Incidents of Recent Past

In today’s blog, I am going back into recent past

Friends, you all must have heard the name of Shah Bano, her name always crop up when ever talk of Muslim women being deserted by husband by through talaq or triple talaq process.

Shah Bano Case

Shah Bano was a Muslim woman, when she was 62 years old her husband divorced her. Before divorce, first she was living with her husband and his 2^nd wife. Then her husband asked her to stay separately with her 5 children. In April 1978, her husband stopped paying her Rs 200. Per month which he had promised.

She claimed that as she had no means to support herself and her children therefore she filed a petition at a local court in Indore, against her husband under section 125, the Code of Criminal Procedure, asking him for a maintenance amount of Rs 500 for herself and her children. On November 1978 her husband gave an talaq (divorce) to her which was his prerogative 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 Rs 5,400. In August 1979, the local court directed Khan to pay a sum of Rs 25 per month to Bano by way of maintenance. In July 1980, on a revisional application of Bano, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs 179.20 per month. Her husband then filed a petition to appeal before the Supreme Court claiming that Shah Bano is not his responsibility anymore because he had a second marriage which is also permitted under Islamic Law.

In Feb 1981, two Judge Bench of  SC upheld the decision of HC, which had held that section 125 of the code also applies to Muslims, and referred the appeal to larger bench. Muslim bodies like Jamiat Ulema e Hind and All India Muslim Personal Law Board also came into picture, and joined the case as intervenor. The matter was heard by five Judge bench headed by Chief Justice of SC. In Apr 1985 SC in a unanimous decision dismissed the appeal and confirmed the HC judgement.

SC further said that there is no conflict between the provisions of section 125 and the provision in Muslim personal law, which also says  that it is the duty of the husband to provide maintenance to the divorced wife. It also said even Muslim holy book Quran also  imposes obligation on the husband to make provision and support the divorced wife.  It also ruled that Shah Bano be given maintenance money similar to alimony.

This judgement became the centre of raging controversy, with press turning into national issue. Many sections of Muslim community started agitating on the streets claiming this judgement is interfering in their Personal Law matter.

After the judgement many Congress leaders told Rajiv Gandhi that if the Govt did not enact a law over turning this SC judgement, Congress party will lose the Muslim vote bank and in the future elections no Muslim will vote for Congress, as till the time of next election this issue will be kept alive.

In 1986, the Parliament of India passed an act titled The Muslim Women (Protection of Rights on Divorce) Act, 1986, that nullified the Supreme Court’s judgment in the Shah Bano judgment. Diluting the Supreme Court judgment, the act allowed maintenance to a divorced woman only during the period of iddat, or till 90 days after the divorce, according to the provisions of Islamic law. This was in stark contrast to Section 125 of the Code. The ‘liability’ of husband to pay the maintenance was thus restricted to the period of the iddat only.

Lawyer and former law minister of India,Ram Jethmalani has termed the act as “retrogressive  for short-term minority populism. Rajiv Gandhi’s colleague Arif Mohd. Khan who was Congress party  member and a minister in  cabinet resigned from the post and party in protest.

So Shah Bano was denied alimony .However, in the later judgements in similar cases  the SC 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 Right on Divorce) Act 1986 was nullified. Many Muslims including All India Shia Board supported the SC’s order to make the right to maintenance of a divorced Muslim wife a must.

This was the one case where govt has every thing going in favour of enacting uniform civil code, as SC judgement was in that direction only. But Congress being a coward party and the party who propogated appeasement of Muslims, right after independence, did not have courage and will power to enact the uniform civil code, which is also there in our constitution , that we must have one civil code. But no Govt after independence have worked towards achieving this goal. This is because all the political parties who believe in pseudo secularism are not willing to lose their vote banks.

Waiting for your comments/views on this blog.

Anil Malik

Mumbai, India

15^th Jan 2019