Article by: Shrinkhla Singh, B.BA, LL. B (Hons.) Student, VIT School of Law, Chennai

Judge Bench

A five-judge Constitutional Bench of the Supreme Court of India presided over by Chief Justice Y.V. Chandrachud.[1], with Justice Ranganath Mishra, Justice A.D. Koshal, Justice D.A. Desai, and Justice E.S. Venkataramiah.

Introduction

Shah Bano Babri’s case is still remembered in Indian judicial history, especially regarding Muslim women’s rights and Muslim personal law. This case came into existence when an old woman named Shah Bano Begum filed a petition for maintenance under section 125 of CrPC[2] after her divorce from her husband Mohd. Ahmed Khan who denied her maintenance. The case created a huge furore on whether secular laws could be applied over personal laws in matters concerning maintenance for divorced Muslim women. It sought to know whether a divorced Muslim woman could seek maintenance under the secular law if the religious personal law did not allow it. The Supreme Court also banned triple talaq amongst other things. As a source of the change in India’s legal forums regarding the relationship between personal law and secular law, the Shah Bano case[3] evokes interest. The case also gave rise to a debate regarding the desirability and validity of revising the present personal laws to correspond to the fundamental rights and the constitutional premise of equality and justice.

Facts[4]

The facts of the case center around the life of Shah Bano, a 62-year-old Muslim woman, who sued her husband, Mohd Ahmed Khan under section 125 of the Code of Criminal Procedure (CrPC) and demanded maintenance. Married for over 40 years to Khan and having five children, Shah Bano was left destitute, when Khan ceased supporting her. She moved a CrPC petition for maintenance as a poor woman is entitled to a money support regime by her spouse regardless of religion. To this, Khan divorced her using triple talaq.[5] and told her that he owed nothing past the iddat period[6], which is about three months after the couple’s separation as allowed under Muslim personal law.

Shah Bano on the same note contended that Section 125 CrPC should be applied under the provisions as the law was secular and protected everyone regardless of religion. Her case raised a critical question: could secular law override religious law in ensuring maintenance for Muslim women after divorce? This led to a major controversy about the status of Muslim women, the extent of secular law in personal matters, and whether ‘the divorced Muslim women could claim maintenance from their former spouses beyond the iddat period and directed the attention of the Supreme Court to the problem.

Issues[7]

• APPLICABILITY OF SECTION 125 OF CrPC TO MUSLIM: The first question that arose from the judgment was whether a Muslim woman was allowed to claim for maintenance under Section 125 of CrPC after finishing the period of iddat set by the Muslim personal law.
• EXTENT OF A MUSLIM HUSBAND’S OBLIGATION: Whether the Muslim husband could confine it to the period of iddat permissible under Muslim law or as he was governed under the secular law he was bound further.
• BALANCING PERSONAL AND SECULAR LAW: Another major issue was how best to reconcile the secular maintenance under the CrPC and Muslim personal law, and give justice to the girl child without offending Islam’s rights to freedom of religion.

Obiter Dicta

In its observations, the Supreme Court pointed out that no law should be enacted that defeats the principles of justice, equality, or the provisions of a constitution. Justice Y.V. Chandrachud also pointed out that Section 125 CrPC is a secular provision of law that was enacted so that everyone who requires justice should get it without having to ripe on the religious book for it. He said that Section 125 CrPC is a human right to maintain one’s spouse and children and cannot be restricted by religion, especially for needy wives who are deserted and divorced. Justice Chandrachud laid emphasis that no law made claiming to be religious law can and should come in the way of protecting the sanctity of the fundamental right of access to justice, and more so, the vulnerable sections of society.

Ratio Decidendi

The Court decided that the obligation for maintenance according to section 125 continues after the iddat period only. This was undertaken in the light of the principle that while the CrPC is a secular piece of law, it overrides the personal law where the latter is in conflict with the constitutional provision of equal rights and justice. The Court reiterated that whether in the peculiar circumstances of any case, some other person has to maintain a woman, it is a fundamental right of such woman to be maintained to enable her to survive and this right cannot be presumed to be negated by religious personal laws.

Judgment[8]

The Supreme Court ruled in favour of Shah Bano’s rights under Section 125 CrPC for the maintenance period even beyond the iddat. The Court also underlined the fact that Section 125 is a statute that owes no religion as it is more of a construct of the colonial British parliament and has its roots in the common law tradition; all citizens of this country are bound by it to prevent people from starving to death for want of reasonable maintenance. Supporting the Shah Bano case by providing her maintenance, the Court created a perception that secular law that provides for social justice subserves religious personal law but the latter cannot override constitutional norms that treat vulnerable sections. It prompted a great deal of public and political discussion eventually expressed in the form of legislation in the shape of the Muslim Women (Protection of Rights on Divorce) Act of 1986, which dealt with the questions of maintenance rights within the framework of Muslim personal law but left rather many questions of equity unanswered.

