Shah-Bano-eng

Divorced Muslim Women in India
Muslims . . . always paid a handsome amount to their divorced wives so
that someone may contract marriage with them for the sake of this
money. Servants were provided to those divorced women who had passed
the limit of marriageable age. The expenses of this servant were always
borne by the divorcing husband. If the husband is expected to pay the
expenses of a servant [for his ex-wife], he can do so in respect of
maintenance allowance for her. 27
Mataa and Shah Bano
The Bangladesh decision, with its unambiguous endorsement of
mataa, brings us full circle, back to the (Indian) Shah Bano decision
and the (Indian) Muslim Women (Protection of Rights on Divorce) Act.
The Shah Bano litigation concerned only the interpretation of
section 127(3)(b) of the Indian Criminal Procedure Code, 1974. The
Indian Supreme Court on two previous occasions had interpreted that
section and held that the remittance of customary or personal law
sums “payable on divorce” did not automatically indemnify the
husband against a maintenance order under section 125 unless the
sum so paid constituted an adequate substitute for the maintenance
allowance otherwise available under section 125. The Shah Bano case
merely provided an opportunity for this position to be summarily
confirmed.
The husband in Shah Bano claimed to be exempt from the
operation of section 125 on the ground that Muslim law excused him
from any responsibility toward his divorced wife beyond payment of
any mahr due her and an amount to cover maintenance during the
period of iddat, and argued that section 127(3)(b) conferred statutory
recognition on this rule of Muslim law. In retrospect, it is easy to
remark that the Indian Supreme Court should not have permitted
itself to be drawn into an argument concerning Muslim law, which
was irrelevant in the circumstances; all the Supreme Court needed to
do was to endorse the interpretation of section 127(3)(b) which had
already been twice declared by that same court.
The argument based on Muslim law, so vehemently urged by the
appellant husband, supported by the Muslim Personal Law Board, the
Jamaat-i-Islam, and the Jamat-Ulema-Hind (which had been granted
permission to appear before the Supreme Court as interveners), was
countered by counsel appointed to represent Shah Bano, Danial Latifi.
This rejoinder raised the matter of mataa (provision) and the wording
of the Quran, II:241: “For divorced women maintenance [or provision]
(should be provided) on a reasonable (scale). This is a duty on the
righteous.”
27. Rafiullah Shahab, article from Pakistan Times, reprinted in Times of India, 3 March
1986 and reproduced below, p. 53.
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