Shah-Bano-eng

Divorced Muslim Women in India
Supreme Court’s rejection of their (untenable) argument that Muslim
law superseded the secular law of the Indian State. Without the
advance notice, and the aroused hopes and expectations, provided by
the unfortunate opinion of the two-Member Bench referring the case
to the Chief Justice with the request that he assign it for hearing
before a larger Bench, the Shah Bano decision would have
undoubtedly passed as peacefully as had its predecessors.
Civil Suits for Maintenance: The Family Courts
Prior to the establishment of the Family Courts, the major
disadvantage of civil proceedings for maintenance was that a suit for
maintenance is unlikely to be filed unless the wife has been deserted
and is in serious need. Civil litigation may be very protracted; if the
situation is immediate and urgent, the delays involved in obtaining
relief through the civil courts may render this course totally
impractical. The paucity of reported decisions in which a wife claimed
maintenance in a civil suit as opposed to the plethora of decisions
concerning applications for maintenance orders filed in the
magistrate’s court underlines the point in a very striking manner.
For more than a century, in everyday practical terms, the most
important law concerning maintenance was that found in the
provisions of the Criminal Procedure Code entitling destitute and
deserted wives and children to obtain maintenance orders in summary
proceedings before magistrates. The statute itself precludes the award
of arrears accumulated prior to the institution of the proceedings and
the 1898 Code (repealed and replaced in India, but still applicable in
Bangladesh) only encompasses the lawfully married wife, not a
divorcee.
As long as practical considerations dictated that maintenance
claims would be pursued in the magistrate’s court, and as long as the
applicable statute explicitly ruled out both arrears of maintenance
and post-iddat maintenance, there was no scope for either question
to be agitated.
One of the effects of the (Pakistan/Bangladesh) Muslim Family
Laws Ordinance, 1961, was to provide a new, convenient, and
expeditious forum (the ad hoc Arbitration Council) before which the
question of arrears of maintenance could be agitated. The result was
that -- the question having been raised before a forum competent to
answer it and that answer having been endorsed first by the Lahore
High Court and eventually by the Supreme Court of Pakistan -- the
Hanafi wife in Pakistan is legally entitled to obtain (in civil
proceedings before a civil court or in proceedings under the Muslim
Family Laws Ordinance before an Arbitration Council) arrears of
maintenance from the husband who has failed or refused to maintain
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