The article has been written by Mr. Rajdeep Hembram, a 1st year LLM student from University Law College, Hazaribagh, Jharkhand
Introduction
The Mohd. Ahmad Khan vs. Shah Bano Begum & Ors. or the Shah Bano maintenance case is seen as one of the legal milestones in battle for protection of rights of Muslim women. While the Supreme Court upheld the right to alimony in the case, the judgment set off a political battle as well as a controversy about the extent to which courts can interfere in Muslim personal law. The case laid the ground for Muslim women’s fight for equal rights in matters of marriage and divorce in regular courts, the most recent example being the Shayara Bano case in which the Supreme Court invalidated the practice of instant triple talaq.
The case caused the Congress government, with its absolute majority, to pass the Muslim women(Protection of rights on Divorce) Act 1986, which diluted the judgment of the Supreme Court and restricted the right of Muslim divorcées to alimony from their former husbands for only 90 days after the divorce (the period of iddah in Islamic law). However, in later judgements including the Danial Latifi v. Union of India case and Shamima Farooqui v. Shahid Khan, the Supreme Court of India interpreted the act in a manner reassuring the validity of the case and consequently upheld the Shah Bano judgement, and The Muslim Women (Protection of Rights on Divorce) Act 1986 was nullified.
Later on The Muslim Women (Protection of Rights on Divorce) Act 2019 was enacted and banned completely triple talaq.
What is The Muslim Women (Protection of Rights on Divorce) Act 1986 and why it was enacted ?
The judgement given in Shah Bano Case was criticized among Muslims and according to them this decision was in conflict with the rules of “Quran” and “Islamic Laws/ Islam”. So Parliament of India in 1986, (Congress govt.) decided to enact the Muslim women (Protection Of Rights Of Divorce) Act, 1986. The main objective of this act was to protect the right of the divorced Muslim women and or to those who have got divorce from their husband’s.
The enactment of this act was done by government of Rajiv Gandhi, to invalidate the decision/decree passed by Supreme Court in Shah Bano Begum Case. According to this act, Muslim divorced women should be entitle to adequate and reasonable amount of maintenance till the Iddat period. When a divorced women maintains a child born by her any time before or after the divorce, the husband is under legal obligation to provide a certain amount of maintenance for the child to a period of 2 yrs. From the birth date of a child. The women is also authorized to obtain “Mahr” or “dower” and receive back all the properties or estate which is provided to her by her parents, friends, relatives, husband or husband’s friends. If such advantages are not received by the divorced Muslim women from her former husband, she can apply to magistrate for ordering him to provide her with maintenance/alimony or amount of “Mahr” or dower or her estate or properties
How The Muslim Women (Protection of Rights on Divorce) Act 2019 was passed ?
The Muslim women(Protection of Rights on Divorce) Act 1986 passed on 30 July 2019 after a very long discussion and opposition finally got the verdict (the Indian Supreme Court judgement of August 2017 described below) to all women. It made triple talaq illegal in India on 1 August 2019, replacing the triple talaq ordinance promulgated in February 2019. It stipulates that instant triple talaq (talaq-e-biddat) in any form – spoken, written, or by electronic means such as email or SMS – is illegal and void, with up to three years in jail for the husband. Under the new law, an aggrieved woman is entitled to demand maintenance for her dependent children.
The Government first introduced the bill to Parliament on 22 August 2017. MPs from Rastriya Janata Dal, All India Majlis-e-Ittehadul Muslimmen, ,Biju Janata Dal, All India Anna Dravida Kazhagam, Indian National Congress and All India Muslim League opposed the bill. Several Opposition lawmakers called for it to be sent to a select committee for scrutiny. It was passed on 28 December 2017 by the Lok Sabha, or lower house of the Indian Parliament, where the ruling BJP held the majority of seats.
What is triple talaq ?
