Shah Bano Case Study

Abstract :

The paper attempts to explain the significant and an isolated incident in Indian history – the benchmark judgment of Supreme Court in the historical Shah Bano case and its aftermath.

In this paper I have adopted the analytical research methodolgy, wherein the researcher has to use the pre-existing facts or information, and analyze these to make a critical evaluation of the material. The research paper investigates the facts, issue, analysis, judgment and the controversy laid down.

INTRODUCTION :

In April 1985 , the Supreme Court delivered a judgment on the maintenance a divorced Muslim woman would be entitled to receive from her former husband in the case of Mohammed Ahmed Khan v. Shah Bano Begum , popularly known as the Shah

Three sons and two daughters were born of that wedlock. After 14 years, Khan married a younger woman as second wife and after years of living with both wives, he drove Shah Bano who was then aged 62 years , out of her matrimonial home alongwith her 5 children. In April1978, Shah Bano filed a petition against Khan under section 125 of the Code of Criminal Procedure, in the Court of the Judicial Magistrate (First class) Indore, asking for maintenance at the rate of Rs. 500 per month, in view of the professional income of the appellant which was about Rs. 60,000 per

Is there any provision in the Muslim Personal law under which a sum is payable to the wife ‘on divorce’ (like alimony) ?

The constitution bench delivered a unanimous verdict . First the court made reference to the religious neutrality of Section 125 CrPC , stating that whether the spouses were Hindus or Muslims , Christians or Parsis , Pagans or heathens was wholly irrelevant . Its interpretation was that the underlying purpose of Section 125 was to protect dependents from vagrancy and destitution. Thus it saw no reason to exclude muslims from its broad ambit .

Then the court distinguished between the subject areas covered by Muslim Personal law and S.125 of CrPC. According to it , Muslim personal law did not address did not contemplate a scenario where the divorced wife was unable to maintain herself after the iddat period ended. The court said that , in such a scenario , she would be entitled to seek maintenance under S.125 CrPC. By way of this interpretation , the court reconciled the muslim personal law and Section 125. In any even the court stated that if there was a perceived conflict between the two , the CrPC would override the provisions of Muslim personal law. [ The court’s rationale in this observation was that although muslim men were allowed to have up to 4 wives , S.125 also recognized that a wife had the right to stay from her husband and seek maintenance from him if he had another wife. Since no exemption was given for the muslims , the court proclaimed that