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:
Loophole in the laws:
- 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.
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:
Section 125 of crpc says that:
- 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
- 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.
- 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
- 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.
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
- Justice came from religion.
- Righteousness came from religion.
- Equality came from religion.
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,