With upcoming film ‘Haq’, recalling the landmark Shah Bano case and what it held on Muslim women’s rights

What was the Shah Bano case?

In 1978, Shah Bano Begum, a mother of five from Indore, was divorced by her husband and advocate Mohammed Ahmad Khan, after 43 years of marriage. He divorced her by pronouncing an irrevocable ‘talaq’. For a few months, he paid her a small maintenance sum, but then stopped.

With no means to support herself, Shah Bano filed a petition in court under Section 125 of the Code of Criminal Procedure (CrPC), 1973. This is a secular provision that obligates a person with sufficient means to provide maintenance to those he is responsible for, including his wife, who is unable to maintain herself. The explanation in the section clarifies that “wife” includes a divorced woman who has not remarried.

Khan contested the petition, arguing that under Muslim personal law, his liability was limited to the period of iddat — the waiting period of about three months after divorce, during which a woman cannot remarry, under Muslim personal law. He stated that he had paid her maintenance for this period and also paid her the deferred mahr or dower, which is the sum paid as a right of the wife during the marriage. Thus, he claimed, he had no further obligation.

A local court directed Khan to pay a nominal Rs 25 per month. On appeal, the Madhya Pradesh High Court increased the amount to Rs 179.20 per month. Khan then appealed to the Supreme Court.

What did the Supreme Court rule?

On April 23, 1985, a five-judge Constitution Bench, headed by then Chief Justice YV Chandrachud, delivered a unanimous judgment. The court dismissed Khan’s appeal and upheld the High Court order.

The court held that Section 125 of the CrPC is a secular provision that applies to all citizens irrespective of their religion. It stated that the provision was enacted to prevent destitution, and there was no reason to exclude Muslim women from its ambit. It concluded that if a divorced Muslim woman is unable to maintain herself, she is entitled to claim maintenance from her former husband even after the iddat period.

The bench ruled that there was no conflict between Section 125 and Muslim personal law on the question of a husband’s obligation to his divorced wife. It referred to the Quran to hold that it imposes an obligation on a Muslim husband to provide for his divorced wife. The judgment also expressed regret that Article 44 of the Constitution, which suggests that the state institute a Uniform Civil Code, remained a “dead letter”.

Why did some oppose the Shah Bano judgment?

The verdict was met with fierce backlash from some Muslim groups, led by the All India Muslim Personal Law Board (AIMPLB), that saw the judgment as an attack on their religious identity and an encroachment on Muslim personal law. They organised large-scale protests against the verdict.

Facing political pressure, the Rajiv Gandhi-led Congress government, which had a substantial majority in Parliament, passed The Muslim Women (Protection of Rights on Divorce) Act, 1986, to nullify the judgment.

That same year, amid pressure from Hindu right-wing groups, who accused the government of bowing down to hardline Muslims, the gates of the Babri Masjid in Uttar Pradesh were unlocked under a Congress-led state government. Thus, the case also proved to be a pivotal moment in events that led up to the demolition of December 6, 1992, and resulted in fundamental shifts in Indian politics.

The new law stipulated that a divorced Muslim woman was entitled to a “reasonable and fair provision and maintenance” from her former husband only during the period of iddat. After this period, the responsibility of maintaining her would shift to her relatives, who would inherit her property and, if they were unable to do so, to the state Waqf Board.

And what followed the new law?

The constitutional validity of the 1986 Act was immediately challenged. The lead petitioner was Danial Latifi, the lawyer who had represented Shah Bano in the Supreme Court. The case came before a five-judge Constitution Bench of the Supreme Court in 2001.

The court upheld the Act but did so through a creative interpretation that protected the rights of divorced Muslim women. The court focused on Section 3(1)(a) of the Act, which requires the former husband to make “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period.”

The court interpreted this to mean that the husband’s liability was not limited to just three months of iddat. Instead, he had to make a one-time payment during the iddat period that was large enough to provide for her maintenance for the rest of her life or until she remarried.

This interpretation effectively upheld the spirit of the Shah Bano verdict while keeping the 1986 Act on the statute books. However, a degree of ambiguity remained regarding the maintenance rights of Muslim women: Did the 1986 Act replace Section 125 of the CrPC for Muslim women, or could they still choose the secular remedy?

The Supreme Court definitively answered this question in 2024, in the case of Mohd. Abdul Samad v The State of Telangana. A bench of Justices BV Nagarathna and Augustine George Masih ruled that the 1986 Act doesn’t bar a divorced Muslim woman from seeking maintenance under Section 125 of the CrPC.

The court held that the 1986 Act provides a remedy that is “in addition to and not in derogation of” the remedy available under the CrPC. It clarified that a divorced Muslim woman has the option to seek a remedy under either of the two laws or both — the choice lies with her.