The Shah Bano Case Explained

16 Jan 2023  Read 680 Views

The holy scripture of Muslim personal law has given both men and women equal rights and status. But then why its execution is debatable. Education, polygamy, maintenance, and wearing of hijab have been crucial topics of discussion and intense debate. The case of Mohd. Ahmad Khan vs Shah Bano Begum & Ors. (1985), also known as the Shah Bano case, is witnessed as one of the milestones in the history of Muslim women’s fight for rights in India. It laid the ground for thousands of women to make legitimate claims that were not permitted before.

This article discusses the Shah Bano Begum’s case in detail comprising facts, issues, analysis, judgment. So, let’s get started.

Facts of Shah Bano's case

In 1932, Mohd Ahmed Khan (appellant) was a lawyer by profession, married to Shah Bano Begum (respondent), and had three sons and two daughters from this marriage. In 1975, Shah Bano Begum, aged 62 years, was abandoned by her husband and thrown out of her marital home with her children. In 1978, she brought an appeal before the Judicial Magistrate of first class, Indore claiming maintenance of Rs. 500 per month under Section 125 of CrPC. Then, her husband gave her irrevocable triple talaq and used it as a defence for not paying maintenance as they were no longer husband and wife and had already been paying maintenance of Rs. 200 per month for about two years. Also, he had deposited a total of Rs. 3000 in the court through dower during the period of iddat. In 1979, the Magistrate directed the husband to pay a maintenance of Rs 25 per month. In 1980, Shah Bano filed a revisional application in the MP High Court to change the amount of maintenance which the High Court increased to Rs. 179 per month. The husband then challenged this application in the Supreme Court as a special leave petition.

Issues of the case

  1. Under Sec. 125 CrPC, whether the definition of wife includes a divorced Muslim woman?

  2. Whether Section 125 CrPC overrides personal law?

  3. Whether a Muslim husband’s is obligated under Sec. 125 CrPC to provide maintenance for a divorced wife if there is a conflict between section 125 and Muslim Personal Law? 

  4. Under Section 127(3)(b) CrPC, what is the sum payable on divorce and whether the meaning of Mehar or dower is not summed payable on divorce?

Overall, the main question was that the husband’s case was entirely based on the claim, that maintenance under Section 125 CrPC must be excluded on the ground that Muslim law exempts the husband of any responsibility for his divorced wife beyond payment of any mahr due to her (dower paid in lieu of marriage by the husband) and an amount to cover maintenance during the iddat period and Section 127(3)(b) CrPC conferring statutory recognition on this principle.

What is Iddat?

Iddat is the waiting period, which a woman observes after her husband’s death or divorce before she marries another man. Iddat period's length is circumstantial (usually 3 months). The main objective behind iddat is that this period provides sufficient time for the wife to mourn the death of her husband and also protects her from criticism which she might be subjected for remarrying too quickly after her husband died. Iddat also helps determine whether a woman is pregnant since four and a half months is half the duration of a normal pregnancy if there is any. So, let’s go through time period for which the iddat pariod observed:

  1. a divorced woman observes iddat for 3 months wheraas a woman whose husband has died observes iddat for four lunar months & ten days after the death of her husband, irrespective of consummation during marriage.

  2. After the woman is pregnant, the period continues until childbirth.

  3. If a woman is pregnant at the time of her husband’s death, she observes iddat for a whole year comprising nine months of pregnancy plus three months of iddat period.

In Shah Bano’s case, appellant's (Mohd Khan) contention was supported by the All India Muslim Personal Law Board which contended that courts cannot interfere in those matters that are deliberated under Muslim Personal Law, stating that it would infringe “The Muslim Personal Law (Shariat) Application Act, 1937” and the courts must pass any judgment on such issues based on Shariat only. 

Shah Bano case judgment

In 1985, a judgment was passed by the Supreme Court on the issue of whether CrPC, which applies to all citizens of India irrespective of their religion, could apply here. And that CrPC would prevail over personal laws.

CJI Y.V. Chandrachud upheld the High Court’s judgment that gave orders for maintenance to Shah Bano under CrPC. Just that the Supreme Court enhanced the sum of maintenance. He said that “Section 125 was enacted to provide a quick remedy to a class of persons who are not able 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 crucially of a prophylactic nature, cut across the barriers of religion. The liability imposed by S. 125 to maintain close relatives who are indigent is founded upon the person's obligation to the society to prevent vagrancy and destitution. The moral edict of the law and morality cannot be clubbed with religion.”

Conclusion

Shah Bano’s case was considered a milestone as it was a big step ahead of the general practice of deciding cases based on the interpretation of personal law, and this case also highlighted the need to implement the Uniform Civil Code under Article 44 of the Indian Constitution.

About the Author: Kakoli Nath | 137 Post(s)

Kakoli Nath is a legal Content Curator at Finology Legal who pursued BBA.LL.B (5 years integrated course) & she is a patent analyst. She has pursued advanced certification in Forensics Psychology and Criminal Profiling from IFS, Pune.

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