2. Methodology

Fairclough describes critical discourse analysis as a method which focuses on “productive semiotic work which goes on in particular texts and interactions.”Footnote ⁴¹ Discourse analysis also focuses on “interdiscursivity” of the text as it illuminates the “genres, discourses, and analyses it draws upon and how it works them into particular affiliations.”Footnote ⁴² He further notes that this gives rise to “hybridity” or the “mixing of different discourses.” This method enables us to delineate the structuring of discourse as well as the interactions and conversations between them.Footnote ⁴³ Bernard observes that “discourse-centred approaches” enable us in locating the use of language vis-à-vis broader social processes as we study language “as a form of social action.”Footnote ⁴⁴ This method is particularly useful in the analysis of judgments as we locate them in the broader sociopolitical context of the apparent conflicts between cultural accommodation and individual rights in India. I use this method instead of a mere review of case-law as the paper intends to move beyond a mere superficial “reading” of judgments to focus on the construction of arguments illuminating the interplay of discourses. This methodology helps in unravelling the manner in which the Supreme Court negotiates a range of legal orders in a multicultural society to articulate a vision of rights. I read the text of the judgments of the Supreme Court from 1985 until 2015 closely to delineate the discursive constitution of state law and the category of “rights” rewarded by the state in relation to community identity and individual rights guaranteed by the Constitution. I attempt to read the structuring of the discourses of constitutionalism and Islamic law in the construction of legal arguments. I attempt to look at the interplay of constitutionalism, general law, statutory interventions premised on community identity, and Islamic legal discourse. The method of discourse analysis enables us to see how these discourses are made to speak to each other in the construction of an argument.

3. Literature Review

I locate my empirical analysis of the judgments of the Supreme Court within the broader theoretical framework of legal pluralism. Griffiths states that societies can be legally plural both in a “strong” sense where the law is “neither systematic nor uniform” as well as in a “weak sense” where the “sovereign commands different bodies of law for different groups in the population.”Footnote ⁴⁵ He also distinguished between legal pluralism as the existence of diverse legal orders in a social group and legal pluralism as a problem of dual legal systems in post-colonial societies where European imperial powers imposed legal orders on pre-existing arrangements. In the 1970 to 1980s, the literature on legal pluralism focused on the dynamic relationship between official and unofficial legal ordering.Footnote ⁴⁶ Moore propounds the idea of a “semi-autonomous social field” which can create rules and customs internally but which is also vulnerable to external forces from the larger world.Footnote ⁴⁷ Galanter states that legal orders exist in a reciprocal relationship in open social networks. Merry notes the analytic problem presented by this paradigm of legal pluralism; she highlights the indeterminacy of the boundaries of social life and non-state law.Footnote ⁴⁸ She argues that there are “no clear boundaries between what can and cannot be called non-state law.” The scholarship on legal pluralism in the 1980s saw an increasing focus on the “dialectic and mutually constitutive relationship” between state law and non-state legal orders.Footnote ⁴⁹ This mode of analysis continued in the subsequent decades. Kolff writes on how state codification changes custom and religion.Footnote ⁵⁰ Eckert notes the phenomenon of formal devolution of state power in a legal-pluralist paradigm as well as the presence of “parallel judicial authority that would control specific groups of people.”Footnote ⁵¹ The literature, however, has not paid enough attention to how a range of legal orders in state law in a legally plural paradigm constitute each other. Tamanaha, in a review of theoretical approaches in legal pluralism, notes that clashes can exist within normative versions of the “official law.”Footnote ⁵² He further notes that some legal orders of the state are “internally plural and diverse with complex combinations of transplanted indigenous norms and systems.”Footnote ⁵³

This theoretical lacuna provides an important vantage point from which to begin exploring the relationship between community-specific, culturally grounded legislation and a normative constitutional rights discourse in India. The interaction between Muslim personal law in India and the Constitution provide an ideal case for exploring this theoretical problem. It is important to note here that Muslim personal law consists of community-specific statutory intervention (such as the Muslim Women’s Protection of Rights to Divorce Act 1986), judicial interpretations as well as tenets of Islamic law. I therefore consider Muslim personal law as a normative constituent legal order of the Indian state. At the same time, the slippery, contested nature of Islamic law makes the judicial reinterpretation of Muslim personal law a domain of discursive tension and contestation. Muslim personal law is, after Tamanaha, an “internally plural” legal order. How does the Constitution interact with and constitute this legal order? Is it in turn constituted by it? I propose to ask these questions with an intent to address the theoretical lacuna in the legal pluralism literature on the relationship between variants of state law.

In India, feminist scholarship on personal laws in the 1970s and 1980s failed to capture the possibility of a discursive interplay between constitutionally guaranteed rights and community affiliation. The debate was premised around the desirability of a UCC which was perceived as an instrument of gender justice. Secular feminist scholarship raised concerns about the injustice and unequal treatment of women inherent in all personal laws.Footnote ⁵⁴ In her long treatise on a proposed UCC, Dhagamwar argues that state-made law offers “a more promising arena of struggle for the emancipation of women than what is offered in the domain of people’s law.” She further conceives of the UCC as a “harbinger of genuine democracy”Footnote ⁵⁵ and finds personal laws problematic from the perspective of taking away from the state its obligations towards some citizens.Footnote ⁵⁶ Dhagamwar’s criticism of the personal laws and her conceptualization of a gender-just UCC in its place can be located in a modernist understanding of state-led legal unification as an instrument of emancipation and empowerment of the marginalized. She forecloses the possibility of a vision of constitutionalism being woven into personal laws or community-specific legislation.

