News By/Courtesy: Ritwik Guha Mustafi | 07 Apr 2020 9:31am IST

HIGHLIGHTS

  • This case was a controversial maintenance lawsuit filed by a divorced Muslim woman
  • There was a debate on need for judicial intervention even when personal laws are there
  • The court also implored on the need of a Uniform Civil Code in India

The Shah Bano case was a controversial maintenance lawsuit filed by a divorced Muslim woman. This lawsuit is a milestone in the struggle of rights and freedom of Muslim women.  Maintenance is an obligatory amount of money which is paid by the husband to his wife either on demand of wife during the subsistence of marriage or upon divorce/separation.[1]In Muslim law, the former is called Prompt dower and the latter is Deferred dower.[2]

Facts.

Shah Bano (Respondent) was married to Mohd. Ahmed Khan (appellant) and had five children out of that marriage. Appellant asked her to shift to another residence. In April 1978, she filed a petition demanding maintenance under sec. 125 of Code of Criminal Procedure (hereinafter Cr.P.C) 1973. In November 1978, appellant gave her an irrevocable divorce through triple talaq and claimed to be unaccountable for any further alimony to Shah Bano. The Magistrate court directed the appellant to pay Rs. 25 as monthly maintenance and Madhya Pradesh High Court enhanced the amount. The husband challenged the decision in the Apex court.[3]

Issues.

  • Is there an obligation upon husband under Muslim personal law to provide maintenance to his wife and is it limited to period of iddat?
  • Does the maintenance have to be adequate?
  • Is maintenance amount payable on divorce?
  • Why is there a need for judicial intervention in personal laws?[4]

 

 

Laws Applied.

  • Respondent supported her case on sec. 125 (1) (a) of Cr.P.C. which states that if a person having sufficient means refuses or neglects to maintain his wife who is unable to maintain herself, the court can order a monthly payment of Rs. 500. In case of default, defaulter can be imprisoned for one month.[5]
  • Appellant defended the case through sec. 127 (3) (b) of Cr.P.C. which states that if Magistrate is satisfied on the amount paid to divorced woman on the occasion of divorce, he may cancel any order under sec. 125 of Cr.P.C. in favour of the divorced wife.[6]

Analysis.

The Supreme Court observed that the contention of ceasing of liability to pay maintenance after iddat period is reliant upon interpretations of Muslim law from various textbooks. These interpretations are inadequate. Iddat is a period of chastity to be observed by a Muslim woman after dissolution of marriage either by death of husband or divorce.[7]  The husband is bound to pay the dower (Mahr) to his wife. Mahr is expected to take care of ordinary requirements of life, during and after the marriage. Provisions of Muslim personal law don’t consider a situation wherein the divorced wife isn’t able to maintain herself. So, expiry of iddat can’t end the liability of maintenance.

Two major precedents were also referred by the court. In the former, Supreme Court had held that Mahr is payable on divorce and comes under cognizance of sec. 127 (3) (b) of Cr.P.C.[8] In the latter case, it was held that Mahr is not payable on divorce and it isn’t a part of sec. 127 (3) (b) of Cr.P.C. because Mahr is a mark of respect towards the wife and situation of divorce has no element of respect.[9] In the present case, the Apex court upheld the judgement of the latter.

The court also emphasized upon the religion-neutral and unambiguous nature of sec 125 of Cr.P.C. It provides summary and quick remedy to all those who’re unable to maintain themselves. It will override personal laws as it is secular in nature. The court also underlined the need for Uniform Civil Code (hereinafter U.C.C) for proper national integration. The court upheld the High Court’s decision. Shah Bano was to get Rs. 10,000 as costs of the case.

The court was visibly critical of Muslim personal laws. The court highlighted various unreasonable views and insensitiveness of the Muslim Personal Law Board. The court questioned the evolutionary capacity of Muslim laws.

The researcher opines that the judgement is a well-reasoned and logical one. Some emphasis should’ve been there on the relevant constitutional provisions. The criticism should’ve been more diplomatic because the judgement’s political aftermath showed that Muslims considered it as a religious attack.  Due to the pressure, the Rajiv Gandhi government introduced The Muslim Women (Protection of Rights of Divorce) Act 1986 which nullified Shah Bano Judgement. This was largely criticised by progressive sections of society. In some of its later judgements (Daniel Latifi case), the apex court upheld constitutional validity of Shah Bano judgement and nullified the 1986 act.[10] The court’s viewpoint on U.C.C is very realistic as it can help in boosting national integration, codified personal laws, and act as the cornerstone of secularism.

Conclusion.

This judgement acted as a milestone for subsequent cases of maintenance and helped in evolution of Muslim laws. Although the decision wasn’t picture-perfect and alternate methods could’ve been used, all the issues have been answered properly. It displayed nimbleness of the Indian system for progressively updating the personal laws even in the face of bitter conservatism.

 

[1] Romit Agarwal, Maintenance under Hindu, Muslim, Christian, and Parsi laws, LEGAL SERVICES INDIA, (April 7, 2020, 09:50 A.M.), http://www.legalserviceindia.com/articles/hmcp.htm

[2] Abhiraj Singh, Status of unpaid dower under Muslim law: A critical analysis, LEGAL SERVICES INDIA, (April 7, 2020, 09:56 A.M.), http://www.legalserviceindia.com/legal/article-1204-status-of-unpaid-dower-under-muslim-law-a-critical-analysis.html

[3] Express Web Desk, What is Shah Bano case? , THE INDIAN EXPRESS, (April 7, 2020, 09 :57 A.M.), https://indianexpress.com/article/what-is/what-is-shah-bano-case-4809632/

[4] Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 S.C.C. 556 (India).

[5] M.R. MALLICK, CRIMINAL MANUAL (CRIMINAL MAJOR ACTS), 64 (1st ed., 2015).

[6] Id.at 68-69.

[7] Anubhav Pandey, Iddat under Muslim personal law, IPLEADERS, (April 7, 2020, 10:00 A.M.), https://blog.ipleaders.in/iddat/

[8] Bai Tahira v. Ali Hussain Fidaalli Chothia, (1979) AIR 362 SCR (2) 75 (India).

[9] Fuzlunbi v. K. Khader Vali, (1980) 4 S.C.C 125 (India).

[10] Shoaib Daniyal, The Shah Bano Effect: How India is quietly modernizing religious law even without a Uniform Civil Code, FCROLL, (April 7, 2020, 10:05 A.M.), https://scroll.in/article/743201/the-shah-bano-effect-how-india-is-quietly-modernising-religious-law-even-without-a-uniform-civil-code

Section Editor: Pushpit Singh | 07 Apr 2020 15:34pm IST


Tags : Maintenance, divorced, Muslim, Uniform, Civil, Code

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