OverviewIn a landmark judgment delivered in April 1985,
India’s Supreme Court granted a small mainte-
nance allowance to Shah Bano, a seventy-three-
year-old Muslim divorcee, to be paid by her
husband under the Criminal Code. Shah Bano had
been married to Mohammed Ahmed Khan since
- Ahmed Khan married again in 1946, and in
1975, on account of property-related disputes
between the two wives, Shah Bano and her children
moved out from their family home; in 1978 she
filed a maintenance suit against her husband in the
Judicial Magistrate’s Court in Indore, appealed to
Section 125 of the Criminal Procedure Code, and
pleaded for Rs. 500 as monthly maintenance. To
avoid maintenance under this section, Khan
divorced Shah Bano by irrevocable triple †alàq. In
August 1979, the local magistrate ordered that
Ahmed Khan pay her maintenance of Rs. 25 per
month, which was later revised on her appeal to
Rs. 179 by the Madhya Pradesh High Court. In
an appeal to the Supreme Court, Ahmed Khan
argued that since he had fulfilled his obligations
under religious personal laws, Islamic law placed
no further maintenance liability upon him; rather
Section 125 conflicted with his rights under per-
sonal law.
The Supreme Court, headed by Chief Justice
Chandachud, dismissed the appeal and confirmed
the judgment of the Madhya Pradesh High Court.
The Apex Court was asked to pronounce on
the relationship between these sections of the
Criminal Procedure Code of 1973 and religious
personal law. The Court ruled that Section 125, as
part of criminal rather than civil law, overrides all
personal law and is uniformly applicable to all
women, including Muslim women. The judgment
was supported by detailed citations from the
Qur"àn, to show that a husband is obliged to pro-
vide maintenance for his divorced wife if the wife is
unable to provide for herself. It also raised the ques-
tion of a uniform civil code, arguing that if the con-
stitution was to have meaning, the aspiration
contained in Article 44 must be realized.
The judgment sparked off a major political
uproar. Outraged by the judgment, the religious
leadership, including the Jamaat-e-Islami, the
Jamiat-al-Ulema and the All India Muslim Personal
Shah Bano Affair
Law Board, spearheaded an agitation to repeal it.
There was a spate of meetings, marches, and con-
ferences all over the country to protest against the
danger it posed to Muslim minority identity. The
central issue in the agitation was the sanctity of reli-
gious personal law. As against this, the campaign in
favor of the judgment, dominated by champions of
women’s rights and liberal Muslims who consid-
ered the reform of personal laws desirable, was
much smaller.
To understand this controversy one has to look at
the context in which it arose. The past two decades
have witnessed a steep rise in communal violence
and identity politics in the larger political arena.
The Shah Bano affair and the unlocking of the gates
of the Babri Masjid in Ayodhya in 1986 saw the
growth of a massive Rama temple movement,
resulting in the rapid escalation of political violence
and support for the Hindu nationalist Bharatiya
Janata Party (which leads the National Democratic
Alliance that has ruled India since 1998). The lack
of any noticeable opposition among Hindus to the
countrywide violence unleashed in the wake of the
temple movement, compared to the outrage against
the Muslim Women’s (Protection of Rights on
Divorce) Act (MWA) of 1986, left large sections of
the Muslim population feeling vulnerable. For its
part, the Congress government showed no concern
for Muslim feelings about the campaign against the
Babri mosque, which culminated in its eventual
demolition in December 1992, in contrast to the
extraordinary concern for the Muslim position on
the Shah Bano case.
Prime Minister Rajiv Gandhi sought to placate
the disquiet of the religious leadership and their
perception of threat to Muslim identity by enacting
the MWA to override the judgment and unequivo-
cally exclude Muslim women from the purview of
the Criminal Code, to which all citizens otherwise
had recourse. The principal objective of the legisla-
tion in the context of the Shah Bano controversy
was: “to specify the rights which a Muslim
divorced woman is entitled to at the time of her
divorce and to protect her interests.” Under the
MWA a divorced Muslim woman is entitled to, (a)
“a reasonable and fair provision of maintenance”
within the period of ≠idda; (b) two years’ mainte-
nance for her children; (c) her dowry and all other
properties given to her by her relatives, husband,