There was scholarship around this time that questioned the premise of all religion-based personal laws being unjust. Mahmood emphasizes the surprisingly “modern” outlook of the Quranic law as it provides for a contractual nature of marriage, concept of divorce, and allows, even promotes, remarriage of divorcees and widows. He also notes that the judgments of the Kerala High Court have attempted a liberal interpretation of Muslim law that favours women.Footnote ⁵⁷

The 1990s saw scholars acknowledging the limits of state-led legal centralism. Kishwar argues that the Hindu personal code did not introduce any legal principles that were not already present in existing legal systems in India. She further points out that a number of existing liberal principles were decimated by the Hindu code.Footnote ⁵⁸ For example, she points out how the Hindu Marriage Act introduced the notion of “adversarial divorce” premised on the principle of making divorce as difficult as possible—a concept imported from nineteenth-century Britain.Footnote ⁵⁹ In contrast, customary Indian practices provided for more flexible forms of dissolution of marriage and separation. She also points out the religious bias in the Hindu Minority and Guardianship Act 1956, which provides that a parent ceases to be a natural guardian on her conversion to another religion.Footnote ⁶⁰

Mahmood, while in favour of the “reform” of personal laws, felt that this could be achieved by the state through gradual evolution. He argues that Article 44 of the Constitution, which spoke of the need for the state to enact a UCC, was more in the form of a guiding principle to be kept in mind while enacting civil laws rather than an aim to formulate a code.Footnote ⁶¹

In the 2000s, a lot of scholarship speaks of the efficacy of legal-pluralist interventions in furthering the goals of the Constitution.Footnote ⁶² Menski is critical of the modernist project of legal uniformization that he refers to as an instrument of domination used by those who “wish to rule an amorphous uncritical mass with minimum hassle and maximum power.” He underscores the potential of personal laws to empower people and rejects the contention of modernists that these laws are primarily used as instruments to “undermine gender justice.”Footnote ⁶³ He further argues that India has crafted a strategy of careful combination of judicial reinterpretation and parliamentary intervention to further reforms in personal laws while managing cultural diversity.Footnote ⁶⁴ He also warns against the UCC being appropriated as an instrument to “Hinduise the nation and simply get rid of Muslim and Christian personal laws.”Footnote ⁶⁵

Sezgin has acknowledged the presence of multiple sites of resistance to patriarchal religious authority within communities. Based on his field research in Israel, Egypt, and India, he claims that religious laws have a negative impact on fundamental rights and freedoms.Footnote ⁶⁶ He, however, recognizes that individuals “renegotiate their rights and duties under the law and try to reform the system from within.”

Solanki, in an insightful empirical study of family courts in Bombay, points to a “shared adjudication model” adopted by the Indian state where the state shares adjudicatory authority with multiple sites of non-state law leading to the attainment of gender justice.Footnote ⁶⁷ This model is said to consist of multiple sites of adjudication where social organizations compete as well as co-operate and communicate with the state.Footnote ⁶⁸ She traces the phenomenon of “centralisation” and “decentralisation” of state law based on the extent of its interaction with non-state law. While Solanki gives us a framework for understanding the ways in which juridicial power resides in both the state and non-state actors in a multicultural, legal-pluralist paradigm, her work builds up on a clear analytic distinction between state and non-state law that is not useful in delineating the discursive constitution in the realm of ideas of these two entities. The artificial compartmentalization that she dwells on between state and non-state law precludes the possibility of a discursive interaction between constitutionalism, the secular law, and tenets of religion.

Redding points out the limitations in “liberal legal theorising” that foreground and valorize the practices of state law and denigrate those of non-state law.Footnote ⁶⁹ The literature on uniformization of personal laws in India discussed above clearly suffers from this flaw. It largely draws upon an explicitly positivist understanding of a “rule of law” as a normative standard set by the state.

While the literature on legal-pluralist interventionsFootnote ⁷⁰ presents a more nuanced picture of the functioning of personal laws than the feminist scholarship of the 1970s and 1980s, a sustained analysis of the discursive interaction between normative orders, both within and outside the state, is lacking. The paper proposes to address this critical gap in the existing literature by illuminating the interplay of discourses in the normative legal orders of the Constitution, the secular law, and Muslim personal law.

