SHAH BANO BEGUM CASE , 1985 by VANDANA YADAV

SHAH BANO BEGUM CASE, 1985:
Milestone case for Muslim women’s fight for rights. The SC upheld the right to alimony for a Muslim woman and said that the Code of Criminal Procedure, 1973 is applicable to all citizens irrespective of their religion. This set off a political controversy and the government of the day overturned this judgement by passing the Muslim Women (Protection on Divorce Act), 1986, according to which alimony need be given only during the iddat period (in tune with the Muslim personal law).

Background:

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 divorced Shah Bano, who was then aged 62 years. 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 criminal suit 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. In 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.

Opinion of Supreme Court:

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, Rangnath 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.

Mohd. Ahmed Khan v. Shah Bano Begum 1985, commonly referred to as the Shah Bano case, was a controversial maintenance lawsuit in india, in which the Supreme Court delivered a judgment favouring maintenance given to an aggrieved divorced Muslim woman. Then the congress government 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 waqf Board. It was seen as discriminatory as it denied right to basic maintenance available to Muslim women under secular law. Shah Bano Begum who belonged to 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 Muslims some of whom cited Qur’an to show that the judgement was in conflict with Islamic law. It triggered controversy about the extent of having different civil codes for different religions in India. This case caused the congress government, with its absolute majority, to pass the Muslim women ( Protection of rights on Divorce) 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 Iddat in Islamic law). However, in the later judgements including the Daniel Latifi case and Shamima Farooqui v. Shahid Khan, 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. Some 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 .

SHAH BANO BEGUM CASE , 1985
VANDANA YADAV
24TH MAY, 2021

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