AbstractPersonal laws evolve from customsand religious practices which form a part of the legal system. The practice which is followed in the name ofreligious practice should not be discriminatory, arbitrary and should be withinthe principles of natural justice. Thispaper explains Shah Bano case in 1985 which deals about talaq, which is neitherrecognized nor sanctioned by the holy Quran and the practice of triple talaqwhich is in existence in the Muslim community since centuries. The Shah Bano case (1985 AIR 945, 1985 SCC(2) 556) was a controversial divorce lawsuit in India, in which Shah Bano, a62-year-old Muslim woman was a divorcee in 1978 and was subsequently deniedalimony. This case is a milestone for Muslim women’s who search for the justiceand beginning of the political battle over personal law has this case createdconsiderable debate and controversy about the extent of having different civilcodes from different religions, especially for Muslims in India. This paper further deals with theunconstitutionality of the practice of talaq as it violates Article 14, 15, 21and 25 of the Indian constitution.
Keywords: arbitrary, fundamental rights, Quran, tripletalaq, unconstitutional. Introduction According to theMahomedan law, marriage is not a sacrament but a civil contract. Although, all the rights and obligations itcreates arise immediately, the payment of dower by husband to a wife does notdependent on any condition precedent.
The Rajasthan High Court has made a clear observationin the instant case that unlike a Hindu Marriage, which is a sacrament,according to the Islamic Law, a marriage i.e. Nikah is a permanent and anunconditional civil contract made between two persons of opposite sexes with aview to mutual enjoyment and procreation and legalizing of children. The payment of dower (mehr) is one of theessential features of valid marriage. After the period of iddat, the right to maintenance comes to be consideredunder sec. 125 to 127 of Code of Criminal Procedure.
The division bench of Kerala High Court gotan opportunity to discuss the meaning of ‘reasonable and fair provision’ andits distribution with maintenance. Thecourt observed that the legislature has deliberately used the two expressions’provision’ and ‘maintenance’ with the intention of expressing two differentthings or ideals departing from the view expressed by the Supreme Court in ShahBano case. Parliament while enacting s.
3(1) (a) of the Act, accepted the traditional view that right to maintenanceceases after the expiration of the iddat.MohammadAhmed Khan vs. Shah Bano Begun & Ors Mohammad Ahmed Khan vs. Shah Bano Begum– this case is commonly known as the Shah Bano case, in which favouringjudgement was delivered to an aggrieved divorced Muslim woman by the SupremeCourt.
The Muslim woman, Shah Bano whois 62 years old Muslim mother of five form Indore, Madhya Pradesh, was a divorceein 1978 by her husband.1 InSupreme Court of India, the criminal case was filed by Shah Bano, in which shewon the right of alimony form her husband. Though, the Muslim politicians mounted for the verdict’s nullification,the Indian Parliament reversed the judgement under pressure. The judgement was reversed from Islamicorthodoxy and The Muslim Women (Protection of Rights on Divorce) Act, 1986.
2 3 4 5Though the judgement was in conflict with Islamic law which was cited by someMuslims in their holy book Quran,6the judgement went in favour of the woman in this Case evoked criticisms. 789Thiscase with its absolute majority caused the Congress government to pass theMuslim Women Act, 1986, in which judgment of the Supreme Court restricted theright to alimony for 90 days after the divorce i.e., the period of Iddah inIslamic Law. In Danile Latifi case and ShamimaFarooqui v. Shahid Khan Case, the later judgement in Supreme Courtinterpreted the validity and consequently of the case which upheld the Shah Banojudgement and The Muslim Women Act, 1986 was nullified.101112The order which was given by the Supreme Court- the right to maintain thedivorced Muslim wife13was accepted and supported by many Muslims including All India Shia PersonalLaw Board. 1415Factsof the case In 1932, a Muslim woman, Shah Bano whomarried Mohammed Ahmad Khan, a wealthy and popular advocate in Indore, MadhyaPradesh had five children from the marriage.
After 14 years of marriage, Khan underwent second marriage with a youngwoman and lived with both the wives for years. After years, he threw Shah Bano,who was then 62 years old along with her five children out. In April 1978, Khan stopped giving her Rs.200per month,16as she had no means to support herself and her children; she filed a petitionat a local court in Indore against her husband under sec.125 of Cr.P.
C.claiming for a maintenance amount of Rs.500 per month for herself and herchildren. In November 1978, anirrevocable talaq was given to her by her husband which was his prerogativeunder Islamic law was used as a defence.
Hence she had ceased to be her wife, he was under no obligation toprovide maintenance except the amount of Rs.5,400 in total as prescribed underthe Islamic law. In August 1979, thelocal court ordered him to pay an amount of Rs.25 per mother to Bano asmaintenance. As the amount wasinsufficient, on 1 July 1980, on a revision application of Bano, the High Courtof Madhya Pradesh ordered Khan to pay a sum of Rs.179.20 per month asmaintenance. As Khan had a second wifewhich is also permitted under Islamic law, he then filed a petition to appealbefore the Supreme Court claiming that Bano is not his responsibility anymore.
