Shah Bano: Muslim Womens Rights
Some passages from Mohammad Ahmed Khan vs. Shah Bano Begum and Others, Supreme Court Criminal Appeal No. 103 of 1981:
This appeal, arising out of an application filed by a divorced Muslim woman for maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to creat an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction. (Engineer 23).
“Under section 125 (1) (a), a person, who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the Court to pay a monthly maintenance to her at a rate not exceeding five hundred rupees… ‘wife’ includes a divorced woman who has not remarried” (Engineer 23).
Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure, not of the civil laws which define and govern the rights and obligations of the parties belonging to particular religions…. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially prophylactic in nature, cut across the barriers of religion. True, they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws… (Engineer 25).
There can be no greater authority on this question than the holy Quran, “the Quran, the Sacred Book of Islam, comprises in its 114 Supras or chapters, the total of revelations believed to have been communicated to Prophet Muhammed, as a final expression of God’s will.” (The Quran Intepreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 of the Quran show that according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives. The Arabic version of those Aiyats and their English translations are reproduced below….
Aiyat No. 241 For divorced women Maintenance (should be provided) On a reasonable (scale) This is a duty on the righteous….
The correctness of the translation of the Aiyats is not in dispute except that, the contention of the appellant is that the wort Mata in Aiyat No. 241 means ‘provisions’ and not ‘maintenance’. That is a distincition without a difference. Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aiyat, 241, the exhortation is to … the more pious and the more God-fearing, not to the general run of the Muslims (Engineer 28-9).
It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. There is not evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell that cat by making gratuitous concessions on this issue. It is the state which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, has the legislative competance to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformed has to be assumed by the courst because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of the courts to bridge the gaps between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from cases to case (Engineer 33).
Son of the previous Prime Minister, Indira Gandhi, and grandson of India’s first Prime Minister, Jawaharlal Nehru, Rajiv Gandhi was the logical successor in India’s “democratic dynasty” when his mother was assassinated in 1984. The Nehru-Gandhi family and the Congress Party had been elected to lead India for all but a few years since Independence from Britain in 1947. Rather than developing a career as a politician, Rajiv had been a pilot for Indian Airlines. While a student at Cambridge, Rajiv, raised by his Hindu mother and Parsi father, met the Italian Catholic Sonia Maino. Their marriage in 1968 was politically risky in a country with a Hindu majority and history of European colonization, but at the time he was still uninterested in politics. Nevertheless, by 1984 he had taken over for his assassinated mother as the Prime Minister, elected in a sympathetic landslide which secured 80 percent of the seats in the Lok Sabha, India’s lower house of Parliament, a greater majority than any previous Prime Minister of India had received. But soon the political honeymoon was over.
Rajiv came to power with minority religious tensions at a high point and tried to engage in a balancing act among India’s numerous religious communities. Indira had been killed by Sikh bodyguards in the aftermath of her decision to launch Operation Bluestar, a government attack on an extremist faction of Sikhs while they were in the holiest Sikh shine, the Golden Temple. Following her assassination, a violent backlash against Sikhs killed many members of this minority religion. Rajiv made some symbolic efforts to reconcile with the Sikhs, short of granting independence to the Sikh dominated state of Punjab, by releasing some prisoners and launching an investigation of the anti-Sikh riots. Hindu nationalist organizations including the new Bharatiya Janata Party (BJP) criticized the Congress Party for “pandering” to Muslims and other minorities. Hindu nationalists had argued for decades that a Muslim place of worship, the Babri mosque in the city of Ayodhya, had been built on the site of a destroyed Hindu temple honoring the birthplace of a Hindu god, Ram, leading to government restrictions on access. Trying to attract Hindu voters, Rajiv’s Congress government let the controversial site be reopened, which “led to confrontations between the parties and uncertainty in the Muslim community regarding the intentions of the Congress party government” (Lateef 1998, 262-3). Religious minority insecurities were on the rise and Rajiv’s grace period as a fledgling Prime Minster was over when Shah Bano’s case forced him to make a fateful decision about Muslim women’s rights.
