Shah-Bano-eng

Divorced Muslim Women in India:
Shah Bano, the Muslim Women Act, and the Significance
of the Bangladesh Decision 1
Lucy Carroll
For divorced women maintenance [or provision] (should be provided) on
a reasonable (scale). This is a duty on the righteous. 2
There can be no dispute concerning the fact that the Muslim
husband is legally liable for the maintenance of his wife; indeed, it is
the economic responsibility imposed upon the husband which is urged
to justify his dominance in the matrimonial relationship. 3 Yet for
Hanafi women, the right to maintenance is particularly difficult to
enforce. This for two reasons: (1) The Hanafi jurists regard arrears of
maintenance as forfeit in the absence of a court order directing the
husband to pay a specified regular sum as maintenance for his wife,
or an agreement between the parties concerning the wife’s
maintenance. 4 (2) In common with the other schools of Muslim law,
the Hanafis do not recognize any concept of alimony, payable for an
indefinite period to the divorced wife.
Thus when a Hanafi wife takes proceedings against her husband
for maintenance, the odds are very high that he will respond to her
summons by cutting his loses and promptly divorcing her (exactly as
Shah Bano’s husband did). The woman will only be able to recover
1. Much of the material in this essay has been extracted from chapters on “Reform in
India: Maintenance for Divorced Women, 1974,” and “Reaction in India: The Muslim
Women (Protection of Rights on Divorce) Act, 1986,” in volume III (divorce) of my
forthcoming work on Muslim Family Law in South Asia.
2. Quran, II:241 (Yusuf Ali, trans.).
3. See Quran, IV:34: -- “Men are the protectors and maintainers of women, because
Allah has given the one more (strength) than the other, and because they support
them from their means. Therefore, the righteous women are devoutly obedient ....”
(Yusuf Ali, trans.; emphasis added.)
4. The problem of arrears of the wife’s maintenance is a peculiarity of Hanafi law; the
other Sunni schools and Shia law regard arrears as recoverable from the date the
failure to maintain commenced.
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