Author-Divyansh Singh, a student at Christ (Deemed to be University) Bangalore
Abstract
The landmark case of Mohd. Ahmad Khan v. In what could be termed as Shah Bano Begum (1985) – an important shift occurred in Indian jurisprudence where the relation between constitutional provisions and the Muslim personal law was relocated. The case was related to the maintenance rights of Shah Bano, a 62years divorced Muslim woman arrested under section 125 CrPC a secular law aimed to prevent vagrancy. Her claim was also a rejection of a stereotype of Muslim Personal Law, whereby maintenance was only allowed during iddat after divorce.
The Supreme Court while passing the judgment in Shah Bano’s case laid down that Section 125 CrPC is a secular provision. The Court ruled that personal laws have to be in tune with the Constitution’s vision of Equality, Justice and Dignity contained in Articles 14 and 21 of Indian Constitution. It also pointed out the absence of the need for a Uniform Civil Code as laid down in Article 44 in order to maintain the national integration and cut down the disparities in the personal laws.
The judgment evoked heated discussions across the country, while liberal supporters welcomed the judgement as an act of gender justice to counter it as an attack on Article 25 rights of religious freedom by conservatives. This socio-political tension was palpable when the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 and thereby excluded the rights of maintenance during the iddat period only.
The Shah Bano case has a special place in these debates, and although the latter Supreme Court judgment rolled back the legislation, the former has continued to be tackled in these terms. It remains a source of discourses on integrating personal laws with the constitutional provisions and utilises the judiciary’s societal watchdog status of a pluralistic society. It is like the tip of the iceberg of the conflicts that exist between freedom of every citizen, freedom of religion and the desire to have a harmonised legal system in India.
Introduction
Mohd. Ahmad Khan v. The Shah Bano Begum*(1985) judgment can be recalled as a significant success in the growth of Indian constitutional and legal legal development, this essential case-law advancement underlines the battles between constitutional ideas, religious individual laws in a multi-religious and multicultural society.
Shah Bano Begum, a 62-year-old divorced Muslim woman, filed for maintenance from her husband, Mohd. Ahmad Khan after severing his connection with the woman, after he had declined to contribute to her upkeep beyond the iddat period recognized by Muslim Personal Law. Her application for maintenance under Section 125 CrPC created legal and socio-political discourses about the legal character of personal laws in secular democracy.
Public interest disclosure empowers important constitutional rights under the provision of Articles 14 (equality), 21 (right to live as per dignity), and 25 (right to freedom of religion). It also resumed the debate about Article 44, which deals with The Uniform Civil Code to make the laws for personal matters of the subjects equally across religions.
The judgment awarded in the case of Shah Bano by the Supreme Court of India marked the honour of constitutional rights over the personal law becoming a path breaking legal reason for gender justice besides legal equality. But when the legislative counter Cavalier came in the form of the Muslim Women (Protection of Rights on Divorce) Act, 1986 those socio-political issues emerged in the field of judicial reform. This case continues to be a foundation of the argument on autonomy, religious liberties and search for conformity of laws in India.
Case Background
Subsequently, the Shah Bano case emerged when a 62-year-old woman started the procedure for getting maintenance under section 125 of the Code of Criminal Procedure (CrPC), from her husband called Mohd. Ahmad Khan thus repudiated her through talaq, and stopped supplying her needs beyond the period of iddat. A married woman for more than forty-four years and was thrown out without even having a roof to survive.
It may be recalled that in 1978, Shah Bano had moved to a magistrate’s court which awarded her Rs. 25 per month as maintenance. Unsatisfied, she shifted to the High Court of Madhya Pradesh; they offered her Rs one hundred and seventy-nine only per month. Ahmad Khan objected to this saying that his function in respect to Muslim Personal Law was only up to iddat period.
The case proceeded to the Supreme Court mainly concerning whether a divorced Muslim woman seeking maintenance under the secular provisions of section 125 of Cr Pc was prohibited under Muslim personal law.