In 1985, the Supreme Court ruled in favor of Shah Bano, demanding maintenance from her husband. The decision was written by a Hindu and superceded Muslim personal law. As Prime Minister, Rajiv could not challenge the Supreme Court’s legal interpretation, but his Parliament could change the law itself. In a parliamentary system, the Prime Minster must have the support of the majority of Parliament, so a bill advocated by Rajiv would in all likelihood be passed. After the Supreme Court’s ruling in favor of Shah Bano, new legislation was proposed by alarmed Muslim politicians, the Muslim Women (Protection of Rights on Divorce) Bill. Ironically named, the bill actually reinforced Muslim law’s denial of ongoing maintenance to divorced women. This bill would exempt Muslims from section 125 of the criminal code, which had been used to override Muslim personal law in the Shah Bano case.
These are some passages from the Muslim Women (Protection of Rights on Divorce) Bill, 1986. Words marked with asterisks are defined below.
…The Supreme Court, in Mohd. Ahed Khan v. Shah Bano Begum and others (A.I.R. 1985 S.C. 945), has held that although Muslim law limits the husband’s liability to provide for maintenance of the divorced wife to the period of iddat, it does not contemplate or countenance the situation invisaged by section 125 of the Code of Criminal Prcedure, 1973…. This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therfore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. The Bill accordingly provides for the following, among other things, namely:
a) a Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period of iddat* by her former husband and in case she maintains the children born to her before or after her divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children. She will also be entitled to mehr* or dower and all the properties given to her by her relatives, friends, husband and the husbands relatives…
b) where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim law in the proportions in which they would inherit her property. If any one of such relatives in unable to pay his or her share on the ground of his or her not having the means to pay, the Magistrate would direct other relatives who have sufficient means to pay the shares of those relatives also. But where a divorced woman has no relatives or… the other relatives who have been asked to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives, the Magistrate would ask the State Wakf* Board to pay the maintenance…
Every application by a divorced woman under section 125… of the Code of Criminal Procedure, 1973, pending before a magistrate on the commencement of this Act shall, notwithstanding anything contained in that code… be disposed of by such magistrate in accordance with the provisions of this Act.
iddat: three months or until the delivery of an unborn child
Wakf: property endowed and held in trust for the Muslim community according to Islamic law
Should Prime Minister Rajiv Gandhi stand by the Supreme Court decision to grant maintenance to Shah Bano or reinforce Muslim personal law through the Muslim Women’s Bill? Rajiv had become known for his youthfulness and modern, western approach to policy making. His attitude toward women and their rights was no doubt shaped by his own mother’s leadership role and his western education. Yet he needed his Muslim voters and recognized their alarm at this ruling in an increasingly hostile political climate. Should the only Indian Prime Minister ever to be photographed in jeans and a polo shirt take a stand in favor of Muslim tradition? (Tharoor 1997, 39) Consideration of the historical, political, and constitutional context could facilitate this difficult decision.
|“Until he entered politics and had to appear to be a man of the people, he was often seen wearing designer jeans, Gucci shoes, a Cartier watch, and imported sunglasses. He did not wear the cloth cap associated with men of the Congress, and he shunned garlands and other symbolic badges of Indian politics.” --- Ved Mehta, Rajiv Gandhi and Rama’s Kingdom, p. 71-72.|
The distinct sphere of “personal law” was codified under British rule. To administer their colony, they did away with various legal traditions to come up with a single legal code, yet allowed some limited legal pluralism in one sphere, the laws relating to the family. The colonial rulers persistently viewed India as made up of irreconcilable religious communities. Whether this was an accurate description or part of a policy of “divide and rule” is still a subject of debate. Given the varied peoples and practices subsumed under the categories of “Hindu law” and “Islamic law,” this notion of communities with singular legal traditions was problematic. With independence in 1947, British India was partitioned into two countries, Hindu majority India and Muslim majority Pakistan. Again, a neat division was impossible, and many thousands migrated in the violent days following Partition, a period in which thousands lost their lives. India’s leaders, many of whom opposed Partition, argued that India would be secular state, not just a state for its Hindu majority; yet many Muslims worried that the end of British dominance would only mean the beginning of Hindu dominance in India. Some lived in the regions that became Pakistan; others moved, but many, including those without the means to move, remained in even more reduced numbers as a minority in India. Although Muslims are a relatively small percentage of the population, India is still one of the largest Muslim countries in the world in terms of absolute numbers.
