Shah Bano, and the Statute That Followed It

Three points a candidate should notice.

It is not a personal law decision. The Court applied a general statute. Nothing was struck down, no personal law rule was declared void, and Narasu was not in issue. This is the Shah Bano route described in the previous chapter, and it is available precisely because the maintenance provision is not personal law at all.

The Court said there was no conflict. It did not hold that the general law overrides Muslim personal law; it held that on the obligation to maintain a destitute divorced wife the two were not in conflict.

The article 44 observations were obiter, and they were what caused the storm. The Court's construction of religious texts, more than its result, is what the objection fastened on.

The statute of 1986

The Muslim Women (Protection of Rights on Divorce) Act 1986 was enacted to displace the judgment. Its three operative sections:

Section 3(1) provides that NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER LAW for the time being in force, a divorced woman shall be entitled to (a) a reasonable and fair provision AND maintenance TO BE MADE AND PAID TO HER WITHIN THE IDDAT PERIOD by her former husband; (b) where she maintains the children born to her before or after the divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband FOR TWO YEARS from the dates of birth; (c) an amount equal to the mahr or dower; and (d) all properties given to her before, at or after the marriage by her relatives, friends, the husband or his relatives or friends. Section 3(2) allows her to apply to a Magistrate where these have not been made, paid or delivered.

Section 4(1) provides that NOTWITHSTANDING anything in the foregoing provisions or in any other law, where a Magistrate is satisfied that a divorced woman HAS NOT RE-MARRIED AND IS NOT ABLE TO MAINTAIN HERSELF AFTER THE IDDAT PERIOD, he may order such of her RELATIVES AS WOULD BE ENTITLED TO INHERIT HER PROPERTY on her death according to Muslim law to pay reasonable and fair maintenance, in the proportions in which they would inherit, having regard to her needs, the standard of life she enjoyed during the marriage and the means of the relatives. The first proviso directs that where she has children only the children be ordered to pay, and if they cannot, her parents. Section 4(2) provides that where she has no such relatives, or they lack the means, the Magistrate may direct the STATE WAKF BOARD to pay.

Section 5 preserves an option: if on the date of the first hearing of an application under section 3(2) the divorced woman and her former husband declare, jointly or separately, by affidavit or prescribed declaration, that they would prefer to be governed by SECTIONS 125 TO 128 OF THE CODE OF CRIMINAL PROCEDURE, the Magistrate shall dispose of the application accordingly. Note that this requires BOTH parties, which is why it is of little practical use.

Section 7 is transitional, dealing with applications pending under section 125 or 127 at the commencement.

The judgment of 2001

In Danial Latifi v. Union of India, AIR 2001 SC 3958; (2001) 7 SCC 740, decided on 28 September 2001 by a Constitution Bench. Facts. The validity of the Act of 1986 was challenged by writ petitions on the ground that it deprived divorced Muslim women of the maintenance available to every other divorced woman under section 125 of the Code and so violated articles 14, 15 and 21.

Held. The Act was UPHELD, but read so that it produced substantially the result Shah Bano had reached. Section 3(1)(a) requires the former husband to make within the iddat period a REASONABLE AND FAIR PROVISION and to pay MAINTENANCE; the liability to make a reasonable and fair provision is NOT RESTRICTED TO THE IDDAT PERIOD, and a divorced Muslim woman is entitled to a reasonable and fair provision FOR HER FUTURE, which must be made and paid within iddat but may extend beyond it. Where she is unable to maintain herself after iddat, her relatives who would inherit from her, and failing them the State Wakf Board, are liable under section 4. So read, the provisions of the Act do not offend articles 14, 15 and 21.

The construction turns on a conjunction. Section 3(1)(a) speaks of "a reasonable and fair PROVISION AND maintenance to be made and paid to her within the iddat period". The Court read "provision" and "maintenance" as two things: MAINTENANCE is for the iddat period, but PROVISION is for her future, and the words "within the iddat period" fix the time by which it must be MADE, not the period it must COVER. On any other reading the Act would have been unconstitutional, and the Court preferred the reading that saved it.

This is a textbook illustration of reading down. The same technique appears in Kedar Nath Singh on sedition, in Shreya Singhal on section 79(3)(b), and in Githa Hariharan on guardianship. Where one construction saves a provision and another destroys it, the court leans to the former.

What the episode proves

On the legislative side. Parliament can and does reverse a judgment, and a legislature responding to a decided case is not misbehaving; it is legislating. What it cannot do is legislate in a way that violates Part III, which is why the Act had to be construed as it was.

On the judicial side. A court that has been reversed can construe the reversing statute. Danial Latifi is more consequential than Shah Bano, because it is a Constitution Bench decision on the validity and meaning of a statute, whereas Shah Bano is a two-judge decision on a maintenance application.

On the uniform civil code question. The episode is used by both sides. Those who want the code say it shows that reform of personal law by ordinary politics fails at the first serious test. Those who resist it say it shows that a court which construes religious texts provokes a reaction that sets reform back, and that Danial Latifi achieved the result without any code at all.

