Индиядағы Шах Бано ісі: Әйелдерге алимент төлеу дауы және заңнамалық өзгерістер

Maintenance lawsuit in India

Mohd. Ahmad Khan v. Shah Bano Begum [1985], commonly referred to as the Shah Bano case, was a controversial maintenance lawsuit in India, in which the Supreme Court delivered a judgment favouring maintenance given to an aggrieved divorced Muslim woman. Then the Congress government enacted a law with its most controversial aspect being the right to maintenance for the period of iddat after the divorce, and shifting the onus of maintaining her to her relatives or the Waqf Board. It was seen as discriminatory as it denied right to basic maintenance available to Muslim women under secular law. Shah Bano Begum, from Indore, Madhya Pradesh, was divorced by her husband in 1978. The case caused the Congress government, with its absolute majority, to pass the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the judgment of the Supreme Court and restricted the right of Muslim divorcées to alimony from their former husbands for only 90 days after the divorce (the period of iddah in Islamic law). Some Muslims, including the All India Shia Personal Law Board, supported the Supreme Court's order to make the right to maintenance of a divorced Muslim wife absolute.

In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan, an affluent and well known advocate in Indore, Madhya Pradesh, and had five children from the marriage. After 14 years, Khan took a younger woman as his second wife. Then after years of living with both wives, he divorced Shah Bano when she was 62 years old. In April 1978, when Khan stopped giving her the 200 per month he had apparently promised, claiming that she had no means to support herself and her children, she filed a criminal suit at a local court in Indore, against her husband under section 125 of the Code of Criminal Procedure, asking him for a maintenance amount of 500 for herself and her children. In November 1978 her husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law and took up the defence that hence Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total 5,400. In August 1979, the local court directed Khan to pay a sum of 25 per month to Bano by way of maintenance. On 1 July 1980, on a revisional application of Bano, the High Court of Madhya Pradesh enhanced the amount of maintenance to 179.20 per month. Khan then filed a petition to appeal before the Supreme Court claiming that Shah Bano is not his responsibility anymore because Mr. Khan had a second marriage which is also permitted under Islamic Law. Supreme Court concluded that "there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself." After referring to the Quran, holding it to the greatest authority on the subject, it held that there was no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. Shah Bano approached the courts for securing maintenance from her husband. When the case reached the Supreme Court of India, seven years had elapsed. The Supreme Court invoked Section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony. The Shah Bano judgment elicited a protest from many sections of Muslims who also took to the streets against what they believed as an attack on their religion and their right to their own religious personal laws. Some Muslims felt threatened by what they perceived as an encroachment on the Muslim Personal Law, and protested loudly at the judgment. The spokesmen for some were the Barelvi leader Obaidullah Khan Azmi and Syed Kazi. At the forefront was All India Muslim Personal Law Board, an organization formed in 1973 devoted to upholding what they saw as Sharia (Muslim Personal Law).

The law received severe criticism from several sections of the society. The Opposition called it another act of "appeasement" towards the minority community by the Indian National Congress. The All India Democratic Women's Association (AIDWA) organised demonstrations of Muslim women against the move to deprive them of rights that they had hitherto shared with the Hindus. The Bharatiya Janata Party regarded it as an 'appeasement' of the Muslim community and discriminatory to non Muslim men and saw it as a "violation of the sanctity of the country's highest court". The 'Muslim Women (Protection of Rights on Divorce) Act' was seen as discriminatory as it denied divorced Muslim women the right to basic maintenance which women of other faiths had access to under secular law. Rajiv Gandhi's colleague Arif Mohammad Khan who was INC member and a minister in Gandhi's cabinet resigned from the post and party in protest. Critics of the Act point out that while divorce is within the purview of personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law. Exclusion of non Muslim men from a law that appears inherently beneficial to men is also pointed out by them.

The constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged before the Supreme Court in Danial Latifi & Anr v. Union Of India by Daniel Latifi in 2001, who was the lawyer of Shah Bano in the Shah Bano case. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of articles 14 and 15 of the Constitution of India. The provision in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband". The Court held this provision means that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of word "within" and not "for"). It extends for the entire life of the divorced wife until she remarries.