The Supreme Court's maintenance order clarified a fundamental question: a Muslim woman is Indian first and Muslim second

This anecdote highlights two important aspects that have shaped Muslim politics in India. First, the helplessness of the Muslim woman in the face of arbitrary and unilateral divorces under Sharia law before the Narendra Modi government criminalised triple divorce in 2019. And second, the arrogant attitude and utter disregard for the dignity of the court with which Khan imposed triple divorce, which was a reflection of the class characteristics that the Muslim ruling class had cultivated over the centuries of its rule.

Be it the issue of triple talaq, maintenance of divorced women or the controversy over hijab, the secular laws, constitutional morality and progressive court rulings are bumping up against the wall of outdated religious laws of Islam, which the Muslim identitarians defend as the last bastion against assimilation into Indian culture. They are afraid of losing their distinctiveness as foreigners and would not mind using regressive religious laws to protect their distinction. Syed Shahabuddin, their most eloquent spokesman, said, “Our struggle is not a communal struggle. It only boils down to resisting the unstoppable process of assimilation. We want to preserve our religious identity at any cost.”

The All India Muslim Personal Law Board's website states: “It was formed at a time when the then Government of India was trying to undermine the Shariah law applicable to Indian Muslims by enacting parallel legislation. An adoption bill had been introduced in Parliament. Mr. HR Gokhle, the then Union Law Minister, described this bill as the first step towards a uniform civil code.” That was in 1973.

The Supreme Court's ruling on 10 July that a divorced Muslim woman is entitled to maintenance from her ex-husband like any other woman under Section 125 of the British Constitution has settled some issues but, more importantly, raised many others.

The judgment stipulates that Section 125 of the CrPC continues to apply to divorced Muslim women and, more importantly, it remains unaffected by the Muslim Women (Protection of Rights on Divorce) Act 1986.

This is a reiteration of the judgment of the five-judge bench of the Supreme Court in the Shah Bano case, which held that the Muslim Personal Status Act cannot come in the way of a divorced woman seeking maintenance under Section 125, which applies to all Indians without any discrimination on the basis of religion. It also confirms another Supreme Court judgment in the Danial Latifi case in 2001, which upheld the validity of Section 125 CrPC despite the 1986 Act, whose obvious purpose was to overturn the Supreme Court judgment in the Shah Bano case.

But beyond all these legal questions, the July 10 verdict has clarified a fundamental ideological and constitutional question: a Muslim woman, like all other men and women, is an Indian first and a Muslim second. What is her due as an Indian cannot therefore be taken away from her on the basis of her religion. The verdict affirms her right to equality and justice as provided for in the Constitution.

It may be recalled that on the issue of Muslim-first identity, the Muslim leadership of the 1980s – which was not ideologically different from the Muslim League of the 1940s or the identity-based minoritarians of the 2020s – waged a vicious communal campaign against the jurisdiction of the Supreme Court and the competence of its judges to adjudicate on issues of Muslim personal law. Their objections were religious in nature. They claimed that since the judges were not Muslims themselves, they lacked the basic qualification to adjudicate under the ‘sacred’ law. Their rhetoric reached such a fevered tone that a cabinet minister in the Rajiv Gandhi government, Ziaur Rahman Ansari, used caste-related slurs against the judges in a speech in Parliament. They enjoyed such impunity. Eventually, they succeeded in bending the government to their will. A law was enacted to invalidate the Supreme Court’s verdict.

Less than four decades after the conquest of Pakistan, they struck again. The spectacle of the government with the largest majority ever succumbing in an abject capitulation to the dictates of vote politics left the country in horror and humiliation. It revived fears of the return of the barbarians in a country that had just gained independence after centuries of foreign rule. No historian can deny that the Shah Bano case was the inadvertent catalyst for the spread of Hindutva, the ideology of cultural nationalism and political Hinduism. Since this movement crystallized around the Ram Janmabhoomi-Babri Masjid case, the announcement of the introduction of a bill in Parliament to overturn the Supreme Court verdict in the Shah Bano case and the opening of the disputed building in Ayodhya in early 1986 were so marked by choreographed synchronization that it is difficult to dismiss them as mere coincidences. There is no denying that the government tried to create a cynical balance between the two communities.

