Shah Bano, and the Statute That Followed It

In one line

A divorced Muslim woman won maintenance under a criminal procedure code in 1985, Parliament passed an Act in 1986 to take it away, and in 2001 the Supreme Court upheld the Act by construing it to give her more than she had won in the first place.

In the wording a student can write in an exam: in Mohd. Ahmed Khan v. Shah Bano Begum the Supreme Court held that section 125 of the Code of Criminal Procedure 1973 applies to all citizens irrespective of religion, that a divorced Muslim wife unable to maintain herself is a "wife" for its purposes, and that the payment of mahr does not by itself discharge the husband's liability. Parliament responded with the Muslim Women (Protection of Rights on Divorce) Act 1986, whose section 3 confines the former husband's obligation to a reasonable and fair provision and maintenance "to be made and paid to her WITHIN THE IDDAT PERIOD". In Danial Latifi v. Union of India the Court upheld the Act but construed section 3(1)(a) so that the liability to make a REASONABLE AND FAIR PROVISION is not restricted to the iddat period: the provision must be MADE within iddat but may EXTEND BEYOND it, and so read the Act does not offend articles 14, 15 and 21.

The judgment of 1985

In Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945; (1985) 2 SCC 556; 1985 (3) SCR 844, decided on 23 April 1985. Facts. Shah Bano Begum, a Muslim woman divorced by her husband after forty-three years of marriage, applied for maintenance under section 125 of the Code of Criminal Procedure 1973. The husband contended that under Muslim personal law his obligation was limited to maintenance during the period of IDDAT and to the payment of MAHR, and that he had discharged it.

Held. The appeal was dismissed and the High Court's award confirmed. Section 125 is a provision of the GENERAL LAW OF CRIMINAL PROCEDURE applicable to all citizens irrespective of religion, its object being to prevent VAGRANCY AND DESTITUTION; a divorced Muslim wife who is unable to maintain herself is a "wife" for its purposes and is entitled to apply. The payment of mahr does not by itself discharge the liability. The Court held that there was no conflict between the provisions of section 125 and those of Muslim personal law on the obligation of a Muslim husband to provide maintenance for a divorced wife unable to maintain herself. It added observations regretting that article 44 had remained a DEAD LETTER and expressing the hope for a common civil code. Liberty was reserved to apply under section 127(1) for enhancement on proof of changed circumstances.