The question at the centre of the Shah Bano case was short enough to state in one sentence, and the text of the statute did not answer it. A divorced woman who could not maintain herself applied for a monthly allowance under the general maintenance provision of the Code of Criminal Procedure, 1973. Her former husband answered that his obligation was governed by his personal law, that under that law it ended with the period of iddat that follows a divorce, and that he had paid the dower, called mahr, which the marriage contract had fixed. The provision she invoked said nothing about religion. The provision he relied on was not in the Code at all. Which of the two governed was a question of construction, and it took a Constitution Bench of the Supreme Court, a statute enacted by Parliament to displace the answer the Court gave, a second Constitution Bench to construe that statute, and a final decision four decades after the first to settle what the law had been at each step along the way.

This article narrates that sequence and reports the positions taken at each step by their content. It takes no position on what the law ought to be. What it offers is the record stated precisely: what the 1985 judgment held and what it merely observed, what the 1986 statute changed and what it left standing, how the 2001 construction worked as a matter of language, what the decisions of the intervening years added, and what the Supreme Court confirmed in 2024 about the relationship between the two remedies. The episode is invoked constantly in political argument, usually in a form the legal record does not support, by speakers on every side of it. The record is more interesting than the invocation.

The provision and the ambiguity inside it

The maintenance provision sits in Chapter IX of the Code of Criminal Procedure, 1973, which is Act 2 of 1974. Section 125 provides that if a person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the first class may order him to pay a monthly allowance at a rate the Magistrate thinks fit. An Explanation to the section states that “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. Three features of that text generated the whole dispute. The first is that the provision is general: it speaks of persons and wives without qualification by religion, and it appears in a procedural code of universal application. The second is that the Explanation expressly brings a divorced woman within the word “wife”, which means Parliament had already confronted the position of a divorced claimant and had answered it in her favour at the level of eligibility. The third is that the section fixes no terminal point tied to any personal law concept: the allowance runs, in the text, until it is altered or cancelled under the machinery that follows it.

The counterweight stood in Section 127. Where an order has been made under Section 125 in favour of a divorced woman, Section 127(3)(b) requires the Magistrate to cancel the order if satisfied that the woman has been divorced and has received the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce. That clause plainly contemplates that some divorces carry with them, under the law governing the parties, a sum payable on the divorce itself, and that where the whole of that sum has been received the monthly allowance should stop. The interpretive question that ran through the cases for a decade was whether mahr is such a sum. If mahr, the dower fixed by the marriage contract and payable by the husband under Muslim law, counted as a sum payable on divorce within the meaning of the clause, then a husband who had paid his mahr had, by the Code’s own terms, a route to cancellation of any maintenance order. If it did not count, the clause had no application to him and Section 125 operated without that qualification. Everything in the litigation of the late 1970s and early 1980s turned on that single characterisation.

Behind the Code stood an older statute. The Muslim Personal Law (Shariat) Application Act, 1937, Act 26 of 1937, provides in Section 2 that in questions regarding, among other subjects, marriage, dissolution of marriage and maintenance, the rule of decision where the parties are Muslims shall be the Muslim personal law, notwithstanding any custom or usage to the contrary. The husband’s argument in the maintenance cases was therefore not merely that his personal law limited his obligation, but that a statute of 1937 had directed courts to apply that personal law to questions of maintenance between Muslims, and that a general provision of a procedure code should not be read to override the direction. The wife’s answer was that Section 125 is not a rule of decision about the incidents of a Muslim marriage at all, but a summary remedy against destitution, enacted for all persons, and that the Explanation’s inclusion of divorced women within “wife” was a deliberate legislative choice that no personal law could displace.

