I. (A) Personal Details Role Name Affiliation Principal Investigator Prof. Sumita Parmar Allahabad University, Allahabad Paper Coordinator Prof. Reicha Tanwar Kurukshetra Univesity, Kurukshetra Content Writer/Author (CW) Dr. Manjeet Bhatia Delhi University, Delhi Content Reviewer (CR) Prof Reicha Tanwar Kurukshetra University Kurukshetra Language Editor (LE) Dr. Sonal Parmar Independent Editor , New Delhi (B) Description of Module Items Description of Module Subject Name Women’s Studies Paper Name The Discipline of Women’s Studies Module Name/ Title Women and issues of culture: religion and ideology Some Cases –Shah Bano, Roop Kanwar Module ID Paper-1 Unit-2 Module-7 Pre-requisites The reader is expected to have the knowledge of structure of society, religious and marriage practices; politics and religion; role of law and judiciary in cultural practices. Objectives To familiarize the reader with the Cultural status of Indian women based on the traditions sanctioned by religious practices. Keywords Culture, Religion, Judiciary, Traditions, Uniform Civil Code II. 1. Introduction Traditions that are once invented in one generation tend to pass on to the following generations. They usually have religious sanction. These traditions get modified and changed according to new contexts. As per their current utility, traditions are appropriated. Romila Thapari gives an interesting example to understand this modification of traditions. In the Mahabharata version of Shakuntala, King Dushyanta meets her and proposes gandharva marriage after having an open discussion with her. She lays down a condition that the son born out of this marriage would be declared heir to Dushyanta’s throne. The Mahabharata version had a large audience and indicated the powerful agency of women that could ensure her rights. On the contrary, Kalidas’s version of Shakuntala is the story of ‘a submissive, obedient, retiring young woman who is so overwhelmed by her love for Dushyanta that she is incapable of arguing for her rights.’ Nowadays, when we talk about Shakuntala we talk about the submissive one of Kalidas rather than the one of the Mahabharta whereas, when it was 1 written, the Kalidas’s version was available only to a small court circle. We choose this version in the name of tradition because it is more useful for our society today; a shy, obedient beautiful women over an assertive one that insists on a condition before accepting a marriage proposal. It depicts the present day attitude towards woman and her status in society. Traditions treat women as naturally subservient to men. Whereas, feminist have put forth well developed scholarship to ground home the understanding that such a view is socially constructed. Fredrick Englesii established that women are not by nature born as weaker sex, there is a history to relegating women to the status of the second sex. 2. Women, Religion, Culture and Changing Contexts In the history of independent India there are two cases that especially stand witness to the cultural status of women and the vested interests of communities in retaining religious identities and the status-quo. Instead of beginning with culture alone, which is an amorphous framework, I draw on the women’s issues within culture starting with the Shah Bano case. 2.1 Shah Bano ShahaBano , a 73 year old Muslim women was married to Ahmed Khan in 1932. They had three sons and two daughters out of this wedlock. In 1975, Ahmed Khan drove Shah Bano and their children out of the matrimonial home. In April 1978, she filed a petition against her husband for maintenance under section 125 of the Criminal Procedure Code, 1973. Responding to this, on 6th November 1978, Ahmed Khan using the three times utterance way of Talaq under Shariatiii, divorced his wifeiv. He married another woman and had two children. Ahmed Khan was an advocate and had a flourishing practice. He pleaded that under Muslim laws, Shah bano was a divorced wife, and he had fulfilled his obligation towards her as a divorced wife by paying meherv, which was a sum of - 3000/- in the iddatvi period and therefore he was under no obligation to maintain her. This amount that was the agreed mehrvii. was 3000 silver coins according to Shaha Bano and not rupees The practice underscores the vulnerability of Muslim women who can be driven out of their homes and made destitute on the whims of their husbands. 