First Internal Assignment (Semester I) – “Introduction to Indian

Legal System, Legal Methods and Legal Research”

BBA LLB (Hons)

By Varun Pathak
BBA LLB Div C
Roll No. 257
PRN Number : 19010126257
 LAW AND SOCIAL TRANSFORMATION
(Mohd. Ahmad Khan V/S Shah Bano Begum 1985 (1) SCALE 767 = 1985 (3)
SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945)
By Varun Pathak, BBA LLB Div C, Roll No. 257, PRN Number : 19010126257

Introduction

Women have been subjected to several atrocities in the purview of the regulations and
standards of the patriarchal society since ages. Wives in every household were given the role of
a being a good home keeper, a good wife and a good mother who has to stick to the "morales"
of the society, while, at the same time men had lives that were less restrictive and less
controlled than those of women. The Mohammedan law has been in existence since the early,
but the Muslim Community has its norms to follow regarding every social activity. One of
such norms is the Triple Talaq system.

Triple Talaq is a hundred of years-old practice among Sunni Muslims. It is "manifestly

arbitrary and allows a man to break down a marriage capriciously." Any Muslim man under
this system can legally divorce his wife by stating the word "TALAQ" 3 times either in oral,
written or electronic form.

A little milieu, unlike other religions and faith, Muslim Woman are not as educated and
self-dependent like the rest of the Woman. The Muslim women are deprived of education and
they are not allowed to work either, hence after divorce, the need for maintenance only
becomes greater in them. In India we have different personal laws governing each community
like Muslim Laws are governed by their own Personal laws, Hindu Laws are governed by the
Hindu Marriage Act and Hindu Succession Act. The personal laws govern Marriage,
Succession, Adoption, Divorce, etc. These personal laws are not penalizing in nature. For
example, adultery becomes a ground of divorce and Judicial Separation. But if you want your
husband to be punished for adultery, you have to resort to IPC (Indian Penal Codes). Personal
Laws are also called Family laws.

Mohd. Ahmed Khan v. Shah Bano Begum 1985 (1) SCALE 767 = 1985 (3) SCR 844 =
1985 (2) SCC 556 = AIR 1985 SC 945, 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 a distressed divorced Muslim woman. This case is seen as one
of the legal milestones in the Muslim women’s battle to protect their rights. It simplified the
amount to which courts can interfere in the Muslim Personal Law. This lawsuit has
authenticated to be a milestone in the struggle of rights, freedom for the Muslim women.

Background

In 1932, Shah Bano was married to Mohd. Ahmad khan, who was a renowned lawyer
in Indore. In total they have 5 children i.e. 3 sons and 2
daughters. Shah Bano's husband after 14 yrs. of their
marriage married another woman who was younger than
him after years of living with both wives, he divorced
Shah Bano, who was then aged 62 years in 1975. She was
renounced by her husband and was thrown out from her
matrimonial home along with her children. 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 petition 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. A wife who is without any income and is neglected by her
husband is entitled to maintenance, which includes a divorced wife who is not remarried. On
November 1978 her husband gave an irreversible Talaq (divorce) to her which was his
privilege 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. The argument or conflict between Shah
Bano's children and her husband's other wife were vital reason or grounds on which divorce
was relinquished and furnished. After he pronounce irrevocable Triple Talaq, he took a
safeguard that since because of this divorce she has been terminated to be her legal wife and
due to which he was not accountable to furnish her with maintenance or alimony. The local
court (magistrate) court directed Mohd. Ahmad to furnish her Rs. 25 per month to Shah Bano
in a form of maintenance. Shah Bano in July 1980, apart from this, made a plea to High Court
of Madhya Pradesh, to alter the amount of maintenance to Rs. 179 every month. Shah Bano's
precedent went to Supreme Court and filled a petition against the verdict of High Court of
Madhya Pradesh. Her husband essential argument after divorce was that he cannot keep any
form of alliance or connection with his divorce wife because it is not allowed by Islamic
laws/Islam and is "Haram" & hence he is not legally responsible to maintain her wife.
 On 3rd February 1981, the Supreme Court held that Section 125(3) of CrPC solicited to
Muslims too, without any discrimination. It was duly held that since the responsibility of a
Muslim husband towards his divorced wife is limited to the extent of 'Iddat' period, such rule
shall apply only when the divorced wife is competent to maintain herself. As in the case of
Shah Bano, where the wife is not in a condition to finance or maintain herself post-iddat
period, she will be entitled to receive maintenance under Section-125 of CrPC.

Enactment of Law

This judgment wasn't positively accepted by the Muslims who claimed such decision
clashed with the rules of the Quran and Islamic laws. Thus, the Parliament of India in 1986,
under the regime of then Prime Minister Rajiv Gandhi, enacted the Muslim Women
(Protection of Rights on Divorce) Act, 1986. The primary objective of the Act was to protect
the rights of divorced Muslim women.

