SHAH BANO CASE

Shah Bano Case: Judgment & Muslim Women’s Rights Act 1986

At Vera Causa Legal, we understand the complexities surrounding divorce and the quest for justice, especially in landmark cases like the Shah Bano judgement. This pivotal case in India highlighted the struggle for Muslim women’s rights to maintenance post-divorce, igniting debates over personal laws and the necessity of a uniform civil code. As the best divorce lawyer in Noida, Vera Causa Legal is committed to advocating for equitable legal rights, ensuring every client receives comprehensive support and expert guidance through their legal journey. Join us as we delve into the implications of the Shah Bano case and the evolution of women’s rights in India.

INTRODUCTION

At a time when women all across the world started being more aware about their right, India faced a similar challenge through the case of Shah Bano. It began around the 1960s. About a decade later, arose the question of rights of Muslim women.

A community controlled by the patriarchal belief system through the Shariyat Act, 1937 was fighting for its rights through the case of Ahmed Khan vs Shah Bano Begum. The question of maintenance to be paid to a Muslim woman after the iddat period had arisen through this case.

This case brought up a conflict between personal laws and the debate over a uniform civil code, which aims to have common rules for personal matters irrespective of a person’s religious beliefs.

It had substantial political and social consequences with people from both the sides, some thinking of it to be a political intrusion while others thinking of it to be a step forward for female’s rights, debating and discussing their stances. It is a milestone in the history of Muslim women’s fight for equal rights in India.

BRIEF FACTS

Mohd. Ahmed Khan, the appellant, married Shah Bano Begum (respondent) in 1932. They had 3 sons and 2 daughters out of their marriage. In 1975, after 43 years of living together, drove his wife out of the matrimonial home.

In April 1978, the respondent filed a petition under Section 125 of CrPC, claiming maintenance of Rs 500 per month. Later, in November 1978, the appellant divorced the respondent by irrevocable talaq (commonly known as the Triple Talaq).

In his defence, the respondent had ceased to be his wife by reason of divorce granted by him and he was therefore under no obligation to provide maintenance for her and that he had already paid maintenance at Rs 200 per month for a period of 2 years and deposited Rs 3000 by way of dower during iddat period.

In August 1979 the Magistrate directed the appellant to pay a princely sum of Rs 25 per month and on an appeal in July 1980, the High Court of Madhya Pradesh enhanced the amount to Rs 179 per month. Mohd. Ahmed Khan challenged the High Court’s decision by a special leave petition.

ISSUES:

  1. Whether the CrPC overrides the Muslim Personal Law?
  2. Whether a Muslim husband is obliged to pay maintenance even after the iddat period and is there a lack of clear provision for maintenance in Muslim personal law?
  3. Whether the sum of Mahar/Dower can be considered as maintenance similar to that provided under Section 125 of CrPC?

ARGUMENTS BY THE PETITIONER:

The petitioner argued-

That responsibility for providing maintenance to Muslim women resterd with the Waqf Board or the Muslim Personal Law Board and courts did not have the authority to grant maintenance to Muslim women under the Muslim Personal Law.

That the Muslims were governed by the Shariat Act, 1937 under which a Muslim person is only entitled to pay maintenance to his divorced wife within the period of iddat, that is observed for 3 months. Beyond that, there is no obligation upon him to pay any amounts as maintenance.

That the Holy Quran also did not make it a compulsion for Muslim husband to pay maintenance after the observance of iddat period.

(Iddat is the waiting period, which a woman observes after her husband’s death or divorce before she marries another man. The iddat period’s length is circumstantial (usually 3 months).)

That Section 125 of CrPC contradicted the personal laws followed by him and hence he was not obliged to follow such a contradictory law.

ARGUMENTS BY THE RESPONDENT:

The respondent argued-

That ‘wife’ means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a ‘wife’ for the purpose of section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.

That the Quranic guidelines on maintenance and divorce should be interpreted in a manner consistent with contemporary principles of justice and equity.