In the debates over how to govern independent India, the question of personal law arose. In an effort to accommodate religious diversity, especially in those early years, it was decided that personal laws would continue. At the same time, the ultimate goal of a unified civil code was included in the Constitution. In addition, the Special Marriages Act of 1954 offered couples a non-religious alternative to personal laws. Given the religious diversity even within Hinduism and Islam, varied customs made it hard to define a single code even for each community. The Hindu code underwent a major overhaul for this reason, to make it more uniform and also engage in some limited reforms on behalf of women (Sarkar 1999). The Muslim code was never reformed, however. “State policy with regard to the civil status of Muslims has been generally cautious” (Hasan 1999). The post-Independence Congress Party government, led by Rajiv’s grandfather, Prime Minister Nehru, did not want to further alarm the remaining Muslims regarding their status in independent India and, in more pragmatic terms, wanted to ensure that the Muslim leadership, which opposed such reforms, would remain loyal to the government. The Muslim leadership did not relish the idea of the Hindu dominated government reforming their laws for them. An understanding developed that any changes in personal code would be left to the community in question, leaving them a small sphere of autonomy, which, hopefully, would help hold the new country together (Lijphart 1996). The Shah Bano decision appeared to be whittling away at that autonomy.
The court decision, written by a Hindu, not only overruled Muslim personal law but included a demand for a uniform civil code, which would do away with Muslim personal law altogether. This double blow caused much concern among many Muslim politicians. At the same time, an ongoing agitation to destroy the Babri mosque was being rekindled by Hindu extremists. Anti-Sikh riots in in the wake of Indira Gandhi’s assassination had caused much death and destruction. Perhaps because the Shah Bano ruling seemed part of broader anti-Muslim or anti-minority political trend, it led to unexpectedly large protests:
The agitation started as a cautious protest call during the Friday prayer, but quickly developed into a mass movement all over the country, to the surprise of both Muslim and non-Muslim leaders. Coordinated as a “shari’a [Muslim law] protection week” by the newly formed All India Muslim Personal Law Board (AIMPLB), hundreds of thousands of Muslims gathered in October 1985 at rallies against the Shah Bano verdict and for upholding the status of Muslim personal law. The size and spontaneity of the mass rallies—such as the 300,000 people who gathered in Bombay… indicated the frustration and a sense of insecurity had been fermenting for a long time among the Indian Muslims, especially in the major cities (Hansen 1999, 149).
Notably, other individual Muslims and Muslim organizations spoke out in defense of the Supreme Court decision and Shah Bano. Cabinet Minister Arif Mohammad Khan argued that the Muslim Women’s bill was anti-constitutional, anti-Islam and inhuman, and several Muslim groups sent protest letters and demonstrated against the bill (Engineer 241). In spite of this diversity of Muslim opinion on the matter, the mass rallies and political power of the bill’s proponents were important considerations. Although Rajiv had won in a landslide, in 1985, his Congress Party had lost a number of Muslim dominated districts. Muslims’ votes for Rajiv’s Congress Party were important in upcoming state elections. Muslims are a sizable minority and had been a key constituency of the Congress Party since independence. Continuing autonomy in the area of personal law would be a key assurance that minority interests would be preserved by the Congress Party.
Shah Bano, the elderly women abandoned by husband, was a sympathetic figure at the center of this case; the public could not help but be concerned. The Hindu nationalists, including the Bharatiya Janata Party (BJP), portrayed themselves as champions of women through critiques of women’s unequal treatment in Muslim law, although they failed to launch a comparable critique of their own personal laws’ unequal treatment of Hindu women. The BJP even convened a “Muslim Social Justice Conference” in Bombay, resolving to help Muslim women achieve justice while criticizing Muslims who defended their personal law. Bal Thackeray, a Hindu nationalist politician, argued in an interview: “The issue is not of religion, but of poisonous seeds of treacherous tendencies…. Those who do not accept out Constitution and laws, should quit the country and go to Karachi or Lahore [in Pakistan] …. There might be many religions in the country, but there must be one constitution and one common law applicable to all…” (Engineer 243-5). This politician and the Congress Party’s emerging rival, the BJP, drew on the Shah Bano case to reinforce their arguments for a uniform civil code.