Discussion on Legal and Ethical Implications

• IMPACT ON WOMEN’S RIGHTS: This case considers the economic rights of women over and above religious authorities that withhold people’s basic needs of livelihood. It made special reference to women’s cases in India, and the first step was to apply secular law to protect divorced women.
• STATE v. PERSONAL LAW: What has emerged very strongly from this case is the part played by the state in doing justice when there is a conflict between the personal law and the basic rights of a person. The Court’s focus on Section 125 of the Code as a tool for social justice raised awareness of the fact that personal laws as a form of justice have failed to address the needs of society and how these laws must be dynamic to meet society’s needs.
• TRIGGER FOR LEGAL REFORM: It particularly helped keep debates constantly open on aspects related to legal and social change in personal laws. It raised doubts regarding the efficiency of the conventional laws meant for the protection of modern rights and raised the issues for amendment making that personal laws must not contradict the provisions of the constitution as these include equality and non– discrimination.
• LEGISLATIVE RESPONSE AND POLITICAL BACKLASH: The decision in the case also resulted in the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986[9], aimed at restricting the operation of Section 125 CrPC as regards Muslim women. While it was considered the law had softened the true nature of religious extremism in Muslim communities in Malaysia, it had met the expectations of the fundamental rights of women too in Malaysia to an extent to which the state failed to fully protect the constitutional rights of the women in society.
• SOCIAL AND ETHICAL IMPLICATIONS: The most compelling factors that touched the ethical premise of religious practice gender-related issues, the rights of the state over its citizens particularly the needy and vulnerable members. It continues to be quoted in debates over religious law reform and the relation between religion and state, for individual laws, and for the modern conceptions of justice and female rights.

Conclusion

The Shah Bano judgment indeed can be remembered as a landmark one with regard to women’s emancipation and the question of secularism in India. Again, it highlighted the role of the state to cater to the basic needs of individuals by formulating civil laws, that where and when different religions are embraced. When granting of Maintenance rights under Section 125 CrPC was given to Shah Bano by the Supreme Court, the Court underlined the need to make personal laws in consonance with the constitution. For a long time, the judgment generated political debate but urged crucial debates on legal change, religious liberty, and feminism in India.  However, despite the subsequent legislation that expressly entitled the ruling only within their provisions, the Shah Bano case is used today as an effective instrument in the campaign for equality and as a symbolic pictogram of the struggle for women’s rights in a multicultural world.

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[1] The 16th Chief Justice of India from 1978 to 1985. He is one of India’s longest-serving Chief Justices.

[2] Code of Criminal Procedure, § 125, No. 2 of 1974, India Code (1974).

[3] What Is Shah Bano Case?, Indian Express (Aug. 25, 2017), https://indianexpress.com/article/what-is/what-is-shah-bano-case-4809632/.

[4] 1985: Shah Bano Case, Frontline (Aug. 15, 2022), https://frontline.thehindu.com/the-nation/india-at-75-epochal-moments-1985-shah-bano-case/article65730545.ece.

[5] Sohaira Z. Siddiqui, Triple Divorce and the Political Context of Islamic Law in India, J. Islamic L., https://journalofislamiclaw.com/current/article/view/siddiqui (last visited Nov. 21, 2024).

[6] Concept of Iddat, Drishti Judiciary, https://www.drishtijudiciary.com/to-the-point/ttp-muslim-law/concept-of-iddat (last visited Nov. 21, 2024).

[7] Case Law Summary: Mohd. Ahmed Khan v. Shah Bano Begum & Ors., 1985 AIR 945, iPleaders (Apr. 23, 2020), https://blog.ipleaders.in/case-law-summary-mohd-ahmed-khan-v-shah-bano-begum-others-1985-air-945/.

[8] SC Verdict on Maintenance to Muslim Women Brings Back Memories of 1985 Shah Bano Case, The Economic Times (Mar. 16, 2023), https://economictimes.indiatimes.com/news/india/sc-verdict-on-maintenance-to-muslim-women-brings-back-memories-of-1985-shah-bano-case/articleshow/111640838.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.

[9] Muslim Women (Protection of Rights on Divorce) Act, No. 25 of 1986, India Code (1986).