DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW
2017-2018

BASICS OF CASE LAW

CASE ANALYSIS: MOHD. AHMED KHAN V. SHAH

BANO BEGUM AND OTHERS

SUBMITTED TO: SUBMIITED BY:

MR. BHANU PRATAP SINGH AMAR SINGH
Assistant Professor (Law) Enrolment No. 170101022
Dr. Ram Manohar Lohiya National B.A.L.L.B. (Hons.) SEMESTER I
Law University, Lucknow Section ‘A’

ACKNOWLEDGEMENT
1
I owe a great many thanks to a great many people who helped and supported me
during the writing of this case analysis.

Words are inadequate in offering my deep sense of gratitude to my Professor for

his precious guidance.

With his enthusiasm, his inspiration and his great efforts to explain things
clearly and simply, he helped throughout my analysis of work with lots of
encouragement, sound advice, and good innovation.

I would also like to thank the librarians of Dr. Madhu Limaye Library who
extended their assistance to me by helping me out consult the relevant books.

I know that despite my best efforts some discrepancies might have crept in
which I believe my humble Professor would forgive.

Thanking You

AMAR SINGH

2
Table of Authorities

Cases

Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai AIR 1988 Guj 141..................14

Bibi Shahnaz alias Munni v. State of Bihar 1998 Cri LJ 4702................................................15

Chandmal Chopra v. State of West Bengal,1988 CriLJ 739....................................................10

Danial Latifi v. Union of India (2001) 7 SCC 740..................................................................15

H. Sirajuddin v. Shaziya Alias Afsana and Another AIR 2003 Kar 224..................................15

Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh 1999 Cri LJ 3846...........................14

Kaka v. Hassan Bano and Ors. ILR(1998) 1 P&H 267...........................................................14

Makiur Rahaman Kha v. Mahila Bibi 2002 Cri LJ 1751.........................................................15

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 558..................................................5

Shabana Bano v. Imran Khan (2010) 1 SCC 666...................................................................15

Usman Khan Bahamani v. Fathimunnisa Begum 1990 Cri LJ 1364.......................................15

3
Table of Contents
Table of Contents...................................................................................................................................4
Introduction...........................................................................................................................................5
Background of the case.........................................................................................................................7
Facts of the Case................................................................................................................................8
Judgement of the Supreme Court......................................................................................................9
Controversy.........................................................................................................................................10
The Muslim Critique of the judgement............................................................................................12
Communal politics...............................................................................................................................14
The Muslim Women Act and its aftermath......................................................................................16
Post-Shah Bano and Present................................................................................................................19
Conclusion...........................................................................................................................................21
Bibliography.........................................................................................................................................23

4
 Introduction

Indian Constitutional history has long struggled with conflicts between gender equality

and religious cultural claims.1 The name Shah Bano has become synonymous with this

struggle. The Supreme Court departed from traditional interpretations of Muslim personal

law, appealing to a more egalitarian Islam. The image of an exclusively Hindu court choosing

between competing interpretations of Islam and pronouncing on the appropriate

interpretations of Quranic verses provoked a chorus of objection from conservative Muslims.

The case highlights the tension that arises when the pursuit of gender equality comes into

conflict with the religious claims of a minority group.

The Shah Bano Case was a milestone in the Muslim women’s search for justice and the

beginning of political battle over personal law. It began with a citizen, Shah Bano Begum, a

60-year-old woman, who utilized her Fundamental Right to file a petition in the court, and

became a permeating political dilemma with far-reaching consequences. It was a step ahead

of the general practice of deciding cases on the basis of interpretation of personal law and

also dwelt on the need to implement the Uniform Civil Code. The case became controversial

with the political opportunism of the All India Muslim Personal Law Board (AIMPLB) and

the Hindu right Wing. Religion became a weapon both exploitative and divisive used to

dismantle India’s democracy. It also took note of different personal laws and the need to

recognise and address the issue of gender equality and perseverance in matters of religious

principles.

