SHAH BANO CASE:

1986 ACT
P R E S E N T E D B Y : A R N AV B I S H N O I
R O L L N O. 1 5 2 4 4
G R O U P N O. 2 2
INTRODUCTION
The preamble of the Indian Constitution resolves to constitute India into a secular,
Democratic Republic. This means, there is no state religion and the state shall not
discriminate on the same. Though, in criminal matters there is no discrimination but when
we talk about personal matters there lies no similarity and what lies is an ocean of
dissimilarities.

This case didnt involve any question of constitutional importance but, that is not to say that
it does not involve any question of importance. Some questions which arise under the
ordinary civil and criminal law are of a far-reaching significance to large segments of society
which have been traditionally subjected to unjust treatment. Women are one such segment.

This judgment had given way to controversies in the Muslim world.

BACKGROUND TO THE CASE
This case raises a straightforward issue which is of common interest not only to
Muslim women, not only to women generally but, to all those who, aspiring to
create an equal society of men and women, lure themselves into the belief that
mankind has achieved a remarkable decree of progress in that direction.
In the books on Muslim law by Mulla and also by Tyabji, both of them contain a
similar statement that: On the expiration of the iddat after tlaq, the wifes right to
maintenance ceases, whether based on Muslim Law, or an order under the Criminal
Code.
But the question as to whether S.125 of the Code applies to Muslims also is
concluded by two decisions of the Supreme Court which are reported in Bai
Tahira v. Ali Hussain Fidaalli Chothia & Ors and Fuzlunbi v. K. Khader Vali .
These two decisions took the view that the divorced Muslim wife is entitled to
apply for maintenance under S.125.
SITUATION PRIOR TO THE JUDGMENT
The CrPC 1973, (S. 125). Here Religion is no bar for non applicability of this
provision, for it is a part of Criminal Procedure and not of Civil Laws.
In CrPC, S. 125(1)(b) defines wife as including a divorced wife, until she remarries
and contains no word of limitation to justify the exclusion of Muslim women from
its scope. Thus, it is truly secular in nature and according to Jagir Kaur v. Jaswant
Singh, it intends to serve a social purpose.
Vide 1973 Act, a fictional relationship has been created that of wife even after
divorce by statute in view of the social conditions prevalent in the country to
prevent quondam husbands to drive their ex- wives to a state of poverty and
destitution till they remarry.
S.127 (3) raised two issue, (1) whether the sum received by the divorced woman
under the personal law included dower or mahr, and (2) whether the wife was
debarred from claiming further maintenance even if the aforementioned amount
paid to her was just nominal.
THE AFTEREFFECT OF THE JUDGMENT
The decision drew criticism from the conservative groups within Muslim community. A
bench of five Hindu judges delivering a verdict on interpretation of verses of the Holy
Quran and critiquing the principles of Islam, with the judgment going to the extent of
saying that the degradation of women was the fatal point of Islam, was only to add to
the communal tension, given the political environment surrounding the decision.
The Congress Government, which had came to power in 1984 felt a need to pacify the
masses and accordingly passed the Muslim Women (Protection on Divorce Act), 1986.
The Act applies only to Muslim wives who have been divorced and not to those wives
whose marriage is legally subsisting.
Under the provision of S. 4 of the Act of 1986, when relatives mentioned in S. 4(1) viz.
Children, parents and other relatives are unable to maintain a divorced wife; she can file
a petition against the Wakf Board.
CASE LAWS POST 1986
Shamshad Begum An order granting maintenance to a divorced Muslim
woman before the coming into force of the Act of 1986,
v. Md. Noor was held to be enforceable even after the coming of the
Ahmed Act.

Shaikh Babu v. Here a divorced wifes petition filed u/s 125 of the 1973s
Code was resisted by her former husband on the ground
Sayeda Masarat that after the 1986s Act, she could not resort to S. 125,
Begum the Bombay H.C. made significant observations in this case.

It is a recent judgment of SC which clarified that a petition

Shahbana Bano by divorced Muslim Woman u/s 125 of the CrPC against her
v. Imran Khan husband is maintainable even after the Iddat period as long
as she doesnt remarry.
CONCLUSION
The issue of maintenance for Muslim divorced wives remains an unsolved riddle even
after so many cases being filed, legislations being passed and the societys mindset and
thinking being overhauled in such duration, still there is not conclusive result as to this
matter as it has just not remained a matter of marriage, divorce but, has became a
hotbed of politics.
The term equality before law is nowhere seen to have been followed as we see the
Muslim divorced wives are being discriminated
It is not wrong to say that the purpose of Quran is Al- furqan that is one which
shows truth from falsehood and right from wrong.
It is also a matter of regret that Article 44 of our Constitution has remained a dead
letter. legislative competence is one thing, the political courage to use that competence
is quite another, so as to bring in Uniform Civil Code. Thus, if Constitution is to have
any meaning, a beginning has to be made in this direction.