Shah Bano case
Encyclopedia
The Shah Bano case was a controversial divorce lawsuit in India
, in which Shah Bano, a 62 year old Muslim
woman and mother of five from Indore
, Madhya Pradesh
, was divorced by her husband in 1978 and was subsequently denied alimony
. The case created considerable debate and controversy about the extent of having different civil codes for different religions, especially for Muslims in India. This case caused the Rajiv Gandhi
government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986
which diluted the secular judgment of the Supreme Court and, in reality, denied even utterly destitute Muslim divorcees the right to alimony from their former husbands.
woman and mother of five from Indore
, Madhya Pradesh
, was divorced by her husband in 1978. The Muslim family law
(marriage, gifts, inheritance, adoption and a few other civil laws are under the purview of personal laws in India - they are different for Christians, Muslims and Hindus) allows the husband to do this and not the wife: the husband just needs to say the word Talaq
(meaning divorce) one or two or three times before two witnesses for a valid divorce.
Shah Bano, because she had no means to support herself and her children, approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India
, seven years had elapsed. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony
.
Some Muslims felt threatened by what they perceived as an encroachment of the Muslim Personal Law
, and protested loudly at the judgment. Their spokesmen were Obaidullah Khan Azmi and Syed Shahabuddin. They had formed an organization in 1973 known as the All India Muslim Personal Law Board
devoted to upholding what they saw as Muslim Personal Law.
, which had an absolute majority in Parliament at the time, passed an act The Muslim Women (Protection of Rights on Divorce) Act 1986
that nullified the Supreme Court's judgment in the Shah Bano case. This act upheld the Muslim Personal Law and writ as excerpted below:
The Statement of Objects and Reasons of this Act (the objective of the Act) needs a mention. According to the stated objects of the Act, when a Muslim divorced woman is unable to support herself after the period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, the magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law. But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order the State Waqf
Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only.
The case 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.
Critics of the Shah Bano case 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.
The Shah Bano case once again spurred the debate on the Uniform Civil Code
in India. Ironically, the Hindu Right led by parties like the Jan Sangh which had strongly opposed reform of Hindu law in the 50's, 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 exerted by orthodox Muslims caused women's organizations and secularists to cave in.
The Passing of Muslim Women Protection Act allegedly sent a message of Muslim appeasement practised by the Congress party. To counter this charge Rajiv Gandhi
began his election campaign in 1989 from Ram Janma Bhumi ( birth place of Lord Rama ) in Ayodhya.
. They have been criticized by feminists for their orthodox approach and for disadvantaging women.
High Courts have interpreted "just and fair provision" that a woman is entitled to during her iddat period very broadly to include amounts worth lakhs (hundreds of thousands) of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination on the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband". The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of word "within" and not "for"). It extends for the entire life of the divorced wife until she remarries.
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, in which Shah Bano, a 62 year old Muslim
Muslim
A Muslim, also spelled Moslem, is an adherent of Islam, a monotheistic, Abrahamic religion based on the Quran, which Muslims consider the verbatim word of God as revealed to prophet Muhammad. "Muslim" is the Arabic term for "submitter" .Muslims believe that God is one and incomparable...
woman and mother of five from Indore
Indore
Indore is one of the major city in India, the largest city and commercial center of the state of Madhya Pradesh in central India. Indore is located 190 km west of the state capital Bhopal. According to the 2011 Indian census, Indore city has a population of 1,960,631...
, Madhya Pradesh
Madhya Pradesh
Madhya Pradesh , often called the Heart of India, is a state in central India. Its capital is Bhopal and Indore is the largest city....
, was divorced by her husband in 1978 and was subsequently denied alimony
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
. The case created considerable debate and controversy about the extent of having different civil codes for different religions, especially for Muslims in India. This case caused the Rajiv Gandhi
Rajiv Gandhi
Rajiv Ratna Gandhi was the sixth Prime Minister of India . He took office after his mother's assassination on 31 October 1984; he himself was assassinated on 21 May 1991. He became the youngest Prime Minister of India when he took office at the age of 40.Rajiv Gandhi was the elder son of Indira...
government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986
The Muslim Women (Protection of Rights on Divorce) Act 1986
The Muslim Women Act was a landmark legislation passed by the parliament of India in 1986 to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto...
which diluted the secular judgment of the Supreme Court and, in reality, denied even utterly destitute Muslim divorcees the right to alimony from their former husbands.
Overview
Shah Bano, a 62 year old MuslimMuslim
A Muslim, also spelled Moslem, is an adherent of Islam, a monotheistic, Abrahamic religion based on the Quran, which Muslims consider the verbatim word of God as revealed to prophet Muhammad. "Muslim" is the Arabic term for "submitter" .Muslims believe that God is one and incomparable...
woman and mother of five from Indore
Indore
Indore is one of the major city in India, the largest city and commercial center of the state of Madhya Pradesh in central India. Indore is located 190 km west of the state capital Bhopal. According to the 2011 Indian census, Indore city has a population of 1,960,631...
, Madhya Pradesh
Madhya Pradesh
Madhya Pradesh , often called the Heart of India, is a state in central India. Its capital is Bhopal and Indore is the largest city....