However, an answer must be found to the question whether the Muslim leadership was involved in this dishonest deal. Did they give their tacit consent to the opening of the disputed building and the construction of the Ram Temple on that site in return for the major public victory that the government had given them? And if so, did they breach the agreement by whipping up emotions and making a big deal out of the Babri mole?

Also read: Indian Muslim women need UCC. It challenges the power of self-appointed judicial bodies

Changed situation

That was all then. Today, no one is surprised at the stoic indifference with which the Muslim leadership received the July 10 verdict, a repeat of the April 23, 1985 verdict. The agitation against the earlier verdict had shaken the country, and the subsequent aftermath caused a permanent reversal in the course of Indian politics. But the situation has changed. Much water has flowed through the Ganges since then. The nation has become stronger, and its leadership can no longer be intimidated in the same way as in 1985-86. The old Muslim leadership is discredited, and Is are slowly disappearing. The ubiquitous slogan “Islam is in danger” has disappeared from public discourse. And while communal fault lines remain and ideological questions regarding nationalism remain unresolved, the Muslim community has evolved to the point where it no longer blatantly upholds regressive religious laws and challenges a progressive Supreme Court ruling by brazenly questioning its authority.

Also read: Is it too much to ask Muslims to examine themselves? They need to clarify faith and affiliation

What next?

Now that the Muslim Women (Protection Of Rights On Divorce) Act, 1986 has been effectively, if not technically, downgraded, should it not also be struck down from the law to right the wrongs committed under social coercion against both Muslim women and Indian society? First of all, this Act was more about politics than law. The Muslim communalists had won their first victory after the victory in Pakistan. They had put the Indian state in its place and taken a decisive step towards securing the state within the state that would confirm their rule over the Muslim community defined by the legal ghetto of personal status law.

Euphoric over victory but lacking in wit and acumen, they failed to notice the conscientious Law Minister Ashok Sen inserting a language that undermined the stated purpose of the Act. Section 3(a) states: “Her former husband shall provide her with adequate and fair maintenance and support within the Iddat period.” The maintenance amount thus had to be paid “within the Iddat period (three months)” and not just for that period. The Muslim leadership had led the community into war with the state to restrict maintenance to just three months. That was the crux of the matter. Their fanatical frenzy was defeated by the cool conscience of superior wisdom.

Both the effect of this Act and the subsequent judgments that it does not repeal CrPC 125 render it redundant. It should be repealed, along with the mother of all such Acts, the Muslim Personal Law (Shariat) Application Act, 1937, to meet the constitutional obligation for the Uniform Civil Code.

Article 44 of the Constitution lays down the guiding principle: “The State shall endeavour to ensure a uniform civil code to its citizens throughout the territory of India.” There have been some important developments in recent times that favor the introduction of the UCC.

Since the anti-CAA agitation of 2019-20, the Muslim community has been effusive in expressing its love for the Constitution. Their public discourse, which was earlier conducted in religious idiom, is now replete with constitutional jargon. Moreover, the manner in which the INDIA bloc parties made the Constitution the central point of discussion in the run-up to the recently concluded Lok Sabha elections clearly indicates that there is a sincere desire to live by the ideal and morality of the Constitution. Gender inequality institutionalised in the Muslim personal law is clearly against constitutional morality and hence it is hoped that the Muslim leadership and liberal secular parties will campaign for the UCC so that evil practices like polygamy, unilateral and arbitrary divorce, denial of inheritance and property rights etc. are abolished in line with the moral standards of the Constitution.

The moral influence of the Modi government over the last decade has laid the foundation for the UCC. It is now admitted that Muslim personal law is not the same as Shariah and, more importantly, Shariah is not divine law. So it is not the domain of the Ulema. Parliament can legislate and the courts can decide on the matter. With this clarity, one of the emotional barriers to the integration of the Muslim community, Muslim personal law, should be removed. This would be the consequence of abrogation of Article 370 and a precursor to the reform of Aligarh Muslim University.

Ibn Khaldun Bharati studies Islam and looks at Islamic history from an Indian perspective. He tweets at @IbnKhaldunIndic. His views are personal.

Editor’s note: We know the authors well and only allow pseudonyms if this is the case.

(Edited by Humra Laeeq)

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