The case of Mohd. Ahmed Khan v. Shah Bano[i] is popularly referred to as the ‘Shah Bano Case’. It dealt with the right of maintenance of a Muslim woman and stirred controversy around the same. The case also highlighted the need for a Uniform Civil Code (hereinafter referred to as “UCC”). The judgement in Shah Bano Case created an uproar amongst the Muslim Community of India. This resulted in nullification of the judgement by the Rajiv Gandhi led Congress government through the enactment of The Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as “Muslim Women’s Act”).
In order to study the Shah Bano Case judgement and the judgements following from it, it is pertinent to understand the concept of ‘iddat’. Iddat is the period of waiting that is observed by Muslim Women. Such a waiting period is observed on account of divorce or death. During the said waiting period, the wife is barred from remarrying. Iddat is observed for one major reason i.e., to ascertain the paternity in case of pregnancy. Only after the completion of the iddat period, a woman can lawfully marry again. Iddat may also help the couple rethink the decision of ‘divorce’ and the divorce may be revoked during the iddat period. In case of revocable Talaaq, intercourse with the wife (observing iddat) would lead to revocation of the said Talaaq.[ii] In case of dissolution of marriage due to death, Iddat also acts as a ‘period of mourning’ for the grieving widow.
Period of Iddat
For the purpose of this article, we may only restrict ourselves to the period of iddat observed because of dissolution of marriage resulting from a divorce.
1. Marriage has been Consummated: Where the marriage has been consummated, the iddat period would only last for three months (taking three menstrual cycles into consideration). Where the woman becomes pregnant during this period, she is bound to observe iddat for as long as her pregnancy lasts i.e., till the delivery of the child.
2. Marriage has not been Consummated: A divorced wife is not required to observe iddat where the marriage has not been consummated.
3. Divorced wife Pregnant during divorce: If the circumstances are such that the divorced wife is pregnant during the divorce, she is required to observe iddat till the delivery of the child.
4. Death of husband during iddat: If the husband dies during iddat that was being observed by the divorced wife, she is required to observe an iddat for a period of four months and ten days. This period is not inclusive of the usual ‘three months period’ that is observed in case of dissolution of marriage by divorce.
5. Section 2 (b) of Muslim Women’s Act[iii]:
- Menstruating Woman: Three menstrual courses post the date of termination of marriage due to divorce.
- Woman not menstruating: Three Lunar Months post the date of termination of marriage due to divorce.
- Pregnant at the time of divorce: In such a case, the iddat period would be between divorce and termination of her pregnancy or delivery of the child, whichever is earlier.
It is worth pointing out that the period of iddat commences from the date of the divorce and not from the date on which the said information reaches the wife.
Facts of Shah Bano Case (Mohd. Ahmed Khan v. Shah Bano Begum)
Shah Bano’s husband, Mohd. Ahmed Khan drove her out of her matrimonial home. Shah Bano filed a case under Section 125 of the Criminal Procedure Code (hereinafter referred to as “CrPC”) for maintenance of Rs. 500 which was guaranteed to be provided by him. Subsequently, Ahmed Khan divorced the respondent by an irrevocable talaq. He then defended himself by stating that since she had ceased to be his wife, he no longer needed to provide her maintenance. Further, he stated that a maintenance amount of Rs. 200 per month was being paid by him for roughly two years. He added that he had deposited dowr of Rs. 3000 during the iddat period. This defence did not help him avoid his duty of paying his wife maintenance, as the Magistrate ordered him to pay Rs. 25 every month towards Shah Bano’s maintenance. In the revision appeal, the Madhya Pradesh High Court increased the amount of Rs. 25 to Rs. 179.20 every month. Ahmed Khan challenged this decision by way of a Special Leave Petition in the Apex Court.
Issues involved in Shah Bano Case
The Issues involved in Shah Bano Case are as follows:
- Whether ‘wife’ as given in section 125 of CrPC includes a muslim woman?
- Whether Section 125 is to be given preference over personal laws?
- Whether a Muslim husband is under the obligation to provide maintenance to his divorced wife creates a conflict between Muslim Personal law and Section 125 of CrPC?
Judgement of the Shah Bano Case
The judgement given by the Supreme Court in the Shah Bano Case was indeed quite sound and fair. The judges did not fail to recognize that there persists no conflict between the concerned section of the CrPC and the Personal Laws. It can be inferred that the concerned section of the CrPC does not discriminate. Rather, irrespective of religion, a woman could seek maintenance under this particular section. The court rightly recognized that a Muslim man’s duty to pay maintenance could go beyond the iddat period. It was also rightly stated by the Hon’ble court that paying Mehr cannot exempt a Muslim man from paying maintenance to his wife.
The issue of inclusion of Muslim wives within the meaning of wife (Section 125 of CrPC) would be valid. The section does not limit itself to wives belonging to a particular religion but is enshrined with a wider definition so as to inculcate all wives. The Hon’ble Supreme Court did not shy away from stating that in case of conflict, section 125 of the CrPC would override the personal laws. The court rightly held that where the Muslim wife was unable to provide for herself, the Muslim woman may seek recourse of law under section 125 of CrPC. In this present case, Shah Bano was clearly unable to maintain herself, therefore, the husband ought to have provide her maintenance.
The Supreme Court realised that the need for a Uniform Civil Code. The Hon’ble Court when on to state that having a UCC would considerably ease issues of conflicting laws and the legal problems that arise from the same. The UCC would also help in integrating the country by eradicating conflicting ideologies. A UCC would be a secular law and the State would have the responsibility of ensuring the enactment of such a code. Moreover, Article 44 of the Indian Constitution provides for the enactment of a UCC. The suggestions of the Hon’ble court were extremely clear and advised for the enactment of a UCC.
