Accommodating Religious Demands and Genderjustice Concerns

Indian State Practices after the Shah Bano Judgment

Abstract

This paper is an examination of a new turn in the practice of multiculturalism in India observed by legal and political theorists who have challenged the long-standing argument of multiculturalists that personal laws in India inhibit “gender-equalizing” changes. Recent literature on Muslim Personal Law points out that the demand placed by religion on women through the promulgation of the Muslim Women (Protection of Rights on Divorce) Act, 1986 has not meant an abridgment of the democratic rights of Muslim women. In recent scholarship this impugned law has been viewed as more salutary for women, as this codified Islamic law has prevented destitution of women more effectively than secular state law. By making an analysis of case law on the maintenance of divorced Muslim women in the High Courts and the Supreme Court of India, this paper examines the claim that the Muslim Women’s Act is a gender-just personal law. It thereby examines how the Indian judiciary has balanced the demands of religion and gender justice in delivering judgments on maintenance for Muslim divorcees who are governed by their religious law after the enactment of the Muslim Women’s Act in 1986.