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1985: Shah Bano case

Print edition : Sep 16, 2022 T+T-

1985: Shah Bano case

Shah Bano.

Shah Bano. | Photo Credit: The Hindu Archives

The judgment was a landmark in India’s constitutional history.

The 1985 Shah Bano judgment was a landmark in India’s constitutional history, with vexed questions flaring up about the role of a secular state in matters of religion, the disorderly intersection of religious principles and individual rights as enshrined in a liberal democracy, and the gendered perspective on the need for reform in Muslim personal law.

Shah Bano in April 1978 filed a petition in a court in Indore, demanding maintenance from her divorced husband Mohammed Ahmad Khan, a well-known lawyer. The two had married in 1932 and had five children—three sons and two daughters. Shah Bano’s claim was premised under Section 123 of the Code of Criminal Procedure, 1973, which stipulates that a man will have to provide for his wife during the marriage and after divorce if she cannot sustain herself financially on her own.

However, Khan contested the claim on the grounds that the Muslim Personal Law limited the payment of maintenance till only the period of iddat. Iddat is a period, usually of three months, which a woman must observe after the death of her husband or a divorce before she can remarry.

In April 1985, the Supreme Court of India upheld the decision of the High Court that ordered the payment of maintenance to Shah Bano. The then Chief Justice Y.V. Chandrachud said that the moral edict of Section 125 was to provide a quick and summary remedy to a class of persons who are unable to maintain themselves and that morality cannot be clubbed with religion.

However, caught between the protesting Muslim clergy, who were backed by the All India Muslim Personal Law Board, and the Hindu right wing that had leaped on the verdict to push for a uniform civil code, the then Rajiv Gandhi government passed the Muslim Women (Protection on Divorce) Act, 1986, essentially overturning the Supreme Court verdict. Counted as one of Rajiv Gandhi’s most misguided decisions, the Shah Bano moment deeply antagonised the Indian middle class and powered the Hindu right wing’s subsequent attempts to pillory and erode the ideals of Nehruvian secularism.