January 2010 
Year 16    No.147

From Shah Bano to Shabana

Innovative judicial interpretations of Muslim law advance the cause of Muslim women


1. The unfolding of the Muslim Women’s Act (MWA)

In recent years the rights of Muslim women have been advanced by innovative interpretations of Muslim law by the judiciary. These are important markers that serve to strengthen the rights of Muslim women. But, rather unfortunately, these have not received the media attention they deserve with the result that their impact is not felt on the ground. Despite these positive interventions, Muslim women continue to suffer due to misinformation about their rights. It is not just the conservative Muslim religious leadership; academics or scholars, progressive Muslim intellectuals, NGO activists and at times even lawyers and judges in trial courts are also unaware of these developments. This article attempts to trace these developments and popularise the advancements that have strengthened the position of Muslim women in this regard.

After the controversy about the Shah Bano judgement in 19851 and the enactment of the Muslim Women (Protection of Rights on Divorce) Act in 1986, it appeared that the divorced Muslim woman’s right to maintenance had been extinguished. It seemed that the state had sacrificed the rights of divorced Muslim women to appease the Muslim religious leadership within vote bank politics. The only recourse left to those who opposed this enactment was to challenge this act by way of a writ petition and get it struck down in courts.

So within the same year around 15 different writ petitions were filed by secular groups and women’s organisations, including the National Commission for Women. The first of these petitions was the one filed by Danial Latifi, the senior counsel who had represented Shah Bano Begum in the controversial case. The writ petitions lay dormant in the Supreme Court for a long time and before this one came up for trial, Danial Latifi, already advanced in years when he argued the Shah Bano case, had passed away.

While the writ petitions lay dormant, the act began to unfold in the lower courts. Gradually, several appeals filed by husbands against the rulings of various high courts also started accumulating in the Supreme Court alongside the writ petitions filed in 1986-87. What was intriguing was that if indeed the act was depriving women of their rights and was enabling husbands to wriggle out of their financial liability, why did the husbands find themselves "aggrieved" by the orders passed under a blatantly anti-woman statute? Perhaps the manner in which the act was unfolding in the lower courts was indicative of a different reality. It is in this context that I set out to research legal precedents for the MWA.

2. Rulings of various high courts
between 1988 and 2000

It seemed that a seemingly innocuous clause, which had escaped the attention of protesters and defenders alike, had been invoked by a section of the lower judiciary in order to pronounce judgements that provided greater scope for protection against destitution. Section 3(1)(a) of the act stipulates that a divorced Muslim woman is entitled to "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband". This clause, along with the preamble describing the law as "An act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands…", had been invoked by the judiciary in defence of Muslim women’s rights.

The high courts of Gujarat and Kerala were among the first to herald the new tidings. They affirmed that the new act was intended to protect the rights of divorced Muslim women and not to deprive them of their rights. They further stressed that any ambiguity within its clauses must be interpreted in a manner consistent with the proclamation contained in the title of the act. Banishing divorced women to a life of destitution would not amount to protecting their rights as stipulated by the statute, they declared.

The first significant judgement on this issue was pronounced by the Gujarat high court on February 18, 1988, within a year and a half of the enactment. But even before this, the die was cast in favour of women by a woman judicial magistrate in Lucknow on January 6, 1988. The woman concerned, Fathima Sardar, was awarded Rs 85,000 as fair and reasonable provision and maintenance during the (three-month) iddat period. Justice MB Shah, presiding at the trial in the Gujarat high court, explained: "The determination of fair and reasonable provision and maintenance would depend upon the needs of the divorced woman, standard of life enjoyed by her during her marriage and the means of her former husband. The amount must include provision for her future residence, clothes, food and other articles for her livelihood."2

In the same year the Kerala high court reaffirmed this position in Ali vs Sufaira3 and Aliyar vs Pathu4 and later in Ahmed vs Aysha5 in 1990. In 1995 a division bench of the Kerala high court explained: "The clause, ‘reasonable and fair provision and maintenance to be made and paid to her within the iddat period’, is as follows: Provision is to be made and maintenance is to be paid. The provision has to be made to secure livelihood of the wife. This need not be in monetary terms; it could be by grant of immovable property or other valuable assets or other income-yielding property. Provision must be made within the iddat period and it has to be fair and reasonable. … The revolt against the Shah Bano judgement by a section of Muslims was only in respect of a continued liability. There was no dispute regarding the liability of the husband to pay. It is difficult to think that Parliament has, by enacting the act, completely taken away the right of divorced Muslim women under Section 125 of the CrPC [Code of Criminal Procedure] without making any provision as a compensatory measure."6