Legal Provisions Involved
1. Section 125 CrPC:
This secular provision provides for the support of dependents – wives, children and parents who cannot support themselves. That is consistent across all religions and is intended to avoid crippling poverty.
2. Muslim Personal Law:
Many Sharia laws dictate that a Muslim husband must fulfill the responsibility of feeding and maintaining his wife during the period of iddat after divorce. After this period he or she is not required to provide further support unless this was agreed previously.
3. Constitutional Provisions:
Article 14: Delaware Constitution guarantees every person equal protection under the law; it bans discrimination.
Article 21: Ensures right to a decent life.
Article 25: Ensures freedom to exercise religion and belief for persons within states parties, unless violates public order, morality, and health.
Article 44: The author also speaks of a need for the application of a Uniform Civil Code in order to have an uniformity in the said laws.
Arguments by Mohd. Ahmad Khan
Ahmad Khan insisted that Muslim Personal Law dictated that he could not be expected to pay more than the iddat period.
He contended that the petitioner wanted to force Section 125 CrPC on him, which violated his freedom of religion under Article 25 of the Constitution of the country.
Arguments by Shah Bano
The defence of Shah Bano’s counsel was that section 125 CrPC is a stares diminishing provision for maintenance however to all faiths irrespective of the principles of Sharia law or Islamic law.
Withholding maintenance, as the Superior Court of India said it has the power to do, would remove Shah Bano’s rights to equality and life under Articles 14 and 21, thrusting her into penury and stripped of dignity.
He also drew our attention to the fact that Sharia law also recognizes the legal capacity of a husband to maintain his divorced wife if she fails to fend for herself.
The case thus posed a critical question: Should the codes of secular law such as Section 125 CrPC prevail when human rights and gender justice is an issue? This tension characterized the Supreme Court, deliberation and its final decision.
Judgment
The Supreme Court of India, in its recent judgment in Mohd. Ahmad Khan v. Google Scholar Shrimati Shah Bano Begum (1985) – this case became possible because the court ordered Shah Bano and her husband to provide each other with maintenance under Section 125 of the CrPC. The Court noted that the provision in issue, Section 125 CrPC is a provision that bears secular principles and the anti destitution guidelines in the exercise of Section 125 CrPC do not differentiate religious faiths.
A Constitution bench comprising five judges including Chief Justice Y.V. Chandrachud pointed out that providing no maintenance to divorced Muslim women based on personal laws would be a violation of her fundamental right to equality under Article 14 of the Indian constitution as well as right to life with dignity under Article 21 of the Indian constitution. There was a cognate pronouncement from the Court that Islamic law imposes on the husband a moral and legal responsibility to provide for the divorced wife who is incapable of maintaining herself.
The judgment emphasized on the discrepancy of personal law to constitutional provision-justice, equality, and dignity. Most significantly the Court emphasised the importance of Article 44 as a directive principle that calls for the adoption of a ‘Uniform Civil Code’ to make Indian laws of marriage, divorce and the like pan appropriate to all communities.
This judgment raised a lot of controversy and discussion mainly due to two reasons most analysts referred to it as the first major victory for gender justice and secularism. But it also had frowns from the conservatives for apparently infringing on Muslim Personal Law. However, soon after the judgment came the Muslim Women (Protection of Rights on Divorce) Act, 1986 to contain the recognition of the maintenance rights of divorced Muslim women.
Impact and Aftermath
In Consequence the Shah Bano had great legal social and political repercussions. This was followed by the much applauded decision to uphold gender justice and the secular basis of the Indian Constitution that triumphs over personal laws. For, the judgment applied Section 125 CrPC in a broader way and, thereby, gave divorced Muslim women the constitutional rights to assert maintenance even after completing the iddat period for their framed dignity and from potency of starvation.
Nevertheless, the operation received a rebuke from the conservative Muslim organizations that saw it as an infringement of their right to religious practice. This socio- political pressure resulted in the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986 that tried to curtail the above mentioned judgment by restricting the maintenance period to the iddat.