Shah Bano also became a cause among many women’s organizations. Some, such as the Joint Women’s Programme, a national association with members of various religious backgrounds, were inspired to issue a Memorandum and organize demonstrations to fight against the Muslim Women’s Bill and support a uniform civil code for all women. Muslim women were divided on the issue: Some Muslim feminists and others sympathetic to Shah Bano’s situation supported the court decision, while other activists lobbied for the bill. For example, in Pune, “200 women, many of them Muslim divorcees, staged demonstrations… to register their strong protest against the Muslim women bill,” and 200 Muslim women from Madras sent a letter to Rajiv Gandhi also opposing the bill; on the other hand, a memorandum from the Muslim Women’s Graduate Association of Bombay favored the bill (Engineer 237-242). Many progressive women liked the idea of a uniform civil code but worried that their own activism on this issue could facilitate the Hindu nationalists’ more xenophobic advocacy of the same cause. The religious and ideological divisions among women over the Shah Bano case diluted the political force of their demands.
Selections from the Memorandum of the Joint Women’s Programme:
If this new bill becomes a reality, no Muslim woman will have redressal from the courts—which she has hitherto been entitled to. This bill is unconstitutional and is a retrogressive step in the sphere of women’s development….The bill is a violation of the shariat [Muslim law]…. The bill is unconstitutional as it violates Article 14 of the constitution that guarantees equal protection to all before the law…. The bill is a setback to the goal of achieving a uniform civil code. It also retrogrades our endeavor towards national integration as it tends to discriminate between Muslim women and women of other communities and therefore the Muslim community from other communities. (Engineer 235-6)
The Shah Bano dilemma also raises key constitutional issues. The Indian Constitution is the longest in the world. It includes a section on Fundamental Rights, which is a bill of rights, as well as a section on Directive Principles, which are to guide state policies and actions. Perhaps inevitably in such a lengthy document, at times it seems to contradict itself; on the other hand, the level of detail can help to guide some decisions. Those writing the Indian constitution studied a variety of other constitutions; for example the source of article 14 on equality before the law, included below, is the American and Irish constitutions (Bakshi 1996, 15). The Preamble refers to justice, liberty, secularism, and equality. Defining and reconciling these ideals is one important aspect of the Shah Bano dilemma. The major relevant rights and directives are as follows:
We, the People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HERBY ADOPT, ENACT AND GIVE OURSELVES THIS CONSTITUTION (Bakshi 1996, 1).
“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void” (Bakshi 1996, 14).
Article 14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. (Bakshi 1996, 15)
Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste sex, place of birth or any of them…. (3) Nothing in this article shall prevent the State from making any special provision for women and children. (Bakshi 1996, 23)
Article 25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject of public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (Bakshi 1996, 47)
“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws” (Bakshi 1996, 69).
Article 39 Certain principles of policy to be followed by the State.—The State shall, in particular, direct its policy toward securing—
a) that the citizen, men and women equally, have the right to an adequate means of livelihood (Bakshi 70).
Article 44. Uniform civil code for the citizens.—The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India. (Bakshi 72)
The directives are guides for judges and policy makers. According to one constitutional scholar, “Legislation enacted to implement the Directive principles should be upheld, as far as possible. In fact, where necessary, even constitutional provisions as to fundamental rights should be adjusted in their ambit so as to give effect to the Directive Principles;” on the other hand, they do not “confer any enforceable rights and their alleged breach does not invalidate a law” (Bakshi 69). How can these disparate parts of the constitution be reconciled? Rights trump directives, although even rights can be “adjusted” to fulfill directives. Even within the list of rights, the prohibition of sex discrimination and freedom of religion clash in the Shah Bano case. “Secular,” in the Preamble, is perhaps the most contested single word in the Indian constitution and a key issue in the Shah Bano dilemma. The state has no official religion, but beyond this what does secularism mean? Secularism can be taken to mean religious freedom, or noninterference in citizens’ private religious practices, but this interpretation is in tension with another notion of secularism as equality before the law of all citizens regardless of religion.