17 Maintenanceof wife If the husband divorces his wife or thewife obtains a divorce from her husband , then she is entitled to claimmaintenance from her ex-husband, provided, she is unable to maintain herself and thehusband has neglected to maintain her. Herright to claim maintenance would come to an end only if she remarries or livesin adultery or if she voluntarily surrenders her right to maintenance. Hence, the consideration of the previousconduct of the divorced wife is wholly irrelevant in a under s.
125 of the Cr.P.C. It was contended that the wife had agreed to relinquish her right tomaintenance allowance and therefore, she was not entitled to claim maintenanceallowance in view of the provisions of s.127 (3)(c), but no settlement of claim which does not have specialstatutory right of the divorce under s.125 can operate to mitigate that claim.
Where an order is made for the maintenance of a wife under s.488 ofCr.P.C and the wife is afterwards divorced, the order ceases to operate on theexpiration of the period of iddat. Theresult is that a Mahomedan may defeat an order made against him under s.
488 bydivorcing his wife immediately after the order is made. His obligation to maintain his wife willcease in that case on the completion of her iddat. A divorced wife is entitled to claim or suefor her dower, maintenance or return of her jewels and clothes. Section125 of Cr.P.C- order for maintenance of wives, children and parents, which applies to allcitizens regardless of cast or religion.(1) If any person leaving sufficient meansneglects or refuses to maintain-(a) hiswife, unable to maintain herself, or(b)hislegitimate or illegitimate minor child, whether married or not, unable tomaintain itself, or(c) hislegitimate or illegitimate child (not being a married daughter) who hasattained majority, where such child is, by reason of any physical or mentalabnormality or injury unable to maintain itself, or(d)hisfather or mother, unable to maintain himself or herself.Agreementfor future maintenance An ante-nuptial agreement between a Mahomedanand his prospective wife, entered into with the object of securing the wifeagainst ill-treatment and of ensuring her suitable maintenance in the event ofill-treatment, is not void as being against public policy.
Similarly, an agreement between a Mahomedanand his first wife, made after his marriage with a second wife, providing forcertain maintenance for her if she could not in future get on with the secondwife, is not void on the ground of public policy. Similarly, an agreement by a Mahomedan withhis second wife that he could allow her to live in her parent’s house and payher maintenance is not against public policy. It has been held in Bombay that an agreement for future separationbetween husband and wife is void as being against public policy under the IndianContract Act, 1872, s.23. An agreement,therefore, which provides for certain maintenance to be given to the wife inthe event of a future separation between them, is also void.
If the marriage is dissolved by divorce, thewife is entitled to maintenance for the period mentioned in s. 279 and not forlife, unless he agreement provides that it is for life.Opinionof Supreme Court On 3 February 1981, All India MuslimPersonal Law Board and Jamiat Ulema-e-Hind joined as interveners in this case;the same was then heard by a five-judge bench composed of Chief JusticeChandrachud, Jangnath Misra, D.A.
Desai, O.Chinnappa Reddy andE.S.Venkagaramiah. On 23 April1985, thejudgement given by High Court was confirmed by the Supreme Court based on aunanimous decision.
Supreme Court concludedthat “there is no clash between the provisions of sec.125 and the MuslimPersonal Law on the question of the Muslim husband’s obligation to providemaintenance for a divorced wife who is unable to maintain herself.” The holy book Quran which is holding thegreatest authority among Muslims imposes an obligation on the Muslim husband toprovide maintenance to his divorced wife. As the case elapsed seven years when it reached the Supreme Court, thecourt invoked sec.
125 of Cr.P.C which commonly applies to everyone regardlessof creed, religion or caste. Then thecourt gave the judgement that Bano should be given maintenance money, similarto alimony and also regretted the article 44 of the Constitution of India.Movementagainst the judgement The judgment given in Shah Bano case asclaimed turned a major national issue.18 It also resulted in protest from manysections of Muslim law, Muslim people were took to the streets against whatthey saw and what they were led to believe, was an attack on their rights ofown religious personal laws and their religion.19 Every Mohamedan was comfortable with theMuslim Personal Law, as the Shah Bano judgement laid a new way, Muslim societyfelt threatened by what they perceived as an encroachment of the MuslimPersonal Law and protested hardly. SunniBarelvi leader Obaidullah Khan Azmi and Syed Kaz were their spokesmen and theforefront was All India Muslim Personal Law Board, an organization that wasformed in 1973 in order to uphold what they saw as Muslim Personal Law.
Dilutionof the effect of the judgment In the Indian parliament, IndianNational Congress had won absolute majority of votes in the Indian generalelection, 1984. On seeing the Shah Banojudgement, many leaders in the Congress said their opinion to the former PrimeMinister of India, Rajiv Gandhi that if the government did not enact a law inParliament overturning the SC judgement then the Congress might face decimationin the polls ahead. In 1986, the India Parliament passed an Act – The Muslim Women(Protection of Rights on Divorce) Act, 1986 which nullified the Shah Banojudgment given by the Supreme Court. Hencediluting the Supreme Court judgment, the Act allowed maintenance to a divorcedwoman only in the iddat period or till 4 months after the divorce as per theprovisions of Muslim law. This judgmentis supported by section 125 of Criminal Procedure Code.