Triple talaq is a form of divorce that was practised in Islam, whereby a Muslim man could legally divorce his wife by pronouncing talaq (the Arabic word for divorce) three times. The pronouncement could be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. The man did not need to cite any cause for the divorce and the wife need not have been present at the time of pronouncement. After a period of Iddat during which it was ascertained whether the wife is pregnant, the divorce became irrevocable. In the recommended practice, a waiting period was required before each pronouncement of talaq, during which reconciliation was attempted. However, it had become common to make all three pronouncements in one sitting. While the practice was frowned upon, it was not prohibited. A divorced woman could not remarry her divorced husband unless she first married another man, a practice called nikaha halala.
The practice of talaq-e-biddat is said to have been around since the period of Caliph Umar, more than 1400 years ago. The Supreme Court described it as “manifestly arbitrary” and said that it allows a man to “break down [a] marriage whimsically and capriciously”.
Fact of the case
In 1932, Mohd Ahmed Khan (appellant) was a lawyer by profession, married to Shah Bano Begum (respondent), and had three sons and two daughters from this marriage. In 1975, Shah Bano Begum, aged 62 years, was abandoned by her husband and thrown out of her marital home with her children. In 1978, she brought an appeal before the Judicial Magistrate of first class, Indore claiming maintenance of Rs. 500 per month under Section 125 of CrPC. Then, her husband gave her irrevocable triple talaq and used it as a defence for not paying maintenance as they were no longer husband and wife and had already been paying maintenance of Rs. 200 per month for about two years. Also, he had deposited a total of Rs. 3000 in the court through dower during the period of iddat. In 1979, the Magistrate directed the husband to pay a maintenance of Rs 25 per month. In 1980, Shah Bano filed a revisional application in the MP High Court to change the amount of maintenance which the High Court increased to Rs. 179 per month. The husband then challenged this application in the Supreme Court as a special leave petition.
Issues of the case
Under Sec. 125 CrPC, whether the definition of wife includes a divorced Muslim woman?
Whether Section 125 CrPC overrides personal law?
Whether a Muslim husband’s is obligated under Sec. 125 CrPC to provide maintenance for a divorced wife if there is a conflict between section 125 and Muslim Personal Law?
Under Section 127(3)(b) CrPC, what is the sum payable on divorce and whether the meaning of Mehar or dower is not summed payable on divorce?
Judgement:-
The judgements are in points
The verdict of Shah Bano case was conveyed by C.J, CHANDRACHUD.
2. All India Muslim Personal Law Board and Jamiat ulema-e-Hind were the two Muslim Bodies accompanied the lawsuit as an intervenor.
3. On 3rdFeb. 1981, Supreme Court gave an like-minded conclusion in this case and banished the plea of Mohd. Ahmad Khan and validate the verdict of High Court.
4. The court held that Section 125[3]of Code Of Criminal Procedure solicited to Muslims too, without any sought of discrimination.
5. Supreme Court in this case duly held that, since responsibility of Muslim husband towards her divorced wife is limited to the extent of ” Iddat” period , even though this situation does not contemplates the rule of law that is mentioned in Section 125 of CrPc.,1973[4]
6. According to Supreme Court this rule according to Muslim Law was against humanity or was wrong because here a divorced wife was not in a condition to maintain herself.
7. Thus at the end, after very long procedure court finally concluded that the husband is legal liability will come to an end if divorced wife is competent to maintain herself.
8. But this situation will be reversed in the case when wife is not able in a condition to to finance or maintain herself after the Iddat period, she will be entitle to receive maintenance or alimony under Section 125 of CrPc.
Conclusion
From the above discussion Shah Bano case brought new light as well hope to entire muslim women. They were so easily divorced by their husband by triple talaq, there was no law to govern. But the legislature after criminalising the triple talaq not only given power to muslim women to exercise their right, but also given social status.
References
Shah bano case
https://en.wikipedia.org/wiki/Mohd._Ahmed_Khan_v._Shah_Bano_Begum
triple talaq
https://byjus.com/free-ias-prep/triple-talaq-bill-upsc-notes/
The Muslim Women (Protection of Rights on Divorce) Act 2019
https://static.pib.gov.in/WriteReadData/specificdocs/documents/2021/sep/doc202192011.pdf
criminalisation of triple talaq