It became the centre of raging controversy, with the press turning it into a major national

issue. It increased tension among Hindus and Muslims and had far reaching implications for

electoral politics in the country. It impelled Rajiv Gandhi’s government to “bulldoze” its way

1Why the government must now hasten to enact a Uniform Civil Code, The Economic Times (2017),
<http://economictimes.indiatimes.com/news/politics-and-nation/why-the-government-must-now-hasten-to-
enact-a-uniform-civil-code/articleshow/60238970.cms> (last visited on Oct 6, 2017).

5
into 21st century by passing the Muslim Women (Protection of Rights on Divorce) Act, 1986,

to assuage the “hurt” feelings of the Muslim community and undo the “damage” done by the

Shah Bano judgement.2

Religion has emerged as the most salient factor distorting human relations in India. With

the passing of the Act, the Shah Bano judgement has become ineffectual. Tempted by its

political utility, religion has fallen into the trap of communalism. In India, for lack of an all-

pervasive reform movement, religion often tends to degenerate into religiosity. Religious

fervour has reached such a pitch that both the Hindus and Muslims fell that if one temple or

mosque is closed, their religion will collapse. It is in this context that the Shah Bano case and

the Muslim Women Act, as well as their interpretation by the press and their implications for

the national scene, have to be viewed.

Background of the case

2 Nawaz B. Mody, The Press in India: The Shah Bano Judgment and Its Aftermath, 27 Asian Survey 935-953
(1987), <http://www.jstor.org/stable/2644865> (last visited on Oct 4, 2017).

6
Judgement Date: April 23, 1985.

Citation: (1985) 2 SCC 556.

Appellant: Mohd. Ahmed Khan

Respondent: Shah Bano Begum

Judges: Y.V. Chandrachud (Chief Justice), Rangnath Mishra, D.A. Mishra, O Chinnappa

Reddy, E.S. Venkataramaiah.

Advocates:

For Appellant: P. Govindan Nair, Senior Advocate (Ashok Mahajan, Mrs Kriplani, Ms

Sangeeta and S.K. Gambhir, Advocates with him).

For Respondent: Danial Latifi, Senior Advocate (Nafees Ahmad Siddiqui, S.N. Singh and

T.N. Singh, Advocates with him).

For Muslim Personal Law Board: Mohd. Yunus Salim and Shakeel Ahmed, Advocates.

For Jamat-Ulema-Hind: S.T. Desai, Senior Advocate (S.A. Syed, Advocate with him).

Sections of Criminal Procedure Code involved: 125, 127(3)(b).

Cases cited in the judgement:

Bai Tahira v. Ali Hussain Fidaalli Chothia AIR 1979 SC 362

Fuzlunbi v. K. Khader Vali AIR 1980 SC 1730

Jagir Kaur v. Jaswant Singh AIR 1963 SC 1521

Nanak Chand v. Shri Chandra Kishore AIR 1970 SC 446

Hamira Bibi v. Zubaida Bibi AIR 1916 PC 46

Syed Sabir Hussain v. Farzand Hasan AIR 1938 PC 80

Facts of the Case

7
 In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmed Khan, an

affluent and well-known advocate in Indore, Madhya Pradesh. Five children-three sons and

two daughters were born of that marriage.3 Khan took a younger woman as second wife and

in 1975, after years of living with both wives; Khan drove Shah Bano and her five children

out of the matrimonial home.

In April 1978, when Khan stopped giving her the ₹200 per month he had apparently

promised, claiming that she had no means to support herself and her children, she filed a

petition at a local court in Indore, against her husband under section 125 of the Code of

Criminal Procedure, asking him for a maintenance amount of ₹500 for herself and her

children.

On November 6, 1978 her husband gave an irrevocable 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. He also stated that

he has already paid maintenance to her at the rate of ₹200 per month for about two years and

had deposited a sum of ₹3000 in the court by the way of dower during the period of iddat.

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, Shah Bano filed another plea asking for a revised

maintenance. The Madhya Pradesh High Court gave order in her favour with a revised

maintenance of ₹179.20 per month. Khan then filed a petition to appeal before the Supreme

Court claiming that Shah Bano is not his responsibility anymore because Mr. Khan had a

second marriage which is also permitted under Islamic Law. In February 1981, the two-judge

Bench referred the Shah Bano case to a larger Bench.

