Constitutional Validity of Muslim Women Act, 1986

Muslims occupy an important position in Indian society. They are the principal minority of this country. According to 2011 census, Muslims constituted 13.4% of India’s total population with majority in Lakshadweep and Jammu and Kashmir. Ladies strengthening is a contemporary issue for creating nations like India. It is assumed that the development of Muslim society has sustained a setback due to various factors of which the ‘Invisible’ role and ‘Marginal’ social position of women in dynamics of Muslim society is very important. This article is an attempt to co-relate the question, the right of Muslim women has evolved over the course of time and what are the recent developments in it. Also about the harmonious interpretation of secular laws like section 125 CrPC along with gender discriminatory personal laws by courts for the protection of women from oppression.


Indian culture has unendingly been the site of a gridlock between sexual orientation uniformity and strict customs. Religious traditions gain dominance over gender equality and consequently, the mitigation of injustice faced by a particular gender, usually women, gets marginalized for upholding majoritarian religious views[i]. An effective approach to oppose such minimization is actualizing dynamic general standards that supplant class, religion, and sexual orientation contrasts and consistently apply to all. Just with such application would laws be able to have positive results in regards to sexual orientation uniformity.

One such dynamic law is Section 125 of the Code of Criminal Procedure that is a consistently appropriate arrangement which gives common solutions to implement the essential commitment of an individual to keep up his significant other, kids or guardians in as much as they can’t do as such. Usually, the rights and obligations under this segment have a superseding impact over close to home laws[ii]. However, prior this was dependent upon the exemption of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which is an independent resolution that systematizes the commitments of a Muslim spouse and different family members towards a Muslim lady and gives solutions for upholding the privileges of the woman[iii]. This Act reveres the Muslim law rule that a spouse’s risk to pay support to his separated from wife expands just till the Iddat time frame. Further, Section 125 can have no application to a Muslim lady except if both the couple agrees to be dependent upon it under Section 5 of the Act. The law has created through legal supposition, and it is currently accepted that there is no irregularity between the Act and the Code[iv].

In any case, presently the legal position has been cleared by the instance of Shamim Bano v Ashraf Khan[v]. The case is one such achievement as it deciphers Section 125 of the Code of Criminal Procedure to be all around relevant to ladies paying little heed to individual laws’ dicta on the issue. Starting to lead the pack from the well-known Shah Bano case, the Supreme Court of India held that Section 125 would apply to Muslim ladies, and they would be qualified for upkeep independent of Mahomedan law’s perspectives on the issue.

It has been held that Muslim ladies are qualified for upkeep through Section 125 of the Code before the separation and after separation; they can guarantee support through the arrangements of the Act[vi]. The Article investigates the development of law for the security of privileges of Muslim ladies.

The Shah Bano Judgment and Aftermath

The main situation where this contention of assessment previously became visible was the notable judgment of Mohd. Ahmed Khan v. Shah Bano Begum and Ors[vii]. In this judgment, a sixty-two-year-old Muslim lady was separated by her significant other by practicing his entitlement to incontestable ‘talaq’. An established seat of the Supreme Court held that a separated from Muslim lady is qualified for support under Section 125 of the Code. The court depended on strict writings of Mahomedan law and Quran understandings to arrive at this resolution and furthermore expressed that the spouse can’t get away from his risk to pay upkeep by payment of Maher or maintenance during Iddat period.

The standard Muslim people group propelled fights and tumults against this judgment as they considered it to be obstruction in their own law[viii]. The Government, consequently, collapsed under tension and collectively passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which overshadowed the consistently material Criminal Procedure. As per this Act, Muslim ladies reserved the option to upkeep from their spouses just for the Iddat time frame after which the weight of support was moved to her relatives or the District Waqf Board. In this manner, the option to bid under Section 125 was to a great extent confined to Muslim ladies and the law, which ought to have advocated for ladies’ privileges, became hostile to secular[ix] and against feminist due to the influence of politics and orthodoxy.[x]

This is the law on support for separated from Muslim ladies at present. Be that as it may, courts have attempted to decipher broadly the arrangements of the Code and the Act to give help to Muslim ladies. Already, the Supreme Court has depended on such agreeable development, and it is relevant to examine these decisions to get an all-encompassing comprehension of business as usual on support.

Need for Harmonious Interpretation of Statutes

One of the most striking cases after the Shah Bano judgment is Danial Latifi and Anr. v. Union of India[xi] where Shah Bano’s legal advisor herself tested the established legitimacy of the Act. In this judgment, the Supreme Court endeavored to scatter the disarray of clashing decisions that had emerged in the result of Shah Bano. The Constitution Bench went to a trade-off where it maintained the legitimacy of the Act however concluded that the arrangement for support would be material similarly to the Muslim community.