2 Under Muslim law they are authorized just the mehr and nothing more with which they have to maintain themselves. The magistrate and court gave a verdict in favour of Shah Bano and directed Ahmed Khan to pay -25/-per month to her. The amount was enhanced by the High Court in the revision application to - 179.20/- per month. It was a verdict that recognized Muslim women’s rights though, Ahmed Khan moved the Supreme Court against this judgment. At that time, the distinction between maintenance on destitution (section125), and maintenance on divorce was quite blurred. So was the distinction between criminal (sec-125) and personal (civil)viii . The question of destitution of Muslim women was outside the purview of the court. Ahmed Khan argued that : 1. The High court had exceeded its jurisdiction and violated Muslim personal law as laid down by Shariat. 2. Shah Bano’s application for maintenance fell under the Muslim personal laws of marriage and divorce. Her case should be judged only under this law. 3. If questions of marriage, divorce and maintenance fell under personal laws, criminal laws should be kept out of it. He produced written statements from the Muslim Law Board, that said that under Shariat the husband was obliged to maintain only up till three months after divorce (iddat). Shariat did not deal with how the woman would maintain herself after the iddat period, so the question was outside the purview of the court. The matter went before the Chief Justice of India. Justice Chandrachud referred to many verses from the Holy Quran According to the said Aiyat 241 and 242 of Prophet Mohammed, there is an obligation on Muslim husband to provide for the divorced wife. Aiyat 241 of SURA II of the Holy Quran Wali’l motallaqatay For divorced women Mata un Maintenance (should be provided) Bil maroofay On a reasonable (scale) Haqqan This is a duty Alal muttaqueena on the righteous 3 Ayat 242 Kazaleka yuba Thus doth God Iyyanullaho Lakum ayatehee la Make clear His signs Allakum Taqeloon To you: in order that you may understand In short, the Holy Quran supported a fair deal for divorced women and this was a direction from God. Under Section 125 of the Cr.p.c., a wife who was without any income and has no source of income and was neglected by her husband was entitled to maintenance, which included a divorced wife who was not remarried. It was said that, if a divorced wife was unable to maintain herself, the husband’s duty to provide maintenance did not cease with the expiration of the iddat period and she could take the recourse of section 125 of the Cr.p.c.. Thus the judgment laid out very clearly that there was no conflict between the provision of section 125 and those of Muslim personal laws on the question of a Muslim husband’s obligation to provide maintenance for a divorced wife who was unable to maintain herself Ahmed Khan argued in the court that since he had paid the whole of amount that he was liable to pay under the customary or personal law that applied to the parties at the time of divorce, so the petition under section 125 was liable to be dismissed. According to the judgment, the ‘mehr’ or dowry paid at the time of marriage to a wife was a mark of respect and if paid at the time of divorce would not be considered in the category of mehr or dowry. Thus the detailed judgment dismissed the appeal and upheld the HC judgment in favour of Shah Bano. After the Judgment was made public, radical Muslims took it as an assault on their personal laws. Moderate and progressive Muslims who were in favour of reform in personal laws in order to support Muslim women’s rights got sidelined by the radical forces of Muslin and Hindu communities taking centre stage. Earlier Muslim women had used sec-125 of Cr p.c. to get maintenance. In these cases Chief Justice Krishna Iyer had delivered judgments. In his judgments he had expressed the need for judicial reform in Muslim personal 4 laws. Whereas, in the Shah Bano case judgment had gone ahead and ruled that section 125 Cr. P. C., and Shariat were mutually consistent, ‘in any case, section 125 being part of criminal law, cut across the ‘barriers’ of religion.’ix and ‘ A common civil code would help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies’x was interpreted by the Muslim community as an assault on their religious identity. Muslim religious leaders came together and the Ulema (Scholar-Priests) issued a fatwa (proclamation) that this judgment was against the teaching of Islam. Wide publicity was given to this fatwa and the issue took the form of a communal agitation almost, as if Islam was in danger. Hindu communalists supported the judgment and further attacked Muslim personal laws. Muslim demanded the repeal of the judgment and Muslim women be kept out of sec- 125 Cr. p. c. Such a stand got a fillip from the judicial order to open the Babri Masjid site (which was laying sealed under the Babri Masjid- Janmabhoomi controversy with the case in court), even for Hindu worship. The Visva Hindu Parishad, (a radical Hindu organization), celebrated the District Magistrate’s decree by taking out a victory procession to which Muslims retaliated by taking out a ‘mourning procession’.