The debate between legal centralism, implicit in a modernist impulse to “secularize” legal systems and limit the influence of cultural practices and legal pluralism, in the sense of statutory interventions grounded in community identity that build on cultural practices and lend themselves to judicial reinterpretation as a means of securing gender justice for women, is by no means a settled one. This is most evidently discernible in the literature that tends to posit community autonomy in opposition to personal freedoms of individuals guaranteed by the Constitution. In recent times, scholars continue to harp on the ill-effects of personal law systems. Dhagamwar further points out that religion and customs condoned by the personal laws were often in violation of criminal laws and were taking away the rights granted to women under the formal legal system. While Dhagamwar raises a serious concern of the conflicts between personal law and state-made secular law, especially in instances where personal law hinges on criminality, her proposal of debunking informal legal systems such as caste panchayats altogetherFootnote ⁷¹ forecloses the possibility of a more creative intervention by the state. It precludes the possibility of the state acting as an arbiter of “justice” within the framework of personal laws by aligning itself with interpretations of the same that align with the state’s agenda.

Ahmed and Ahmed argue that a UCC will help the cause of national integration and the attainment of equality amongst citizens. These authors also stated that most of the personal laws were unjust towards women.Footnote ⁷²

Parashar has taken issue with the post-modernist, legal-pluralist framework, portraying it as working against the interest of gender justice. She argues that a legal system that gives primacy to customary practices and recognizes them as “law” is discriminatory towards women, as most of these practices are unjust.Footnote ⁷³ Her argument is also premised on an assumption of most personal laws as inherently unjust. She conceives of personal law as an unchanging, fixed code and does not allow for any possibility of an ever-evolving entity that, as Redding points out, is constantly constituted and re-constituted in its dynamic interaction with the state law.Footnote ⁷⁴

Bhat in his insightful review of the case-law on freedom of religion in India, makes a significant contribution to the debate between individual rights and community rights. He argues that the construction of a doctrine of “essentiality” consolidated the regulatory hold of the state on denominational religion while restricting the individual’s right to freedom of religion.Footnote ⁷⁵ He argues that the Supreme Court, in adjudicating on the freedom of religion guaranteed under Articles 25 and 26 of the Constitution, has restricted the definition of religion to only those facets that it considers “essential.”Footnote ⁷⁶ He further identifies two distinct discursive movements deployed by the Supreme Court in its adjudication on religious freedom; the Court posits an “external critique” of religion and religious practices as falling foul of constitutional ideals while also constructing “true faith” that constitutes religion.Footnote ⁷⁷ I find Alam’s theoretical frame useful in explicating the shifting terrain of the Supreme Court’s engagement with religion. I build up on this frame further in my work to illustrate the interplay of the discourses of personal laws and fundamental rights that animates the judgments of the Supreme Court; I also delineate the larger political implications of the ways in which these discourses are used to construct a legal argument.

4. Shah Bano

The Shah Bano judgment has been perceived in the scholarship on family law in India as a watershed moment for Indian secularism and multiculturalism, as the state had to reconcile what seemed like conflicting claims of community autonomy, voiced in the language of minority rights and individual women’s rights.Footnote ⁷⁸ In this controversial judgment, the Supreme Court had ruled that the husband of a divorced Muslim wife was obliged to pay maintenance as per the provisions of s. 125 of the Criminal Procedure Code (CrPC) and rejected the husband’s contention that he was only obligated to pay maintenance for three months following the iddat period as per Muslim law. However, it is important to note that Shah Bano was not the first instance where the Supreme Court had ruled in favour of the right to maintenance of a divorced Muslim wife under the said provision. Earlier, in Bai Tahira v. Ali Hussain Fidaalli Chothia Footnote ⁷⁹ and Fuzlunbi v. K Khader Ali,Footnote ⁸⁰ the Court had upheld the right of a divorced Muslim woman to maintenance under the secular law.

In Shah Bano, the Court was called upon to adjudicate on two central questions: whether s. 125 of the CrPC was applicable to a divorced Muslim wife and whether s. 127(3)(b) insulates a Muslim husband from the liability to pay maintenance for his wife once the dower has been paid within the period of iddat.Footnote ⁸¹ The appellants and the interveners in the case had argued that the husband did not have any obligation to pay maintenance to a divorced wife beyond the iddat period—a period of three months after the divorce. The appellants contended that s. 127(3)(b) of the CrPC protected the Muslim husband from the requirements to pay maintenance under s. 125.

The judgment, delivered by Chandrachud C.J., navigates a number of discourses to construct an argument for the applicability of the secular law to divorced Muslim women. In addition to a textual construction of the rights of the divorced Muslim woman from the secular law, Shah Bano also resorts to Islamic legal sources to validate the same. Further, it touches upon the politically contentious issue of the need for a UCC. The competing discourses that come into play in the text of the judgment are the secular law, tenets of Islam, and national identity premised on legal uniformity.

Chandrachud C.J. categorically states that the provisions under s. 125 are “too clear and precise to admit of any doubt or refinement” and that the religion of the spouse is irrelevant. He states that s. 125(1)(b) contains no words of limitation and therefore applies to spouses irrespective of religion. He further emphasizes the social justice aspect of s. 125 of the CrPC; he states that the section is “founded upon the individual’s obligations to the society to prevent vagrancy and destitution.” Thus, the Court, even while making no explicit reference to the Constitution, outlines the constitutional mandate of social justice. Article 15(3) of the Constitution allows the state to make special provision for women and children. Article 38 of the Constitution, a part of the Directive Principles of State Policy, mandates the state to “secure a social order for the promotion of the welfare of the people.”Footnote ⁸²

However, the state here is seen as the final arbiter of justice. This is amply borne out by the thrust on state law as a site of justice. Chandrachud C.J. observes that s. 125 of the CrPC was enacted as a remedy for “a class of persons unable to maintain themselves” irrespective of their religion. He further states that the prevention of vagrancy was the “moral edict of the law” and “morality cannot be clubbed with religion.” The Court thus attempts a literal interpretation of the criminal law to unequivocally assert the rights of divorced Muslim women who are unable to maintain themselves.

