The Shah Bano Case: A Landmark Case in Indian Family Law

Posted on June 30, 2012 in Politics

By Rabia Mehta:

Not only did the Shah Bano case [1985 AIR 945, 1985 SCC (2) 556] challenge Muslim personal (Sharia) law, it triggered a debate and paved the way for Muslim women’s fight for justice. Shah Bano, a 62 year old woman from Indore, was divorced by her husband in 1978. Unable to support herself and her five children, she moved the courts to be granted maintenance from her ex-husband. Seven years and several judgments later, the Supreme Court ruled in favour of granting Shah Bano alimony. Largely seen as a threat to Sharia law by some Muslims, what followed a debate over the constitutionality of including different marriage and personal laws for different religion, and resulted in the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986, by the government.

The case was significant for several reasons. In giving its judgment, the Court ordered maintenance with an upper limit of Rs. 500 monthly, under Section 125 of the Code of Criminal Procedure, 1973, which applies to all citizens regardless of caste or religion. Although seen by many as a secular judgment, it invoked a strong reaction from the Muslim community, which felt that the judgment was an encroachment on Muslim Sharia law. It led to the formation of the All India Muslim Personal Law Board in 1973, an organization that sought to preserve and protect the applicability of the Muslim Personal Law (Shariat) Application Act, 1937. The backlash from the Muslim community prompted the government to begin parliamentary procedures that, in essence, overturned the Supreme Court’s decision. The Muslim Women Act (Protection of Rights on Divorce), 1986, was passed amidst great controversy and debate. Many argued that it was a way to appease the minority group that was threatening agitation.

The Act states that the husband must pay alimony during the period of iddat (3 months following the divorce). In case the woman has no means to support herself, or has no relatives that can look after her, a magistrate can order the state WAKF board to provide sustainable maintenance to the woman and any dependent children. It does not define an upper limit to the maintenance. It states that women may seek reasonable and fair compensation during the iddat, and that any children borne of the marriage are entitled to a further maintenance as well. Because there is no upper limit to the compensation, it is not unusual for Muslim divorcees to receive large lump-sums from their former husbands. (In 2009, the courts ruled that Section 125 of the CPC (1973) applies to Muslim women as well,, and that alimony can be sought after the period of iddat ends as long as the woman does not remarry.)

The Act gave women a chance to claim fair and rightful compensation, but it also drew criticism from various groups. Minority Rights Group International, an NGO based in the U.K., denounced the law, commenting that it “highlighted the disjunction between constitutional law premised on the principle of sexual equality and religious laws which discriminate on the basis of this very category.”

Shah Bano’s case brought the need for a secular Uniform Civil Code into the limelight again. To date, however, individual Personal Laws based on religion are still in effect. The case remains a ground-breaking one in Indian divorce law and is often used as a benchmark by the courts.