Judgement of the Supreme Court

3What is Shah Bano case?, The Indian Express (2017), <http://indianexpress.com/article/what-is/what-is-shah-

bano-case-4809632/> (last visited on Oct 3, 2017).

8
 This landmark case brought revolution in Muslim Personal Law by explaining judicially

the scope of section 125, the Cr PC and its applicability to Muslim women and removing

many misgivings.

The Apex Court held that the Clause (b) of the Explanation to section 125(1) which defines

“wife” as including a divorced wife, contains no word of limitation to justify the exclusion of

Muslim women from its scope, so long as she has not married, ‘is a wife’ for the purpose of

section 125. The statutory right available to her under that section is unaffected by the

provisions of the personal law applicable to her.

The Explanation to the second proviso to section 125(3) confers upon the wife the right to

refuse to live with her husband if he contracts another marriage leave alone 3 or 4 other

marriages. The section 125 of the Cr PC applies to all irrespective of the religion practised by

the person and section 125 overrides the personal law, if there is any conflict between the

two. The Court also held that although the Muslim law limits the husband’s liability to

provide for maintenance of the divorced wife to the period of iddat, it does not contemplate

or countenance the situation envisaged by section 125 of Cr. PC. It was also held that there is

no conflict between the provisions of Section 125 and those of Muslim personal law on this

question, citing Ayats (verses) 241 and 242 of the Second Sura (chapter) of the Quran, which

oblige Muslim husband to provide maintenance for their divorced wives.

The true position is that, if the divorced wife is able to maintain herself, the husband’s

liability to provide maintenance for her ceases with the expiration of the period of “iddat”. If

she is unable to maintain herself, she is entitled to take recourse to section 125. Therefore, it

cannot be said that there is a conflict between the provisions of section 125 and those of

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.

9
 It was observed that Mahr was not a consideration for marriage but an obligation imposed

upon the husband as a mark of respect for his wife and was, therefore, not a sum payable on

divorce. In other words, Mahr is not the amount payable by the husband to the wife on

divorce and that a Muslim wife is entitled to apply for maintenance under section 125.

The Supreme Court, in view of article 44 of the Constitution suggested the necessity of

framing uniform civil code throughout the territory of India. In the introduction of the

judgement, Justice Chandrachud quotes statements from writing on the status of women4, and

other obiter dictum of the judgement chided the government for its failure to promulgate a

Uniform Civil Code as recommended in Article 44 of the Constitution. The Court further

observed that the role of the reformer has to be assumed by the courts because of the

government’s vacillation in the implementation of a Uniform Civil Code. It also cited Tahir

Mahmud’s plea for framing such a code in which he argues that in pursuance of the goal of

secularism, the state must stop administering religion-based personal laws, and that the lead

in this should come from the majority community.

Controversy
The absence of a Uniform Civil Code enabled the political conflagration that came to be

known as the Shah Bano controversy. The dominant narrative about the Uniform Civil Code

in the Constituent Assembly describes it as a compromise between equality and pluralism The

Indian Constitution also expects the State to “endeavour to secure for citizens a Uniform

Civil Code throughout the territory of India”5.

4.”This appeal does not involve any question of constitutional importance, but that is not to say that it does not
involve any question of importance. Some questions which arise under the ordinary civil and criminal law are
of far-reaching significance to large segments of society which have been traditionally subjected to unjust
treatment. Women are one such segment. “Na stree swatantramarhati” said, Manu, the Law giver: The Women
does not deserve independence.” See Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 558.
5 The Constitution of India, Art. 44.

10
 Conservative Muslims opposed the passage of Uniform Civil Code, arguing that not only

was it too progressive, but that because their personal laws were guided by religion, any

change affecting personal law was a violation of the religious freedom guaranteed by the

decidedly secular Indian Constitution. Communities have their own customs and traditions

that they do not want to give up. Marriage is a community celebration and as long as

communities are different, they will have different customs and traditions. It is not easy

therefore to adopt a uniform civil code since communities are all guided by their religious,

social and customary laws.6

Under Ambedkar's stewardship, Hindu personal law was codified in the 1950s by

Parliament, erasing distinct practices, though inequalities between men and women still

persist and custom prevails in some aspects. It did not apply to Muslim community, where the

Shariat continued to guide civil matters. The Indian commitment to secularism thus enabled

the Muslim community to limit legislative modernization affecting women, leaving intact the

male option of polygamy and unilateral divorce, both of which have been banned in several

Muslim countries but remain legal in India. Muslim women remained oppressed while

women of every other religious group, including Hindus, Jains, Sikhs, Christians, Buddhists,

and all others, acquired all the rights of citizenship. The Shariat overruled the Indian

Constitution in regards to the rights of citizenship for Muslim women, and religious tolerance

meant disenfranchisement through the application of personal laws.