A. What should Prime Minister Rajiv Gandhi do after the Shah Bano decision? Write an essay in support of one of the following positions:
1. Stand by the Supreme Court decision to override Muslim law and award maintenance to Shah Bano.
2. “Overthrow” the decision by changing the law: Support the new Muslim Women’s Bill, which would make Muslim personal law supreme in such cases.
3. Come up with your own proposal.
B. In addition to the Shah Bano decision, Rajiv Gandhi could also decide to take a stand on the broader debate between advocates of personal laws and proponents of a uniform civil code. Building on your arguments in Part A, what should Prime Minister do regarding personal laws in general and why?
1. Take a stand on one side of the broader PL-UCC debate. For example: Publicly advocate continuing and enforcing all personal laws. Announce the end date for personal laws and start developing the universal civil code.
2. Advocate a compromise in the PL-UCC debate. What are some possibilities?
3. Take no public stance on the broader PL-UCC debate.
4. Come up with your own proposal.
Getting into Rajiv Gandhi’s Gucci shoes may be facilitated by a brief discussion of these issues in international context. It is important to note that the persistence of personal laws in India is not an anomaly but rather a situation that faces people in a variety of countries around the world. Moreover, the broader issues and dilemmas raised by the case are faced by citizens of an even wider range of countries, including the United States. Since the British developed many of their colonial practices in India and later applied them in other parts of their empire, the idea of maintaining personal or customary laws persists in many former British colonies. For example, post Apartheid South Africa has recently put in place a constitution which is quite progressive for women, yet also recognizes some customary marriage laws. Those married under customary laws may face disadvantages similar to those faced by many women in India. Nigeria, in its recent transition to democracy, is facing tensions and dilemmas as certain parts of the Muslim dominated north are adopting Muslim legal codes, which worries local residents of other religions.
Moreover, the persistence of community laws within a legal system is not unique to the “third world.” Marriage and divorce laws are hardly “uniform” in the United States either, since they vary from state to state, by communities defined geographically rather than religiously. Another parallel worth considering is that reservations for Native Americans have been granted some limited legal autonomy in the US context. US cases raise issues that have parallels to other aspects of the Shah Bano dilemma, such as debates over state interference in personal, marital issues in historical and contemporary interracial or same sex marriage cases. Cases pitting the freedom of religion versus the well being of an individual also abound, as in cases in which parental religious beliefs preclude medical treatment of their kids. In short, the dilemmas raised by Shah Bano are not unique to Islam, India or the Third World, but have parallels to debates right here and now.
Although not an international legal case, Shah Bano raises issues important to a broader understanding of human rights. A key aspect of the dilemma is the tension between group rights and individual rights, especially the individual rights of women. Rights scholars in the developing world have launched various critiques of a Western tradition that privileges individual rights over collective or community rights and duties. Moreover, cultural relativists argue that universal human rights may be impossible in a culturally diverse world, since values vary from country to country and community to community (Vincent 1986, 37-91). The strongest players’ values may prevail, first world over third world at the global level, Hindus over Muslims in India, and men over women within the Indian Muslim community. Third World concerns about a global human rights regime are echoed in microcosm by Indian Muslims’ fears of what will happen if a Hindu dominated polity designs a universal civil code; yet within the Muslim community a similar dynamic occurs, as dominant male politicians reinforce a legal system which disadvantages women.
India has signed and ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which is hampered by weak enforcement mechanisms. Parts of CEDAW are relevant to the personal law debates in India. Article 16 of CEDAW includes the following:
States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women… the same rights and responsibilities during marriage and at its dissolution.
If enforced, how might this international law play out in the context of Shah Bano’s situation? It could support reforms of personal laws to make it as easy for Shah Bano as it was for her husband to get a divorce. On the other hand, it could be used to argue that maintenance for Shah Bano would be unequal treatment of men and women, unless her husband got maintenance too. How would various groups in India react to enforcement of CEDAW? Article 5 of CEDAW says that “States Parties shall take all appropriate measures: a. to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” On the basis of the Shah Bano situation, what challenges face a state that tries to “modify the social and cultural patterns of conduct of men and women?” Could women’s rights be better enforced at the international level through CEDAW, the national level via a uniform civil code, or the community level via reform from within? What about the dual identities of Muslim women? Are their rights fully recognized if their individual rights as women are supported but their Muslim autonomy is squelched? How can these individual and group rights be balanced?
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