The Shah Bano Mandate: The Need For Revival

Long back in 1985 came the landmark judgment of the Supreme Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum, which gave way to controversies in the Muslim world. To do away with the mandate of the Supreme Court, which was supposedly incorrect in law, the Parliament of India in the year 1986 came up with a legislation which sought to expressly overrule the said judgment, it came to be known as the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter the 1986 Act). The Statement of Objects and Reasons of the Act was very clear on the count that not only was the disagreement which supposedly crept in due to the Shah Bano decision was to be sorted out, but also proper protection was to be ensured to divorced Muslim women of the nation. After almost twenty years of the Act having been passed and with its interpretation and constitutionality well determined under judgments of the Supreme Court and various High Courts, one would feel that Act and its interpretation has served the purpose sought to be achieved by the Indian Parliament in 1986. But unfortunately there remain some fallacies both in the statute and its interpretation, which have gone unnoticed and need to be looked into. This article aims at pointing out the same and thus exposing the need to restore the 1985 mandate of the constitutional bench of the Supreme Court.

Maintenance beyond the iddat period: What does the Muslim personal law say?

It would be necessary, at the very outset, to consider the fundamental question of law, which the Supreme Court determined in its judgment back in 1985. It was that whether a divorced Muslim woman could claim maintenance against her husband even after the expiration of the iddat period (under Muslim personal law)?
The Supreme Court, in order to answer the above question perused through Aiyats 241 & 242 of the Holy Quran and came to the conclusion (para. 14 read with para. 22 of the judgment) that the liability of a husband under Muslim personal law to maintain his wife would cease only if his divorced wife is able to maintain herself after the expiration of the iddat period.

Ironically, the Supreme Court in the subsequent case of Daniel Latifi v. Union of India (para. 32 of the judgment) opined that these findings of the Constitutional Bench of the Supreme Court in 1985 were correct. It is however noteworthy that in the 2001 judgment itself the Supreme Court also opined that recourse under Section 125 of the Code of Criminal Procedure (hereinafter Section 125 Cr.P.C.) would be available only via Section 5 of the 1986 Act, thus conditioning the right of a Muslim women to claim maintenance against her husband beyond the iddat period which clearly, keeping in mind that it also approved of the interpretation of Aiyats 241 & 242 given by the Constitutional Bench in 1986, is antithetical to the text of the Holy Quran.

Moreover it should also be seen that with the radical difference, which exists in the remedies under the 1986 Act and Section 125 Cr.P.C., no prudent man would ever consent to recourse under the Cr.P.C., which has been made a mandatory requirement under Section 5 of the 1986 Act for recourse to be taken under Cr.P.C. Thus Section 5 is not a provision, which facilitates the recourse under Section 125 Cr.P.C., but is virtually a bar put to such recourse. Therefore, as the law stands for today, a Muslim women is virtually deprived of any claim for maintenance to be made against the husband beyond the iddat period and thus the 1986 Act, which was supposed to safeguard the rights of a divorced Muslim women, is clearly working to the detriment of the same.

Possible Remedy under Section 125 Cr.P.C. for a divorced Muslim women

After various judicial decisions on this count, it is very clear in law that a Muslim woman is entitled to maintenance from her husband even beyond the iddat period under Section 125 Cr.P.C. (if at all she is allowed to take such recourse). Decisions like Fuzlunbi v. K. Khader Vali and Bai Tahira v. Ali Hussain Fidaalli Chothia, both of which were cited with approval in the Shah Bano case make it very clear that dower does not fall within the meaning of Section 127(3)(b) Cr.P.C., as it is not only a consideration for marriage but also a mark of respect for the women and hence not a sum payable on divorce. Thus Section 125 Cr.P.C. provides a remedy, which actually is in consonance with the text of the Holy Quran i.e. the Muslim husband would be made to pay maintenance to his divorced wife if she is unable to maintain herself even beyond the iddat period.

Remedy under the 1986 Act: Is it justified and adequate?

The crux of the reasoning of the Supreme Court in 2001, when it upheld the Constitutionality of the 1986 Act, was that the remedy provided therein served the purpose Section 125 would otherwise serve and also that personal law was a reasonable basis for classification.

It is submitted that if one looks into the recourse provided under the 1986 Act, it would be a three-fold remedy. Firstly till the expiration of the iddat period, the husband has been obliged to maintain the wife. Secondly after the expiration of the iddat period, the divorced women has her first claim of maintenance against her own family, but if the family members are unable to maintain the divorced women, then the ultimate claim for maintenance lies against the State Wakf Board.