The controversial Shah Bano judgement delivered by Chief Justice V.Y. Chandrachud,

apart from affirming the right of a divorced Muslim woman, also commented upon Islam and

interpreted the Muslim Personal Law while deciding a right under a secular and uniform

statute. The call for a Uniform Civil Code and the comments on the Quran evoked a

communal backlash. The judgment was not the first granting a divorced Muslim woman

6 Ambrose Pinto, Debate on Uniform Civil Code, IV Mainstream (2016),

<http://www.mainstreamweekly.net/article6573.html> (last visited on Oct 6, 2017).

11
maintenance under Section 125. But a voluble orthodoxy deemed the verdict an attack on

Islam.7

Reaction among Muslims has ranged from outrage at the questioning religious laws by

people outside the religious fold to the hope that the judgement would lead to introspection

within the community and ultimately to a progressive change in the interpretation of Muslim

personal laws.

The Muslim Critique of the judgement

The Muslim critique of the judgement focussed on some inter-related points. It was

pointed out that the Supreme Court judgement has rendered clause (b) in section 127(3) null

and void and has nullified the protection provided to Muslim personal law. In doing so,

according to the Critics, the Court ignored the clear intent of the legislature and did not see fit

to discuss the rulings of the High Courts of Kerala and Bombay which held a contrary view.

Critics argue that the Ayats were torn out of a larger context and the Court has imposed its

own arbitrary interpretation on them. They maintain that the courts do not possess the

requisite competence to interpret religious scriptures. The All India Muslim Personal Law

Board (AIMPLB) has even argued that once the court start interpreting the Quran there is

every danger of the Muslim personal law being wiped out and, since that has always been

projected as one of the distinguishing marks of the Muslim minority, it is tantamount to

wiping out Islam itself from India. It is argued that paying maintenance to a divorced wife

goes against the Shariat and hence against Islam.

According to the Critics, the Supreme Court chose to disregard the views of Muslim

jurists and scholars on the question of maintenance for divorced Muslim women. The Court’s

contention that the liability of the Muslim husband to provide maintenance to his divorced

wife, who is unable to maintain herself, is not confined to the period of iddat and thus this in

7 The Hindu : The Shah Bano legacy, Thehindu.com (2003),

<http://www.thehindu.com/2003/08/10/stories/2003081000221500.htm> (last visited Oct 3, 2017).

12
accord with the provision of Muslim Law, is held as unfounded, arbitrary and capricious.

Critics have also condemned the Court’s views as misrepresenting the Islamic perspective on

divorce. It is stressed that though divorce is recognized in Islam, it is subject to certain well-

defined regulations and resort to divorce without rhyme or reason is forbidden.

The obiter dictum of the judgement, criticizing the government for failure to promulgate a

Uniform Civil Code, is targeted by critics who maintain that Supreme Court’s advice is

gratuitous and reflects misplaced judicial activism. Noorani pointed out that enactment of

common civil code is the function of a democratically elected legislature governed by a wide

spectrum of policy considerations and sensitive to the needs and sentiments of all the interests

and groups that constitute the nation. This function cannot be usurped by nominated judges. It

has also been pointed out that enforcement of a Uniform Civil Code would inevitably result

in an abrogation of the religion-based personal laws of Muslims and other minorities and

threaten their cultural identity and religious freedom as guaranteed in Articles 25(1) and 29(1)

of the Constitution.8

As the controversy over the judgement escalated, the ‘Muslim’ was defined as the

‘Other’, both of the nation and of the Hindus. Muslim all over India, in turn could be

mobilized to view this as yet another threat to their tenuous security. The communal turn to

the event finally, led to Shah Bano herself withdrawing her claim to maintenance. This

strengthened the popular misconception that to maintain the religiosity in Islam, women’s

economic rights have to be subordinated and further the Islamic religion is opposed to

granting women economic rights. For the first time, the women’s movement was constrained

to address the complexities of the demand for a Uniform Civil Code. The issue could no

longer be addressed within the binaries of a gender divide. The political sub-text beneath the

apparent gender concerns warranted a more complex framework.