The Explanation deserves a moment of its own, because it was new law. The predecessor provision, Section 488 of the earlier Code, had been read in much of the case law as spent once a marriage had been dissolved: a divorced woman was no longer a wife, and the summary jurisdiction ended with the status it protected. When the Code was recast in 1973, on the foundation of the Law Commission’s Forty-first Report, Parliament settled the point by definition, providing that “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The significance for the later litigation is that the divorced woman’s eligibility was not an inference drawn by sympathetic judges from a general text. It was the text. A husband resisting her claim was therefore never in the position of asking a court to refrain from extending a provision beyond its natural reach; he was asking it to qualify an express statutory inclusion by an external law. That is a materially harder argument, and it is the argument the interveners in 1985 had to make.

The cancellation clause itself repays a structural reading before the cases are reached, because the section in which it sits discloses the Code’s design. Section 127 performs three distinct operations. Its first limb empowers the Magistrate, on proof of a change in the circumstances of either party, to alter the allowance, upwards or downwards: the Code’s orders are provisional by design, tracking the parties’ fortunes. Its remaining limbs address the ending of orders, where the woman has remarried, where she has voluntarily surrendered her rights after divorce, and, in clause (3)(b), where she has received the whole of the sum payable under the customary or personal law of the parties on divorce. Cancellation was thus conceived as the recognition of a settlement, sitting inside a system whose default is revision, and the question the cases had to answer was what counts as the settlement the clause recognises: the whole of the sum payable under the personal law, whatever that sum turns out on examination to be, or whatever the husband chooses to tender and describe as such. Bai Tahira, Fuzlunbi and Shah Bano answered that the clause means what it says in full: the whole of the sum payable under the personal law, in lieu of maintenance, proved by the party who invokes the clause. Read in its section, the answer is unsurprising; a clause about settlements inside a revisionary code was never likely to be a device by which a tender of dower alone extinguished a welfare jurisdiction.

The provision’s other conditions shaped the litigation less but complete the machinery. The claimant must be unable to maintain herself; the respondent must have sufficient means and must have neglected or refused to maintain her; and the allowance is subject to the disqualifications in the section itself, under which a wife is not entitled if she is living in adultery, if without sufficient reason she refuses to live with her husband, or if the parties live separately by mutual consent. An order may be enforced by a warrant for levying the amount in the manner provided for fines, with imprisonment for the defaulter up to one month for each month of default. The power to order interim maintenance during the pendency of an application was recognised by the Supreme Court as implicit in the section in Savitri v. Govind Singh Rawat in 1985, the same year as Shah Bano, and was placed on an express footing by the amendment of 2001. None of these conditions distinguishes between claimants by religion. The whole of Chapter IX is written in the grammar of means, neglect and inability, which is why its collision with a status-based personal law was unavoidable once a case squarely raised it. Both arguments were arguments about the relationship between statutes, made from texts that Parliament had enacted, and the courts that heard them divided over which text controlled.

One further feature of Section 125 as it then stood matters to the story. As enacted in 1973, the section capped the allowance at five hundred rupees in the whole. The ceiling was a survival from the predecessor provision, Section 488 of the earlier Code, and it meant that the entire controversy of the 1980s was conducted over sums that were small even then. The ceiling was removed only in 2001, by the Code of Criminal Procedure (Amendment) Act, 2001, Act 50 of 2001, with effect from 24 September 2001, which also placed interim maintenance on an express statutory footing. When the figures in the Shah Bano litigation are stated below, they should be read against that ceiling: the constitutional argument was never about the money in the case, because the money in the case could not have been large.

Why does a maintenance remedy sit inside a criminal procedure code at all?

The remedy is civil in substance and has repeatedly been described by the Supreme Court as civil in nature, most plainly in Shabana Bano in 2009. It sits in the criminal procedure code for a historical and a practical reason: its predecessor stood in the earlier codes as a summary jurisdiction of magistrates, aimed at preventing destitution quickly.

The 1973 Code carried that architecture forward without relocating it. That placement explains the forum, the summary procedure and the enforcement machinery, which includes imprisonment for default. It also explains a persistent confusion in public discussion, where an application under Section 125 is spoken of as a prosecution. It is not one. No offence is alleged, no conviction is possible, and the only question is whether a person with sufficient means has neglected to maintain someone the section protects. The criminal code supplies the magistrate, the speed and the sanction for disobedience; the right being enforced is a civil obligation to maintain.

