and husband’s relatives. If the woman is unable to
maintain herself after the ≠iddaperiod, the magis-
trate can order those relatives who are entitled to
inherit her property to maintain her in proportion
to their share of the inheritance in accordance with
Islamic law. If the woman has no such relatives, the
magistrate is to ask the State Wakf Board to pay
maintenance. Several rulings in the state high
courts have interpreted the act so as to provide
Muslim women with a higher maintenance amount
than was given under Section 125 and, more im-
portantly, lump sum payments for the future secu-
rity of women.
The critics of the judgment ignored the crucial
question of women’s rights, which remained con-
fined to feminists and left-wing parties. The
Muslim leadership focused on issues that linked
women and family life to Islamic legal identity. The
government defended the new legislation on the
ground that it conformed to the wishes of the
Muslim community and should be supported irre-
spective of the opinion of large sections of Muslim
women, or other communities, or society at large.
Several individuals and groups challenged the
constitutionality of the MWA in the Supreme
Court, its violation of several articles on funda-
mental rights, and its discriminatory character vis-
à-vis Muslim women. The verdict of the five-judge
Constitutional Bench in the Latifi case delivered in
2001 confined itself to the constitutionality of the
MWA, which limits Muslim women’s right to
maintenance to the ≠idda. The court ruled that a
divorced woman is entitled to a “reasonable and
fair provision of maintenance” to be made and paid
to her within the ≠idda period by her husband.
Significantly, this includes future needs. The word
“provision” indicates provision in advance for
meeting future needs and “reasonable and fair pro-
vision” may include provision for her residence,
her food, her clothes, and other articles. The Latifi
judgment is important as it provides some relief to
divorced Muslim women by expanding the notion
of “a reasonable and fair provision for mainte-
nance” to include their future needs.
Two issues are central to the reform of personal
laws in India. First the relationship of personal law
to the state, and second, the appropriate institu-
tions through which reform of personal laws could
be organized and carried outside the arena of the
state. Personal laws are discriminatory; they run
counter to Article 14’s guarantee of the equal pro-
tection of the laws, Article 15’s prohibition of
discrimination on grounds of sex and also dis-
crimination on grounds of religion, and Article 21
interpreted by the court as involving a life with742 shah bano affair
human dignity. The constitution included a provi-
sion to recognize pre-constitutional laws only if
they conformed to fundamental rights. Even so, all
such laws were recognized and continued after the
constitution came into effect and thus the courts
have allowed women to be governed by the law of
religion without subjecting such laws to the test of
constitutionality.
Based on the principle of separation of public and
private domains, the Indian state has tacitly
accepted that it cannot intervene and initiate
change in religious personal laws, namely, the pri-
vate sphere of Muslims. There are two questions
here. One is the relationship of Muslim personal
law with the state. Two factors are important in
analyzing this relationship: the development of
Islamic jurisprudence and its role within the state.
More specifically, although those engaging in the
current debate over personal law cite the Qur"àn in
their arguments for and against reform – whether
state induced or community based – what gets
ignored is the fact that Islamic jurisprudence is a
separate entity from the Qur"àn, and is so not only
because of its own relationship with the state, but
also because its historical development has actually
made it such. Furthermore, when combined with
the power of the modern nation-state, the degree of
change is limited because the moral and legal
framework on which it is based is itself immutable.
State initiated reform within personal law poses a
problem because of the contradictory nature of
Islamic law. It is also problematic not just because
of who the state decides to listen to, but also
because India is not a Muslim state but a secular
state in which Muslims are a sizeable minority. In
this situation, Muslim personal law is seen as rep-
resentative of all Muslim sentiment. This diminishes
its diversity and contradictoriness and perpetuates
the myth of a single Muslim personal law, and con-
siders changes in personal law in other Muslim
countries as irrelevant. It becomes clear then that
Indian Muslims see themselves and are seen as
Muslims of a particular demographic and historical
setting, and it follows that Muslim personal law
does not involve Muslims per se, but specifically
Muslims in India.
The second and more complicated question is
whether the Indian state, through its courts and
parliament, can initiate social reform in the same
way as these institutions had intervened to change
Hindu family laws. The Muslim leadership has not
spurned state intervention altogether. Indeed state
intervention was desired to encode and enforce
restrictive and repressive laws; it was equally
favored as the agency for legal reform of personal