8 Nawaz B. Mody, The Press in India: The Shah Bano Judgment and Its Aftermath, 27 Asian Survey 935-953
(1987), <http://www.jstor.org/stable/2644865> (last visited on Oct 4, 2017).

13
 Communal politics

A new factor had now emerged in the Muslim’s political firmament. It is increasingly

believed that it is important for Muslims to view their interest as a community, not because

they are one, but because they are perceived as one. This unity would increase their

bargaining position in the bread and butter issues of politics. The Shah Bano judgement

added to this fragile unity, and was taken full advantage of by AIMPB. Its call to observe a

Shariat protection week received much support. The response pattern of Muslim women in

urban areas on judgement is interesting. A perusal of articles and correspondence published in

leading English newspapers and magazines indicate ambivalent responses.

The political repercussions of the judgement cannot pass unnoticed. The Congress faced

defeat in several state assembly elections in 1985-86 as the Muslim vote, angered by the Shah

Bano verdict, tipped the balance in favour of opposing parties. In Assam, the newly

constituted United Minorities Front (UMF) grabbed 18 Assembly seats in the December 1985

elections, most of these were gained by Muslim majority.9 UMF campaigners made the point

of threat to Muslim identity nationwide from the Shah Bano judgement. The loss by the

Congress of the Kishankunj Lok Sabha constituency in Bihar to Syed Shahabuddin by a

massive margin of 73,000 votes was also a major blow since Shahabuddin was fighting

purely on the plank of Muslim rights.10 The Congress responded to the crisis by a shift in

strategy, highlighted by the appropriation of pro-Hindutva themes which were gaining

popularity in North India. This won the support of some Hindu factions but further alienated

Muslims, the traditional supporters of Congress, who were dissatisfied with the party’s failure

to alleviate their long-standing grievances.

9 Shekhar Gupta, Farz Ahmed & Inderjit Bhadwar, Muslims: A Community in turmoil Indiatoday.intoday.in
(1986), <http://indiatoday.intoday.in/story/shah-bano-judgement-renders-muslims-a-troubled-community-torn-
by-an-internal-rift/1/348087.html> (last visited on Oct 5, 2017).
10 Nawaz B. Mody, The Press in India: The Shah Bano Judgment and Its Aftermath, 27 Asian Survey 935-953
(1987), <http://www.jstor.org/stable/2644865> (last visited on Oct 4, 2017).

14
 Certain events have tended to heighten the Muslim perception of threats to their cultural

identity and Muslims see themselves as a community under siege. In April 1985, a petition

filed by Chandmal Chopra in the Calcutta High Court seeking the banning of the Quran on

the ground that it preached violence against non-Muslims. The admission of petition by

Justice Padma Dastagir engendered countywide protests by Muslims. Firing in protesting

mob led to 12 deaths. The case was then assigned to Chief Justice B. C. Basak who dismissed

the petition.11 Their disenchantment was further aggravated by the Ram Janmabhumi

movement for the liberation of the Ram temple in Ayodhya started by Vishwa Hindu Parishad

in 1984. The opening of the main gate of the temple to Hindu worshippers resulted in much

jubilation among Hindus while simultaneously causing a Muslim backlash. For the latter it

was just another attempt to wipe out Islam from India, and it led to widespread protest and

agitation in Ayodhya and other parts of the country. Violent incidents were reported from

Uttar Pradesh, Madhya Pradesh, and even Jammu and Kashmir and some of it continued in

mid-1987.