The frame within which this single provision operated is the wider arrangement by which family obligations in India are distributed between general statutes and the personal laws of the several communities, a map drawn in the complete guide to personal laws in India. Section 125 is one of the points where the two systems meet, because it applies to everyone while speaking the language of the family. The Shah Bano litigation is the fullest working out of what happens at that meeting point when the two systems give different answers to the same question, and it is best understood by following the answers in the order in which they were given.

The position the Court inherited

The Constitution Bench that decided Shah Bano did not write on a blank page. Two decisions of the Supreme Court, both delivered by benches speaking through Justice V. R. Krishna Iyer, had already settled the characterisation of mahr, and a third had settled the position of a wife who had herself obtained the divorce. What the 1985 bench inherited was therefore a developed doctrine with a known weakness: it rested on a purposive reading of Section 127(3)(b) that a later bench had already said, in terms, was against the plain language of the clause.

Bai Tahira v. Ali Hussain Fissalli Chothia, (1979) 2 SCC 316, was decided on 6 October 1978 by a bench of Krishna Iyer, Tulzapurkar and Pathak JJ. The wife had been divorced years earlier; under a consent decree in her suit the husband had transferred to her the flat in which she lived and had paid the mahr money, and the compromise recorded that she had no further claim. When she later applied under Section 125, the husband invoked Section 127(3)(b): she had received the whole of the sum payable under the personal law on divorce, so any order should be cancelled. The Court rejected the argument at its root. The object of the clause, it held, is not to extinguish the maintenance jurisdiction wherever a personal law payment has been made, but to prevent double provision where the sum received is genuinely a substitute for maintenance. A court must ask whether the amount received is sufficient, in the circumstances, to serve the purpose the maintenance provision serves, which is the prevention of destitution. Mahr, the judgment reasoned, is an obligation arising from the marriage itself, a mark of respect to the wife fixed at the wedding; it is not quantified by reference to her needs after a divorce that neither party contemplated when the amount was set, and it does not become a sum payable on divorce merely because it is often paid when the marriage ends. The decree and the payment therefore did not, without more, close the door opened by Section 125.

Fuzlunbi v. K. Khader Vali, (1980) 4 SCC 125, decided on 8 May 1980 by Krishna Iyer, Chinnappa Reddy and A. P. Sen JJ., carried the point further and gave it a measure. The Magistrate had cancelled a maintenance order on the footing that mahr and iddat period payments had been made; the High Court had agreed. The Supreme Court restored the order and stated the test in terms that have been quoted ever since: the payment contemplated by Section 127(3)(b) must be a sum that answers the intent of preventing destitution, more or less the present worth of the monthly allowance the divorced woman may need until death or remarriage overtakes her. On that test, the small sums typically fixed as mahr generations earlier could not discharge the husband. The judgment also said, in a sentence that matters to the later history, that the quintessence of mahr is not a contemplated quantification of a sum of money in lieu of maintenance upon divorce, because divorce is the last thing in contemplation when mahr is promised.

Zohara Khatoon v. Mohd. Ibrahim, (1981) 2 SCC 509, completed the structure. The wife there had obtained her divorce under the Dissolution of Muslim Marriages Act, 1939, and the question was whether a woman who had herself dissolved the marriage was a “wife” within the Explanation. The Court held that she was: the Explanation covers a woman who has been divorced by her husband and a woman who has obtained a divorce from him, in the alternative, and the route by which the marriage ended does not remove her from the provision. Read together, the three decisions established that a divorced Muslim woman unable to maintain herself could apply under Section 125, that her husband’s payment of mahr did not by itself entitle him to cancellation under Section 127(3)(b), and that the cancellation clause operated only where the sum received was a genuine substitute for maintenance measured against her prospective needs.