In Shah Bano, Chandrachud C.J. adopts a paternalistic attitude to the Muslim community from the very beginning in some of his assertions. Some of the scholarship on Shah Bano has taken note of how the judgment became a seminal moment for imagining the woman victimized by the iniquitous “Muslim” society as a point of entry into the personal law debate.Footnote ⁸³ This was a trope later on appropriated by the Hindu right who translated it into clarion calls for a UCC.Footnote ⁸⁴ The observations of Chandrachud C.J. betray a paternalistic attitude towards an iniquitous Muslim society desperately in need for reform. His reasoning is premised on these very assumptions in a set of rhetorical questions:

He goes on to state that these were some of the “important” as well as agonizing questions that the judgment had to answer. These series of rhetorical questions typify the Muslim woman in desperate need of being “rescued” from the clutches of a patriarchal religious law. The judge also resorts to hasty and vague generalizations about the unrestricted right of the Muslim man to divorce his wife “whenever he chooses to do so,” completely oblivious to the diverse positions in Islamic law on the subject. Muslim law by no means encourages the practice of arbitrary divorce.Footnote ⁸⁵ For instance, classic Hanafi law, while providing for various forms of talaq, clearly attaches moral merit to those which offer the opportunity for revocation while the al-bida or the instantly effective modes are said to be the least meritorious.Footnote ⁸⁶

The judgment does appropriate Islamic legal sources to consolidate the authority of the state law. However, the use of Islamic legal sources sits uneasily with hasty generalizations on Islam and the imagination of the Muslim woman as a “victim” who needs to be rescued by the secular law. The Court refers to Aiyats (verses) 241 and 242 of the Quran to show that there is an obligation of Muslim husbands to provide for their wives. The Court refers to the translations of the Quran by Yusuf Ali, Muhammed Zafrullah Khan, and Dr Allamah Khadim Rahmani Nuri to conclude that the Quran imposes an obligation on the Muslim husband to “make provision for or to provide maintenance to the divorced wife.” The Court rejects the contention of the appellant that the word “Mata” in Aiyat 241 means “provision” and not “maintenance” and observes that this is “a distinction without a difference.”

This strategy is further borne out by the way in which the Court settles the ostensible dispute between s. 127 and s. 125 of the CrPC. The appellants had argued that s. 127(3)(b) of the CrPC absolves the Muslim husband of the liability to pay maintenance under s. 125. The former allows a magistrate to cancel an order under s. 125 if the divorced woman has received on the date of the divorce a sum “payable on divorce” under the personal law or customary law applicable to the parties. The Court cites Mulla’s Principles of Mahomedan Law to define Mahr “as a sum of money of other property which the wife is entitled to receive from the husband in consideration of the marriage.” The Court holds that Mahr is a sum payable out of respect and not a sum payable “on divorce.” The Court thus takes upon itself the task of interpreting Muslim personal law even while outlining the “truly secular” character of the criminal law under consideration. Commentators have observed how the controversy around Shah Bano was on account of the reinterpretation of the verses of the Quran by a five-judge Bench of Hindu judges.Footnote ⁸⁷ The interaction of discourses in Shah Bano shows a clear hierarchization between state law and non-state law; there is also an attempt to define and outline the limits of Islamic legal discourses by the state and make them subservient to the agenda of the state law. I use Shah Bano as a starting point to trace the forms in which this interdiscursivity plays out in subsequent judgments following the enactment of the Muslim Women’s (Protection of Rights) to Divorce Act 1986.

Shah Bano also stirred up a hornets’ nest in its comments about the desirability of a UCC as an instrument of national integration. The Court lamented that Article 44 of the Constitution, which calls for a UCC, had not been implemented. The UCC is seen as an instrument of national integration which would do away with the “disparate loyalties to laws which have conflicting ideologies.” The pronouncements on the UCC are extraneous to the reasoning of the judgment. While the Court uses Islamic legal sources to strengthen the authority of state law and takes upon itself to define the tenets of non-state law, it decries the allegiance to “conflicting ideologies.” This is clearly premised on an understanding of the state as the progenitor of the law and a consequent insistence on allegiance to the same. In its engagement with discourses of Islamic law, constitutional ideals of social justice, and the criminal law, the state consolidates further its authority as the site of law. It is perhaps this characterization of the personal law systems as inimical to objectives of legal uniformization and hence national integration, which led to the judgment being perceived by Muslims as an assault on their cultural autonomy.