Aware of the repercussions of losing the traditional Muslim voting bloc, the Congress

under Rajiv Gandhi has taken steps aimed at winning back this crucial minority. Against this

background of declining political support, the Congress government decided to open the

locks of the disputed Babri Masjid in February 1986 and simultaneously, the government

introduced a Bill in Parliament titled, The Muslim Women (Protection of Rights on Divorce)

Bill to exclude divorced Muslim women from the purview of S.125 CrPC. Together, these

two decisions, i.e. the introduction of the Muslim Women’s Bill and the reopening of the

disputed shrine in Ayodhya were part of a ‘grand’ Congress strategy of using religious issues

and sentiments to regain its hold over Hindu and Muslim Votes.12

11 Chandmal Chopra v. State of West Bengal,1988 CriLJ 739.

12 Flavia Agnes, Women & law In India, 100-106 (2006).

15
 Analysing the political developments around this period, Zoya Hasan argues that the

compromise of surrendering women’s rights has to be viewed from the perspective of a

communalized polity.13 It was an outcome of a rightward shift in politics and the economy in

the 1980s, resulting in a close interaction of politics and religion marked by a decline in the

commitment to secularism, equal opportunities, and social welfare benefits for the under-

privileged and the disadvantaged.

The Muslim Women Act and its aftermath

The Muslim Women Act was passed by both Houses of Parliament in May 1986. The Act

defined the term “divorced woman” as a Muslim woman married and divorced according to

Muslim Law (Section 2[a]). It requires maintenance to be provided to a divorced woman by

her former husband only during the iddat period, and the mahr or other properties given at the

time of marriage to be paid at the time of divorce (Section 3). The application for

maintenance under Section 3(1) of the Act, which in case is not tenable beyond the iddat

period, is to be made to a magistrate who can direct the divorce woman’s former husband to

pay the determined amount of maintenance to her. In cases where the magistrate is satisfied

that a divorced woman who has not remarried is unable to maintain herself after the iddat

period, he can direct her relatives, including her parents and children, to pay maintenance to

her (Section 4[1]). If relatives do not have the means to pay such maintenance, the magistrate

can direct the relevant Waqf board to pay it (Section 4[2]). Contrary to the provisions in

effect at the time of the Shah Bano judgement, divorced Muslim women can no longer apply

for maintenance under Sections 125 to 128 of Cr PC. An application under these provisions

can only be made by the divorced woman together with her former husband as governed by

Section 5 of the Act.14

13 Paras Diwan, Law of Marriage & Divorce, 741-758 (2002).

14 The Muslim Women (Protection of Rights on Divorce) Act, 1986.

16
 The media response reveals conflicting viewpoints framed in terms of humanism,

rationalism, and secularism. There is also the much stronger communal viewpoint in which

the mutually complementary and reinforcing troops of Hindu and Muslim chauvinists battle

for supremacy. While much of the Urdu press became the virtual voice of conservative

Muslims, much of the Marathi press as well as the regional language press in other states

expressed various shades of Hindu communalism. The dominant English press seemed to

display a largely “secular” approach. The main thrust of the opposition of bill in the Marathi

press was based on outwardly secular arguments, namely, that it discriminated against

Muslim women and violated the directive principles of the Constitution urging the state to

bring out a Uniform Civil code for all its citizen.

Perhaps the most controversial clause in the Act, inserted through an official amendment,

is Section 5. While giving a Muslim woman the option to be governed by Section 125 of Cr

PC on the one hand, it virtually slams the doors of the Court in the face of a divorced indigent

woman, since she cannot appeal to the court unless the man who has divorced her “agrees” to

burden himself with maintenance liability, which is hardly likely. The Act seems to

discriminate against divorced Muslim women and even against children who are born of the

marriage, since they are denied maintenance beyond two years (Section 3[b]). The legislation

has been criticized as violating Articles 14, 15, 16(2) and 13(2) of the constitution. While the

first three Articles deal with the principles of equality, 13(2) is cited to show that since the

Act takes away Fundamental rights, it is ultra vires of the Constitution. The Act has been

challenged in court by eminent jurists like Upendra Baxi and V.R. Krishna Iyer, and as many

as 15 petitions challenging the Act have been admitted.15

Indigent divorced Muslim women are hardly likely to get relief through this Act since it is

almost impossible to see them dragging their relatives to court to seek maintenance orders

15Nawaz B. Mody, The Press in India: The Shah Bano Judgment and Its Aftermath, 27 Asian Survey 935-953
(1987), <http://www.jstor.org/stable/2644865> (last visited on Oct 4, 2017).