20 Therefore,this resulted that the responsibility of the husband who divorce his wife is topay the maintenance was thus restricted to the period of the iddat.21 The “Statement ofObjects and Reasons” of the act stated that “the Shah Bano decisionhad paved a way to some controversy as to the obligation of the Muslim husband topay maintenance to his divorced wife and hence the opportunity was thereforetaken to prescribe the rights of a Muslim divorced woman in which she isentitled to at the time of divorce and to protect her interests.”22Reactions to the Act The judgement which was given in the Shah Bano Case receivedsevere criticism from several sections of the society as because the changeswere brought in the existing law. Theopposition called it as appeasement towards the minority community by the Congress. Demonstrations of Muslim women against themove to deprive their rights that they had shared with the Hindus was organisedby the AIDWA (All India Democratic Women’s Association).
The then Prime Minister Rajiv Gandhi allegedthis law for Muslim appeasement.23 The Bharatiya Janata Party didnot support the Act, has the party regarded it as an ‘appeasement’ of communityand discriminatory of the Muslims to the Non-Muslims and they thought it as a “violation of the sanctity of thecountry’s highest court”.24 The Muslim Women (Protection of Rightson Divorce) Act was seen as discriminatory as it denied divorced Muslim womenthe right to basic maintenance which women of other faiths had access to undersecular law.
Makarand Paranjape sees the overruling of Supreme Court verdictin Shah Bano case whichhappened when the Congress party was in power, as one of the examples of the party’s pseudo-secular tacticswhich allowed “cynical manipulation of religion for political ends”.25 Lawyer and former law minister of India, Ram Jethmalani hastermed the act as “retrogressive obscurantism for short-term minoritypopulism”.26 Rajiv Gandhi’s colleague Arif Mohammad Khan who was INC member and a minister in Gandhi’scabinet resigned from the post and party in protest.27 Critics of the Act point out that whiledivorce is within the purview of personal laws, maintenance is not, and thus itis discriminatory to exclude Muslim women from a civil law. Exclusion ofnon-Muslim men from a law that appears inherently beneficial to men is alsopointed out by them.
Hindunationalists have repeatedly contended that a separate Muslim code istantamount to preferential treatment and demanded a uniform civil code.28Later developments The Act has led to Muslim women receivinga large, one-time payment from their husbands during the periodof iddat, instead of a maximum monthly payment of Rs.500 – anupper limit which has since been removed. Cases of women getting lump sumpayments for lifetime maintenance are becoming common.
However it is seen that despite its uniquefeature of no ceiling on quantum of maintenance, the Act is sparingly usedbecause of the lack of its knowledge even among lawyers. The legal fraternitygenerally uses the Cr.P.C provision while moving maintenance petitions,considering it handy. The Shah Bano case had once again spurredthe debate on the Uniform Civil Code in India.
Ironically, the Hindu Right ledby parties like the Jan Sangh inits metamorphosis as the Bharatiya Janata Party, became an advocate for secularlaws across the board. However, their opposition to the reforms was based onthe argument that no similar provisions would be applied for the Muslims on theclaim that they weren’t sufficiently advanced. The pressure exerted by orthodoxMuslims caused women’s organizations and secularists to cave in.
Challenge to the validity of the Act The constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged before the SupremeCourt in Danial Latifi &Anr v. Union of India by Daniel Latifi in 2001, who was the lawyerof Shah Bano in the Shah Bano case. The Supreme Court tried tomaintain a balancing act, attempting to uphold Muslim women’s rights withoutaddressing the constitutionality of gender and religious discrimination inpersonal law. Court reiterated the validity of the Shah Bano judgment. TheMuslim Personal Law Board, an intervener, questioned the authority of the courtto interpret religious texts.
The Court concluded that the Act does not,in fact, preclude maintenance for divorced Muslim women, and that Muslim menmust pay spousal support until such time as the divorced wife remarries.However the Court held that if the Act accorded Muslim divorcees unequal rightsto spousal support compared with the provisions of the secular law undersection 125 of the Criminal Procedure Code, then the law would in fact, beunconstitutional. Further theSupreme Court construed the statutory provision in such a manner that it doesnot fall foul of articles 14 and 15 of the Constitution of India. The provisionin question is Section 3(1) (a) of the Muslim Women (Protection of Rights onDivorce) Act, 1986 which states that “a reasonable and fair provision andmaintenance to be made and paid to her within the iddat period by her formerhusband”.
The Court held this provision means that reasonable and fairprovision and maintenance is not limited for the iddat period (as evidenced bythe use of word “within” and not “for”). It extends for theentire life of the divorced wife until she remarries. 1 The Hindu. 2003-08-10, Retrieved 2013-05-07.2T.P.
Jindal, p. 57.3 Seyla Benhabib 2002,p. 91-92.4The Muslims ofIndia: a documentary record 2003, p. 216-224.
5A brief history ofIndia 2006, p. 280-281.6The politics of autonomy: Indian experiences 2005, p. 60-617InscribingSouth Asian Muslim women 2008, p.3578On violence: a reader 2007, p.262-2659101112131415161718 19 202122232425262728