It is submitted that there have also been different opinions on the liability of the husband under the Act. Where courts have opined that the husband’s liability under the Act does not cease on the expiration of the period of iddat , opinions to the contrary also exist . However the Supreme Court in its decision in the year 2001 made the position of law clear while choosing the latter i.e. the liability of a Muslim husband under the Act would cease once the iddat period expires. Therefore after the law seems to be settled on the count that under the 1986 Act, the husband’s liability would cease on the expiration of the iddat period, the adequacy and justifiability of the remedy available under the Act could be looked into. Following are the two loopholes in the Statue, which need to be considered and corrected:

Fallacies in the 1986 Act:

Antithetical to Muslim Personal Law: The first and the foremost ground on which the remedy could be rejected as unjustified is that it is antithetical to what the Holy Quran mandates and where the liability to maintain the wife after the expiration of the iddat period is that of the husband, there would be absolutely no justification for putting the burden of the same over the woman’s family or for that matter even the State. Also the mention of such procedure as mandated under the 1986 Act in the text of Quran is suspect. In such a circumstance it would nowhere be valid to accept that, what actually should be the husband’s liability is left to his own choice under Section 5 of the 1986 Act, by way of which he is virtually absolved of the liability of maintaining his wife beyond the period of iddat.
Violative of Article 14: The second ground of invalidating the statute is one, which was also considered in the 2001 decision of the Supreme Court i.e. it being violative of Article 14 of the Constitution as it discriminates against and deprives Muslim Women from the secular remedy available under Section 125 Cr.P.C. The justification given by the Supreme Court in 2001 against this argument was simply that personal laws are a reasonable basis for classification, hence the 1986 Act cannot be said to violate Article 14. It is submitted that the justification given would be of no rescue to the Act, because even if one concedes to the fact that personal laws are a reasonable basis of classification, what needs to be looked into is that in what circumstances are they considered a reasonable mode of classification.

For the sake of an example, if a Hindu claims violation of Article 14 against the offence of bigamy, it is very clear in law that because Muslims have four marriages allowed under their personal law, while Hindus are not, so personal laws being a reasonable basis for classification, Article 14 is not violated. But at the same time if a Hindu is deprived of a Marriage under the Special Marriage Act, 1978 while a Muslim at the same time is allowed (keeping in mind that where both religions do not recognize inter-cast marriages, both also don’t put a bar on the same), Article 14 would certainly be violated. Both these examples read together make it very clear that where a person from one religion cannot claim a privilege enjoyed by another by virtue of his personal law, a person can certainly claim a secular remedy provided in law which is enjoyed by people of all religions and which is not barred by the person’s religion.

Therefore when a Muslim women is virtually being debarred of a secular remedy under Section 125 Cr.P.C., when there is no bar against the same in her personal law, not only is Article 14 violated, but also the directive for Uniform Civil Code under the Constitution disregarded. Thus when the Supreme Court in 2001 opined that the purpose of Section 125 Cr.P.C. is served by the 1986 Act itself, it was certainly an incorrect statement because Section 125, Cr.P.C. served a secular purpose apart from serving the purpose of maintenance, something which a personal law can never serve and something which is vital keeping in mind the directive of Uniform Civil Code under the Indian Constitution. Ironically the Court (in para. 32) opined that, ‘it (the 1986 Act, which was a legislative overruling of the Shah Bano case) actually in reality codifies what was stated in the Shah Bano case’. If one peruses through the mandate of the Supreme Court in the Shah Bano decision, it was that Section 125 Cr.P.C., being a secular remedy would be above the remedy under Muslim personal law and a divorced Muslim women would be entitled to maintenance from her husband even after the iddat period expires. It is submitted that this mandate can in no condition be paralleled to what has been stated under the 1986 Act, which virtually absolves a Muslim male from his liability to maintain his wife beyond the iddat period and which virtually puts an end to the secular remedy under Section 125 Cr.P.C. for the purposes of a divorced Muslim wife.

Conclusion
Therefore it is evident from the above analysis that the 1986 Act and its interpretations are not only against Muslim Personal law but also against the Right to Equality and the directive for Uniform Civil Code enshrined in the Constitution of India. Thus it becomes the need of the hour to do away with Section 5 of the 1986 Act and to effectively make available to divorced Muslim women the secular remedy under Section 125 Cr.P.C., hence reviving the mandate of the Supreme Court in its decision in 1985 in the Shah Bano case.

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