5. Post Shah Bano

Following the Shah Bano judgment, the Supreme Court enacted the Muslim Women’s (Protection of Rights to Divorce) Act (MWA) 1986, which many commentatorsFootnote ⁸⁸ continue to wrongly interpret as overturning the gains of Shah Bano. Section 3(1)(a) of the Act entitled a divorced Muslim woman to “maintenance” and a “reasonable and fair provision” to be made and paid within the iddat period (a period of about three months from the date of divorce after which a woman is allowed to re-marry). In the subsequent decade, a number of judgments of the High Courts held contradictory positions about whether the Act obligated husbands to pay maintenance only for the iddat.Footnote ⁸⁹ A number of judgments of the Kerala High Court interpreted “reasonable and fair provision” to be an obligation in addition to maintenance to be paid to divorced Muslim wives until they were re-married. Several High Court judgments used this provision in the decade following Shah Bano to award generous amounts of “reasonable and fair provision” in addition to “maintenance” that were not confined to the iddat period. This position was decisively settled by the Supreme Court in Danial Latifi v. Union of India. Footnote ⁹⁰

The Act further provided for two years of maintenance for the children of the divorced Muslim woman to be awarded to her where she herself maintains the children born to her before or after the divorce as well as mehr and all other properties gifted to her by her relatives, husband, and husband’s relatives to be returned to the woman upon dissolution of the marriage. It creates obligations on the relatives and the state wakf board to take care of the divorced wife in the event that a woman is unable to maintain herself beyond the iddat period.Footnote ⁹¹

After the enactment of the Muslim Women’s (Protection of Rights to Divorce) Act (MWA) 1986, the Supreme Court creatively reinterprets the statute and secular laws to articulate a regime of rights for divorced Muslim women. It engages the discourses of Islamic law, the Constitution, as well as diverse orders of state law to construct a regime of rights. The interplay of discourses in the construction of this category of rights moves beyond the statist conception of justice evinced in Shah Bano. In the subsequent judgments, the hierarchy constructed in Shah Bano between state law and personal law is dismantled and gives way to a discursive constitution of several normative orders of state law in relation to cultural norms and the Constitution. The state lays down a welfare regime in a legal-pluralist paradigm where it creates positive obligations and responsibilities on society to safeguard the rights of divorced Muslim women.

Along with this, there is a gradual expansion of a rights regime for destitute Muslim women under the secular law. Sen has viewed the jurisprudence of the Supreme Court vis-à-vis the reform of Muslim personal laws as a movement towards imposing legal uniformity. He argues that post Shah Bano, the Court has advocated for the UCC in the interests of national integration and attempted to privilege secular laws over personal laws and customary practices.Footnote ⁹² This interpretation of the Court’s pronouncements as a move towards legal uniformization fails to capture the complex discursive interplay between variants of state law and the Constitution and the larger implications of discursive shifts in interpreting the category of “rights” for the practice of constitutionalism. I will examine the implications of this trend in jurisprudence for the practice of constitutionalism vis-à-vis minority rights.

6. Danial Latifi And After

In Danial Latifi, the Court removed much of the confusion around the provisions of the much maligned and misunderstood Muslim Women’s (Protection of Rights to Divorce) Act 1986. The Court decisively settled in the light of previous judgments that permanent alimony could be paid to Muslim women even after the passage of the MWA. This concretized a vision of a gender-just interpretation and application of Muslim personal law by the judiciary without any attempt at a centralized uniformization through the UCC.Footnote ¹⁰¹ Following the Danial Latifi v. Union of India Footnote ¹⁰² judgment, there has been further expansion of a rights regime for the welfare of Muslim women through a combination of community-specific statutory intervention and individual rights guaranteed by the provisions of the CrPC and the Constitution.

The judgment comes in response to a challenge to the constitutional validity of the MWA on the grounds of violation of Articles 14, 15, and 21 of the Constitution. The petitioners had contended that s. 125 of the CrPC was meant to prevent vagrancy and destitution of women; the exclusion of Muslim women from this provision, the petitioners argued, was inimical to the right to equality and led to discrimination between women on the grounds of religion and thus violated both Articles 14 and 15 of the Constitution.

Rajendra Babu J., in an elaborate explication of Shah Bano as well as the MWA, clearly articulates the rights of divorced Muslim women. The most significant contribution of the judgment is its careful delineation of the similarity in the aims of a piece of legislation grounded in community identity, the MWA, and the secular law, the CrPC. Danial Latifi coherently articulates a discursive strategy that had been adopted by judgments since the enactment of the MWA—that of emphasizing the social justice aspect of both the MWA and the CrPC. In doing so, it also highlights how legislation grounded in community identity provides additional rights to women without taking away rights provided by the secular law; this is used as a strategy to uphold the constitutionalism of this legislation.

The judgment, through a careful reading of s. 3 of the MWA, establishes that the aims of the section are similar to that of the CrPC. The Court states that s. 3(1)Footnote ¹⁰³ of the Act creates two separate and distinct obligations for the husband: (1) to make a “reasonable and fair provision” for his divorced wife and (2) to provide “maintenance” for her. The Court attempts a purposive interpretation of the statute to secure social justice for divorced Muslim women. The Court thus observes that the Parliament intended that the divorced Muslim woman gets sufficient means of livelihood after the divorce and the word “provision” thus means “something that is provided in advance for meeting some needs.” It further reads “within” as meaning “on or before,” “not beyond” and not as “during” or “for.” It therefore argues that nowhere has the Parliament provided that “reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it.” The Court rules that the husband’s liability to make provisions would extend to the whole life of the divorced wife unless she married again.

