Mohd. Ahmed Khan v. Shah Bano Begum

Kaustubh Chourey

Shah Bano case is very interesting landmark case, this was a very simple case which originally dealt with financial maintenance given after divorce. This case is important because it was the wakeup call for India to bring uniform civil code with personal laws. In this article we will understand the Supreme Court judgement and the effect of this case on India’s politics.
The founding fathers of the Indian constitution gave some directions which are known as Directive Principles of State Policy (DPSP). The founding fathers gave some directions to state for the welfare of the Indian citizens. DPSP’s are non-justiciable, which means you cannot enforce them in court law. They are like moral duties for the states which they should follow but its optional. However, DPSP’s are not enforceable but they are binding over the government, it is written in the article 37 of the constitution that, state must follow them or keep an eye on them while making laws. One of the DPSP is article 44 which says, “State shall endeavour to provide for its citizens a uniform civil code (UCC) throughout the territory of India.” This was added in the DPSP because at the time of independence India was divided into two countries on the grounds of religion, so it was not practically possible for the founding members to bring uniform civil code throughout the territory of India.
Now let’s understand the most important term of the Shah Banu Case, Uniform Civil Code. To understand UCC we have to understand the three types of law-
• Criminal laws
• Civil laws
• Personal laws
Civil Law deals with cases where wrong is done against a particular individual. Criminal Law includes matters of offense against society at large, if any act effects the society then it comes under the criminal law. Personal laws are the laws which deals with things like marriage, adoption, divorce, maintenance, succession, etc. when we use the term Uniform Civil Code, generally people think we are talking about civil laws but primarily we talk about personal laws. The criminal laws and civil laws are universal in nature. For example, if I commit a murder so I will get the punishment under the court of law regardless of my religion. These laws are universal which means they are applicable on everyone living in the society. Now situation changes when we talk about personal laws for example, when two Hindus get married under the Hindu Marriage Act and two Muslims get married under the Muslim Marriage Act. Personal laws are depended on religion. Now in India we have so many religions and different laws for every religion. Uniform Civil Code is intending to make uniform personal laws.
There is one more very important section under Criminal Procedure Code. The section 125 of Criminal Procedure Code says any man who is capable of earning must financially maintain his wife, ageing parents, minor children who are unable to maintain themselves. Now criminal procedure code is universal in nature, which means regardless of your religion section 125 is applicable on everyone. Every responsible citizen should have knowledge of this section. Here in this section “wife” includes who has either been divorced or either moved for divorce. So, a man is legally bound to maintain his wife, and she will be his wife until she marries someone else.
Now let’s understand the facts of the case, as the name suggests Shah Bano was a Muslim lady. She got married in 1932 with Mohammad Ahmed Khan, then in 1970’s Ahmed Khan decided to bring a second wife. Shah Bano didn’t like Ahmed Khan’s second marriage and when she started opposing Ahmed khan, he divorced Shah Bano by saying Talaq-Talaq-Talaq and he kicked her out of his house. Now here comes the dispute, according to the Muslim marriage act Muslim men are not obligated to pay any financial maintenance to their wives and after divorce she is no longer wife of the man. At the time of divorce Shah Bano was poor, old and illiterate. Then she went to a lawyer asking for help, the lawyer went to the local magistrate of Indore under the section 125 of the criminal procedure code asking for financial maintenance. Mohammad Ahmed Khan said that the article 125 is asking me to do exact opposite of my personal law is stopping me to do. Muslim Marriage act says don’t pay maintenance and the section 125 says pay maintenance, here we have a conflict. And for this Mohammad Ahmed Khan reaches the Supreme Court of India. The question which was raised was “Is section 125 of CrPC violating the personal law of Muslim Marriage Act?” the Supreme Court played a very smart move by making All India Muslim Personal Law Board a party in the case. Supreme Court a question “is section 125 CrPC violating Islamic Law?” and the answer came that even the holy Koran says that it is the responsibility of the man to take care of the woman. Then Mohammad Ahmed Khan claimed that I have already paid the amount of mehr to Shah Bano. Supreme Court said that the amount of mehr is given out of respect to woman, it can’t be counted as maintenance. Supreme Court said in its judgement that there is no violation and Mohammad Ahmed Khan has to pay maintenance under article 125 of criminal procedure code. And the case was over.
This was a very simple case and the story should have ended here but the politics entered in the story soon after the Shah Bano judgement was passed by bringing Muslim Women (Protection of Rights on Divorce Act) in 1986. Rajiv Gandhi government has the huge majority in the parliament and Rajiv Gandhi government thought that after the Shah Bano judgement Muslims are feeling bad, so maybe to impress Muslims they passed this act, and there was a law which says that maintenance has to paid only till the period of Iddat. Means that Muslim man don’t have to pay maintenance for lifetime he only has to pay it for the time period of Iddat. Iddat is the 90-day time period, and after the period of Iddat Muslim woman can marry any other man. Now this act made a huge mixture, I think bringing this was not necessary. Government thought after bringing this act all the disputes will get over but the result was different Hindus and Muslims both were opposing this act.
Shah Bano case was the wakeup call for India to bring Uniform Civil Code and it is time to fulfill the dream of founding fathers. In the country where we have same criminal laws same civil laws then why can’t we have same personal laws? I think it is the time when we should bring UCC in India.