Women are socially disadvantaged in South Asia. If there is poverty or terrorism, the brunt of it is borne by women. If the woman happens to be a Muslim, she gets half the right to inheritance. (Hindu women were given full inheritance rights in 1954). Jinnah was deluded into thinking Sharia as superior when he saw that Hindu women could not inherit. He also had no idea that a woman would be half a witness when Pakistan is Islamised. He campaigned against child-marriage but had no idea that religious opinion would find it difficult to rule it illegal after Islamisation.
Rashida Mohammad Hussain Patel, of Gujarati extraction and a lawyer like Jinnah, was the most consistent campaigner for the rights of women in Pakistan till she died in 2009. Anywhere else she would have been made much of, but in Pakistan she struggled through tough Islamisation without getting noticed. Her book “Gender Equality and Women’s Empowerment in Pakistan” (OUP 2010), talks of the delicate matter of maintenance by the husband of the wife he divorces.
She holds that it is “a serious misconception that a divorced wife is not entitled to maintenance”. The Holy Quran clearly says: “For divorced women, maintenance (should be provided) on a reasonable scale. This is a duty on the righteous” – 2:241 (p135). But this is not taken to mean that the husband should maintain her till she finds support elsewhere. A divorced woman has no right to maintenance from her ex-husband under current Pakistani laws.
In the famous Shah Bano case of 1986 decided by the Supreme Court of India, the Court held that the Quranic verses imposed an obligation on the Muslim husband to provide maintenance to his divorced wife. The Muslims of India, unfortunately, rejected the verdict. They staged a countrywide agitation and forced the liberal Congress government into enacting a law which made the Supreme Court ruling redundant (p136).
Lok Sabha passed the Muslim Women (Protection of Rights on Divorce) Act 1986, and accepted the male-inflicted interpretation of the Quranic edict: a divorced woman unable to maintain herself is required to be maintained by her potential heirs on her death, namely her children, parents, and other relatives and, failing them, by the state “waqfs”. The former husband was absolved of all responsibility of maintaining his ex-wife beyond the “iddat” period (p136).
Some progressive scholars in Pakistan hailed the Indian Supreme Court and wanted Pakistan to follow its lead, but it was General Zia’s Pakistan and the Indian government had retreated from the verdict earlier anyway. Bangladesh too succumbed in 1995 after the Dhaka High Court division bench “suo motu” considered the legal query whether the divorced wife could claim maintenance beyond the “iddat” period. The Court, relying on the Quranic verse 2:241, held that “a person divorcing his wife is bound to maintain her for an indefinite period, that is to so say, till she loses the status of a divorcee by marrying another person” (p136).
Needless to say, the Appellate Division of the Supreme Court of Bangladesh overruled this decision in Hefzur Rahman vs Shamsun Nahar Begum. The Court held that the word “matta” as used in the Quranic verse 2:241 was never understood as regular maintenance. It was deemed a “parting gift” to a divorced woman as a gesture of comfort for the trauma she suffers from divorce. Of course, a gift falls under the category of a voluntary act and has never been judicially enforced.
Rashida Patel writes: “With due respect to the learned judges it is unfortunate that the male psyche is not inclined to uphold an interpretation of the Quran that takes into account the needs of women. The Quran supports the maintenance of the wife even after she has been divorced. The benefits which can accrue to women are lost due to narrow, male interpretations by courts and legislators” (p137).
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