Shah Bano case
|Mohd. Ahmed Khan and Shah Bano Begum and Others|
|Supreme Court of India|
|Decided 23 April, 1985
|A woman has a right to claim maintenance under Section 125 of CrPC as the Code is a criminal law and not a civil law.|
|Concurrence by: Y V Chandrachud (Chief Justice), Rangnath Misra, D A Desai, O Chinnappa Reddy, E S Venkataramiah
|Code of Criminal Procedure, 1973, Indian Penal Code.|
The Shah Bano case (1985 SCR (3) 844) was a controversial maintenance lawsuit in India, in which Shah Bano, a 62-year-old Muslim, daughter of a police constable and mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978 but even after winning the case at the Supreme court of India was subsequently denied alimony because the Indian Parliament reversed the judgement under pressure of Islamic orthodoxy. The judgement in favour of the woman in this case evoked criticisms among Muslims some of whom cited Qur'an to show that the judgement was in conflict with Islamic law. It triggered controversy about the extent of having different civil codes for different religions, especially for Muslims in India. This case caused the [congress] government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the judgment of the Supreme Court and, in reality (reference missing), denied even utterly destitute Muslim divorcées the right to alimony from their former husbands.
Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya Pradesh, was driven out of her "matrimonial home" by her husband in 1975. In April 1978 she filed a case against her husband, Mohammed Ahmad Khan, asking him for a maintenance amount of 500. On november 1978 her husband gave an irrevocable talaq (divorce) to her which is his prerogative under Islamic Law. Mr. Khan then filed a case against Shah Bano in the Supreme court claiming that Shah Bano is not his responsibility anymore because Mr. Khan had a second marriage which is also permitted under Islamic Law.
The Muslim family law (marriage, gifts, inheritance, adoption and a few other civil laws are under the purview of personal laws in India - they are different for Christians, Muslims and Hindus) allows the husband to do this and not the wife: the husband just needs to say the word Talaq (meaning divorce) three times before two witnesses for a valid divorce.
Shah Bano, because she had no means to support herself and her children, approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony.
Some Muslims felt threatened by what they perceived as an encroachment of the Muslim Personal Law, and protested loudly at the judgment. Their spokesmen were Obaidullah Khan Azmi and Syed kazi. They had formed an organization in 1973 known as the All India Muslim Personal Law Board devoted to upholding what they saw as Muslim Personal Law.
The Indian government's reaction 
In 1986, the Congress (I) party, which had an absolute majority in Parliament at the time, passed an act The Muslim Women (Protection of Rights on Divorce) Act 1986 that nullified the Supreme Court's judgment in the Shah Bano case. This act upheld the Muslim Personal Law and writ as excerpted below:
- 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.
The Statement of Objects and Reasons of this Act (the objective of the Act) needs a mention. According to the stated objects of the Act, when a Muslim divorced woman is unable to support herself after the period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, 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. But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order the State Waqf Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only.
The Shah Bano case generated debate in India. The opposition reacted strongly against the Congress party's policies. The Bharatiya Janata Party regarded it as an `appeasement' of the Muslim community and discriminatory to Nonmuslim men and saw it as a "violation of the sanctity of the country's highest court". The 'Muslim Women (Protection of Rights on Divorce) Act' was seen as discriminatory as it denied divorced Muslim women the right to basic maintenance which women of other faiths had access to under secular law.
The case has led to Muslim women receiving a large, one-time payment from their husbands during the period of iddat, instead of a maximum monthly payment of 500 - an upper limit which has since been removed. Cases of women getting lump sum payments for lifetime maintenance are becoming common.
Critics of the Shah Bano case point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by them. Hindu nationalists have repeatedly contended that a separate muslim code is tantamount to preferential treatment and demanded an uniform civil code.
The Shah Bano case once again spurred the debate on the Uniform Civil Code in India. Ironically, the Hindu Right led by parties like the Jan Sangh which had strongly opposed reform of Hindu law in the 50's, in its metamorphosis as the Bharatiya Janata Party became an advocate for secular laws across the board. However, their opposition to the reforms was based on the argument that no similar provisions would be applied for the Muslims on the claim that they weren't sufficiently advanced. The pressure exerted by orthodox Muslims caused women's organizations and secularists to cave in.
Makarand Paranjape sees the overruling of Supreme Court verdict in Shah Bano case which happened when the Congress party was in power, as one of the examples of the party's pseudo-secular tactics which allowed "cynical manipulation of religion for political ends".
Personal Laws 
High Courts have interpreted "just and fair provision" that a woman is entitled to during her iddat period very broadly to include amounts worth lakhs (hundreds of thousands) of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination on the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband". The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of word "within" and not "for"). It extends for the entire life of the divorced wife until she remarries.
See also 
- The Muslim Women (Protection of Rights on Divorce) Act 1986
- Arif Mohammad Khan
- Pseudo-secularism (India)
- On violence: a reader 2007, p. 262.
- T.P. Jindal 1995, p. 57.
- Seyla Benhabib 2002, p. 91-92.
- The Muslims of India : a documentary record 2003, p. 216-224.
- A brief history of India 2006, p. 280-281.
- "The Shah Bano legacy". The Hindu. 2003-08-10. Retrieved 2013-05-07.
- The politics of autonomy : Indian experiences 2005, p. 60-61.
- Inscribing South Asian Muslim women 2008, p. 357.
- On violence: a reader 2007, p. 262-265.
- "Flashback to Shah Bano case as Muslim woman wins alimony battle". Indian Express. 2009-09-23. Retrieved 2013-05-07.
- "Triple Talaq". Irfi.org. Retrieved 2013-05-07.
- Muslims of India since partition 2007, p. 111.
- The politics of autonomy : Indian experiences 2005, p. 60-63.
- A brief history of India 2006, p. 280.
- "Shah Bano’s ghost over the rubble". Indian Express. 2006-07-18. Retrieved 2013-05-07.
- Altered Destinations: Self, Society, and Nation in India 2009, p. 50.
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