This article is written by Monesh Mehndiratta, of Graphic Era Hill University, Dehradun. The article explains the famous case of Shah Bano. This case pertains to the right of Muslim women to seek maintenance and is considered as one of the landmark judgments in the development of Muslim Personal Law. The article provides the brief facts of the case, issues involved, opinions of the judges, judgement, and its critical analysis. 

It has been published by Rachit Garg.

Introduction

Have you ever imagined that three words could actually change someone’s life?

Three words..?

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Shocking, right? You might be wondering what those three words are and how they can change someone’s life within seconds. Well, those three words are “Talaq, Talaq, Talaq”. These words could change the status of Muslim married women from being married to divorced within 3 seconds. Yes, that’s true, Talaq-ul-biddat, one of the forms of talaq in Muslim personal law involves pronouncing the word ‘talaq’ three times which results in an instant dissolution of marriage. 

It has catastrophic implications on the woman as she is left at the whims of her husband and has nowhere to go after divorce. Muslim marriage is majorly considered as a contract that depends on the will of the parties. The husband has been given the right to divorce his wife while the women did not have such rights. It was after certain amendments and judicial decisions that Muslim woman’s position was secured with respect to divorce, maintenance and other rights. One such decision that created history in this regard and is still considered as an important precedent for Muslim law is the ‘Case of Shah Bano’. The present article provides a case study on the Shah Bano case, gives the brief facts of the case, and explains the judgement and law applied. It also provides the consequences of the judgement and its analysis. Let us begin the journey to understand one of the historic judgements related to Muslim marriage.

Details of the case

Name of the case

Mohd. Ahmed Khan v. Shah Bano Begum and Ors. 

Citation

1985 AIR 945, 1985 SCR (3) 844

Date of judgement

23rd April, 1985

Name of the petitioner

Mohd. Ahmed Khan 

Name of the respondent

Shah Bano Begum and others

Name of the judges

CJ. Y.V. Chandrachud, J. D.A. Desai, J. Chinnappa O. Reddy, J. E.S. Venkataramaiah and J. Rangnath Misra 

Name of the court

Hon’ble Supreme Court of India

Brief Facts of the case

Shah Bano was married to Mohd. Ahmed Khan since 1932 and also had children. In 1978, she was cast out along with her children by her husband. Having no other option, she was compelled to file a petition for maintenance in 1978 for her kids and herself under Section 125 of the Criminal Procedure Code, 1973. The husband, on the other hand, instantly dissolved the marriage by irrevocable talaq. In Muslim Personal Law, the provision for maintenance of the wife is limited to the Iddat period, and the husband has no liabilities thereafter. 

However, he was directed by the magistrate to pay maintenance of Rs.25 per month to the respondent. Aggrieved by the amount of maintenance, she filed a revision petition to enhance and increase the maintenance. The instant case is a result of an appeal filed by the husband, Mohd. Ahmed Khan, seeking the dismissal of a petition filed by his aggrieved wife who prayed for an increase in the amount of maintenance. 

Issues involved in the case

The following issues were to be decided by the Supreme Court:

  • Is there any obligation on the husband under Muslim personal law to give maintenance to his wife after divorce apart from?
  • Whether Section 125 of the Code is applicable to Muslim women?
  • Are Muslim women eligible for any kind of sum payable by their husband apart from ‘Mahr’ or ‘dower’?

Contention of the parties

Arguments presented by Petitioner

The petitioner, Mohd. Ahmed Khan argued that under Muslim personal law, he is required to pay maintenance to his wife only during the iddat period and no further. Iddat is a period of seclusion that a Muslim woman has to face after the death of her husband or divorce in which she cannot marry any other person. His arguments were also supported by the All India Muslim Personal Law Board. They argued that the court has no power to interfere in matters governed by Muslim Personal Law as it is against the Sharia Law. He also argued that Section 125 of the Code is not applicable to her as these matters are governed by The Muslim Personal Law (Shariat) Application Act, 1937. 

Arguments presented by respondent 

The respondent, Shah Bano, claimed maintenance from her husband under Section 125 of the Criminal Procedure Code, 1973. It was argued that this provision imposes a duty on the husband to provide maintenance to his wife after divorce there are no means of sustenance for her. The respondents relied on the case of Bai Tahira v. Ali Hussain Fidalli Chothia (1979) and Fazlunbi v. K. Khader Vali (1980) in which the court settled the position with respect to the application of Section 125 of the Code to Muslim women. It was held that this section is equally applicable to Muslim women as well.  

Judgement of the court

Ratio decidendi

With respect to the application of Section 125 of the Code, the Hon’ble Supreme Court held that it is applicable to all women irrespective of their religion. While dealing with the question of whether there is any conflict between Section 125 of the Code and the Muslim Personal Law, the court held that Section 125 is a part of the Criminal Procedure Code, 1973 and not of any personal law. This means every spouse irrespective of their religion is under an obligation to pay maintenance to his wife until she remarries. 

Further, it was held that mahr or dower is an amount payable to the Muslim wife as a consideration for marriage and not after divorce. If a Muslim husband has paid the dower or mahr completely then it will not satisfy his duty of paying maintenance to his wife after divorce. Mahr or dower is a mark of respect for a wife under Muslim personal law and cannot be considered as an amount payable on divorce. Thus, the petitioner was asked to pay maintenance to his wife till she remarries. 

