The Curious Case of Shah Bano

Twenty-five years ago this week, the Indian Parliament passed a law ending the “Shah Bano affair”: a classic case study of the lunacy of allowing religious considerations to influence government policy, with a bizarre twist at the end.

Shah Bano was not the sort of person you’d expect to touch off a government crisis. Born in 1916 to an Indian Muslim family of modest means, she married Mohammad Ahmed Khan at the age of 16, and bore him several children. She then committed the serious blunder of growing old. Mohammed surveyed the field, found a more attractive soul mate, and kicked 59 year old Shah Bano out of his house.

Actually, there was a little more to it than that. He first completed the Muslim sharia legal requirements for a lawful divorce, which are quite appealing to those interested in streamlining red tape. All he had to do was to tell Shah Bano “I divorce you, I divorce you, I divorce you,” and the deed was done. (Muslim women, of course, are not allowed to divorce their husbands in this manner.)

Muslim sharia also thoughtfully provides that a husband who follows this procedure must provide for the support of the evicted spouse. First, he must restore the “bride price” originally paid at the time of marriage. In Shah Bano’s case, this was a handsome sum equivalent to about $66 US dollars. He also had to provide for her maintenance – for a period of three months, or until a divorced spouse who is pregnant gives birth.

So how exactly was 59 year old Shah Bano, who had never held a job other than managing Mohammed’s household and raising his children, supposed to feed, clothe, and shelter herself after burning through three months and $66 bucks? That was not an issue of concern in the sharia. Perhaps the 9^th century Arabs who developed it intended to incentivize women to be less grouchy and to age more slowly, so their husbands wouldn’t want to divorce them. The bigger question is, why in the world would late-20^th century India, purportedly a civilized country, allow such a travesty to occur?

The answer extends back to 1937, when the British were in “divide and conquer” mode in their efforts to main control over an increasingly restive India. A “Shariat law” was enacted, providing that Muslims in India would be governed by Islamic religious laws in matters relating to the family; Hindus would continue to be governed by Hindu religious law. Nothing could have been better calculated to divide neighbor against neighbor than to impose different sets of rules on one than another. The Shariat law was an important step along the road that led to the separation of Pakistan from India, at the cost of over a million lives (so far).

India finally achieved independence in 1947, under the leadership of the brilliant Jawaharlal Nehru. Nehru was a confirmed secularist – one of the greatest the world has ever seen.

The spectacle of what is called religion, or at any rate organized religion, in India and elsewhere has filled me with horror, and I have frequently condemned it and wished to make a clean sweep of it. Almost always it seems to stand for blind belief and reaction, dogma and bigotry, superstition and exploitation, and the preservation of vested interests.

Heard any American politicians talking like that lately?

After the religious bloodbath of partition, Nehru was intent on restoring harmony between India’s Hindu majority and its still sizable Muslim minority, who comprised over 20% of the population. He stood nearly alone on this; the Hindu religious leaders and their political flunkies remained bitter about the 1947 massacre, and convinced that Indian Muslims were a “fifth column” seeking to undermine the new state for the benefit of Pakistan, who deserved treatment as pariahs. When Nehru insisted that Indian Muslims be given full rights and status, a rival Hindu chauvinist politician bitterly joked that “There is only one genuinely nationalist Muslim in India – Jawaharlal.” This led to intense Muslim voter loyalty to Nehru’s Congress Party as their chief protector, just as American minorities have been drawn to the Democratic Party for the last 80 years.

Nehru was equally intent on dragging backwards India into the 20^th century, by giving it a modern legal system and a focus on science. By the time of his death, in fact, India had a space program and the second-largest pool of trained scientists and engineers in the world. Nehru’s hand could also be seen in Article 44 of India’s 1950 constitution, which mandated that “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” Thus, there would be no more separate marriage, inheritance, and other personal laws dividing India’s Hindus, Muslims, and Christians.

Nehru then proceeded to carry out the constitution by drawing up a modern, balanced law of marriage and divorce, guided by principles of what makes sense in the real world rather than by what some God expert said a thousand years ago. Here, though, Nehru suffered a rare defeat. Immensely popular, a brilliant builder of coalitions, Nehru could not overcome the opposition of modern day God experts who resented government intrusion on their turf. The best he could cobble together was a bill that, while thoroughly modern and rational, only applied to Hindus. The Hindu opposition parties opposed all change, and the Muslims within his Congress party refused to go along with anything that irked the imams. So Nehru reluctantly settled for a Hindu-only reform, ending polygamy (among other things) for the vast majority of Indians, in the hope that someday it would become universal as the Constitution required. But “someday” never came, so into the streets Shah Bano went.

At that point, some do-gooder lawyers got involved, who for once actually did some good. There was no question that Mohammed was on solid legal ground from a marriage law standpoint, but in scouring the statute books someone noticed Article 125 of the Indian Code of Criminal Procedure, requiring a husband to provide 500 rupees a month maintenance to an indigent wife – including a divorced wife who has not remarried. So which law controls – sharia, or the criminal code? India’s legal system fretted over this for nearly a decade, before the Supreme Court finally decided that Shah Bano was entitled to her 500 rupees a month.

To hear the howl that went up from India’s Muslim politicians, you’d think the court had ordered a systematic extermination campaign. Nehru would undoubtedly have been delighted with a result that not only brought uniformity to Indian law but protected millions of Indian women. But his grandson Rajiv Gandhi, then serving as prime minister, was not. Rajiv inherited none of his grandfather’s backbone, and saw nothing other than the unhappiness of the Muslim politicians who formed part of his Congress party. So, principle and Constitution be damned, he rammed a “Muslim Women Act” through Parliament exactly 25 years ago last week, reversing the Shah Bano decision and making life vastly easier for footloose Muslim husbands (though not quite as easy as Mohammed Ahmed Khan wanted it). So much so, in fact, that some Hindu men now complain of discrimination, and seek to overturn Nehru’s modern law.

And now for the promised bizarre twist. You might expect Shah Bano to have been gratified with her court victory, and proud of her role in improving the lives of her fellow Muslim ex-wives. Nope. Someone got to her, and let her know what a dim view God took of anyone who threatened his sharia. I’ll wildly speculate, without any evidence to back it up, that the same someone made certain promises about cash payments to take care of her future needs. In any event, during the uproar following the Supreme Court decision, she suddenly announced that she had changed her mind, that she didn’t want to go against God, and that she’d reject her hard-won 500 rupees a month, immeasurably easing the way for passage of Rajiv’s “Muslim Women Act” the following year.

All of which may put in a slightly different light old Mohammed’s decision to dump the old bat in the first place …