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Shah Bano Judgement in Islamic Perspective (A Socio-Legal Study)

Shah Bano Judgement in Islamic Perspective (A Socio-Legal Study)
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Item Code: NAH333
Author: Dr. Saleem Akhtar
Publisher: Kitab Bhavan
Language: English
Edition: 1994
ISBN: 817151183X
Pages: 464
Cover: Hardcover
Other Details: 8.5 inch x 5.5 inch
weight of the book: 590 gms

About the Book

This is the only comprehensive work specially devoted to the Shah Bano Judgement. No other book together the different strands of Islamic Shariah and Law, and analyses them in depth. Dr. Akhtar has under taken his research in this highly Volatile area for high lighting the problems relating to maintenance of divorced wives in the right perspective. In doing’ this the author draw on the findings of that Supreme Court has adopted a technique of contextual interpretation rather than strict textual interpretation. Such an approach of the court has attracted flake for many quarters.

Dr. Akhtar has painstakingly gifted lot of useful materials from the traditional sources, dug out a large number of interesting cases, particularly under the old code and has critically evaluate them with a view to meet the Social changes con- fronting the Muslim society in this country. He has opened up the avenue for further research work in this area. This book is very useful to lawyers, students, Social Scientists and historians in this field.

Introduction

India is multi-religious, multi-cultural and multi-lingual, and multiplicity of laws determine the socio-economic rights of its women folk. The situation is quite complex, because, tradition, custom as well as religion are contributory factors. Muslim women too find themselves governed both by religious and secular laws. The Indian Constitution proceeds on the assumption that women constitute the weaker section of society. Socio-economic transformations have also induced a new awareness. Therefore, currently, justice to women becomes one of the most fundamental questions. The Supreme Court too was inspired by a similar awareness in the Shah Bano case. The available evidence indicates that Muslim Society in India is under the strong influence of Islamic Shariah. It is religious minded in the sense that even in worldly affairs, the majority in its is guided by religion. However, a newer dimension is added by the awareness, that very unfortunate, the matters relating to women’s economic and social rights are being consistently flouted by Muslims and then judiciary. Any attempt to overcome them is not easy in this man’s world, Unless the “Muslim Ulema” take a lead to frame a “Muslim Family Code” within the ambit of Islamic Shariah.

These days, the status of Muslim women is not only a subject of study itself, but a means to evaluate the position of the Shariah in modern India. Unfortunately in India the traditional equilibrium between the Shariah and Muslim society has been irrevocably upset, not by change from within, but as the result of direct impact of western societies and their Legislative models.

The present study covers the reactions of Muslim society to the radical reforms introduced by the Indian legislators before and after the independence of India in matrimonial matters, and I, only confined to “Rights of maintenance to Muslim wives and divorcees” and the impact of Shah Bano case. The Analytical study of these legislative enactments leads to show the tension and conflict between religious and secular laws in which the women enjoy their economic rights. The most significant meeting point between the Shariat on the one hand and secular legislation on the other to analyse of the socio-economic rights of Muslim women.

Contemporary legislative interference with Muslim Law has introduced alien elements. Democratic legislative thinking is premised on a contractual notion of society which diametrically opposed to the view of society informing classical Muslim Law. Islam conceives of man as part of a social organism, a structured community based on a common religious traditions and a net-work of mutual obligations that make and shape men. This comes in sharp conflict with the norms of behaviour regulated by rules emanating from the use of principle that a man as a free moral agent is capable of making laws for the regulation the affairs of men. This conflict of tradition with legislative activity is poignantly portrayed in the debate on Muslim Personal Law in India through legislative interference. In these situations the role of the judges (Muslim as well as non-Muslim) is very crucial in the process of “Islamization” of social organs, both traditional and modern. The Judiciary is facing an uphill task in the application of ‘Muslim Law’ in the absence of Muftis and Ulema as interpreters of the Muslim Law. After Shah Bano decision, one section of Muslim community is openly criticizing the attitude and approach of the judges. Their argument is that they are not competant to interprete the Shariah and act as a Mujtahid, because they do not fulfill the qualifications of Mujtahid. Another argument is that there is a disparity and conflict between religious and secular laws. The lines of battle are clearly drawn. The traditionalists rely on revealed nature of Islamic Law, superiority of traditions, limited interpretative value of human effort, merit of knowledge of affairs human and divine, and, or capability of the learned “Ulema” and “Mujtahid”, to deny legitimacy to human institutions like parliament or judiciary to make changes.” Indian Muslims believe that the Shariah law is complete and immutable. it governs the entire life, and also includes personal law, social law, penal law and commercial law in short it covers the entire field of law and life. The Muslims claim that their personal law is an integral part of their religion and the Indian constitution has guaranteed freedom to have, propagate and practice their religion. The protagonists of change rely on incongruities of contemporary social life, social disabilities, exploitation of women and secular nature of the polity.