The Court compares these provisions of the MWA with s. 125 of the CrPC to argue that the object of the CrPC to prevent vagrancy and destitution are satisfied by the MWA too. The Court here illustrates that the constitutional aims of social justice can be met both by secular legislation and community-specific statutory interventions that build up on existing practices and religious discourse of law.

It further illuminates the relationship between legislation premised on community identity and the Constitution. In a purposive construction of the MWA, Danial Latifi demonstrates how the statute creates and consolidates the right to maintenance for divorced women premised on community identity; therefore, the Court refutes the idea that the legislation violates the right to equality or equal protection of laws under Article 14 or the protection against discrimination on the basis of religion under Article 15. The MWA is understood, instead, as an enabling legislation that provides additional rights on the basis of community identity while taking into account the specificity of cultural practices. In its articulation of the constitutionality of the MWA, Danial Latifi traces the contours of state intervention where group rights protected through statutory intervention contribute to attaining gender justice and substantive equality. The Court holds that the right to equality guaranteed under Article 14 and prevention of discrimination protected under Article 15 are not violated when the state enacts a legislation for a particular group—“divorced Muslim women”—which is equally or more beneficial than the general law (s. 125 of the CrPC). The Court foregrounds a vision of constitutionalism where positive obligations are laid upon the state to create a welfare regime for Muslim women even while addressing their particular community affiliation.

Instead of a regime of direct welfare payments, the state creates obligations on the community to attain a vision of social justice. In this unique form of positive discrimination, the state addresses the specific social situation of Muslim women using the MWA; the Court further consolidates the right to equality and against discrimination enshrined in Articles 14 and 15 of the Constitution.

7. Redefining The Contours: Muslim Personal Law And Fundamental Rights

In this interplay of the secular law, personal laws, and the Constitution, there are two distinct discursive movements that one can discern. On the one hand, the Supreme Court establishes a regime of substantive equality through positive discrimination and a creative harmonization of the secular law, culturally grounded community-specific statutory laws, and the constitutional ideals. The Court foregrounds a vision of constitutionalism as social justice premised on substantive equality. However, this agenda of protecting socioeconomic rights is premised on the specificity of community identity and builds up on as well as creates community networks of support for destitute women.

On the other hand, there is a discursive movement to read personal laws in light of constitutional provisions so as to limit arbitrary imposition of cultural practices that work against the interest of justice and the mandate of the Constitution. The Court articulates a vision of “rights” that is premised on imposing limits to the arbitrary practices of personal laws that threaten the constitutional guarantee of fundamental rights. The position of the Supreme Court vis-à-vis the relationship between personal laws and the fundamental rights provisions of the Constitution undergoes a transformation in the post-Shah Bano era.

In State of Bombay v. Narasu Appa Mali,Footnote ¹¹³ the Bombay High Court, while adjudicating upon the constitutionality of the Bombay Prevention of Hindu Bigamous Marriages Act 1946, held that the that personal laws could not be tested against constitutional provisions of fundamental rights, as they were based on religious precepts and customary practices and could not be termed “laws in force” as defined by Article 13Footnote ¹¹⁴ of the Constitution. Chagla C.J. observed that the Constitution dealt with personal laws only in some respects. He states:

Chagla C.J. upheld the constitutionality of the Act in question by arguing that polygamy was not an integral part of Hinduism. He further stated that, even if polygamy were to be recognized as an aspect of Hinduism, the state was still empowered to legislate on questions related to marriage under Article 25(2)(b) of the Constitution. He ruled that the state had the power to legislate with regard to social reform under Article 25(2)(b) even if it interfered with the freedom to profess, practise, and propagate religion under Article 25(1). Thus, in Narasu Appa Mali, the social reform mandate of the state is unambiguously privileged over the individual’s right to freedom of religion.

Another issue raised by the petitioners in Narasu Appa Mali was the differential treatment meted out to Hindus and Muslims as a result of the Act. The petitioners alleged that the Act resulted in discrimination under Article 14 (right to equality and equal protection of laws) and Article 15 (no discrimination on the basis of race, religion, caste, sex, or place of birth) of the Constitution. The question posed to the Court was whether there was a reasonable ground to treat Muslims as a different class to whom the laws restricting polygamy would not apply. Chagla C.J., in deciding on this issue, foregrounds an argument for the right to cultural autonomy of religious minorities and cultural difference as a valid ground for the state to make different laws for communities. He argues that the state was entitled to consider the “educational development” of the two communities; while one community may be prepared to accept social reform, the other might not yet be ready for it. He observes that Article 14 does not mandate that all legislation has to be of an “all-embracing” character. Polygamy is also recognized as a component of the personal law and hence not considered as discriminating against women on the basis of sex. The emphasis here is on recognizing and preserving the cultural autonomy of Muslims.