17
against them. The Act will in fact damage filial ties between a divorced women and her

family of birth. Far from ameliorating her impecunious situation, the legislation will expose

her to uncertainties of litigation involving a multiplicity of adversaries, ranging from one

relative to the Waqf boards.

The Muslim Women’s Act was thus an effort to pacify Muslim sentiments which were

ruffled over the reopening of the disputed site. The Congress government exaggerated the

strength of the conservative opposition, manipulated by a politically ambitious Muslim

leadership. The Congress viewed the All India Muslim Personal Law Board as the sole arbiter

of Muslim interests. Opposition from liberal and progressive groups was ignored, allowing

the Ullama to appropriate the task of defining the overarching concerns and interests of

Muslim.

As the debate progressed, the media projected two insular and mutually exclusive

positions, i.e. those who opposed the Bill and supported the demand for a Uniform Civil

Code as a modern, secular and rational, while those in support of the Bill and opposing the

demand for a Uniform Civil Code as fundamentalist, orthodox, male chauvinist, communal

and obscurantist. By the same logic, the opposing camp was projected as against national

integration and hence anti-national. There was hardly any public space left for arguments

which pleaded for conciliation or compromise.

Post-Shah Bano and Present

The controversy created by the judgement was followed by the enactment of the Muslim

Women Act in 1986. Only after the dust raised by the controversial Act settled down, could

the various contradictory implications of the enactment to Muslim women, Muslim Personal

Law and the Muslim Community be examined. The constitutionality of the Act was being

questioned in different courts across the country. It was being interpreted in different ways

18
and was seen to be violating the principles of natural justice laid down in the Indian

Constitution, by several activists.

In case of Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh,16 it was held that the

husband was liable to pay a ‘reasonable and fair provision’ to his wife during the iddat period

only, but which should run for much after the iddat period as well. In the case of Arab

Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai,17 the court held that “a divorced

Muslim women is entitle to maintenance after contemplating her future needs and the

maintenance is not limited only up to the iddat period. A similar interpretation was given in

the case of Kaka v. Hassan Bano and Ors.18 The Courts in the given cases interpreted the Act

in the manner of legal realistic theory. The statute was closely analysed and followed, with a

greater emphasis on the use of common sense and adopting a method of legal realism. Such

an interpretation also upheld the validity of The Act with respect to Article 14 i.e., Right to

Equality of the Indian Constitution.

However, some courts took a contrary view. In Bibi Shahnaz alias Munni v. State of

Bihar,19 the court ruled that a divorced woman is entitled to claim maintenance from her

husband only for and during the iddat period. Similarly, in Usman Khan Bahamani v.

Fathimunnisa Begum,20 the court held that the maintenance payable by husband was

restricted only for the period of iddat and there was no liability on the husband, to provide for

any provision or maintenance after the iddat period. In above cases, the Courts interpreted the

Act in restricted manner, keeping in mind the interests of male, but forgoing the interests of

divorced Muslim women in actuality.21

16 Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh 1999 Cri LJ 3846.
17 Arab Ahemadhia Abdulla v. Arab Bail Mohmuna Saiyadbhai AIR 1988 Guj 141.
18 Kaka v. Hassan Bano and Ors. ILR(1998) 1 P&H 267.
19 Bibi Shahnaz alias Munni v. State of Bihar 1998 Cri LJ 4702.
20 Usman Khan Bahamani v. Fathimunnisa Begum 1990 Cri LJ 1364.
21 Varnika Chawla, Maintenance under muslim Personal Law in Light of Danial Latifi v. Union of India – the
Need for a Uniform Civil Code, IV Journal of Law and Public Policy Uniform Civil Code 281-293 (2017).

19
 Hence, The Act was being interpreted diversely in different parts of the country. But the

decision of the Supreme Court in Danial Latifi v. Union of India22 therefore, provided a

uniform and liberal interpretation of the Act. The Supreme Court ruled that a fair and

reasonable provision and maintenance is to be made and paid by the husband to his divorce

wife, within the period of iddat. This maintenance, however, should provide for the wife’s

needs beyond the iddat period as well. This became a landmark judgement of the Court, as

this democratic interpretation was used in all further Muslim divorce cases.23 It protected the

rights of the divorce Muslim woman, and ensured her Right to Life with personal dignity.