The recent judicial trends regarding the application and preservation of Muslim Personal Law is very dangerous and extremely harmful to the entire system of democratic polity and the government. This judicial craftsmanship may be viewed as constitutional sacrilege and has a onslaught on constitution, which provides the freedom to have propogate and practise of their religion. The Shah Bano case cropped out so many aspects, touching human rights, constitutional religious guarantee, Law reform, Qur ‘anic studies, Muslim Personal Law and fiqh, Civil and Criminal Procedure, Statutory Construction, Parliamentary law and practice, minority rights, political science, sociology, social dynamics, and even geopolitics and other disciplines entered the controversy. The case has attracted the strong public opinion within and outside of India. The adventurist judicial approach in deference to Islamic law has been approved by the Muslim judges. Murtza Fazal Ali J, in Mohd. Labbai has deprecated the tendency of the courts to disregard sometimes the essential features of the Islamic law. He observed:

“The most unfortunate part of the drama long in

process is that the courts before whom the disputes comes up for decision handed down judgments

which were not strictly in accordance with the

Shariat and the essential tenets of the Muslim

Law”, (emphasis).

No doubt that recent judicial trends has ventured openly in areas, which are considered immune from the perview of legislative interference. It is the treatment to Shariat, has upset Muslims all over the country. Muslims think that the judges maligned Islam. In Shah Bano, the very first sentence of Chief Justice, “the fatal point of Islam is the degradation of woman”, is an insult.! The impression created by their devious utterence is that Shariah is out-dated and deficient in the sense that it does not provide practical solutions to the problems faced by contemporary societies particularly destitute Muslim women. Irrelevant issues and controversies have been raised by the false defenders of faith to cloud and bypass the real issues relating to the socio-economic disabilities suffered by our women folk, such as life long maintenance of the divorced wife by the ex-husband. But the real issues today are:

(i) Whether, Islamic Law is not provide practical solutions for practical problems, which are faced by the contemporary societies:

(ii) Whether a divorced Muslim wife has a legal right to an economic settlement on an equitable scale with reference to the standards of good or adequate prevailing in the society at any given time.

Actually for the first time, the Divine Commandments were thus directed to remove, pain, destitution and sorrow from the lives of the women by granting them equal status which prevented males from enjoying every advantage at the expense of the poor, oppressed and downtrodden women folk.

Contents

 

Acknowledgement xi-xii
Introduction 43831
Chapter-1 Maintenance of the wife and Divorced Women in Islam: The Theological Perspective 21-52
Chapter-2 Consequences of Non-Maintenance of Wive: Dissolution As Sanction 53-86
Chapter-3 Tpiple Divorce in Islamic Context 87-134
Chapter-4 Maintenance to Muslim Wives and Divorces Under Section 488 Cr. P.C.1898 135-161
Chapter-5 Legislative History of Section 125 and 127 (3)(b) Cr.P.C.1973 162-173
Chapter-6 Judicial Exposition of section 125 and 127 (3)(b) of the Code 174-242
Chapter-7 The Shah Bano Controversy 243-309
Chapter-8 Social Function of Section 125 of the Code: A Case study 310-340
Chapter-9 The Muslim Women (Protection of Rights on Divorce) Act 1896: A Critique 341-385
Chapter-10 Conclusion 386-398
Bibliography 399-412
Appendix I 413-416
Appendix II 417-419
Index to Select Articles on Muslim Personal Law & Shah Bano Case 420-453

 

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