WOMEN’S RIGHTS LAW REPORTER [Vol. 11:41 (1989)

And, as # 125 is a criminal provision, it overrides personal law if there is any conflict between the two, ⁷¹

            The Shah Bane case became a cause celebre with reformist Moslems in India. It was the first time the secular judiciary had applied a secular law to override Moslem personal law. However, the ruling Congress Party, afraid of a conservative Moslem backlash, answered the Shah Bano decision with the Muslim Women (Protection of Rights of Divorce) Act,⁷² Which was designed to undo the holding of the Shah Bano decision. Under the 1986 Act, responsibility for maintenance of a divorced woman after the iddat period was shifted from the husband to the children, the parents and if all else failed, the Moslem charities boards, wakfs.⁷³ Also, the divorced woman and her erstwhile husband were given the "option" of declaring by affidavit, jointly or separately, that they would prefer to be governed by the Code of Criminal Procedure @@ 124-128. Shah Bano herself was subject to ostracism and publicly denounced by conservative Moslem groups. The attack upon Shah Bano escalated to the point where she withdrew her claims for maintenance and made her peace with these elements in exchange for a small amount of money.⁷⁴

            In Saira Banu v. A,M. Abdul Gafoor,⁷⁵ the court relying on its interpretation of the Code of Criminal Procedure @125(3) in the Shah Bano decision ruled that notwithstanding a Moslem's right to marry more than one wife, a Moslem wife has just grounds for refusal to live with a husband who marries a second time and that she may claim maintenance under the Code provisions. The court held that the object of @ 125 was to prevent vagrancy and destitution of dependents unable to maintain themselves. Such maintenance was guaranteed to a woman who had been caused matrimonial injury; and, that this type of injury occurred when a husband took a second wife or when he took a mistress. The court found that @ 125 overrode personal law because the matrimonial injury which occurred by the arrival of a new wife or by the arrival of a mistress were on equal footing^.76

THE HISTORICAL BACKGROUND

            This section is intended to familiarize the American lawyer with the nature of Hindu and Moslem marriages and includes some history of the Indian subcontinent to explain why the lex loci principle⁷⁷ is not applied to marriage, divorce and succession on the subcontinent and why these areas were, and continue to be governed by the personal law under which the marriage takes place.⁷⁸

             There have been two major invaders of the Indian subcontinent--the Moslem chieftains of Central Asia,⁷⁹ between the eleventh and fifteenth centuries, followed by the English⁸⁰ so in the seventeenth century. The assimilation policies of the two invaders were different and were related to their reason for seeking empire.

            Islam enjoins its followers to wage perpetual holy war, jihad, on the non-Islamic world, Dar'ul Harb.⁸¹ In India, the invaders found a personal system of law in operation since the fourth century B,C, Asoka the Great, the Hindu emperor of India, had permitted Iranian and Greek settlers in India to practice their own personal laws, alongside the general Hindu populace .⁸² The Hindu harbis were offered conversion, which meant the adoption of Moslem personal laws.⁸³ The Moslem law applicable to a litigant is that of the subsect/sect that he follows. A Moslem man can repudiate and change his sect after puberty. A Moslem woman retains allegiance to the sect into which she was born, even if she marries a Moslem of a different sect.⁸⁴

The conquerors found it expedient to permit

71. Shah Bano, 1985 A.I.R. at 947.

72. Supra note 45.

 73. The West Bengal Wakf board has petitioned the Indian Supreme Court pleading its inability to be responsible for supporting indigent divorced women under the act. INDIA TODAY, Feb. 29, 1988, at 68.

74. The Times of India, Nov. 17, 1985, at 1; The Times(London), Nov. 25, 1985, at 8.  75. 1987 A.I.R. 1101 (S.C.).

76. Saira Bano, 1987 A.I.R. at 1106-09.

 77. For a detailed explanation of the lex loci principle see D. PEARL, supra note 4, at 34.

78. See generally D. PEARL, supra note 31.

 79. See generally 5 R. MAJUMDAR, THE HISTORY AND CULTURE OF THE INDIAN PEOPLE (1974).

 80. See generally P. MASON, THE MEN WHO RULED INDIA (1985).

81. See M. HIDAYATULLAH, supra note 6; see also D. PEARL, supra note 4, at 18.

82. D. PEARL, supra note 4, at 16.

83. Id. at 23.

 84. There are two primary Moslem sects, Shia and Sunni. Most Indian Moslems are Sunnis of the Hanafi, a further sub sect, school. The division between the Shia and the Sunni sects dates back to the period after Prophet Mohammed's death, when a dispute arose over who would be the Prophet's