Mohd. Ahmed Khan v. Shah Bano Begum
|Mohd. Ahmed Khan and Shah Bano Begum and Others|
|Court||Supreme Court of India|
|Full case name||Mohd. Ahmed Khan v. Shah Bano Begum And Ors|
|Decided||23 April 1985|
|Citation(s)||1985 SCR (3) 844|
|Prior action(s)||Criminal Revision No. 320 of 1979, Madhya Pradesh High Court|
|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||Y. V. Chandrachud (Chief Justice), Rangnath Misra, D A Desai, O Chinnappa Reddy, E S Venkataramiah|
|Code of Criminal Procedure, 1973, Indian Penal Code.|
Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844), commonly referred to as the Shah Bano case, was a controversial maintenance lawsuit in India. Shah Bano, a 62-year-old Muslim mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. She filed a criminal suit in the Supreme Court of India, in which she won the right to alimony from her husband. However, she was subsequently denied the alimony when the Indian Parliament reversed the judgement under pressure from 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, denied even utterly destitute Muslim divorcées the right to alimony from their former husbands. However, in the later judgements including Daniel Latifi case and Shamima Farooqui versus Shahid Khan case, the Supreme Court of India interpreted the act in a manner reassuring the validity of the case and consequently upheld the Shah Bano judgement and The Muslim Women (Protection of Rights on Divorce) Act 1986 was nullified. Many Muslims including All India Shia Personal Law Board supported the Supreme Court's order to make the right to maintenance of a divorced Muslim wife absolute.
In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan, an affluent and well-known advocate in Indore, Madhya Pradesh, and had five children from the marriage. After 14 years, Khan took a younger woman as second wife and after years of living with both wives, he threw Shah Bano, who was then aged 62 years, and her five children out. In April 1978, when Khan stopped giving her the ₹200 per month he had apparently promised, claiming that she had no means to support herself and her children, she filed a petition at a local court in Indore, against her husband under section 125 of the Code of Criminal Procedure, asking him for a maintenance amount of ₹500 for herself and her children. On November 1978 her husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law and took up the defence that hence Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total ₹5,400. In August 1979, the local court directed Khan to pay a sum of ₹25 per month to Bano by way of maintenance. On 1 July 1980, on a revisional application of Bano, the High Court of Madhya Pradesh enhanced the amount of maintenance to ₹179.20 per month. Khan then filed a petition to appeal before 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.
Opinion of Supreme Court
On 3 February 1981, the two judge bench composed of Justice Murtaza Fazal Ali and A. Varadarajan who first heard the matter, in light of the earlier decisions of the court which had held that section 125 of the Code applies to Muslims also, referred Khan's appeal to a larger Bench. Muslim bodies All India Muslim Personal Law Board and Jamiat Ulema-e-Hind joined the case as intervenor. The matter was then heard by a five-judge bench composed of Chief Justice Chandrachud, Jangnath Misra, D. A. Desai, O. Chinnappa Reddy, and E. S. Venkataramiah. On 23 April 1985, Supreme Court in a unanimous decision, dismissed the appeal and confirmed the judgment of the High Court.
Supreme Court concluded that "there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself." After referring to the Holy Quran, holding it to the greatest authority on the subject, it held that there was no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. Shah Bano 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.
The Court also regretted that article 44 of the Constitution of India in relation to bringing of Uniform Civil Code in India remained a dead letter and held that a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.
Movement against the judgment
The Shah Bano judgment, as claimed, became the centre of raging controversy, with the press turning it into a major national issue. The Shah Bano judgment elicited a protest from many sections of Muslims who also took to the streets against what they saw, and what they were led to believe, was an attack on their religion and their right to their own religious personal laws. Muslims felt threatened by what they perceived as an encroachment on the Muslim Personal Law, and protested loudly at the judgment. Their spokesmen were Sunni Barelvi leader Obaidullah Khan Azmi and Syed Kazi. At the forefront was All India Muslim Personal Law Board, an organization formed in 1973 devoted to upholding what they saw as Muslim Personal Law.
Dilution of the effect of the judgment
In the Indian general election, 1984, Indian National Congress had won absolute majority in the Indian parliament. After the Shah Bano judgment, many leaders in the Indian National Congress suggested to the Prime Minister of India, Rajiv Gandhi that if the government did not enact a law in Parliament overturning the Supreme Court judgement, the Congress would face decimation in the polls ahead. In 1986, the Parliament of India passed an act titled The Muslim Women (Protection of Rights on Divorce) Act, 1986, that nullified the Supreme Court's judgment in the Shah Bano judgment. Diluting the Supreme Court judgment, the act allowed maintenance to a divorced woman only during the period of iddat, or till 90 days after the divorce, according to the provisions of Islamic law. This was in stark contrast to Section 125 of the Code. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only."
The "Statement of Objects and Reasons" of the act stated that "the Shah Bano decision had led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife and hence opportunity was therefore taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests."
Reactions to the act
The law received severe criticism from several sections of the society. The Opposition called it another act of "appeasement" towards the minority community by the Indian National Congress. The All India Democratic Women's Association (AIDWA) organised demonstrations of Muslim women against the move to deprive them of rights that they had hitherto shared with the Hindus. This law has been alleged to have been brought by then prime minister Rajiv Gandhi for Muslim appeasement.
The Bharatiya Janata Party regarded it as an 'appeasement' of the Muslim community and discriminatory to non-Muslim 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. 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". Lawyer and former law minister of India, Ram Jethmalani has termed the act as "retrogressive obscurantism for short-term minority populism". Rajiv Gandhi's colleague Arif Mohammad Khan who was INC member and a minister in Gandhi's cabinet resigned from the post and party in protest.
Critics of the Act 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 a uniform civil code.
The Act 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. However it is seen that despite its unique feature of no ceiling on quantum of maintenance, the Act is sparingly used because of the lack of its knowledge even among lawyers. The legal fraternity generally uses the CrPC provision while moving maintenance petitions, considering it handy.
The Shah Bano case had 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 1950s, 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.
Challenge to the validity of the Act
The constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged before the Supreme Court in Danial Latifi & Anr v. Union Of India by Daniel Latifi in 2001, who was the lawyer of Shah Bano in the Shah Bano case. The Supreme Court tried to maintain a balancing act, attempting to uphold Muslim women's rights without addressing the constitutionality of gender and religious discrimination in personal law. Court reiterated the validity of the Shah Bano judgment. The Muslim Personal Law Board, an intervenor, questioned the authority of the court to interpret religious texts.
The Court concluded that the Act does not, in fact, preclude maintenance for divorced Muslim women, and that Muslim men must pay spousal support until such time as the divorced wife remarries. However the Court held that if the Act accorded Muslim divorcees unequal rights to spousal support compared with the provisions of the secular law under section 125 of the Criminal Procedure Code, then the law would in fact, be unconstitutional. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of articles 14 and 15 of the Constitution of India. 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.
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