An analysis of the judgments subsequent to Shah Bano, however, indicates a more interventionist approach by the Supreme Court as both personal laws and customary practices are weighed against the fundamental rights provisions of the Constitution. With the exception of Ahmedabad Women’s Action Group v. Union of India,Footnote ¹¹⁵ the case-law illustrates attempts to weigh personal law practices against the fundamental rights provisions of the Constitution. In the aforementioned case, while adjudicating on the question of constitutionality of Muslim personal law providing for polygamy and unilateral talaq and Shia and Sunni inheritance laws, the Supreme Court dismisses the writ petitions citing Narasu Appa Mali. As Agnes notes, following the Shah Bano judgment and the enactment of the MWA Act, there is a concerted endeavour to test the constitutionality of personal law provisions against notions of “justice, equality, non-discrimination.”Footnote ¹¹⁶ This strategy can be best studied by illuminating the interaction of the discourses of Islamic law, personal laws, and the Constitution in the judgments of the Supreme Court post Shah Bano.

In Shamim Ara v. State of UP and Anr,Footnote ¹¹⁷ the Supreme Court engages multiple treatises on Islamic law to construct a legal argument against the arbitrary issuance of talaq—for instance, talaq pronounced in the absence of the wife or through mere pleading in judicial proceedings. The rights to maintenance of a Muslim woman who had been divorced arbitrarily are upheld by weaving a complex argument using multiple Islamic legal sources. In this case, the appellant, on behalf of herself and two of her minor children, had filed an application for maintenance under s. 125 of the CrPC complaining of desertion and cruelty by her husband. In the family court, the husband claimed that he had divorced her and was therefore not liable to pay maintenance. He did not furnish any more particulars of the talaq including the circumstances under which or the persons in whose presence the talaq was pronounced. Nor did he furnish any reasons for the justification of the talaq or any proof of efforts at reconciliation. The family court allowed the plea of the husband on the basis of an affidavit in a civil suit litigation that stated that he had divorced his wife; the wife was not even a party to this litigation. The High Court ruled that the filing of a written statement by the husband was a proof of divorce.

The Supreme Court was thus faced with the question of whether the appellant wife would be considered as divorced given that there was not sufficient evidence to suggest the same; subsequently, the Court had to decide on her eligibility for claims of maintenance under s. 125 of the CrPC.

R.C. Lahoti J. engages multiple sources of Islamic law to construct an argument that protects the welfare of women by the secular law. The judgment refers to paragraph 310 of Mulla on Principles of Mahomedan Law, which states that “pronouncement of the word talak in the presence of the wife or when the knowledge of such pronouncement comes to the knowledge of the wife, results in dissolution of the marriage.”Footnote ¹¹⁸ The text further notes that, if a husband informs his wife that she had been divorced, it leads to a divorce between them despite there being no proof of the same. This statement of law by Mulla was based on certain rulings of Privy Council and the High Courts.

The judgment also takes note of Tahir Mahmood’s The Muslim Law of India, which states that all schools of Muslim law allow the husband to divorce his wife by unilateral action and without the intervention of the court. The power to pronounce talaq is deemed a unilateral action. Mahmood takes notes of a few decided cases to note that a husband’s plea of divorce in judicial proceedings for maintenance affected a talaq.

R.C. Lahoti J. observes that such a liberal construction of talaq is heavily skewed in favour of husbands and has subsequently met with strong disapproval of eminent jurists. He then goes on to cite some High Court judgments that use other Islamic legal sources to question this interpretation of the legal position on talaq. Krishna Iyer J., in A. Yousuf Rawther Sowramma,Footnote ¹¹⁹ observes that the “arbitrary, unilateral power” of the Muslim husband to inflict divorce is not in accordance with Islamic injunctions. Iyer quotes from Ahmad A. Galwash’s The Religion of Islam: “The whole Quran expressly forbids a man to seek pretexts for divorcing his wife. So long as she remains faithful and obedient to him, ‘if they (namely women) obey you, then do not seek a way against them’” (Quran IV, p. 34). Galwash further states that “a divorce is permissible in Islam only in cases of extreme emergency. When all efforts at reconciliation have failed, the parties may proceed to a dissolution of marriage by ‘talaq’ or by ‘khola’.”

Krishna Iyer J. lamented that Muslim law as applied in India had followed a path contrary to the teachings of the Quran.

R.C. Lahoti J. further takes note of the judgments of the Gauhati High Court in Jaiuddin Ahmed v. Anwara Begum Footnote ¹²⁰ and Rukia Khatun v. Abdul Khalique Laskar.Footnote ¹²¹ The High Court, in these judgments, while ruling on the validity of talaq, interpreted the “correct law of talaq as ordained by the Holy Quran.” The judgments state that the “correct law” is that talaq must be for a reasonable cause and must be preceded by an attempt at reconciliation by the husband and the wife by two arbiters, one each from the family of the husband and the wife, respectively.