Opinions of the judges

The bench consisting of J. A. Vardharajan and Murtaza Fazal Ali was of the view that the cases referred for the applicability of Section 125 on Muslim women were not decided correctly and thus, referred the appeal to be decided by a larger bench consisting of the Chief Justice. This is because they opined that these cases need reconsideration as they are against the concept of divorce which is governed by Section 2 of the The Muslim Personal Law (Shariat) Application Act, 1937. On this issue, the Supreme Court observed that Section 125 is clear and precise and provides that a husband has to pay maintenance to his wife if she is not able to maintain herself. Religion has no role to play in the applicability of this section and that it does not limit itself to any particular class or religion of society. The then Chief Justice YY Chandrachud opined that the aim of the provision is to provide speedy remedy to those women who are not able to maintain themselves after divorce. 

The petitioner and his supporters relied on some texts and books to support the contention that the Muslim husband is not under an obligation to pay maintenance to his wife after iddat. The court observed that the texts referred by them failed to establish this proposition and stress was laid to give regard to entire Muslim personal law and then decide the liability of a husband to maintain his wife after divorce who has no means to sustain. The court found the comparison of the amount of Mahr given as consideration to Muslim women on marriage with the amount payable after divorce as maintenance, unjust and incorrect. The true position is, if a Muslim woman is able to maintain herself, only then is the duty of the husband to pay maintenance after the iddat period ceases. If she is unable to do so, she can take the recourse of Section 125. This also settled the position that there is no conflict between the said provision and the Muslim Personal Law. 

With respect to the issue of any other sum payable to the wife apart from dower of mahr, the court observed that the dower is a sum paid to the wife as a consideration for marriage and is a mark of respect and not as maintenance after divorce. It was also observed that Mahr is divided into two parts:

  • Prompt – payable on demand of wife,
  • Deferred – payable on dissolution of marriage or death of husband.

However, this amount cannot be considered as maintenance. This also opposes its aim which is respect for the wife. Hence, it was concluded that any sum payable out of respect or a mark of respect cannot be considered as a sum payable on divorce.

After effects of the judgement

This case was highly criticised by the Muslim community and the All India Muslim Personal Law Board on the ground that the Courts have no power to interfere in their religious matters and that this violates the Sharia Law. This resulted in huge controversy and protests. Many people from the community came to the streets and protested against the decision of the court. Further, the Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 in order to nullify the decision of the court. 

The Act was, however, contrary to the judgement delivered in the Shah Bano case and took away the remedy of Section 125 of the Code given to Muslim Women. It provided that the liability of a husband to pay maintenance to his wife is restricted to iddat period only. However, the constitutional validity of the Act was challenged in the case of Daniel Latifi v. Union of India (2001) on the ground that it is violative of Article 14, 15 and 21 of the Constitution as it deprives Muslim women right to seek maintenance under Section 125 of the code. The Supreme Court in this case clarified the position with respect to maintenance to be paid to Muslim women by their husbands after divorce and provided that:

  • The Muslim husband is under an obligation to pay maintenance to his wife beyond the iddat period after divorce and that he must also make fair and reasonable provisions for her future maintenance.
  • The court also provided that if she is unable to maintain herself after iddat period, it will be the responsibility of the relatives of her husband to take care of her and give her maintenance. She can file an application in this regard according to Section 4 of the Act.
  • If relatives are able to do so, it is the duty of the Wakf board to maintain her. 

This was done to strike a balance between personal laws and the rights of divorced women to seek maintenance and so the validity of the Act was upheld. However, the Act itself was contrary to the judgement delivered by the Supreme Court in this case rendering the judgement inapplicable. But the Hon’ble Supreme Court settled the position with respect to maintenance to Muslim women after divorce in the case of Daniel Latifi v. Union of India by stating that Muslim women are entitled to maintenance even after the iddat period if she is unable to maintain themselves. Thus, the case of Shah Bano is considered as one of the historic judgements with respect to the rights of Muslim women in the country. 

Analysis of the judgement

This case is a landmark judgement with respect to the rights of Muslim women. It settled the law and position related to their right to maintenance after divorce. Not only this, but the Supreme Court also stressed on the importance of Uniform Civil Code in this case. Chief Justice Y.V. Chandrachud opined that this issue of conflicting ideologies and unsettled position with respect to laws can be resolved by the Uniform Civil Code. However, No Uniform Civil Code has been enacted so far. This is because interfering with personal laws may not be acceptable to people and create a situation of chaos in the country. 

Though the judgement in this case was criticised by those who supported the petitioner, one cannot forget that it gave equal rights of maintenance to Muslim women under Section 125 of the Code of Criminal Procedure, 1973. It also led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which settled the issue of maintenance to Muslim women after divorce. Such legislation for the protection of rights of Muslim women was enacted for the first time and appreciated by women as their rights were discussed and given importance. 

Conclusion

The present case is considered to be a milestone in the development of Muslim Law and the rights of women in the country. It gave equal rights to one such section which is considered vulnerable and is neglected in society. Even today the case is considered as one of the landmark cases delivered by the judiciary. It also highlighted the importance of Uniform Civil Code in the country mentioned in Article 44 of the Constitution. 

Women were mostly exploited and this is one of the situations where Muslim women initiated to express themselves and fight for their rights. This case serves as a big step towards the practice of courts of deciding involving interpretation of personal laws. Though this case led to protest and controversy, it also resulted in enactment of a legislation to protect the rights of Muslim women whose position was settled by the court in another case. 

Frequently Asked Questions (FAQs)

Who represented Shah Bano in the Supreme Court in this case?

She was represented by Advocate Daniel Latifi who also challenged the validity of The Muslim Women (Protection of Rights on Divorce Act),1986. 

What is the time period of iddat in case of dissolution of marriage?

In case of divorce, the Muslim woman has to observe iddat period of three lunar months. 

How much maintenance was given to Shah Bano?

In the present case, the Judicial Magistrate of First Class ordered the maintenance of Rs. 500 per day to be paid to Shah Bano by her husband. 

References

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