Rajiv Gandhi came to power with minority religious tensions at a high point and tried
to engage in a balancing act among India’s numerous religious communities. Religious
minority insecurities were on the rise and Rajiv’s grace period as a fledgling Prime Minster
was over when Shah Bano’s case forced him to make a fateful decision about Muslim
women’s rights. The Rajiv Gandhi Government overturned or invalidated the judgment of the
Supreme Court in Shah Bano case. The Act stated that divorced Muslim women should be
entitled to a reasonable and adequate amount of maintenance until the end of the 'iddat' period.
If a woman maintains a child born by her before or after divorce, then the husband is under a
legal obligation to provide a certain amount of maintenance for the child for at least 2 years. If
such advantages are not duly received, then the victim can apply to the magistrate for
providing her with the requisite alimony or 'Mehr' as the case may be.

Provisions of Law

1. Muslim women protection act, 1986

Section 2 : In this Act, unless the context otherwise requires, —
(a) “divorced woman” means a Muslim woman who was married according to Muslim
law, and has been divorced by, or has obtained divorce from, her husband in
accordance with Muslim law
(b) “iddat period” means, in the case of a divorced woman, —
 (i) three menstrual courses after the date of divorce, if she is subject to
menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation;
and
(iii) if she is enceinte at the time of her divorce, the period between the divorce
and the delivery of her child or the termination of her pregnancy, whichever is
earlier;
Section 3 - Mahr or other properties of Muslim woman to be given to her at the time of
divorce.
(1) Notwithstanding anything contained in any other law for the time being in force, a
divorced woman shall be entitled to—
(a) a reasonable and fair provision and maintenance to be made and paid to her within
the iddat period by her former husband

Section 4(2) - where a divorced woman is unable to maintain herself and she has no relative
as mentioned in sub section (1) or such relatives or any one of them have not enough means to
pay the maintenance ordered by the magistrate to be paid by such other relatives under the
second proviso to sub section (1), the magistrate may, by order direct the State Wakf Board
establishes under section 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the
being in force in a state, functioning in the area in which the woman resides, to pay such of the
relatives who are unable to pay, at such periods as he may specify in his order. (Relevant)

Section 5 (relevant) Option to be governed by the provisions of section 125 to 128 of Act 2 of
1974 - If, on the date of the first hearing of the application under sub-section (2) of section 3, a
divorced woman and her former husband declare, by affidavit or any other declaration in
writing in such form as may be prescribed, either jointly or separately, that they would prefer
to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure,
1973 (2 of 1974); and file such affidavit or declaration in the court hearing the application, the
Magistrate shall dispose of such application accordingly. (Explanation - For the purposes of
this section, “date of the first hearing of the application” means the date fixed in the summons
for the attendance of the respondent to the application).

A huge uproar followed the Shah Bano judgment which made the Government in power
introduce and later enact a new law, Muslim Women (Protection of Rights on Divorce) Act.
Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her
husband, a reasonable and fair maintenance which is to be made and paid to her within the
iddat period.

Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former
husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her
or has not delivered the properties given to her before or at the time of marriage by her
relatives, or friends, or the husband or any of his relatives or friends.

Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the
former husband to pay such 8/1/2019 From Shah Bano to Shabana Bano: Divorced Muslim
Women And Right To Claim Maintenance Under Section 125 CrPC reasonable and fair
provision and maintenance to the divorced woman as he may think fit and proper having
regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage
and means of her former husband.

2. Section 125 (CrPC)

-(a)-wife must be unable to maintain herself
-wife includes divorced wife who has not remarried
Section 125 CrPC provides that, if any person having sufficient means neglects or refuses to
maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a monthly allowance for the maintenance of
his wife, at such monthly rate not exceeding five hundred rupees in the whole, as such
Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to
time direct. Explanation to this section makes it clear that "wife" includes a woman who has
been divorced by, or has obtained a divorce from, her husband and has not remarried. So plain
reading of this provision makes it unambiguous that a divorced woman, irrespective of her
religion, if she is unable to maintain herself, can claim maintenance under this provision.

3. Muslim personal law

-Section 2 of the Muslim Personal Law Application Act, 1937 tells that there cannot be any
other law by which Muslims can be governed, except the shariat law itself. So, there will be
application of this law unless a situation like (I) arises. There are arguments of usage of
uniform civil code, but as for now, it is irrelevant as it has not been given legal force The
Muslim Women Protection act, if applied to this case, brings out two things.
Judgement

All India Muslim Personal Law Board and Jamiat ulema-e-Hind were the two Muslim Bodies
accompanied the lawsuit as an intervenor. On 3 rd Feb 1981, Supreme Court gave a like-minded
conclusion in this case and banished the plea of Mohd. Ahmad Khan and validate the verdict of
High Court. The court held that Section 125 of Code of Criminal Procedure solicited to
Muslims too, without any sought of discrimination. Supreme Court in this case duly held that,
since responsibility of Muslim husband towards her divorced wife is limited to the extent of
"Iddat" period, even though this situation does not contemplate the rule of law that is
mentioned in Section 125 of CrPc. According to Supreme Court this rule according to Muslim
Law was against humanity or was wrong because here a divorced wife was not in a condition
to maintain herself. Thus, at the end, after very long procedure court finally concluded that the
husband’s legal liability will come to an end if divorced wife is competent to maintain herself.
But this situation will be reversed in the case when wife is not in a condition to finance or
maintain herself after the Iddat period, she will be entitled to receive maintenance or alimony
under Section 125 of CrPc.

