Shah Bano Begum

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, in which the supreme court
delivered a judgment favoring maintenance given to an aggrieved divorced Muslim woman. Then
the Congress government, panicky in an election year, gave into the pressure of Muslim
orthodoxy and enacted a law with its most controversial aspect being the right to maintenance
for the period of iddat after the divorce, and shifting the onus of maintaining her to her relatives
or the Wakf Board. It was seen as discriminatory as it denied right to basic maintenance available
to non-Muslim women under secular law.
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, the Muslim politicians mounted a campaign
for the verdict's nullification. The Indian Parliament reversed the judgement under pressure from
Islamic orthodoxy and The Muslim Women (Protection of Rights on Divorce) Act 1986. 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.t 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 restricted the right of Muslim divorcées to alimony from their former husbands for
only 90 days after the divorce (the period of Iddah in Islamic Law).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.
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 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.
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.[1] 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.

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