Shah-Bano-eng

Divorced Muslim Women in India
exonerated the Muslim husband whether his wife pursued her claim
for maintenance in the civil court or in the magistrate’s court. 6
When in the early 1970s India undertook the task of replacing the
old Criminal Procedure Code, 1898, with a new and up-dated statute
of the same name, women’s organizations in general and Muslim
women in particular organized petitions to bring to the attention of
Parliament the necessity of altering the terms of the old section 488 of
Chapter XXXVI 7 in order to offer protection and succour to divorced
women. They succeeded in convincing the Joint Parliamentary
Committee which was considering the Bill, and an amendment was
introduced by the Committee in section 125 of the Bill (the section
equivalent to section 488 of the 1898 Code) which added a new
definitional clause defining the word “wife” as used in the chapter
concerning maintenance. “‘Wife,’” declared the Bill as thus amended,
“includes a woman who has been divorced by or has obtained a
divorce from, her husband, and has not remarried.” Under this
provision, the magistrate would be authorized to order an exhusband
to pay maintenance (not exceeding Rs. 500 a month) to his
impoverished ex-wife who was unable to maintain herself; the extrajudicial,
unilateral talaq would no longer suffice to exonerate a
Muslim husband from his responsibilities. 8
The proposed change in section 125 of the new Code, although
opposed by Muslim members, was accepted by both Houses of
Parliament. The Muslim spokesmen took their objections to the Prime
Minister. Curiously, and in a procedure totally unprecedented, the Code
of Criminal Procedure was, in December 1973, brought again before
6. Even if the husband did not talaq his wife immediately and suffered a maintenance
decree or order to be issued against him, he retained the right to divorce her at any
time and bring the maintenance payments to an end. A maintenance decree or order
in favor of a Muslim wife did not survive the dissolution of the marriage.
7. S. 488(1) and (2) from the Code of 1898 read as follows: -- “(1) If any person having
sufficient means neglects or refuses to maintain his wife or his legitimate or
illegitimate child unable to maintain itself ... a Magistrate of the first class may, upon
proof of such neglect or refusal, order such person to make a monthly allowance for
the maintenance of his wife or such child, at such monthly rate, not exceeding Rupees
500 in the whole, as such Magistrate thinks fit, and to pay the same to such person as
the Magistrate from time to time directs. (2) Such allowance shall be payable from the
date of the order, or if so ordered from the date of the application for maintenance.”
8. Although after the Hindu Marriage Act of 1955, the Hindu woman divorced in
judicial proceedings could be awarded maintenance (alimony) by the matrimonial
court, the magistrate’s jurisdiction under the new section 125 of the Criminal
Procedure Code would assist the Hindu woman whose husband did not comply with
the civil court’s decree and defaulted on his alimony payments. It also could assist
Hindu women of those castes which prior to 1955 had customs of extra-judicial
divorce, which customs were explicitly recognized by the Hindu Marriage Act.
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