In 2000 a full bench of the Bombay high court, in Karim Abdul Rehman Shaikh vs Shehnaz Karim Shaikh,7 clarified that ‘maintenance’ and ‘reasonable and fair provision’ cannot be confused with mehr (bridal gift from the husband to the wife). Mehr is a liability which cannot be discharged by way of any other payment or consequences. In cases where the husband is unable to pay the entire amount, the court held that the amount can be paid in instalments and until the payment is made, the magistrate can direct monthly payment to the wife even beyond the iddat period.

3. The Supreme Court ruling in the Danial Latifi case settles the controversy

In 2001 a Constitution bench of the Supreme Court, ruling in the matter of Danial Latifi vs Union of India,8 put an end to the entire controversy and upheld the constitutional validity of the Muslim Women’s Act. The court confirmed that the MWA had substituted the earlier right to recurrent maintenance under Section 125 of the CrPC with a new right to a lump sum provision to be made and paid to the woman soon after her divorce. If the husband fails to make the settlement, a divorced Muslim woman has the right to approach the magistrate’s court for enforcement of the right under Section 3 of the MWA.

After this judgement, it becomes clear that a Muslim husband is liable to make a reasonable and fair provision for the future of his divorced wife, and this must be done within the iddat period. The court also clarified that the liability of a Muslim husband to pay maintenance to a divorced wife under the act is not confined to the iddat period. A divorced Muslim woman is entitled to a fair and reasonable provision with respect to her future needs.

Interestingly, in this long-drawn-out legal battle, both sides – the husbands who were "aggrieved" by the interpretation of the MWA and the secular groups who had challenged the validity of the act – lost out. It was a victory for the Muslim woman who had fought for her right to survival. Viewed in this context, the struggles of individual Muslim women who defied the dictates of patriarchy in defence of their right must be acknowledged as acts of assertion. This was a great triumph for individual Muslim women, who had to fight every inch of the way because of the ambiguities created by callous and inadequate draftsmanship. The act left ample scope for Muslim men to exploit the situation, which led to protracted litigation that was beneficial to husbands and a nightmare for women. But women withstood the ordeal with courage and determination, with patience and perseverance. Today the end results of this determined struggle are clearly visible. The Muslim woman has secured for herself the right to determine her financial rights after divorce and get a lump sum settlement, a right that is lacking in the matrimonial laws of other communities.

4. Invalidating arbitrary triple talaq

There have also been important judicial interventions that dealt with the issue of arbitrary triple talaq. The leading case on this issue is Shamim Ara vs State of UP,9 in which the Supreme Court held that a mere plea taken in a written statement, of a divorce having been pronounced some time in the past, cannot be treated as the pronouncement of talaq. Thus the liability of the husband to pay maintenance to his wife does not come to an end through such communication. The court commented that for talaq to be valid it has to be pronounced in accordance with Koranic injunctions.

Several high courts have also rejected the practice of triple talaq and held that talaq has to adhere to Koranic injunctions. In Dagdu Pathan vs Rahimbi Pathan,10 a full bench of the Bombay high court ruled that a mere assertion to the court by the husband that he has divorced his wife is insufficient, he must prove the divorce by presenting evidence before the court. He cannot divorce his wife at will. In Najmunbee vs Sk Sikander Sk Rehman,11 the Bombay high court reiterated this position and held that a Muslim husband cannot repudiate the marriage at will. There has to be a supporting reason, his decision cannot be based on a whim. Muslim law mandates pre-divorce attempts at reconciliation through the appointment of two arbitrators, one from each side, to mediate between husband and wife. In Mustari Begum vs Mirza Mustaque Baig,12 it was held that the husband did not plead that he had given talaq through a talaqnama. In an oral divorce, the word ‘talaq’ must be articulated. The mere assertion in a written statement or show-cause that divorce had been pronounced cannot in itself be treated as effectuating talaq on the date that a copy of such a document is delivered to the wife. In Shahzad vs Anisa Bee,13 it was held that there must be some reasonable cause for granting a divorce to the wife of a Muslim husband. In Farida Bano vs Kamruddin,14 it was held that unless requirements are proved, talaq is not actionable.