JUDGEMENT

The Hon’ble Supreme Court stated that this appeal does not involve any question of constitutional importance, but there is a question of importance for the large segments of society which have been traditionally subjected to unjust treatment.

Maintenance Obligation and Personal Law

The liability imposed by Section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent destitution. It was held that Section 125 of CrPC is secular in nature. It overrides the personal law if there is any conflict between the two.

Mahr and Divorce

Argument that according to Muslim personal law, a husband’s liability to provide for the maintenance of his divorced wife is limited to the period of iddat, even though she is unable to maintain herself, has been rejected.

Mahr or dower, however, is an amount payable by the husband to the wife on marriage, not on divorce. Since Section 127(3)(b) speaks of sum ‘payable on such divorce’ it is inapplicable in case of payment of Mahr.

Moreover, Mahr is an obligation imposed upon the husband as a mark of respect for the wife, which is detrimental to the stance that it is an amount payable to the wife on divorce.

The sum settled by Mahr is generally expected to take care of the ordinary requirements of the wife, during and after the marriage. But it does not countenance cases in which the wife is unable to maintain herself after the divorce.

This appeal raises a straightforward issue which is common to Muslim women, women generally as well as all those aspiring to create an equal society of men and women.

The Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so for any valid or invalid reason.

The question raised in the judgement was whether the law is so ruthless in its inequality that, no matter how low or high the husband pays for the maintenance of his divorced wife during the period of iddat, it absolves him forever from the duty of paying adequately.

The personal laws are in direct contravention of the plain and unambiguous language of Section 127(3)(b) of CrPC.

Section 125 and Obligations

Section 125 mainly deals with cases in which a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain herself. Hence, the Muslim personal law is not in conflict with the situation provided by Section 125, and it would be wrong to hold that such a husband is not under any obligation to maintain his wife, who is unable to maintain herself.

Divorced Women’s Rights

Under Section 125(1), ‘wife’ includes a divorced woman who has not remarried, and the religion professed by a spouse has no place in the scheme of these provisions. A divorced wife under the Muslim law deserves to be treated justly and she should get what is her equitable or legal due.

Muslim Personal Law Board’s Stand

The All-India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how a Muslim divorcee should maintain herself.

Critical analysis of the judgement with respect to the Muslim Women (PRD) Act, 1986:

Impact of Shah Bano Case on Muslim Women’s Rights

Shah Bano’s case judgment was a landmark with respect to the rights of Muslim women in India. It settled the law and position related to their right to maintenance after divorce.

Along with this, the Hon’ble Supreme Court also stressed the importance of enforcing a Uniform Civil Code which will further resolve conflicting ideologies and unsettled positions.

It was said that Article 44 of the Indian Constitution has remained a dead letter. 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.

Criticisms and Reactions to the Judgement

However, it was highly criticized by many, the Muslim community and the All India Muslim Personal Law Board and those who supported the Petitioner on the ground that the courts have no power to interfere in their religious matters and that this violates the Sharia Law.

They considered this decision in conflict with the rules of the Quran and Islamic Laws/Islam. The conservative Muslim theologists opposed the verdict while it was supported by the liberals.

It was believed that Shah Bano judgement was not just a fight for maintenance but was unduly critical of the Muslim Personal Laws and Islamic practices.

These criticisms grew so much that subsequently, the Parliament of India in 1986 decided to enact the Muslim Women (Protection of Rights of Divorce) Act, 1986 under the Rajiv Gandhi government.

CONCLUSION

Many middle-aged women being divorced without reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children.

The case of Shah Bano acted as a mirror which reflected the unfortunate realities about what happens when women’s rights are weighed against the principles of religious matters dictated by patriarchal norms.

Even though the Supreme Court dismissed the appeal and confirmed the judgement of the High Court, taking a step forward, the reactionaries within the conservative society overturned the verdict of the Supreme Court and nullified the progressive decision of the court that catered to the rights of Muslim women in an egalitarian society.

Written by Katyayani Singh

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