Earlier this week, the ghost of Shah Bano, lurking in the shadows for close to four decades, popped up again. A Supreme Court ruling that all women, including Muslim women who marry under their personal religious law, are entitled to maintenance, once again took on the old question of whether Muslim women can claim maintenance beyond what is mandated by their personal law.
The answer is a resounding yes.
The two-judge bench of justices B.V. Nagarathna, slated to become India’s first woman chief justice in 2027, and Augustine George Masih, was hearing an appeal against a Telangana high court order granting maintenance to a divorced Muslim woman under a section of the Code of Criminal Procedure that provides for maintenance. It was the man’s contention that his personal law did not oblige him to pay beyond three months.
The Supreme Court disagreed and on Wednesday said that Muslim women can seek maintenance under the code of criminal procedure. The judgment follows a precedent of earlier judgments going back to the 1970s that have said nothing stops women from seeking maintenance beyond what personal law mandates. But, for the first time, its language establishes a new assertion: Maintenance, said Justice Nagarathna, is not charity but a right.
It is a right of a divorced wife who might have sacrificed employment opportunities by prioritising the needs of her husband, their children and his parents.
Even within the marriage, “an Indian married man must become conscious of the fact that he would have to financially empower and provide for his wife, who does not have an independent source of income, by making available financial resources particularly towards her personal needs,” Justice Nagarathna continued in an separate opinion. This financial empowerment makes the wife more secure in her marital home.
Providing an insight into most marriages, she said it was well-known that “an Indian homemaker tries to save as much money as possible from the monthly household budget, not only to augment the financial resources of the family but possibly to also save a small portion for her personal expenses. Such a practice is followed in order to avoid making a request to the husband or his family for her personal expenses.”
A brief historical detour
After 14 years of marriage, Mohammed Ahmed Khan an advocate in Indore, decided to take a second wife. For some years he maintained both women, but then in 1978 he divorced the first wife, Shah Bano Begum. Following the practice of Muslim personal law, he paid a sum of ₹200 a month for three months. Then even that payment stopped.
Shah Bano went to court. In 1973, the government had revised the Code of Criminal Procedure to include a section 125 that dealt with the maintenance of wives, children and parents. A section of the Muslim orthodoxy protested that it clashed with Muslim Personal Law and the government of Indira Gandhi eventually granted some exemptions to Muslim men.
But the judicial challenge was already brewing. In 1978, in Bai Tahira v Ali Hussain Fissalli Chothia, a three-judge Supreme Court bench headed by Justice V.R. Krishna Iyer said section 125 was not contradictory to Muslim personal law. In other words, Muslim women could seek maintenance under both, personal law and the secular section 125.
The courts have maintained this position since.
In 1985, the Supreme Court ruled that Shah Bano was entitled to maintenance under section 125. A year later, the Rajiv Gandhi-led government enacted the Muslim Women (Protection of Rights Under Divorce) Act. Under it, Muslim women were entitled to maintenance for three months, following which it was incumbent upon their relatives and heirs to support them. And if the heirs failed to do so, then Wakf boards, or charitable trusts, would be obliged to step in.
But even the 1986 law came under challenge, this time from Danial Latifi who by some strange quirk of fate happened to be Shah Bano’s former lawyer.
Latifi was back in court now in connection with his own divorce from his wife of 43 years. He was appealing against a high court ruling to pay her ₹179 a month for life (or till she remarried). Latifi argued before a five-judge Supreme Court bench that he had fulfilled his obligations under both Muslim personal law and the 1986 law to pay his wife for three months. He was, therefore, not obliged to pay any further.
In its 2001 judgment, the judges disagreed. In what Saumya Saxena, the author of the erudite, Divorce and Democracy: A history of personal law in post-independence India, calls “one of its most creative rulings” they said three months was not the time limit for maintenance but the deadline to decide on the ‘provision of maintenance’ for a former wife’s residence, food, clothes and so on. In other words, the Muslim Women (Protection of Rights on Divorce) law of 1986 made maintenance “extend to the whole life of the divorced wife unless she gets married for the second time.”
Now what?
The Supreme Court’s latest judgment does not create a new right. It merely follows precedent that goes back all the way to Bai Tahira in 1978.
The challenge says Nishat Hussain, the founder-president of the Jaipur-based National Muslim Women’s Welfare Society is implementing what is already established as a right by both law and judicial pronouncement.
Naseem who only uses one name says she was married for just a few weeks before her husband and family dumped her back home for failing to bring enough dowry. After filing various cases under domestic violence, section 498A and section 125 for maintenance, she says she was able to get a court order of ₹2,000 a month as maintenance. This was back in 2018 and she is yet to receive even a single rupee, she says.
“Women are languishing for years,” says Nishat. “Our laws are so lax that it is difficult to even get a police summons served.”
Moreover, she adds, very few women have the means to go and fight in court. “Most are just sitting at home with two or three children, depending on their elderly parents to provide whatever they can for them.”
In 1985, after the Supreme Court ruled that she could seek maintenance, Shah Bano withdrew her case which had become the centre of such a political storm. She died in 1992 following a brain haemorrhage. In 2011, her son told the Hindustan Times in an interview “Izzat ki ladai thi (it was a fight for self-respect… She was very ashamed of all this [publicity].)”
The following article is an excerpt from this week’s HT Mind the Gap. Subscribe here.