In Dilshad Begaum Ahmadkhan Pathan vs Ahmadkhan Hanifkhan Pathan,15 the sessions judge accepted the husband’s contention that he had pronounced talaq to his wife in the presence of witnesses at a mosque. This was duly proven by his subsequent actions. Hence the trial court order awarding the wife Rs 400 as maintenance was quashed. But when the matter went up on appeal, the Bombay high court held that though the husband had proved that he had pronounced talaq, it was not a valid and legal talaq, as the additional requirements had not been satisfied. The husband had not stated the reasons for the divorce nor had arbitrators been appointed to initiate pre-divorce attempts at reconciliation. The failure of such pre-divorce proceedings or the situation wherein it was impossible for the marriage to continue had not been adequately established. A compromise was arranged through a written document recording the fact that the husband had agreed to transfer one-third of his land to his wife if he failed to cohabit with her or failed to maintain her as his wife. The court held that this document was not acted upon by the husband and it did not fulfil the additional requirements in any way. The talaq was thus not valid and legal. The impugned judgements were quashed and set aside.

In Riaz Fatima vs Mohd Sharif,16 the husband pleaded that he had divorced his wife and hence she was not entitled to maintenance under Section125 of the CrPC. He also produced a photocopy of a fatwa obtained by him in respect of the divorce. He also disputed paternity of the minor child. Rejecting the husband’s contentions, the trial court had awarded Rs 400 to the wife and Rs 225 to the minor daughter. But the sessions court had overruled this decision and the woman and child were denied maintenance. In an appeal to the high court, the court discussed in detail the issue of proving the talaq and spelt out the requirements for a valid talaq:

i. Divorce must be for a reasonable cause; that is mandatory in the holy Koran. Therefore, when a dispute arises, the husband has to furnish evidence showing the cause which compelled him to divorce his wife.

ii. He has to prove that the word ‘talaq’ was proclaimed thrice in the presence of witnesses or in a letter (as pleaded in the instant case). Until this is proved, the talaq is not valid.

iii. There has to be proof of payment of the mehr amount or observance of the period of iddat.

iv. The husband has also to prove that there was an attempt at settlement/conciliation prior to the divorce.

The high court held that in this case there was insufficient evidence to show that the husband had pronounced talaq to his wife and a fatwa was obtained. A mere written statement by the husband asserting that he had divorced his wife on a particular day would not suffice. The court held that the prerequisites have to be fulfilled before a Muslim husband can divorce his wife. Though the metropolitan magistrate had categorically decreed that the husband had not been able to prove his plea, the sessions judge did not address this issue at all, as he was relying on the mere averment made in the written statement. After perusal of the trial court records, the high court held that there was no proof of a valid talaq and hence the bar stipulated in the MWA was not applicable. The high court also rejected the husband’s plea disputing paternity on the ground that since the husband had clear access to the wife when conception could have taken place, presumption under Section 112 of the Indian Evidence Act would come into effect. The metropolitan magistrate’s order awarding maintenance to the wife and daughter under Section 125 of the CrPC was restored.

In Gama Nisha vs Chottu Mian,17 it was held that the necessary requirements for proving talaq had not in fact been proved. A written statement cannot be treated as talaq. The husband could not prove that he had already divorced his wife. A fatwa of talaq is a question of fact that must be proved through evidence.

5. Jurisdiction of family courts over rights of divorced Muslim women

Where family courts have been set up, jurisdiction under Section 125 of the CrPC lies with the family courts. But jurisdiction under the Muslim Women’s Act lies with the magistrates’ courts. This caused Muslim women great hardships. More often than not, when a deserted woman approaches the family courts for her right to maintenance under Section 125 of the CrPC, the husband in collusion with his lawyer sends a talaqnama and claims that he is not entitled to maintain his divorced wife after the enactment of the MWA.

