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Shah Bano Case

This is the controversial case of alimony any maintenance in a Muslim religion and it highlights how people use their own personal vendetta.

The honorable Supreme Court of India has passed a mater piece judgement by giving rights to Muslim women of maintenance on monthly bases.

But then it was overturned by a legislation passed by the parliament with full majority Muslim women protection of rights on divorce act, 1986. The act was passed to overturn the ruling of Shah Bano.

The main issue was that:
  • The Muslim women were deprived of good education and self dependency like the rest of the women.
  • Education is deprived to them and they are not allowed to work either.
  • In India, we have different personal laws governing each community as Muslim laws are governed by their own personal laws and Hindu laws are governed by the Hindu marriage act, Hindu succession act. The personal laws govern marriage, succession, adoption and succession.

Loophole in the laws:
These personal laws are not penalized in nature.
Example: Adultery becomes a ground of divorce and judicial separation but if we want your husband to be punished for adultery you have to resort IPC. The personal laws are also being called as family laws.

Facts of the case:
  • Shah Bano married Ahmed Khan (Advocate) in 1932 and was having 3 sons and 2 daughters and after 14 years from marriage Ahmed Khan married to younger women.
  • In 1975 Ahmed Khan drove her out of matrimonial home in 1975 and her age was 62 years at that time.
  • She filed a petition for maintenance in April 1978 under section 125 of criminal procedure code because Ahmad Khan had stopped giving her maintenance of Rs. 200 which he had promised.

Section 125 of crpc says that:
  • A wife who is without income
  • Has no source of income and
  • Is neglected by her husband
  • Is entitled to maintenance.
  • On November 1978 he have an irrevocable talaq( divorce) to her and took up the defense that since Shah Bano has ceased to be his wife so he was under no obligation to maintain her.
  • The magistrate court directed Khan to pay Rs 25 per month maintenance to Shah Bano,
  • The amount was enhanced by the application to High Court in Madhya Pradesh for Rs 179.
The main dispute started when Ahmed Khan approached against the judgement to Supreme Court, his main contention being that after divorce any form of relation with his divorced wife is against Islam thus he was not liable to maintain her.

Judgment
On 3, February 1981, the two judge bench first heard the matter, in light of the earlier decision of the court which had held that section 125 of the code of criminal procedure applies to Muslim also and referred Ahmed Khan appeal to a larger bench. Muslim bodies all India Muslim personal law board and Jamiat ulema-e-hind joined case to give their opinion.
On 23 April 1985 Supreme Court in a unanimous decision, dismissed the appeal and confirmed the judgement of the High Court.

This was an historic judgement which reinforces the faith in judiciary and it was a milestone in the history of judiciary it was a bold brave and impartial decision where,
  • Justice came from religion.
  • Righteousness came from religion.
  • Equality came from religion.
Controversy
In the Indian general election, 1984 Indian national congress had won absolute majority in the Indian parliament as congress headed by the PM Rajiv Gandhi enacted an act titled the Muslim women protection of right on divorce act 1986 that nullified the Supreme Court judgement in the Shah Bano judgement.

The act allowed maintenance to divorced women only during the period of Iddat or till 90 days after the divorce, according to the provision of Islamic laws and now the liability of husband to pay maintenance was thus restricted to the period of Iddat only.

Written by: Saksham Ahlawat - B.A.LL.B (hons) Chandigarh University, Gharuan, Mohali

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