The Shah Bano Case

The Shah Bano Case is one of the most significant lawsuits in the history of Indian Judicial system. The case pioneered the Muslim Women’s fight for justice over right to claim alimony, which to an extent threatened the inclusion of personal laws in the Indian constitution.

The Shah Bano case was one such instance that went beyond the rulings of Muslim personal laws that enjoy the authority to judge over disputes concerning marriage, gifts, inheritance, adoption and such. Though the procedure of Muslim divorce differs from one Islamic sect to another, in practice the husband can annul a marriage by declaring ‘Talaq’ three times to his wife in the presence of witnesses. The marriage can be dissolved even without the consent of the wife.

Shah Bano, a sixty two year old woman was given ‘talaq’ by following the procedures of the conventional Muslim personal laws. After she was given divorce she had no means to support her children and moved to the court to claim the alimony from her husband. It took seven years for the case to reach the Supreme Court, which on several hearings ruled in favour of her. Under Section 125 of the Criminal Procedure Code the court announced that Shah Bano be provided maintenance by her ex-husband with an upper limit of Rs 500 a month. This very decision of Supreme Court instigated a political uproar across the country. The minority community threatened to start agitations. The Congress Government, being conscious about the imminent elections succumbed to the pressure of orthodoxy. The Muslim Women (Protection of Rights on Divorce) Act 1986 was passed out with the 2/3 rd’s majority by the parliament. According to the act the husband is liable to pay the alimony during the time of iddat or for the span of three months after the divorce. Incase the divorced woman has no close relatives to look after her or she is incapable in paying her own maintenance, the magistrate has the right to order the State of waqf Board to take up the responsibility of providing support to the woman and her children.

Clause A in Section 3 (1) of the Act, says that a woman can claim "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.'' Though the act came under intense criticism, as for instance the BJP opined it to be an act of ‘appeasement’, the inclusion of the phrase ‘a reasonable and fair provision and maintenance to be made’ in the act does give enough space for the Muslim women to fight for a hefty sum of money after the divorce.