All the cases discussed above have attempted to deal with this situation while protecting the rights of women. The courts have either held that such divorces are arbitrary and un-Islamic or that a divorced woman has the right to lump sum settlements. But since the jurisdiction for claiming lump sum settlements lay with the magistrate’s court, the woman would have to withdraw her application for maintenance filed in the family court and initiate a fresh round of litigation in the magistrate’s court, which caused a great deal of hardship and a delay in securing her rights. It is in this context that a recent judgement of the Supreme Court, pronounced by Justices Deepak Verma and B. Sudershan Reddy on December 4, 2009, gains relevance.

The case concerned a deserted Muslim woman, Shabana Bano, who had approached the family court for maintenance of Rs 3,000; her plea being that when she was pregnant, her husband had left her in her natal home with a warning that she would not be allowed to return after the child’s birth unless his demands for dowry were met. Shabana Bano was constrained to file a petition for maintenance under Section 125 of the CrPC in the family court at Gwalior. Since the husband pleaded that he had divorced Shabana and was thus not entitled to pay her maintenance, the court awarded her Rs 2,000 per month for the four intervening months between the institution of her petition and her divorce. The Madhya Pradesh high court dismissed her appeal. It is against this background that the Supreme Court upheld her rights.

The judges relied upon two earlier rulings, the historical Constitution bench ruling in Danial Latifi in 2001 and the more recent ruling in Iqbal Bano vs State of UP in 2007, while upholding the woman’s rights. The Iqbal Bano ruling of 2007 had held that proceedings under Section 125 of the CrPC are civil in nature. Hence even after the divorce, the woman would be entitled to claim maintenance under Section 125 considering the beneficial nature of the legislation.

This leads us to conclude that: a divorced Muslim woman’s right to maintenance (or financial settlement) from her husband is not extinguished upon divorce; she is entitled to a lump sum settlement under the MWA; while jurisdiction under the MWA lies with the magistrates’ courts, where family courts have been set up, if an application for maintenance under Section 125 of the CrPC is filed before the family court, and the husband pleads that he has divorced the wife, the court must determine the pending case in accordance with the provisions of the MWA. She does not need to file a separate application in the magistrate’s court.


While these are significant rulings that should have a far-reaching impact, unless they are used in trial court litigations and are used to change social norms within communities, they will remain as ornamental snippets in law journals. Unless all those who are committed or statutorily bound to protect the rights of poor Muslim women – lawyers, women’s groups and social activists – are aware of these gains, the judicial pronouncements will cease to have an impact on the lives of Muslim women, as was the case with Shabana Bano.

Rather ironically, Shabana was married in 2001, after the Danial Latifi ruling. She filed for maintenance in March 2004. The case followed the usual trajectory, that when an application for maintenance is served on the husband he sends the talaqnama along with his reply.

But sadly, both the family court at Gwalior and the Madhya Pradesh high court did not apply the principles laid down in Danial Latifi to her case. This resulted in grave financial hardship and a delay in accessing her basic right to maintenance. If, for an ordinary citizen, ignorance of the law is no defence for the commission of a crime, ignorance of accurate legal provisions protecting the rights of the vulnerable and marginalised cannot be a defence for lawyers, judges and conciliators who are duty bound to protect their rights. n

(Flavia Agnes is director of Majlis, a legal centre for women, based in Mumbai.)



1 Mohd Ahmed Khan vs Shah Bano Begum AIR 1985 SC 945

2 Arab Ahemadhia Abdulla vs Arab Bail Mohmuna Saiyadbhai AIR 1988 Guj 141

3 1988 (2) KLT 94

4 1988 (2) KLT 172

5 II (1990) DMC 110

6 K. Kunhammed Haji vs K. Amina 1995 Cri.LJ 3371

7 2000 Cri.LJ 3560

8 2001(7) SCC 740: 2001 Cri.LJ 4660 SC FB

9 2002 (7) SCC 518

10 II (2002) DMC 315 Bom FB

11 I (2004) DMC 211 Bom

12 II (2005) DMC 94 Ori

13 II (2006) DMC 229 MP

14 II (2006) DMC 698 MP

15 II (2007) DMC 738 Bom

16 I (2007) DMC 26 Del

17 II (2008) DMC 472 Jha


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