August 23, 2017 2:05:00 pm
The Mohd. Ahmad Khan vs. Shah Bano Begum & Ors. or the Shah Bano maintenance case is seen as one of the legal milestones in battle for protection of rights of Muslim women. While the Supreme Court upheld the right to alimony in the case, the judgment set off a political battle as well as a controversy about the extent to which courts can interfere in Muslim personal law. The case laid the ground for Muslim women’s fight for equal rights in matters of marriage and divorce in regular courts, the most recent example being the Shayara Bano case in which the Supreme Court invalidated the practice of instant triple talaq.
Here’s all you need to knowabout the Shah Bano case
In April 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition in court demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh. Khan had granted her irrevocable talaq later in November. The two were married in 1932 and had five children — three sons and two daughters. Shah Bano’s husband had asked her to move to a separate residence three years before, after a prolonged period of her living with Khan and his second wife.
Shah Bano went to court and filed a claim for maintenance for herself and her five children under Section 123 of the Code of Criminal Procedure, 1973. The section puts a legal obligation on a man to provide for his wife during the marriage and after divorce too if she isn’t able to fend for herself. However, Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce.
Iddat is the waiting period a woman must observe after the death of her husband or divorce before she can marry another man. The length of the iddat period is circumstantial. The period is usually three months after either of the two instances. In case the woman is pregnant, the period carries on until the childbirth.
Khan’s argument was supported by the All India Muslim Personal Law Board which contended that courts cannot take the liberty of interfering in those matters that are laid out under Muslim Personal Law, adding it would violate The Muslim Personal Law (Shariat) Application Act, 1937. The board said that according to the Act, the courts were to give decisions on matters of divorce, maintenance and other family issues based on Shariat.
After detailed arguments, the decision was passed by the Supreme Court of India in 1985. On the question whether CrPC, 1973, which applies to all Indian citizens regardless of their religion, could apply in this case.
Then Chief Justice of India Y.V. Chandrachud upheld the decision of the High Court that gave orders for maintenance to Shah Bano under CrPC. For its part, the apex court increased the maintenance sum.
The case was considered a milestone as it was a step ahead of the general practice of deciding cases on the basis of interpretation of personal law and also dwelt on the need to implement the Uniform Civil Code. It also took note of different personal laws and the need to recognise and address the issue of gender equality and perseverance in matters of religious principles.
Justice Y.V. Chandrachud said in his decision: “Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. 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 vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion.”
The following events were unfavourable to a great extent with the then Rajiv Gandhi Congress government, elected in 1984, passing the Muslim Women (Protection on Divorce Act), 1986. This law overturned the verdict in the Shah Bano case and said the maintenance period can only be made liable for the iddat period. The new law said that if a woman wasn’t able to provide for herself, the magistrate had the power to direct the Wakf Board for providing the aggrieved woman means of sustenance and for her dependent children too.
Shah Bano’s lawyer Danial Latifi had challenged the Act’s Constitutional validity. The apex court, though upholding the validity of the new law, said the liability can’t be restricted to the period of iddat. One of the key points of relevance in the verdict that set it apart from previous cases was the recognition of women’s claim for treatment with equality and dignity, particularly in cases of marriage.
Signifuantly, Shah Bano later withdrew the maintenance claim she had filed.
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