One further decision of the period supplied the constitutional register in which the whole line of cases would be heard. In Captain Ramesh Chander Kaushal v. Veena Kaushal, decided in 1978, Krishna Iyer J. described the maintenance provision as a measure of social justice, specially enacted to protect women and children, falling within the constitutional sweep of Article 15(3), the clause that empowers the state to make special provision for women and children, reinforced by Article 39 of the directive principles. The description mattered because it fixed the provision’s character for every later bench: Section 125 was not a neutral debt-collection mechanism that happened to sit among family obligations, but a welfare provision with a constitutional warrant, to be construed so as to advance the protection it existed to give. When the Constitution Bench in 1985 called Section 125 a measure of social justice enacted under the Code and applicable to all, it was speaking in Kaushal’s vocabulary, and when Nagarathna J. in 2024 anchored the right in Article 15(3) read with Article 39(e), she was closing a circle that Kaushal had drawn nearly half a century earlier.

Behind the three decisions stood a divided body of High Court authority on the cancellation clause, and it is the division, as much as the Supreme Court’s own line, that explains why a reference became necessary. Several High Courts had read Section 127(3)(b) at face value in the husband’s favour, treating the payment of mahr and of the sums customarily payable on divorce as closing the wife’s account under the Code; others had followed the purposive course the Supreme Court would adopt. A divorced woman’s entitlement under a central statute thus depended on the forum in which her application happened to be filed, which is the classic condition for appellate settlement. The occasion came from within the Supreme Court itself. When the husband’s appeal in Shah Bano’s case first came before a bench of two judges, Murtaza Fazal Ali and A. Varadarajan JJ., on 3 February 1981, they recorded that there appeared to be a conflict between the personal law as disclosed by the Quran and the provisions of Sections 125 and 127 of the Code, and they felt, with the greatest respect, that the exposition of the law in Bai Tahira and Fuzlunbi in regard to Section 127(3)(b) proceeded from an incorrect reading of that provision. A bench of two judges does not overrule decisions of benches of three. What it may do, when it doubts them, is refer the question to a larger bench, and that is what the order of February 1981 did, placing the appeal before the Chief Justice for constitution of a Constitution Bench. The procedural history matters to the interpretation of what followed. The 1985 bench did not volunteer a ruling on an abstract question; it answered a reference made by colleagues who had themselves identified the competing contention, recorded in the referring order, that after the Shariat Application Act of 1937 the Quran was the sole repository governing the parties, and who had doubted whether the three-judge authorities could stand against it. The Constitution Bench’s task was thus framed for it, by the ordinary discipline of precedent, as a choice between two readings of a cancellation clause, each with institutional support behind it.

The weakness in the structure was institutional rather than analytical. Bai Tahira and Fuzlunbi were decisions of benches of three and three; their reading of Section 127(3)(b) was avowedly purposive, and it was open to a later bench of co-ordinate strength to say that the clause had been construed against its words. That is what occurred. When Mohd. Ahmed Khan’s appeal against the Madhya Pradesh High Court’s order reached the Supreme Court, a bench of Murtaza Fazal Ali and A. Varadarajan JJ., by an order dated 3 February 1981, recorded that in their view the two decisions required reconsideration. The order, which the Constitution Bench later set out in its own judgment, gave two reasons: that the decisions were in direct contravention of the plain and unambiguous language of Section 127(3)(b), which far from overriding Muslim law on the subject protected and applied it where dower had been paid and iddat observed; and that they were against the concept of divorce and its consequences under Muslim law, which Section 2 of the Shariat Application Act, 1937 had expressly protected and which the earlier benches had not noticed. The appeal was directed to be placed before the Chief Justice for hearing by a larger bench of more than three judges. The question that bench had to answer was therefore not the narrow one whether one woman in Indore should receive a monthly sum. It was whether a settled line of authority, built by a judge whose interpretive method was itself controversial, would survive reconsideration by the largest bench the Court ordinarily assembles.