Conclusion

The Shah Bano caused an exploitation of secular ideas to gain political power. An

unanticipated and possibly unavoidable disagreement in the making of the Indian

Constitution was the maintenance of Muslim personal laws. A secular state both “keeps

religion apart from the state for the sake of religious liberty” and “ensures equality of free

citizenship”. The Indian government asks not only just acceptance and coexistence, but also

respect and acknowledgement of all religions, major being Hinduism and Islam. The need for

22 Danial Latifi v. Union of India (2001) 7 SCC 740.

23 See: H. Sirajuddin v. Shaziya Alias Afsana and Another AIR 2003 Kar 224., Makiur Rahaman Kha v. Mahila
Bibi 2002 Cri LJ 1751., Shabana Bano v. Imran Khan (2010) 1 SCC 666.

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an assertive secularism is demanded by religious politicization to stabilize the power of the

federal government. Secular nations cannot allow religion to distort their commitment to

egalitarianism, and yet the Shah Bano controversy threatened India’s tradition of religious

tolerance, and raised the question of how a secular nation should treat a religious minority

that threatens national sovereignty.24

The state must interfere when a community does not offer equal rights to each member of

that community in a secular democracy. The government must employ its power to compel

religious communities to treat each individual members of the community in agreement with

the laws of nation, even if doing so undermines the communal identity. Religious practices

can be maintained in a secular nation. However, with the Shah Bano controversy, communal

groups corrupted the traditions of religious acceptance and cultural diversity for which India

is known by politicizing their extreme needs.

In an order to moderate their judgement, the Supreme Court reconciled their ruling with

the Quran and by doing so; they left themselves vulnerable to criticism by Muslim

fundamentalists for going beyond their boundaries. Personal laws that are in violation of t

he Constitution should not be accepted. Implementing a Uniform Civil Code would solve that

problem. Like the entire country, the Muslim community also contains both conservatives

and liberals. Secular democracy will prevail only when the law is equally applied to each

citizen.

The women of the Muslim community are most suppressed by personal law. The

sovereign state must intrude in case a community does not provide the rights of citizenship to

each member. The Indian government let down the Muslim women by enacting a legislation

that allowed the existence of non-democratic and unconstitutional practices within the

24 Jill M Oglesbee, The Shah Bano Controversy: A Case Study of Individual Rights, Religious Tolerance, and
the Role of the Secular State Inquiries Journal (2015), <http://www.inquiriesjournal.com/articles/1061/3/the-
shah-bano-controversy-a-case-study-of-individual-rights-religious-tolerance-and-the-role-of-the-secular-state>
(last visited on Oct 5, 2017).

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Muslim community. The sovereign state should use its power to ensure that religious

communities consider their individual members in agreement with the laws, even if it

damages the communal identity. The Shah Bano controversy made tangible the concept that

traditions of oppression should not be maintained, and to do so in the name of religion is not

acceptable in a secular democracy.

Bibliography

Books

 Paras Diwan, Law of Marriage & Divorce, 741-758 (2002).

 Flavia Agnes, Women & law In India, 100-106 (2006).

 Paras Diwan & Peeyushi Diwan, Law of Maintenance in India, 83-86 (1990).

 H. D. Kohli, Muslim Law: Cases & Materials, 117 (2012).

Articles

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 Nawaz B. Mody, The Press in India: The Shah Bano Judgment and Its Aftermath, 27

Asian Survey 935-953 (1987).

 Siobhan Mullally, Feminism and Multicultural Dilemmas in India: Revisiting the Shah

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 Flavia Agnes, Women s Movement within a Secular Framework-Redefining the Agenda,

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 Varnika Chawla, Maintenance under muslim Personal Law in Light of Danial Latifi v.

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 Jyoti Punwani, Muslim Women: Historic Demand for Change, 51 Economic and Political

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12, 2017).

 What is Shah Bano case?, The Indian Express (2017),

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 Jill M Oglesbee, The Shah Bano Controversy: A Case Study of Individual Rights,

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