The Muslim Women (Protection of Rights on Divorce) Act of 1986
The Muslim Women (Protection of Rights on Divorce) Act of 1986 was a controversial decision of the Indian parliament that raised critical questions regarding multi-religious societies and the role of state and personal law.
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Background
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In 1978, Shah Bano was divorced by her husband and appealed to Indian courts to gain maintenance money (much like the idea of alimony).
Muslim law traditionally states that divorced women are not entitled to continued maintenance, since her family should eventually assume that responsibility.
The Indian Supreme Court responded by granting maintenance to Bano, overriding the personal law that granted legal autonomy over such divorce cases to the Muslim minority.
The Law
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Essentially, the 1986 legislation revoked the Bano decision, recognizing the aggravated tensions the Bano case had sparked between ideas of "national-integration" and the further isolation of Muslim communities.
The law specifies that maintenance to divorced Muslim women will only be for the period of Iddat (close to three months).
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Rajiv Ghandi
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Minority tensions were already troubling prime minister Rajiv Ghandi's young government. Following his mother Indira's assassination, his tenure in office had itself seen considerable inter-religious conflict. Ghandi's support for the 1986 divorce law, and opposition to the Bano precedent, can be seen in part as a political effort to diffuse those heated and often violent developments.
Effect on Muslim Women's Rights
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The 1986 legislation removes the possibility for Muslim women to receive extended maintenance under national law. It ultimately reinstalled the authority of personal and religious law on issues surrounding the circumstances of divorce.
Controversies
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The Bano case and the subsequent 1986 legislation have been the subject of vigorous scholarly debate in law and the humanities.
One of the principal questions addressed is where to locate the notion of human rights. Can the state justify protecting a minority group's rights to self-determination at the expense of an individual who perceives her own circumstances as unjust?
What is the role of personal law regarding minorities when charges of discrimination are raised?
Finally, how should national minorities who perceive themselves as threatened allow their own culture and legal traditions to be absorbed into or diminished by state authority and civil law?
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References
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