Analysis

In the case of Mohd. Ahmad Khan V/S Shah Bano Begum 1985 (1) SCALE 767 =
1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945, the Supreme Court specifically
underlined the that Triple Talaq cannot take away the maintenance right of a divorced Muslim
women who is not in a condition to maintain herself or her children when she is disowned or
divorced by her husband. The period when the verdict of Shah Bano Case was delivered by the
Supreme Court, it faced a lot of criticism. At that point of time Muslim women weather
married or unmarried were not given freedom even they were debarred from their basic
freedom, which is against humanity and it basically violates the basic or fundamental rights of
humans. Muslim women were backward in their status as compared to other women of the
world. They were not educated and self-reliant as compared to other women. They faced
serious issues and problems which led to the decrease in their level of self-confidence and their
knowledge in various sects. Along with these things they were not allowed to study or educate
themselves and they were also denied working either. Since they faced all these things from
their very childhood it was very natural that they in their difficult time cannot earn their living
and can maintain themselves. So for them alimony or maintenance was much needed.
 Shah Bano case was a normal case just like other cases of maintenance which has taken
place and also the verdict that was concluded by Supreme Court was also similar to the
previous lawsuits but the two naked truth that was witnessed in this case made this case a
landmark judgement case. The two naked truth were - firstly, spirituality of religious personal
laws was criticized and then it was questioned whether Uniform Civil Code is applied to all
religion and their followers and secondly, whether CrPc is applied to personal religious laws.

The Supreme Court in the present case quoted Bai Tahira v. Ali Hussain Fidaalli
Chothia and Fuzlunbi v. K. Khader Vali as these decisions took the view that the divorced
Muslim wife is entitled to apply for maintenance under Section 125. The apex court further
clarified an error in the ruling of Bai Tahira added that “Mahr, not being payable on divorce,
does not fall within the meaning of that provision (Section 127(3)(b) of CrPC)” (para 33). The
Court was of the view that the payment of mehar does not absolve the husband’s duty to pay
maintenance to his wife under Section 127(3)(b) of the Code.

Justice Sikri, in Nanak Chand v. Shri Chandra Kishore Agarwala pointed out that the
scope of the Hindu Adoptions and Maintenance Act 1956 and that of Section 488 was
different, and opined that Section 488 (of CrPC 1898) was "applicable to all persons belonging
to all religions and has no relationship with the personal law of the parties". Affirming Nayak
Chand, the Court in the present case upheld that Section 488 of the CrPC 1898 (which is
replicated in substance as Section 125 of CrPC 1973) is applicable to all the citizens
irrespective of their religion, thereby concluding that Section 125 of the Code is applicable to
Muslim women.

The Act has led to Muslim women receiving a large, one-time payment from their
husbands during the period of iddat, instead of a maximum monthly payment of ₹500 - an
upper limit which has since been removed. Cases of women getting lump sum payments for
lifetime maintenance are becoming common. However it is seen that despite its unique feature
of no ceiling on quantum of maintenance, the Act is sparingly used because of the lack of its
knowledge even among lawyers. The legal fraternity generally uses the CrPC provision while
moving maintenance petitions, considering it handy.

The Shah Bano case had once again encouraged the debate on the Uniform Civil Code
in India. Ironically, the Hindu Right led by parties like the Jan Sangh in its metamorphosis as
the Bharatiya Janata Party, became an advocate for secular laws across the board. However,
their opposition to the reforms was based on the argument that no similar provisions would be
applied for the Muslims on the claim that they weren't sufficiently advanced. The pressure
applied by orthodox Muslims caused women's organizations and secularists to cave in

Conclusion

India has an odd system of personal laws where the family affairs of citizens (such as
marriage, divorce and succession) are governed by a set of rules specific to each religion. Not
only that, India’s personal laws for minorities such as Christians and, especially, Muslims are
colonial relics, even as Hindu Law was modernised in the 1950s.

This was the case of a Triple Talaq verdict which according to me was a historic verdict
as it maintains the truth and faith of the people in the
judiciary as in this case, "Justice and equality has
overcome religion". According to me this lawsuit was
milestone in judiciary as it was courageous, bold,
impartial and unique decision. This judgement has
marked the importance of maintenance which should be
provided to the divorced Muslim women who are not in
the condition to earn and maintain themselves.

Even though the verdict of Shah Bano case

given by the Supreme Court was invalidate by the
endorsement of Muslim Women Act, the court held in
further verdict's that divorced Muslim. women, under
Section 125 of CrPc can affirm maintenance or
alimony from their former husband, or apart from
these divorced Muslim women can assert or claim for
round some money or amount under Muslim Women Act. The Supreme Court even though
after dirty politics passed the judgement that was impartial and at last it had maintained the
trust and faith of citizens in judiciary.
Bibliography

1. www.livelaw.in
2. www.legalserviceindia.com
3. https://en.wikipedia.org
4. www.jagranjosh.com
5. https://indiankanoon.org
6. http://homepages.uc.edu