sexually promiscuous and subjected to brutal physical oppression by males. Since the reform of women’s lives came to symbolize national sovereignty and the project of reform addressed the lives of Hindu middle class women, this demographic section came effectively to constitute the ‘nation’. 
    Chatterjee also shows that the nationalist resolution of the women’s question, built on a system of dichotomies of the inner/outer, spiritual/ material, feminine/ masculine, gave birth to a national state and a notion of rights and citizenship which was exclusive in that it applied to the new middle class.  The project of reform, which located the state in the nationalist resolution of the women’s question, excluded those sections of the middle class which felt themselves culturally left out of the specific process of formation of the ‘nation’. Indian Muslims, for example, were left out of this hegemonic cultural construct of the nation. The hegemonic ‘national culture’ that was built through the above process also excluded vast masses of people who could never be culturally integrated with this concept.E29 
    One needs to examine the invisibilising of the Muslim woman’s struggle within the cultural construct of hegemonic claims.  The communal fervour could be sustained only by denying the fact that the Act provided for an alternate remedy, far superior to the one  that had been denied to  Muslim women under S.125 CrPC; by negating the fact that since 1988,  the Act was being positively interpreted by various High Courts in the country by awarding substantial amounts as ‘settlements,’ by  glossing over  an important development  in the realm of  family law, that of  determination of   economic entitlements  upon divorce, rather than the  prevailing  right of  recurring maintenance.  So even while homes of poor Muslim women were looted, gutted and razed to the ground in various communal riots which broke out in the country, while teenage sons of Muslim women were killed at point blank ranges in police firings, while Muslim women were raped under flood lights in post Babri Masjid riots, the mainstream continued to lament over Muslim appeasement and denial of maintenance to  ‘poor Muslim women / the Shahbanos’.   
    One could overlook even this. Perhaps there was a justification. Denial of maintenance by husbands was perhaps as loathsome as rape of women in communal riots.  In the ultimate analysis, it was the ‘poor Muslim woman’ who suffered.  So far so good.  But how can one logically explain the recurring motif of ‘Muslim appeasement’ even after the Supreme Court decision in Daniel LatifiE30 case, when the controversy was finally laid to rest by upholding the constitutional validity of the Act and simultaneously securing for the Muslim women, maintenance rights which in actual terms are superior to the rights bestowed upon a Hindu woman?
    And yet, the rhetoric continues. And is used yet again, in defence of the Gujarat carnage. ‘They had it coming … they have been ‘appeased’ beyond tolerance. Why should they demand a separate law in a secular  country?  Why should they be allowed to marry four times?  Why are Hindus alone bound by an obligation of maintenance?’ What is startling is that the grievances are mouthed not only by Hindu extremists but also by centrists, the liberals, the people who inhabit my social space, the urban, cosmopolitan, middle class. Within the cultural ethos of the mainstream, an injustice to a Muslim wife gets magically transformed into a Hindu injury which could be invoked to justify communal carnage.  Without this tacit approval by the middle class, the recent Gujarat carnage could never have spread so wide nor so deep.
    The rhetoric conveniently overlooks the fact that abandonment and destitution of wives is as rampant among Hindus; that  the matrimonial faults of  adultery and  bigamy are  evenly distributed across communities and that  Hindus, Christians and Parsees, with equal  zeal,  guard  the  patriarchal prerogatives within their respective  personal laws. Further, that around 80% of all women burnt in their matrimonial homes are urban middle class Hindus!   That patriarchal prerogatives cannot be abandoned even when a law is being codified is something we have learnt in the process of Hindu law reforms.  Even when codification is sought in the name of either ‘uniformity’, ‘national integration’ or as a ‘civilising mission’ these prerogatives will be retained.  The saving of Hindu undivided family (HUF) property under the Hindu Succession Act is a glaring example of this.  The Hindu urban and rural propertied class and family business establishments have gained the maximum concessions of tax benefits due to this.  Any move to abolish this even under the guise of a UCC will be opposed vehemently by this class, as it will upset their apple cart. For them, the UCC debate is confined to abolishing the ‘barbaric’ Muslim culture of polygamy and to liberate the Shahbanos, while simultaneously turning a blind eye to the sexual promiscuity and multiple sexual relations among them.   The women bound in these relations can easily be discarded as ‘concubines’, ‘mistresses’ or partners of contractual agreements, maitreyee karars (this is the modern term for these alliances) lacking legal validity and devoid of any rights, as one experiences during contested claims of maintenance by these women.
The symbolism becomes even more stark, when one is confronted with the gruesome sexual violations of women during the recent carnage in Gujarat in 2002.  While exploring possible legal portals to place these blood curdling barbarities, one hits a dead end at each turn.  As one hears the narratives of young women, running helter-skelter, slipping, falling and becoming preys to the marauding mobs, their violated and mutilated bodies being thrown into open fires, the question keeps haunting:  where and how does one pin the culpability?
When violence of this scale supersedes the confines of criminal jurisprudence which is bound by conventions of proof and evidence, medical examinations and forensic reports, when criminal prosecution itself is a closed-end process in the hands of the state machinery, what legal measures can be invoked to bring justice to the dead and the surviving?  It is then that the covenants of equality and equal protection mock you in the face.   At the other end there is a danger that these violations do not form part of  ‘official records’ they can be conveniently negated as baseless allegations or normalised as routine occurrences.
    Viewed within this background, the struggles of individual divorced Muslim women who defied their culture and tradition and dictates of patriarchy have to be acknowledged as acts of assertion.  But the struggle has not been easy.  Divorced Muslim women had to fight every inch of the way for their rights, from the trial courts in small district towns right up to the Supreme Court.  Their crucial right of survival hinged upon interpretations and explanations of simple words like `within/for’ `and/or’  `maintenance/provision,’ disjunctures and conjectures of words and phrases. The ambiguities which surfaced due to callous drafting, posed hurdles to women in their struggle to claim their rights.  The Act provided ample scope to husbands to exploit the situation which led to protracted litigation beneficial to husbands and a nightmare to women.  But women withstood the ordeal with courage and determination, with patience and perseverance and overcame the seemingly unsurmountable hurdles. Through this labourious process, the criteria for the civil right of divorce settlement has been taken out of the earlier legal premises such as  `inablity to maintain,’ `prevention of   vagrancy’ `a dole to hold together body and soul.’ After a decade and a half, the end result of this persistent struggle are clearly discernible.
    In the final battle in the Supreme Court, both sides, the women’s rights groups who had challenged the constitutionality of the Act as well as the Muslim religious leadership who had pressed for their claim that the Muslim woman’s entitlement ought to be limited to three months of Iddat period lost out.  Who emerged victorious was the divorced Muslim woman who had waged a relentless battle to defend her rights.  It’s the media took note of this silent revolution waged by individual Muslim women and acknowledge the fact of their agency in bringing about changes within their personal laws.