Minority Rights vs. Women’s Rights

The ways in which we define words is crucial, and the importance of definitions has played a part in my research so far in the relationship between minority rights and women’s rights. Is religion a belief system, separate from our daily routine, or a driving force behind every decision we make? Is a community limited to its size, or driven by its power and sense of identity? And are civil rights limited to a singular type of identity, irrespective of the overlap between such labels as ‘minorities’ and ‘women’? The differences in these definitions stem from those who are given the power to define: the Indian government, the Muslim religious leaders, Indian women, Muslim women, divorced Muslim women, etc., and the ways in which minority rights and women’s rights are implemented in law.

My discussion here involves a pivotal and controversial court case, known commonly as the Shah Bano case. In 1978 Shah Bano, a 62-year-old Muslim mother, was divorced from her husband. Shortly after, she filed a criminal suit for alimony in the Supreme Court of India. At first, she won the right to maintenance, but was then denied it when the Indian Parliament reversed the decision due to immense pressure and uproar from the Muslim fundamentalists. The Supreme Court had cited Section 125 of the Indian Criminal Procedure Code (CrPC), which states that husbands must provide maintenance for their divorced wives. Muslim leaders, however, had won an escape clause to this ruling because the Qur’an has its own guidelines for providing maintenance under personal law (which are subsequently widely ignored). The Shah Bano case was so controversial because of the Supreme Court’s ruling that Bano’s husband could not be exempt from the secular law that required him to pay his divorced wife the appropriate alimony. The courts said secular law comes before personal law, the Muslim leaders said the courts had no right to interpret the Qur’an, and the state was stuck in the middle. What a pickle.

So, Indian Parliament, following their trend of non-interference, passed The Muslim Women (Protection of Rights on Divorce) Act in 1986, ignoring the influx of protests against the act from Indian Muslim women. The Act nullified the Bano judgment, limiting maintenance to the iddat period (90 days after divorce) in accordance with Islamic law. This went against Section 125 of the CrPC, which requires maintenance regardless of caste, religion and gender, and restricted the liability of the husband to pay maintenance to within the 90 days. Which, as you may assume, rarely happens.

With the Muslim Women Act, the Indian Parliament ultimately combined women’s rights with the Islamic minority rights of the nation. In doing so, the state defined divorced Muslim women’s rights as identical to those of the Muslim minority. The state therefore had the power to establish the borders of the Muslim community, trapping individual Muslim woman’s rights within a larger group. Muslim women were becoming even more symbolic of personal law and minority identity, instead of gender equality. In the end, Shah Bano denounced the court’s ruling that was in her favor in order to regain trust and respect from her religious community, a disheartening yet understandable decision given her situation.