The Bench generously deciphered Sections 3 and 4 of the Act and expressed that a separated from Muslim lady is qualified for sensible and adequate arrangement for business alongside support, and in this way, the spouse is compelled by a sense of honor to give this inside the Iddat time frame (as expressed by the Act). Be that as it may, it held that this upkeep isn’t restricted to the Iddat time frame, and a Muslim lady is additionally qualified for support for as long as she can remember or until she remarries.[xii] The court deciphered the Act to imply that the constraint in the Act was not on the nature or span of upkeep but instead on the period inside which such maintenance or provision had to be made. In this manner, the Supreme Court attempted to encapsulate Section 125 of the Code and commonly apply it to Muslim ladies. It iterated the need for uniformly applicable laws to prevent such instances of discrimination and unjust deprivation in the future.

In any case, one weakness in Daniel Latifi was that the court neglected to understand the unavailability of Section 125 for Muslim ladies. Sober-mindedly, the spouse would not agree to be exposed to Section 125 of the Code when he can appreciate lesser risk under the Act. On the off chance that a separated from Muslim lady can’t keep up herself once the Iddat time frame is finished, she can’t guarantee upkeep from her previous spouse and needs to rely upon her relatives or the State Waqf Board. In this manner, much of the time, ladies can’t conjure Section 125 of the Code, and this arrangement stays main-stream just in name.


In the Shamim Bano case, the Supreme Court has consolidated the understandings embraced in Shah Bano and Danial Latifi and effectively held that Shamim Bano is qualified not just for Mahr, decorations, and upkeep under Section 3 of the Act yet additionally to support for the post-Iddat period as the equivalent has not been given in the request giving mahr. In this way, the Supreme Court put forth an honorable attempt to welcome Muslim ladies comparable to different networks.

Furthermore, the Bench supported her application under Section 125 of the Code regardless of the way that her better half, Ashraf Khan had not agreed to the equivalent. The court understood that if the application under Section 125 were excused, Shamim Bano would be remediless as the Magistrate’s organization just guaranteed Maher and didn’t give her any support. Along these lines, predicting this circumstance as a crime of equity, the court contemplated that Section 125’s boundaries ought to be applied.

Along these lines the decisions like Shamim Ara has ad libbed on Shah Bano and offered authenticity to the common character of Section 125; this mainstream character has been useful in securing Muslim ladies from persecution on account of Male conventionality. In any case, the Muslim Women (Protection of Rights on Divorce) Act keeps on being a hindrance to these endeavors. Along these lines, it is important to unmistakably divide the degree of this Act by holding it just for giving reasonable and sensible Maher and upkeep during the Iddat time frame. The cases like these have helped in diminishing the imposing business model of female prejudicial laws in issues of Marriage and considerably more.

For support during the post-Iddat period, the governing body will expect this obligation to give Muslim ladies the solid, common option to document an application under Section 125 of the Code. Thusly, the council must revise the Act to limit its application just for acquiring Maher and to repel Section 5 which makes it required to get the spouse’s assent for getting upkeep under Section 125 of the Code. Such an outcome would work agreeably as it considers strict contrasts yet in addition gives essential significance to the government assistance of separated from ladies.

[i] Siobhan Mullally, Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case, 24 (4) OJLP 671 (2004).

[ii]  Umar Hayat Khan v. Mahboobunisa, 1976 CrLJ 395 Kant (India).

[iii] J. Y. V. Chandrachud & V. R. Manohar, The Code of Criminal Procedure (Wadhwa 2006) 253.

[iv]  Shaikh Babbu v. Sayeda Marat Begum, 1999 CrLJ 4822 (Box).

[v] Shamim Bano v. Asraf Khan, CRIMINAL APPEAL NO.820 OF 2014 (India).

[vi] Abdul Rashid v. Farida, 1994 CrLJ 2336 MP (India).

[vii] Mohd. Ahmed Khan v. Shah Bano Begum and Ors. (1985) 2 SCC 556 (India).

[viii]  A.M., The Shah Bano LegacyTHE HINDU (July 3, 2020, 02:27 PM)

[ix]  Rajashri Dasgupta, Historic Judgment and After, 22(17) EPW (1987) 748.

[x]  Siobhan Mullally, supra, note 1.

[xi] Danial Latifi and Anr. v. Union of India (2001) 7 SCC 740.

[xii] (2001) 7 SCC 740.

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