Case Comment :: The Shah Bano Case as Constitutional Conflict in India’s Muslim Family Law

India editor Akhila Kolisetty highlights the Shah Bano case as a marker of constitutional conflict between the Indian government’s civil laws and its Muslim citizens’ personal status laws.

Mohammed Ahmed Khan v. Shah Bano Begum is a landmark case dealing with Muslim family law in India decided by the Indian Supreme Court in 1985This case addressed a conflict between India’s civil laws and its Muslim personal status laws (called “Muslim Personal Laws”), triggered by a specific provision related to maintenance after divorce. The case highlighted questions with which a country like India – which has a mix of civil laws that apply to all its citizens and religious personal status laws that apply only to religious subsets of the population – must constantly confront. It also exposed tensions between the government’s promotion of gender equality and the resulting conflict with religious law and politics. Because of its controversial outcome, it also sparked protest, opposition, and subsequent reform.

In the Shah Bano case, a 72-year-old Muslim woman petitioned a local criminal court (the First Class Judicial Magistrate Court, which is one of the subordinate courts within a state) in Indore, Madhya Pradesh to order her husband, who had divorced her after a 46-yearlong marriage, to pay her maintenance as required under Section 125 of India’s Criminal Procedure Code.[1] That section of the Code (which applies to all Indian citizens, including Muslims) requires a husband to pay enough to maintain his divorced wife for as long as she has not remarried – and as long as she is not living in an adulterous situation, refusing to live with her husband without sufficient reason (e.g., if he has remarried), or the couple are living apart by mutual agreement.[2]

In his defense, the ex-husband argued that Islamic law (sharīʿa) only required him to pay maintenance for the iddat period (a three-month period to finalize the divorce).[3] Indeed, under classical interpretations of Islamic law, upon divorce, a Muslim wife is generally entitled to maintenance during the iddat period, but the husband’s obligation to maintain his wife ends upon the expiration of this period.[4] Thus, while classical Islamic law requires maintenance only in the iddat period, Indian state law requires monthly maintenance for a divorced woman until her remarriage. Because there is no time limit specified in Section 125 for the period for which maintenance is due under Indian state law, the maintenance payments could potentially continue for the rest of a divorced woman’s life.[5] The Magistrate required her ex-husband to pay 25 rupees a month, and on appeal, the High Court of Madhya Pradesh ordered him to pay 179.20 rupees per month. The case was then appealed to the Indian Supreme Court.[6]

The Supreme Court ultimately upheld the lower court’s decision, holding that if a divorced wife is unable to maintain herself, in addition to maintenance paid during the iddat period under Islamic law, a husband must also provide his ex-wife with a monthly allowance in accordance with the Criminal Procedure Code. The Court noted that civil provisions “do not supplant the personal law of the parties,” but that simultaneously, the religion of the parties and the personal law that applies to them “cannot have any repercussion on the applicability of such laws . . . .”[7]

This case was unique in that the justices were willing to intervene in Muslim personal status law after a long history of non-interference in community religious norms and personal laws.[8] Moreover, it represented the Court’s willingness to expand and strengthen the rights of Muslim women, even if it meant stepping into the previously avoided zone of Muslim personal status law.

The Shah Bano case sparked substantial pushback from orthodox Muslim leaders in India.[9] A likely reason that this decision triggered such an outcry is that it was handed down during a tense political climate. The Hindu BJP party was gaining increasing support and popularity in India, resulting in a heightened sense of apprehension within the Muslim community.[10] Amid such tensions, many Indian Muslims viewed the Court’s decision as an unnecessary encroachment by a largely Hindu court into Muslim personal status law, a stronghold of the Muslim community’s identity during that time.[11]

In response, in large part to appease the Muslim community and soothe the sparks of conflict, the government passed the 1986 Muslim Women (Protection of Rights on Divorce) Act.[12] The Act essentially overrode the Shah Bano decision, requiring the provision of reasonable and fair maintenance only during the iddat period.[13] According to the Act, a Muslim wife is entitled to further maintenance payments if she is alone in caring for children for a period of two years after their birth.[14] However, the Act did not require Section 125 of the Criminal Procedure Code to be followed unless there was a mutual written agreement filed in court between the former spouses specifying that they seek to be governed by Section 125 of that Code.[15]

In this way, the Act resolved the conflict between state and Islamic law by affirming the supremacy of Muslim personal status laws in cases involving maintenance post-divorce but providing for adherence to state law by mutual agreement. It was a win for the supremacy of religious personal status law, but many women’s rights activists viewed it as a step backwards.[16] As a result, the case generated substantial interest in the issue of Muslim women’s rights and through backlash, promoted action by women’s rights activists.[17] Its legacy has continued in both Indian legal circles and international scholarly circles.[18]

[1] Mohd. Ahmed Khan v. Shah Bano Begum And Ors, (1985) 3 S.C.R. 844, 849.

