NOTES ON SHAH BANO The judgment was delivered on April 23, 1985 by a 5 member bench.

bench. Mohammed Ahmed Khan was the Appellant and Shah Bano Begum and the others respondents. Married in 1932. Owing to some disputes over ownership of property and domestic disputes she was thrown out of her house in 1975. In 1978 she filed a petition against her husband asking for maintenance under section 125 of CrPc. On November 6, 1978, Khan divorced Shah Bano by an irrevocable triple divorce. In August 1979, the local mag-istrate directed Khan to pay a sum of Rs.25 (US$2) per month maintenance to Shah Bano who alleged that her former husband earned a professional income of about Rs.60,000 annually (US$4,600). In 1980, she filed a revised application for increased maintenance, and the High Court of Madhya Pradesh raised the amount to Rs.179.20 per month (US$14). Khan then appealed to the Supreme Court by a special leave petition, con-tending that since Shah Bano had ceased to be his wife because of the divorce given by him, he was under no obligation to pay maintenance to her beyond the iddat period. Khan's appeal was largely based on two grounds-that under Muslim personal law a divorced Muslim woman is entitled to maintenance only during the period of iddat, and that since he had already paid Shah Bano the mahr money, which according to him was the sum payable on divorce within the meaning of Section 127(3)(b) of the Code of Criminal Procedure, no further maintenance order could be im-posed on him. Section 125 was made applicable to Muslims by the Bombay High Court in a series of cases between 1975 and 1977-including Ahmedalli Muhammed Hanif Makander vs. Rabiya (1977 BLR 238) and, later, in the cases of Khurshid Khan (1978 BLR 240) and Mehbubabi (1978 BLR 258). The Supreme Court, in the cases of Bai Tahira vs. Ali Husain Fidaali Chotia (AIR 1979, S.C. 362) and Fazlunbi vs. Khader Vali (AIR 1980, S.C. 1730), ruled that Section 125 was applicable to Muslim divorcees also.

The Shah Bano case was referred to the Supreme Court for a larger bench by Justices Murtaza Fazal Ali and A. Varadaraja. The Muslim critique of the judgment focused on four distinctive but interrelated points: (1) the interpretation by the Supreme Court of Section 125 of the Criminal Procedure Code; (2) the Court's interpretation of cer-tain verses of the Quran; (3) the Court's allegedly disparaging remarks about the degradation of women in Islam and the Muslim husband's unfet-tered right of divorce; and (4) the obiter dictum of the judgment recommending a speedy promulgation of a uniform civil code.

The Muslim Women (Protection of Rights on Divorce) Act was passed by both Houses of Parliament in May 1986 amidst much controversy.33 The provisions of the Act extend to the whole of India except Jammu and Kashmir. The Act defines the term "divorced woman" as a Muslim wo-man married and divorced according to Muslim Law (Section 2[a]).

Previous judgments arriving at similar conclusions had provoked little response. The Shah Bano judgment, however, came at a time of heightened communal tensions. The Hindu right party, the Bharatiya Janata Party (BJP), although sitting in opposition, was gaining in popularity, leading to an increased sense of vulnerability amongst the Muslim minority." The Congress Government responded to the heightening communal crisis by passing the 1986 Muslim Women (Protection on Divorce) Act, yielding to the claims of cultural conservatives within the Muslim community and attempting to reverse the Shah Bano judgment.

The division between public and domestic spheres was given legal sanction by the Warren Hastings Plan of 1772, which provided that Hindus and Muslims in the Indian sub-continent were to be governed by their own laws in disputes relating to inheritance, marriage, caste and other religious usages and institutions.

For Nehru, national unity required greater uniformity in the administration of justice and the universal application of a set of general laws. Moving beyond the boundaries of communal identities required reform of the separate systems of personal laws inherited from the colonial era. This meant developing a uni- form civil code (UCC) that would apply to all citizens, regardless of communal attachment.