Author: Neha, UILS, Panjab University

Is justice above religion or religion is suppressing justice? This is a question that arises in a case that created a political earthquake in India whose flames are still smoldering. Recently a movie named “Haq” starring Yami Gautam and Emran Hashmi has been released which is inspired by a 1985 Shah Bano case. It is a case that became a movement which shows how Shah Bano had shown and increased the political, social tension and religious conflict. This judgment sparks a national debate on the need of a Uniform Civil Code so that equal law can be made for all religions.

In 1978, a woman from Indore named Shah Bano, who was mother of five children, was divorced by her husband named Mohammad Khan, after 43 years of their marriage by pronouncing an irrevocable “talaq”. Her husband paid her some maintenance for a few months but after that he stopped. Unable to support herself, she asked the court for help by filing a petition under section 125 of CrPC, 1973. Mohammad Khan challenged the petition by arguing that as per Muslim law, he only had to support her during the iddat period. He claimed he had already paid her for that time, as well as the agreed-upon mahr or dower. Thus, he said he didn't owe anything more. The local court told Khan to pay a small amount of Rs. 25 each month. When Shah Bano appealed, the Madhya Pradesh High Court raised it to Rs. 179.20 per month. Khan then took the case to the Supreme Court.

On April 23, 1985, a panel of five judges which was led by Chief Justice YV Chandrachud, agreed to dismiss Khan's appeal and support the High Court's decision. The court decided that Section 125 of the CrPC applies to everyone, no matter their religion. It explained this law is to prevent destitution and Muslim women are not excluded. The court said if a divorced woman can't maintain herself, her ex-husband must provide maintenance, even after the iddat period.

The court decided that the law about maintenance for divorced women and Muslim personal law don't disagree on whether a husband must maintain his ex-wife. It referred to the Quran, saying it requires Muslim husbands to provide maintenance for their divorced wives. The court also noted with disappointment that Article 44 of the Constitution, which proposes a single law for all citizens (UCC), hasn't been put into practice.

The decision ignited a fire that engulfed the entire country. Muslim fundamentalist organizations termed it against Islam. The All India Muslim Law Board (AIMPLB) stated that this ruling meddles with Islamic law. Protests erupted nationwide. Muslims viewed the decision as an attack on their religious beliefs and an intrusion on their personal laws.

AFTER EFFECTS-

Under political pressure, Rajiv Gandhi's Congress government passed the Muslim Women (Protection of Rights on Divorce) Act in 1986. This canceled the Supreme Court's ruling that divorced Muslim women should receive support. The new law stated they would only get support during the iddat period. After that, her relatives would be responsible, and if they couldn't support her, the state Waqf Board would step in. This law itself was considered a reversal of the Shah Bano decision. The movement not only took away Shah Bano’s rights but also proved that religion based vote bank politics overpowered the Constitution.

Hindu organizations started seeing this act of Congress as Muslim appeasement. This anger fueled the Ram Mandir movement in Ayodhya and in 1986, the order came to open the lock of Babri Masjid. This case was also a key event leading up to the demolition on December 6, 1992, which greatly changed Indian politics. The case which was initially a fight for a woman’s right, now had become a symbol of Hindu-Muslim conflict in India.

WHAT HAPPENED AFTER THE NEW LAW?

People quickly questioned if the 1986 Act followed the Constitution. In 2001, the Supreme Court, with five judges, reviewed the case. They supported the law but twisted its meaning to protect divorced Muslim women's rights. The court looked closely at Section 3(1)(a) of the law. It said the husband's responsibility wasn't just for the three-month iddat period. He had to give her a single payment during that time, big enough to support her for life or until she remarries.

However, there is still a degree of ambiguity regarding whether Muslim law or Section 125 of the CrPC applied to Muslim women after the 1986 Act. Could they still choose the secular option?

CLEARING AMBIGUITY-

The SC definitely answered this question in 2024, in the case of Mohd. Abdul Samad vs the State of Telangana which ruled that the 1986 Act does not bar a divorced Muslim woman from seeking maintenance under section 125 of Crpc. The court held that section 125 provides a remedy that is ‘in addition to and not a derogation of” under the remedy available under the CrPC. It clarified that a divorced Muslim woman has the option to seek remedy under either of the two laws or both, the choice lies with her.

This case was not just a fight of one woman; it was a clash of questions of Constitution, religion and equality. The Shah Bano case is still a topic of debate in India as to whether there can be a uniform law for all religions in India? Can a balance be struck between religion and the Constitution? The voice that Shah Bano raised for her rights not only influenced her life but also changed the politics, society and history of India forever. Shah Bano’ screams still echoes today and it reminds us how powerful a woman can be.