[2] Code Crim. Proc. §125(1)(d)(b), §125(4), 125(3). The second provision, stipulating that a divorced wife should provide a good reason for refusing to live with her husband in order to obtain maintenance, is quite unusual. It appears to refer to a situation where the husband may offer to continue maintaining his wife by allowing her to continue living with him, and she refuses; in that case, she would not be entitled to continued maintenance. As this is a criminal statute, it may be that the statute is written narrowly to avoid penalizing ex-husbands unnecessarily if they do offer support, and are refused. See Rakesh K. Singh, Textbook on Muslim Law 166 (2011).

[3] Shah Bano, 3 S.C.R. at 850. See also Ayelet Harel-Shalev, Policy Analysis beyond Personal Law: Muslim Women’s Rights in India, 41 Politics & Policy 384, 392­–93 (2013).

[4] Shah Bano, 3 S.C.R. at 857­–58 (citing Dinshah Fardunji Mulla, Principles of Mohammedan Law ¶ 279 (18th ed.); Faiz Badruddin Tyabji, Muslim Law: The Personal Law of Muslims in India and Pakistan 268-69 (4th ed.)).

[5] Code Crim. Proc. § 125.

[6] Shah Bano, 3 S.C.R. at 844.

[7] Shah Bano, 3 S.C.R. at 854.

[8] Harel-Shalev, Policy Analysis beyond Personal Law 393.

[9] See Siobhan Mullally, Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case, 24 Oxford J. Legal Stud. 671, 672 (2004).

[10] Id.

[11] Nida Kirmani, Claiming Their Space: Muslim Women-led Networks and the Women’s Movement in India, 11 J. Int’l Women’s Stud. fn. 3 (2009).

[12] Mullally, Feminism and Multicultural Dilemmas in India 672; Muslim Women (Protection of Rights on Divorce) Act, 1986, Art. (1)(2); See also Harel-Shalev, Policy Analysis beyond Personal Law 394, 404.

[13] Muslim Women (Protection of Rights on Divorce) Act, 1986, Art. (3)(1)(a).

[14] Muslim Women (Protection of Rights on Divorce) Act, 1986, Art. (3)(1)(b).

[15] Muslim Women (Protection of Rights on Divorce) Act, 1986, Art. (5).

[16] Kirmani, Claiming Their Space 75.

[17] Id.

[18] See, e.g. Mullally, Feminism and Multicultural Dilemmas in India 672; Nawaz B. Mody, The Press in India: The Shah Bano Judgment and Its Aftermath, 27 Asian Surv. 935, 935–53 (1987); Peter J. Awn, Indian Islam: The Shah Bano Affairin Fundamentalism & Gender 63, 63–78 (John S. Hawley ed., 1994); Zakia Pathak & Rajeswari S. Rajan, Shahbano, 14 Signs 558, 558–82 (1989); Martha Nussbaum, India: Implementing Sex Equality Through Law, 2 Chi. J. Int’l L. 35 (2001); Asghar Ali Engineer, The Shah Bano Controversy (1987); Robert D. Baird, Traditional Values, Governmental Values, and Religious Conflict in Contemporary India, 2 BYU L. Rev. 337, 345–46 (1998); Zoya Hasan, Gender Politics, Legal Reform, and the Muslim Communityin Appropriating Gender: Women’s Activism and Politicized Religion in South Asia 71, 71–78 (Patricia Jeffery & Amrita Basu eds., 1998); Radhika Coomaraswamy, Identity Within: Cultural Relativism, Minority Rights and the Empowerment of Women, 34 Geo. Wash. Int’l L. Rev. 483, 501–04 (2002).