“HAQ” and the politics of the 1985 Shah Bano case

The trailer of the new film “Haq” that came out week before the film’s release garnered more than 27 million views in a short span. Within seconds into the trailer, one is reminded that the film echos the controversial Shah Bano case from 1985.

Living up to the promise of the trailer, the film pays an ode to the landmark judgement and also revives the forgotten genre of Muslim social drama in Hindi cinema.

Written by Reshu Nath and directed by Suparn Verma, Haq navigates the complex terrain of Indian Muslim marriage, divorce, maintenance etc delegated under the Muslim Personal Law, with a spectacular restraint, never for a single moment sensationalising the subject and staying focused on the protagonist’s plight for justice.

Here is a summary of the events that led to one of the landmark judgements in the history of Supreme Court of India – a matter of national pride and the subsequent fallout from it that led to its dilution by a new legislation – a matter of national shame.

Magistrate’s Order of 1979

Shah Bano Begum from Indore, Madhya Pradesh married Mohd Ahmed Khan, an advocate by profession in 1932 and had five children with him. After 43 years into the marriage and faced with husband’s second marriage, she left her matrimonial house following which she filed a case in 1978 in the Court of the Judicial Magistrate Indore, asking for maintenance as per the maximum provision allowed, Rs. 500 per month.

The case was filed under section 125 of CrPC (Code of Criminal Procedure) that grants the Magistrate the power to issue orders on an individual with sufficient means on matters of maintenance of wife, children, or parents who are unable to support themselves, to prevent the possibility of vagrancy or destitution arising out of indigence of the abandoned party.

In response, Ahmed Khan divorced his wife via the irrevocable triple-talaq method allowed under the Muslim Personal Law (Shariat), thereby minimising his liability to provide by the way of deferred “Dower or Mahr” and only during the three month iddat period after the divorce. The marital status of Shah Bano was hence altered from being an abandoned wife to a divorcee.

In 1979, the Magistrate however ruled in favour of Shah Bano citing the change of her marital status to have no impact under section 125 and directed Mohd Ahmed Khan to pay monthly maintenance for as long as the divorced wife remained unmarried and unable to sustain herself and the husband had sufficient means to provide.

The case file noted Ahmed Khan’s annual salary at the time to be Rs. 60,000. The monthly maintenance was initially set at Rs 25 per month later revised by the Madhya Pradesh High Court to Rs. 179.20.

Mohd. Ahmed Khan vs Shah Bano Begum

Ahmed Khan appealed to the Supreme Court by special leave against the Madhya Pradesh High Court judgement in 1981. The primary grounds of appeal were that the matter of maintenance of divorced wife fell under the purview of the Muslim Personal Law and hence the involvement of secular Courts of Law violated the Muslim Personal Law (Shariat) Application Act, 1937, a constitutional provision.

The arguments presented before the Supreme Court by the appellant Mohd Ahmad Khan’s counsel P. Govind Raj and Ashok Mahajan among others and the defence by the respondent Shah Bano’s counsel led by Danial Latifi can be summarised as:-

argument 1: The Magistrate’s order intervenes with the fundamental concept of divorce by the husband and its consequences under the Muslim Personal Law (Shariat) Application Act, 1937.

rebuttal: Section 125 deals with the right for maintenance of wives, children and parents and is religion-agnostic. Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the application of these-provisions.

 argument 2: The matter of marriage and divorce of a Muslim citizen is Civil in nature concerned with Muslim Personal law.

 rebuttal: Section 125 is a part of the Code of Criminal Procedure not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular relations, like the Hindu Adoptions and Maintenance Act, The Shariat or the Parsi Matrimonial Act. It would make no difference as to what  the religion professed by the neglected wife, child or parent is.

 argument 3: Maintenance could have been availed by not resorting to leaving the matrimonial house.

rebuttal: If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

 argument 4: The claimant of maintenance is no longer of the “neglected wife” status as she has been divorced already.

rebuttal: Provisions under section 125 define “wife” as including a divorced wife as well and irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman so long as she has not married is a wife for the purposes of section 125 and eligible for maintenance.

 argument 5: The maintenance has already been paid by the way of the pending “Dower of Mahr” of Rs 3000 during the three-month iddat period after the divorce.

rebuttal: If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore, no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce.

The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce

Divorce may be a convenient or identifiable point of time at which the deferred “Mahr” amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce.

 argument 6: The matter of providing long term or permanent maintenance to a divorced woman beyond the iddat period (3 months after divorce) is alien to Muslim Personal law.

rebuttal: Considering the Holy Quran as the final expression of God’s Will on matters of Islamic jurisprudence, the following reference stands in opposition to the argument:- Surah Al-Baqarah, Ayat 241 – “For divorced women, maintenance should be provided on a reasonable scale. This is a duty on the righteous” cited from “The Quran- Interpreted by Arthur J. Arberry”

 Landmark Judgement of 1985

 In lieu of the above arguments and rebuttals, the Supreme Court dismissed Ahmed Khan’s appeal and upheld the judgment of Madhya Pradesh High Court from 1981. The appellant was ordered to pay the costs of the appeal to respondent, which was quantified at rupees ten thousand.

The judgement preempted any room for ambiguity by announcing upfront the conflict between personal law boards and secular laws instead of circumventing it and by taking a clear stand on the latter overriding the former in case of a conflict.

It drew attention to the Report of the Commission on marriage and Family Laws by the Government of Pakistan dated August 4, 1955 that said “a large number of middle-aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children”.

Allama Iqbal was also quoted – “the question which is likely to confront Muslim countries in the near future, is whether the law of Islam is capable of evolution-a question which will require great intellectual effort, and is sure to he answered in the affirmative.”

Fallout after the Judgement

 After the Supreme Court’s judgement in favour of the 65 year old divorcee Shah Bano Begum, Muslim ulema and political parties took to the streets reviling the community and putting pressure on the Rajiv Gandhi’s Congress government that eventually gave in and watered down the judgement by getting a new bill passed in legislation i.e. The Muslim Women (Protection of Rights on Divorce) Act, 1986.

Under the new law, the maintenance of a Muslim divorcee spouse is limited to the three month iddat period following the divorce, also making a provision for a one-time lump-some settlement amount along with any pending Mahr dues. Additional support, if any, should be drawn from relatives and Waqf board whose charter includes supporting socio-economically disadvantaged individuals from the Muslim society.

The opposition accused Congress of inflicting grave injustice on an elderly divorced woman by resorting to vote-bank politics, minority appeasement and taking undue advantage of absolute majority in parliament.

Civil society was caught off-guard reacting in shock as the landmark judgement, a matter of national pride, turned into a matter of national shame within a year.

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