Case Study Memo

In 1985, the Indian Supreme Court had a very important decision to make regarding women's rights in the case of Mohammad Ahmed Khan vs. Shah Bano Begum and Others. A 62 year old Muslim woman named Shah Bano was a mother of five from Indore, Madhya Pradesh, and was divorced by her husband in 1978. The Muslim "personal law" allows the husband to do this without her agreement and, also exempts him from having to pay her maintenance (alimony) after three months after the divorce. After three months it is the responsibility of the woman's family and community to support her (Jenkins pg.2). She tried to get alimony through the Indian courts for seven years prior to the case reaching the Supreme Court. The Supreme Court had to make the decision to go by the Code of Criminal Procedure and not the civil laws which "define and govern the rights and obligations of the parties belonging to particular regions" (Jenkins pg.3). In essence, they had to choose between a common civil code which further advocates national integration or the personal laws of the minority religions. They also had to choose between the rights of women and other people who are destitute and unable to take maintain themselves or, the rights of religious laws (particularly of the minority). Ultimately the Supreme Court ruled in favor of Shah Bano and ordered the husband to give her the entitled maintenance. While a lot of women and Hindus were pleased with the decision, a lot of Muslims and members of other minority religions were outraged. All of this was taking place during a time of political and religious unrest in India. Trying to attract Hindu nationalists Prime Minister Rajiv Ghandi's congress let the Muslim sacred place of worship The Babri Mosque to be reopened after Hindu's argued that it had been built on the site of the destroyed Hindu temple honoring the God, Ram. This made Muslims question the Congress Party's loyalties (Jenkins pg.5). Out of these minority religion insecurities and unrest came the Muslim Women (Protection of Rights on Divorce) Bill, which ironically would reinforce Muslim law's denial of ongoing maintenance of women. Rajiv then had to decide if he would uphold to Supreme Court decision to grant maintenance to Shah Bano or reinforce Muslim personal law through the Muslim Women Bill. By overturning the ruling, it would ultimately decide that women had no rights under their religion and by reinforcing the decision it would decide that minority religious law is invalid. My argument is, why is it that if a woman wants her God-given rights, it must always come down to taking rights away from others? There must be a way to appease both sides.

        This case is not unique. When it comes to women and marriage rights, we have been in this fight for hundreds of years. This case not only defines marriage rights but it also defines women's rights for equality and against violence against women in the US and around the world. After reading this case I made the connection that it seems that whenever women ask for rights, it means that we are taking some away from others. For example, under Title 9, discrimination based on gender, marital, or parental status in education is prohibited, particularly in sports. However, "this criterion means that women and girls are often blamed for cuts to men's sports" (Seely, pg.109). Why is it that we can't ask for rights without being considered selfish or putting ourselves before other institutions like patriarchy or religion? Also, taking away women's marriage rights is also conected to violence against women such as the stoning of women accused of adultery in some Middle East regions and marriage rape. In the US, marital rape wasn't considered a crime in all 50 states until 1993 and in 2005, 33 percent of women were murdered by their boyfriends or husbands (Kirk/Okazawa-Rey pg.258). Marriage rights are directly connected to women's rights for equality and violence against women. With this case, it is so much more than alimony that is on the line; its women's lives.

When thinking of a solution to this problem, our group came up with a transnational feminist solution that we believe will appease both sides of the spectrum (women's rights and minority religions rights and personal laws). We didnt want to essentially "rape" Muslim culture by telling them that their personal laws are invalid in favor of a national integration approach. We also knew that it would be impractical to try and press for one uniform civil code when there are so many small religious communities with different laws and ideals. So we proposed the option of enacting the Special Marriages Act of 1954 which offers couples a non-religious alternative to personal laws (Jenkins, pg.8). With this a couple could have three choices. They could choose to get married through the state law under which women in particular would be eligible for benefits such as maintenance under the Special Marriages Act. If a couple chooses to get married through their religious community alone, they must abide by their personal laws. The third option is getting married through the state and through the church, in which upon the dissolvement of the marriage the woman is still protected under state law. We also came up with two exemptions undr this Civil Code, one of them being a grandfather clause and the other called the Coercive Marriage Clause. Under the grandfather clause, women who have gotten married prior to the enacting of this civil code are still eligible to have their marriage recognized by the state and be protected under the Special Marriages Act. The Coercive Marriage Clause is for women who have been coerced to get married through the church alone, under which they would have to show proof that they were coerced before they could be recognized by the state. This Civil Code would protect women's marriage rights without forcing it upon the minority religions and invalidating their personal laws. More importantly it offers women options instead of telling them they're on their own.

word count: 1016
Works Cited:
Kirk, Gwyn, and Margo Okazawa-Rey. Women's Lives Multicultural Perspectives. 5th. New York, NY: McGraw-Hill, 1998. p.258. Print.

Seely, Megan. Fight Like A Girl. 1st. New York, NY: New York University Press, 2007. 109. Print. 

Jenkins, Laura Dudley. "Shah Bano: Muslim Women's Rights Case Study." (2000): p.2-8. Print.