And on the article 13 question. Shah Bano and Danial Latifi were both decided without touching Narasu: the first applied a general law, the second construed a statute. Both are examples of the routes that remain open when personal law itself cannot be tested.

A worked example

A Muslim woman is divorced in 2026. She has no independent income and did not remarry. Her former husband paid mahr and maintained her for three months. She applies for maintenance. Advise.

First, under section 3 of the Act of 1986. She is entitled to a reasonable and fair PROVISION and maintenance to be made and paid within iddat, to mahr, and to the properties given to her. On Danial Latifi the PROVISION is for her future and is not limited to the iddat period, though it must be made within it. Payment of mahr does not discharge the provision.

Second, if the provision proves insufficient. Section 4(1) allows the Magistrate to order such of her relatives as would inherit from her, and by the first proviso her children first and then her parents, to pay reasonable and fair maintenance in the proportions in which they would inherit; and failing them, section 4(2) allows an order against the State Wakf Board.

Third, can she use section 125, now section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023? Only with her former husband's concurrence, because section 5 requires a declaration by both parties on the date of the first hearing. In practice the Act of 1986 is her route.

Fourth, would a constitutional challenge lie? Not to the Act as construed. Danial Latifi upheld it precisely because, so read, it does not offend articles 14, 15 and 21.

Fifth, what is the practical answer? That after Danial Latifi her position under the Act is not worse than under section 125, and on the reasoning of that judgment may be better, because a lump provision for the future is not limited by the ceiling or the monthly form of a maintenance order.

Distinctions

What it does NOT mean

It does not mean a divorced Muslim woman is entitled only to iddat maintenance. That reading of section 3(1)(a) was rejected in Danial Latifi: the provision must be MADE within iddat but is for her FUTURE.

It does not mean the Act of 1986 was struck down. It was upheld. What was struck down was the narrow construction of it.

It does not mean Shah Bano was overruled. It was displaced by statute for cases governed by the Act of 1986, and the Act was then construed to reach substantially the same result.

It does not mean section 125 is closed to a divorced Muslim woman. Section 5 preserves the option, though it requires a declaration by both parties.

And it does not mean the case proves the need for a uniform civil code. It is used that way, and it is used the opposite way with equal force. What it certainly proves is that a general law and a saving construction can do work that article 44 cannot.

Quick revision

1985, Shah Bano, two judges: section 125 of the Code of Criminal Procedure is a general law applicable to all irrespective of religion, aimed at preventing vagrancy and destitution; a divorced Muslim wife unable to maintain herself is a "wife" under it; mahr does not by itself discharge the liability; no conflict between section 125 and Muslim personal law on the obligation; obiter that article 44 has remained a dead letter.

1986, the Muslim Women (Protection of Rights on Divorce) Act. Section 3(1): provision and maintenance to be made and paid within the iddat period, two years' provision for children she maintains, mahr, and the properties given to her; section 3(2) application to a Magistrate. Section 4(1): where she has not remarried and cannot maintain herself after iddat, relatives who would inherit from her pay in inheritance proportions, children first and then parents by the proviso; section 4(2), failing them, the State Wakf Board. Section 5: both parties may declare a preference for sections 125 to 128 of the Code at the first hearing.

2001, Danial Latifi, Constitution Bench: the Act upheld, but section 3(1)(a) read as requiring a reasonable and fair PROVISION for her future, MADE within iddat but not confined to it, distinct from maintenance for iddat; so read the Act does not offend articles 14, 15 and 21.

Test yourself

1. Under what law was Shah Bano decided, and why does that matter? Under section 125 of the Code of Criminal Procedure 1973, a general law of criminal procedure applying to all citizens irrespective of religion. It matters because no personal law was tested or struck down, so the decision sidesteps the Narasu question entirely.

2. What did the Court hold about mahr? That its payment does not by itself discharge the husband's liability to maintain a divorced wife who is unable to maintain herself.

3. What does section 3(1)(a) of the Act of 1986 say, and how was it construed? That a divorced woman is entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. Danial Latifi construed "provision" and "maintenance" as distinct: the provision is for her future and must be MADE within iddat but may extend beyond it.

4. Who is liable under section 4, and in what order? Her relatives who would be entitled to inherit her property on her death according to Muslim law, in the proportions in which they would inherit; by the first proviso her children alone if she has children, and if they cannot pay, her parents; and by section 4(2), if there are no such relatives or they lack means, the State Wakf Board.

5. Can a divorced Muslim woman still proceed under section 125? Only if both she and her former husband declare, jointly or separately, on the date of the first hearing of an application under section 3(2), that they prefer to be governed by sections 125 to 128, which section 5 requires.

6. Why did the Court adopt the construction it did in Danial Latifi? Because on the narrow construction the Act would have deprived divorced Muslim women of what every other divorced woman has and would have offended articles 14, 15 and 21, and where one construction saves a statute and another destroys it, the saving construction is preferred.

7. How is the episode used on each side of the uniform civil code argument? Those in favour say it shows that ordinary political reform of personal law fails at the first serious test. Those against say it shows that judicial pronouncement on religious texts provokes a reaction which sets reform back, and that Danial Latifi reached the same result without any code.