Mohd. Ahmed Khan v. Shah Bano Begum & Ors. (1985), commonly referred to as the Shah Bano case, was a criminal lawsuit in India, in which the Supreme Court delivered a judgment in favour of providing maintenance (alimony) to an aggrieved divorced Muslim woman, Shah Bano Begum from Indore, who had been divorced by her husband Mohammed Ahmed Khan in 1978.

The case caused the Congress government under Rajiv Gandhi, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act 1986, which diluted the judgment of the Supreme Court and restricted the right of Muslim divorcées to alimony from their former husbands for only 90 days after the divorce (the period of iddat in Islamic law), However, in later judgements, including Danial Latifi v. Union of India (2001) and Shamima Farooqui v. Shahid Khan (2015), the Supreme Court of India interpreted the act in a manner reassuring the validity of the case and consequently upheld the Shah Bano judgement, and The Muslim Women (Protection of Rights on Divorce) Act 1986 was nullified. Some Muslims, including the All India Shia Personal Law Board (AISPLB), supported the Supreme Court's order to make the right to maintenance of a divorced Muslim wife absolute.

Background

While the Hindu code bills reformed Hindu personal law in India in the 1950s, Muslim personal law was kept away from any reforms. Though the frequent conflict between secular and Muslim religious authorities over the issue of uniform civil code eventually decreased, until the 1985 Shah Bano case. Besides this case, two other Muslim women had previously received maintenance under the Code of Criminal Procedure (CrPC) in 1979 and 1980.

In 1932, Shah Bano (1916–1992), a Muslim woman, was married to Mohammed Ahmed Khan (1912–2006), an affluent and well-known advocate in Indore, Madhya Pradesh, and had 5 children (3 sons and 2 daughters) from the marriage. Bano, was Mohammed Ahmed Khan's first cousin from his mother's side. After 14 years, Khan took a younger woman, Halima Begum, as his second wife. Halima was also his cousin from his mother's side, with whom Khan had 7 children, 6 daughters and 1 son. Both Bano and the younger woman were cousins. Then after years of living with both wives, he evicted her and their children from the home in 1975 but started paying her a maintenance. In April 1978, when Khan stopped giving her the regular maintenance 200 per month he had promised, claiming that she had no means to support herself and her children, Bano filed a criminal suit at a local court in Indore, against her husband under Section 125 (the "maintenance of wives, children and parents" provision which applied to all citizens irrespective of religion) of the CrPC, asking him for a maintenance amount of 500 for herself and her children. In November 1978, Khan gave an irrevocable talaq (divorce) when she was 62 years old through the triple talaq procedure (saying "I divorce thee" three times); which was his prerogative under Islamic law and took up the defence that since 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 he claimed was in total 5,400 (including mahr, maintenance prior to divorce, and maintenance for the three-month iddat period following the divorce). In August 1979, the local court directed Khan to pay a sum of 25 per month to Bano by way of maintenance. On 1 July 1980, on a revisional application of Bano, the High Court of Madhya Pradesh enhanced the amount of maintenance to 179.20 per month. Khan then filed a petition to appeal before the Supreme Court claiming that he had fulfilled all his obligations under Islamic law and that Bano is not his responsibility anymore because he had a second marriage which is permitted under Islamic law.

The Supreme Court concluded that "there is no conflict between the provisions of Section 125 and those of the Muslim personal law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself." After referring to the Quran, holding it to the greatest authority on the subject, it held that there was no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. Bano approached the courts for securing maintenance from her husband. When the case reached the Supreme Court, seven years had elapsed. The Supreme Court invoked Section 125 of the CrPC, which applies to everyone regardless of caste, creed, or religion. It ruled that Bano be given maintenance money, similar to alimony. The Shah Bano judgment elicited a protest from many sections of Muslims who also took to the streets against what they believed as an attack on their religion and their right to their own religious personal laws.

Some Muslims felt threatened by what they perceived as an encroachment on the Muslim personal law, and protested loudly against the judgment. The spokesmen for some were the Barelvi leader Obaidullah Khan Azmi and Syed Kazi. At the forefront was AIMPLB, an organization formed in 1973 devoted to upholding what they see as sharia. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only."

Reactions to the act

The law received severe criticism from several sections of society. The All India Democratic Women's Association (AIDWA) organised demonstrations of Muslim women against the move to deprive them of rights that they had hitherto shared with the Hindus.

The opposition called it another act of "appeasement" towards Muslims by the Indian National Congress, with the Bharatiya Janata Party regarding it as "discriminatory" to non-Muslim men, and as a supposed "violation of the sanctity of the country's highest court". BJP-aligned lawyer Ram Jethmalani termed the act as "retrogressive obscurantism for short-term minority populism".

Rajiv Gandhi's colleague Arif Mohammad Khan who was INC member and a minister in Gandhi's cabinet resigned from the post and party in protest.

Critics of the Act point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also pointed out by them.

Bano later said that she rejected the Supreme Court's verdict. She died of brain haemorrhage in 1992. The film’s narrative is inspired by Jigna Vora’s book Bano: Bharat Ki Beti, which fictionalises the emotional and legal challenges faced by a woman fighting for her rights within patriarchal and religious systems.

The case is also featured in the 2013 Indian docudrama TV series Pradhanmantri, which covers the tenure of Rajiv Gandhi and other Indian prime ministers.

See also

  • Bharatiya Nagarik Suraksha Sanhita
  • Triple talaq in India

Notes

References

  • Shourie, Arun (2006). Indian controversies: Essays on religion in politics. New Delhi: Rupa & Co.
  • Shourie, Arun (2012). World of fatwas or the sharia in action. HarperCollins India.
  • Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. (Supreme Court Judgement) at Indian Kanoon
  • . The Hindu. 10 August 2003.
  • Shah Bano: Muslim Women's Right at the University of Cincinnati
  • Shah Bano: One Woman Who Inspired The Nation at revolutionersrising.org