Nilanjana Ganguly 26 May 2020





In this groundbreaking case the Supreme Court struggled with the question of compensation to be provided by her husband after the divorce to an aggrieved divorced Muslim woman. The Supreme Court referred to the Holy Quran as the authoritative text with great emphasis on the friction between the Code of Criminal Procedure Code Section 125 and Muslim Personal Law. Although the husband's request not to offer assistance was rejected, the same one faced considerable opposition and was claimed to be against Islamic law. The then government declared the law applicable only during iddat time. The case was subsequently upheld in further rulings by the apex court.


Shah Bano was offered Rs.200 as a monthly maintenance by her ex-husband after the same had stopped in April 1978 after she was forced out of her house in 1975. 

In 1978 she lodged Rs 500 a month for maintenance petition in the local court.

The husband then on 6 November 1978 gave her irrevocable talaq and used it as a shield not to pay for maintenance.

Furthermore, he argued that for about two years the amount of Rs 200 per month had been paid and an additional amount of Rs 3000 had been deposited in court for iddat period.

In August 1979 the magistrate ordered the husband to pay a monthly amount of Rs 25 as maintenance.

A modification order lodged at high court raised the maintenance to Rs 179.20 a month. The same was challenged at the Supreme Court by the husband as a special petition for leave to the decision of the high court.


That that would refer to Muslims under Section 125 of the Criminal Procedure Code.

Whether the mere payment of Mehr to the divorced husband is sufficient to remove him from any duty to pay for the maintenance of the wife thereafter.


In this situation, precedents have been discussed; however, they are not explicitly in line with the legal problems at hand. Whether the husband's payment of mehr on divorce is enough to absolve him of any obligation to pay the wife's maintenance.

"There is no escape from the conclusion that a divorced Muslim woman has the right to claim maintenance under Section 125 and that Mehr is not a sum payable on divorce under Muslim Personal Law." In favor of the ruling in Bai Tahira, the Court reached the above-mentioned decision where Justice Krishna Iyer held that "...paying of illusory sums (referring to 'mehr') by way of customary or personal law provision would be included in the reduction of the maintenance rate but cannot annihilate the rate unless it is a fair alternative." That the Muslim Personal Law provides for any clause in which a amount is payable to the wife 'on divorce'-Referring to the views expressed by the learned scholars (Mulla, Tyabji and Paras Diwan), the Court concluded that "These statements in the textbook are inadequate to establish the assumption that the Muslim husband is not obliged to provide for the maintenance of his divorced wife, who is unable to maintain herself." "The amount deposited through Mehr is usually required to take care of the wife's ordinary requirements, during and after the marriage. Yet these Muslim Personal Law rules do not countenance situations in which the woman can not keep herself after the divorce. We find that applying the application of the statements quoted above to situations in which a divorced woman is unable to support herself is not only wrong but also unfair. They conclude that the scope of such provisions of law must be limited to that subset of situations in which there is no risk of vagrancy or destitution resulting from the divorced wife's indigence.” 

“Since the Muslim Personal Law, which limits the responsibility of the husband to provide for the maintenance of the divorced wife to the iddat period, does not contemplate or take account of the situation provided for in Section 125, it would be wrong to argue that the Muslim husband is in accordance with his personal law, Is not under an agreement to give support to his estranged wife, who can not maintain herself, beyond the time of iddat.”

The Court ruled that if the wife does not have adequate means to support herself, the husband's responsibility to pay maintenance to the wife continues beyond the iddat era.

That Muslims are protected under section 125 of the Law.

Referring to Section 125 of the Code, the Court stated: "In the scheme of these provisions, religion professed by a spouse or by the spouses has no place. If the partners are Hindus or Muslims , Christians or Parsis, pagans or heathens, the interpretation of this clause is entirely meaningless. The explanation for this is axiomatic, in the sense that Section 125 is part of the Criminal Procedure Code, not of the Civil Laws specifying and regulating the rights and duties of the parties belonging to different faiths, such as the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act.

Clause (b) of the Explanation to Section 125(1), which describes 'wife' as having a divorced wife, does not include any restrictive terms to explain the exclusion of Muslim women from its reach-'Wife' means a wife as described, irrespective of the religion she or her husband profess. For the purposes of Section 125, therefore, a divorced Muslim woman, as long as she has not remarried, is a 'wife.' Within that clause the legislative privilege open to her is not impaired by the personal law provisions applied to her.

The Court provided an example of the Islamic Law concerning polygamy in answering this question-It is all too well known that "A Mahomedan may have as many as four wives at the same time but not more. When he marries a fifth wife while he already has four, the union is not invalid, but merely incomplete" The reason gives the wife the freedom to continue to stay with her husband when he contracts another union, to leave 3 or 4 other marriages alone. And held-"It unmistakably demonstrates that Section 125 prevails over personal rule where there is some dispute between the two.

Whether there is any conflict between the provisions of Section 125 and those of the Muslim Personal Law regarding the Muslim husband's liability to provide for his divorced wife's support. The true condition is that if the divorced wife is willing to maintain herself, the husband's duty to provide care for her ends with the expiry of the iddat term. If she can not sustain herself, she is entitled to resort to Section 125 of the Code. The consequence of this debate is that there is no inconsistency between the terms of Section 125 and those of the Muslim Personal Law on the issue of the duty of the Muslim husband to give assistance to a divorced wife who is unable to sustain or maintain herself.


The husband's payment of mehr on divorce isn't enough to absolve him of the wife's obligation to pay maintenance.

The husband's responsibility for paying the wife's maintenance continues beyond the iddat duration if the wife has inadequate means to maintain or support herself.

Article 125 of the Code extends to all people, irrespective of their religion.

Section 125, if there is some dispute between the two, overrides the personal rule.

There is no dispute between the provisions of Section 125 and those of the Muslim Personal Law on the matter of the duty of the Muslim husband to provide care for a divorced woman who is unable to sustain herself.


The Shah Bano judgment attracted a lot of opposition on the grounds that it was against the provisions of Islamic law with authoritative bodies against the decision.

This culminated in the passage of the 1986 Muslim Women ( Protection of Rights on Divorce) Act, which provided for Muslim women to receive a significant one-time payment from their husbands during the iddat period, instead of a fixed monthly payment of as much as 500 – an upper limit that has since been withdrawn.

The case had again spurred the debate in India on the Uniform Civil Code, but the pressure exerted by orthodox Muslims triggered the cave-in of women's organizations and secularists.

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