It revived the demand for the Uniform Civil Code yet again and focused on the necessity of changing our personal laws to become secular. Even today it serves as the reference point when considering whether individual rights, rights to religious freedom or gender equality can be limited in India.
Broader Implications
The Shah Bano case recast the legal and cultural experience in India and brought sensitive, effective, and indisputable themes of women’s rights and constitutional grants over individual law. It laid down the principle of women’s rights to the divorced woman irrespective of the religion.
The case established the direction on integration of personal laws with Article 14 and 15 of Indian constitution that deal with equal protection and dignity, for further judgement on women rights in marriage and divorce. It also opened debate over the continued relevance of a proposed Uniform Civil Code (UCC) focusing on the conflict between ‘Operations Equality’ and ‘rights to religious equality’.
As a major step in legislative direction which diluted the immediate effect of the judgement, it remains seminal to the discussions and discourses on legal change and reform, gender justice and minority’s right to ‘religious’ equality in the Indian civil society.
Criticism of the Judgment
In the matter, there are different critics of the judgment that have been presented:
Muslim Personal Law came under controversy with such contradictions as those evident in the Shah Bano judgment were made by many as a perceived interference with Muslim Personal Law. Opponents of the law, mainly the conservatives, posit that the law violates Article 25 of the Constitution on protection of freedom of religion.
In political terms the ruling provoked the division of communities as the opponents stated that the judiciary does not consider the culture. This led to what many understood as a backlash by passing of Muslim Women (Protection of Rights on Divorce) Act, 1986.
Opponents also doubted the possibility for similar laws in heterogeneous society while appreciating personal laws as the signs of culture and citizens’ choice. All these highlighted socio-political issues of an attempt to fight for women rights to justice while respecting religious rights of those bearing crosses as part of their faith.
Conclusion
The Shah Bano case of 1985 is remembered as an era milestone in Indian juridical history and judicial determination of the cherished constitutional ideals of equality, justice and human dignity into contemporary Persian Gulf legal domain. When upholding the right of Section 125 CrPC for all people irrespective of their religion the Hon’ble Supreme court also emphasized that the personal laws must conform to secular laws.
Although this judgment was progressive as regards gender justice it unveiled some more areas where rights of the individuals with religious sensitivities have to be weighed against the rights of minorities in a democratic diverse society. While the Muslim Women (Protection of Rights on Divorce) Act, 1986 seeks to counteract the judgment’s immediate impact even as to erode its long-lasting influence as a spur to legal change.
The case reawakened discussions on the imposition of the Uniform Civil Code thanks to the inequality in personal laws. Shah Bano continues to be a landmark liberal democracy debate even after three decades in India.
Frequently Asked Question
1. What was the Shah Bano case all about?
The Shah Bano case related to the claim of unilateral divorcee Muslim woman for maintenance under Section 125 of the CrPC which make provision for maintenance for any destitute being of whatever religion, without distinction.
2. What did the Supreme Court decide?
The practice of this Court has been and continues to be that Section 125 of the CrPC is a secular provision and once a person is found to be destitute the sectarian law as to whether she can claim maintenance does not come into play.
3. For what reason was the judgment?
The judgment was gender justice and highlighted the want for personal laws to be in line with the constitution and uphold dignity of the woman. It also brought out the relevance of a paramount debate in India about enacting the Uniform Civil Code.
4. What was the backlash of the judgment?
The Shariat put up with indignation and condemnation from conservative groups of Muslims who accused the court of interference with religious laws of marriage and divorce and as a result political pressure led to passage of Muslim Women (Protection of Rights on Divorce) Act, 1986 limiting maintenance only to the iddat period.
5. That brings us to a most important question: how does the case impact Indian law today?
The Shah Bano case is often cited in gender equality, secularism and legal reform paradigm, and subsequent judgements and delightful discussions on proportionate relationship between the religious rights and constitutional rig