, was divorced by her husband in 1978. The Muslim family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
(marriage, gifts, inheritance, adoption and a few other civil laws are under the purview of personal laws in India - they are different for Christians, Muslims and Hindus) allows the husband to do this and not the wife: the husband just needs to say the word Talaq
Divorce (Islamic)
In Islam there are separate rules for divorce for men and women under the terms of Islamic law . When a man has initiated a divorce the procedure is called . When a woman has initiated a divorce it is called khula ....
(meaning divorce) one or two or three times before two witnesses for a valid divorce.
Shah Bano, because she had no means to support herself and her children, approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
, seven years had elapsed. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
.
Some Muslims felt threatened by what they perceived as an encroachment of the Muslim Personal Law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
, and protested loudly at the judgment. Their spokesmen were Obaidullah Khan Azmi and Syed Shahabuddin. They had formed an organization in 1973 known as the All India Muslim Personal Law Board
All India Muslim Personal Law Board
The All India Muslim Personal Law Board is an organization constituted in 1973 to adopt suitable strategies for the protection and continued applicability of Muslim Personal Law in India, most importantly, the The Muslim Personal Law Application Act of 1937, providing for the application of the...
devoted to upholding what they saw as Muslim Personal Law.
The Indian government's reaction
In 1986, the Congress (I) partyIndian National Congress
The Indian National Congress is one of the two major political parties in India, the other being the Bharatiya Janata Party. It is the largest and one of the oldest democratic political parties in the world. The party's modern liberal platform is largely considered center-left in the Indian...
, which had an absolute majority in Parliament at the time, passed an act The Muslim Women (Protection of Rights on Divorce) Act 1986
The Muslim Women (Protection of Rights on Divorce) Act 1986
The Muslim Women Act was a landmark legislation passed by the parliament of India in 1986 to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto...
that nullified the Supreme Court's judgment in the Shah Bano case. This act upheld the Muslim Personal Law and writ as excerpted below:
- "Every application by a divorced woman under section 125… of the Code of Criminal Procedure, 1973, pending before a magistrate on the commencement of this Act shall, notwithstanding anything contained in that code… be disposed of by such magistrate in accordance with the provisions of this Act."
The Statement of Objects and Reasons of this Act (the objective of the Act) needs a mention. According to the stated objects of the Act, when a Muslim divorced woman is unable to support herself after the period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, the magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law. But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order the State Waqf
Waqf
A waqf also spelled wakf formally known as wakf-alal-aulad is an inalienable religious endowment in Islamic law, typically denoting a building or plot of land for Muslim religious or charitable purposes. The donated assets are held by a charitable trust...
Board to pay the maintenance. The 'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only.
Consequences
The Shah Bano case generated tremendous debate in India. Critics argued that Muslim minorities can exert pressure on government and judicial decisions. The mainstream media disapproved of the decision. The opposition reacted strongly against the Congress party's policies.The case 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.
Critics of the Shah Bano case 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.
The Shah Bano case once again spurred the debate on the Uniform Civil Code
Uniform civil code
Uniform civil code of India is a term referring to the concept of an overarching Civil Law Code in India. A uniform civil code administers the same set of secular civil laws to govern all people irrespective of their religion, caste and tribe. This supersedes the right of citizens to be governed...
in India. Ironically, the Hindu Right led by parties like the Jan Sangh which had strongly opposed reform of Hindu law in the 50's, in its metamorphosis as the Bharatiya Janata Party
Bharatiya Janata Party
The Bharatiya Janata Party ,; translation: Indian People's Party) is one of the two major political parties in India, the other being the Indian National Congress. Established in 1980, it is India's second largest political party in terms of representation in the parliament...
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 exerted by orthodox Muslims caused women's organizations and secularists to cave in.
The Passing of Muslim Women Protection Act allegedly sent a message of Muslim appeasement practised by the Congress party. To counter this charge Rajiv Gandhi
Rajiv Gandhi
Rajiv Ratna Gandhi was the sixth Prime Minister of India . He took office after his mother's assassination on 31 October 1984; he himself was assassinated on 21 May 1991. He became the youngest Prime Minister of India when he took office at the age of 40.Rajiv Gandhi was the elder son of Indira...
began his election campaign in 1989 from Ram Janma Bhumi ( birth place of Lord Rama ) in Ayodhya.
Personal Laws
Personal Laws have been part of the Civil Law since the British RajBritish Raj
British Raj was the British rule in the Indian subcontinent between 1858 and 1947; The term can also refer to the period of dominion...
. They have been criticized by feminists for their orthodox approach and for disadvantaging women.
High Courts have interpreted "just and fair provision" that a woman is entitled to during her iddat period very broadly to include amounts worth lakhs (hundreds of thousands) of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act with Art 14 and 15 of the constitution which prevent discrimination on the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband". The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of word "within" and not "for"). It extends for the entire life of the divorced wife until she remarries.
See also
- The Muslim Women (Protection of Rights on Divorce) Act 1986The Muslim Women (Protection of Rights on Divorce) Act 1986The Muslim Women Act was a landmark legislation passed by the parliament of India in 1986 to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto...
- Arif Mohammad KhanArif Mohammad KhanArif Mohammad Khan is a former Indian Union minister. He is currently a leader of Bahujan Samaj Party.-Early Life and education:...
External links
- Supreme Court Judgement Mohd. Ahmed Khan vs. Shah Bano Begum & Ors.
- The Shah Bano legacy
- Shah Bano: Muslim Women's Right