The Court further refers to the rights to divorced Muslim woman in Bai Tahira v. Ali Hussain Fidaali Chothia.Footnote ¹²² Bai Tahira invokes Article 15(3) of the Constitution in order to emphasize s. 125 of the CrPC as a form of positive discrimination for divorced, destitute women. The judgment had further argued that the “protection against moral and material abandonment manifest” in Article 39Footnote ¹²³ of the Constitution is part of the social and economic justice promised by Article 38.

R.C. Lahoti J., after examining various sources of Islamic law, ruled that talaq, in order to be effective, had to be pronounced. He further noted that a mere plea in the written statement of a divorce having been pronounced sometime in the past cannot be “itself treated as effectuating talaq.” The Court disagrees with the commentaries of Mulla and Tahir Mahmood that a mere plea of previous talaq as a written statement even though unsubstantiated can be accepted as a proof of talaq.

The Court here constructs an argument for awarding maintenance to an aggrieved wife while navigating multiple discourses on the validity of talaq in Islamic law. We see in these diverse interpretations of the sources of Muslim law by the state. While earlier judgments of the Privy Council and the High Courts cited by Mulla recognize talaq even without substantiation or if it is pronounced in the absence of the wife, the judgments of the High Courts in the 1970s and 1980s emphasize the tenets of the Quran as restricting the rights to divorce. The appropriation of these latter interpretations of the Quran and Muslim law to check instances of arbitrary divorce is an important discursive strategy adopted by the Court. Also, the contested, slippery nature of Islamic law where multiple sources lend themselves to a range of interpretations enables the Court to construct an argument that safeguards women from the arbitrariness of some cultural practices. The emphasis in the judgment on the “correct law” laid down by the Quran, again, creates a moral obligation on the Muslim man to not divorce his wife arbitrarily. But the Court also assumes the authority to determine the “correct law” as per the Quran. The use of Islamic legal sources to construct an argument for maintenance under the secular law also ensures that an individual right of a distressed Muslim woman is not seen in opposition to the community right to autonomy, but rather as a religious and moral obligation of the husband.

Vishwa Lochan Madan v. Union of India Footnote ¹²⁴ came in response to a petition that seemed like an alarmist, reactionary Hindu right-wing demand for the abolition of personal laws altogether, and specifically the curtailment or abolition of Muslim personal law. The petitioner advocate Vishwa Madan Lochan alleged that the All India Muslim Personal Law Board was striving to establish a “parallel Muslim judicial system in India” though the institution of dar-ul-qazas that would take over the role of the sovereign state. This judgment engages the ostensible conflict between community autonomy and the fundamental rights guaranteed under the Constitution.

The petition alleged that the dar-ul-qazas run by the All India Muslim Personal Law Board consists of a parallel judicial system which issues fatwas that violate the constitutional provisions. This petition was prompted by the issuance of a number of fatwas that were deemed to violate the fundamental rights of Muslim women. In one such fatwa issued by Dar-ul-Uloom of Deoband, the marriage of Imrana, a 28-year-old woman who had been raped by her father-in-law, was dissolved though the husband and the wife never approached the Dar-ul-Uloom.

Chandramauli Kr Prasad J. dwells on the legal status of the fatwa. He defines the features of a formal legal system as he states that adjudication by a legal authority is “enforceable and binding and meant to be obeyed unless upset by an authority by law itself.” He further states that a person deriving benefit from adjudication must have the right to enforce it while the person against whom an order is passed has to comply with it. The judge also notes that the power to adjudicate must “flow from a validly made law.” He then goes on to argue that a Dar-ul-Qaza or a fatwa is not sanctioned by a competent legislature and hence cannot be defined as the law.

However, it is important to highlight that the judges do not give in to the demands raised in the petition of declaring the scheme of dar-ul-qazas or fatwas unconstitutional. The Court observes that:

This is also a recognition of the fact that the legal-pluralist paradigm does not violate the constitutional scheme. Here is a qualified recognition of the right to cultural autonomy of the religious minorities.

This is further evident in the judge’s analysis of the relationship between the fundamental rights guaranteed by the Constitution and the fatwas; the judgment deals with an ostensible conflict between the right to cultural autonomy of the minorities implicit in running an informal justice delivery system and the individual rights of the Muslim woman.

The observations in the judgment are significant:

The Court, in engaging the discourses of constitutionalism and personal law, marks a departure from the position in Narasu Appa Mali, in that personal laws are no longer seen to be immune from the fundamental rights provisions. The Court explicitly states that fatwas cannot violate basic human rights. The judgment forbids a dar-ul-Qaza from issuing a fatwa that touches upon the “rights, status and obligation of an individual unless such an individual has asked for it.” It further rules that an attempt to enforce a fatwa by coercion is illegal and “has to be dealt with in accordance with law.” This is a very significant pronouncement vis-à-vis a polycentric legal universe where the constitutional provisions and both codified and uncodified personal law practices co-exist and at times come into conflict. It also comments on the existing plurality of religions and indicates that no religion will be allowed to override the fundamental rights expectations of the Indian Constitution. The Court, while refraining from outlawing the institution of dar-ul-qazas issuing fatwas, lays down the contours of a scheme where state law in the form of an overarching framework of constitutionalism tries to regulate to some degree the operations of cultural practices that constitute Muslim personal law.