Aftermath of the Shah Bano Judgement
The judgement in the Shah Bano case caused an uproar in the Conservative Indian Muslim Communities. This created major ruckus and controversy in the Country. The Rajiv Gandhi led Congress Government, which come into power after the assassination of Mrs. Indira Gandhi, started facing a blow due to this judgement of the court. Due to such criticism, the Rajiv Gandhi Government succumbed to the pressure of the conservative Muslim Community and introduced the bill for the Muslim Women’s Act in the Parliament. After the bill was passed, it nullified the Apex Court’s Judgement in the Shah Bano Case. The aforementioned act limited the liability of husband to pay maintenance for the period of the iddat.
Remarks and Effect on the Judiciary
The issue, in this case, went way beyond the issue of the right of Muslim women to seek maintenance under section 125 of CrPC. The case directly resulted in a negative feeling and unrest amongst the conservative Muslim Community. The judgement was perceived as an attack on the Muslim religion and the sentiments of the Indian Muslims. The Rajiv Gandhi led Congress Government feared the next elections and their ‘vote bank’ which resulted in the enactment of the Muslim Women Act. This gave rise to an indirect tussle between the Judiciary and the legislature. The need for Independence of Judiciary echoed after the enactment of the Muslim Women’s Act as it nullified a sound judgement (given in Shah Bano Case) which would’ve helped safeguard the right of maintenance of Muslim Women.
The Supreme Court’s suggestion for the establishment of the UCC and realising its absence was seen as a threat by certain religious communities. Further, the Parliament decided to pass the Muslim Women’s Act despite the sound judgement rendered by the Apex Court in Shah Bano Case could be viewed as direct encroachment of the power vested with the Indian Judiciary. In my opinion, the former Congress Government made a politically motivated move by passing the aforementioned Act. Notwithstanding that, this could be viewed as a direct threat to judicial independence. Politically motivated moves like this act as impediments to securing the Independence of Judiciary in India. The enactment of the Muslim Women’s Act could be regarded as a direct blow on the sound interpretation of the Apex Court.
Daniel Latiffi & Anr. v. Union of India, (2001) 7 SCC 740
The tussle did not end after the Shah Bano Case. Due to the nullification of the judgement rendered in the Shah Bano Case, the next three decades witnessed a conflicting opinion on the Interpretation of the rights of Muslim women with respect to maintenance. The case of Daniel Latiffi & Anr. v. Union of India (hereinafter referred to as “Daniel Latiffi Case and Jubair Ahmad v. Ishrat Bano (hereinafter referred to as “Ishrat Bano Case”) have been the most prominent judgements dealing with similar issues. The opinion of the Court in the aforementioned case is extremely pertinent and may help in further studying the effect of the Shah Bano case on the Judiciary.
In the Daniel Latiffi case, the court dealt with a prominent question of whether the Muslim Women’s Act abrogated the Judgement of the Hon’ble Supreme Court in Shah Bano Case. The constitutional validity of the Muslim Women’s Act was challenged as it was viewed as discriminatory. It was also deemed violative of Article 14 of the Indian Constitution as it was depriving the Muslim women of their right to maintenance which was also being upheld by the help of Section 125 of CrPC.
In the judgement, although the Hon’ble Court upheld the constitutional validity of the Muslim Women’s Act, it tried to strike a balance between Personal Laws and the concerned CrPC section. The Court made a fair and reasonable interpretation of the Muslim Women’s Act and stated,
“A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance”
The court also interpreted the wording of the section that dealt with maintenance and stated,
“Parliament seems to intend that the divorced woman gets sufficient means of livelihood after the divorce and, therefore, the word provision indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce, the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs.”
In the opinion of the court, the maintenance would not be limited to the iddat period. The court rightly held that the husband would be bound to pay maintenance for the entire life of his divorced wife until she gets married again. The Apex Court tried to seek a balance between the judgement in Shah Bano case and the constitutional validity of the Muslim Women’s Act.
Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065
Ishrat Bano Case was decided in 2019 and dealt with a petition that raised the question of applicability of section 125 of CrPC in case of a Muslim Woman. The Hon’ble Allahabad High Court recognized that Section 125 is a tool to understand constitutional promise to realize gender justice. Allahabad High Court even went ahead to state that,
“‘section 125 is not a community-centric or religion-centric law, and perhaps the most secular enactment ever made in the country.”
The learned Judge of the High Court upheld the judgement delivered in Daniel Latiffi’s Case and held that a Muslim woman would be entitled to receive maintenance beyond the iddat period. The Hon’ble High Court even made a fine observation by recognizing “right of maintenance” from the husband as an “absolute right” unless the wife had remarried.
The maintenance paid to a Muslim wife after the termination of marriage due to divorce was brought forth by the Shah Bano case. The case, by itself, created an havoc in the nation. It was the opinions expressed by the Learned Judges of the Hon’ble Court and the final judgement that were viewed as an attack on the personal laws by a certain conservative section of the Indian Muslim Community. This further led to the enactment of the Muslim Women’s Act.
The aforesaid Act was quite disputed and its constitutional validity was even challenged in the Daniel Latiffi case. All the aforementioned cases dealt with the issue revolving around ‘maintenance received by a Muslim Woman’ and helped in establishing sound legal points around the same.
[i] AIR 1985 SC 945