The 1985 decision: facts, question and holding

Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, AIR 1985 SC 945, was decided on 23 April 1985. The bench was a Constitution Bench of five: Y. V. Chandrachud, Chief Justice, with D. A. Desai, O. Chinnappa Reddy, E. S. Venkataramiah and Ranganath Misra JJ. The judgment of the Court was delivered by Chandrachud CJ and was unanimous. The appeal was Criminal Appeal No. 103 of 1981, brought by the husband by special leave against the order of the Madhya Pradesh High Court. The All India Muslim Personal Law Board and the Jamiat Ulama-i-Hind intervened in support of the appellant, which placed before the Court, at full strength, the argument that the personal law governed and that the Code should not be read across it.

The facts were not in dispute. The appellant, an advocate practising at Indore, had married Shah Bano in 1932. The couple had five children, three sons and two daughters. In 1975 the appellant drove the respondent out of the matrimonial home. She was then in her sixties. In April 1978 she applied to the Judicial Magistrate, First Class, at Indore under Section 125, claiming maintenance of five hundred rupees a month, the maximum the section then allowed, and pleading that her husband’s professional income was of the order of sixty thousand rupees a year. On 6 November 1978, while the application was pending, the appellant pronounced an irrevocable talaq. His defence to the application followed from that act: he said he had paid her two hundred rupees a month for a period of about two years, that he had deposited three thousand rupees in court as mahr, and that under Muslim personal law his obligation ended with the iddat period, which the payments he described had more than covered. In August 1979 the Magistrate awarded her twenty-five rupees a month. On her revision, the Madhya Pradesh High Court enhanced the allowance to one hundred and seventy-nine rupees and twenty paise a month. The husband’s appeal attacked that order.

How much maintenance was actually at stake in the Shah Bano case?

The Magistrate awarded twenty-five rupees a month in August 1979, and the Madhya Pradesh High Court raised the figure on revision to one hundred and seventy-nine rupees and twenty paise a month, the order the Supreme Court upheld. The mahr deposited in court was three thousand rupees.

Section 125 then capped any allowance at five hundred rupees a month in the whole. Those figures explain a feature of the episode that later retelling usually misses. The parties, the interveners and the country were not arguing about the adequacy of one hundred and seventy-nine rupees. They were arguing about the principle that determined whether any monthly obligation could exist at all after iddat, and both sides understood that the answer would govern every comparable case. The husband was an advocate resisting a modest order on a point of law he regarded as settled by his personal law; the wife was an elderly woman without means for whom the monthly sum, whatever its size, was the difference between support and dependence. The smallness of the amount is not incidental to the case. It is part of why the case became a vehicle: the legal question arrived in its purest form, uncomplicated by any dispute about quantum, means or credibility.

The judgment opened by acknowledging the character of what it had to decide, calling the questions that arose some of the important, though agonising, questions the Court is called on to answer. Its treatment of the earlier authorities was equally deliberate. The bench did not merely follow Bai Tahira and Fuzlunbi; it explained why their method was sound, observing that Krishna Iyer J., who spoke for the Court in both, had relied greatly on the teleological and schematic method of interpretation so as to advance the purpose of the law, and that those constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of society. Taking the language of the statute as one finds it, the bench said, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under Section 125, and that mahr is not a sum which, under the Muslim personal law, is payable on divorce. The sentence is worth attending to, because it locates the decision’s authority where the bench wanted it located: not in judicial sympathy, but in the enacted words, read in the light of the purpose the words themselves disclose.

The Court also worked through the legislative history of the Code, because the husband’s side had relied on it. During the passage of the Code of Criminal Procedure Bill, the minister in charge had given assurances that the government did not desire to interfere with the personal law of Muslims through the Code and preferred that reform come from within the community. The bench accepted that the government may not have desired to change Muslim personal law by enacting Sections 125 and 127. It answered that the government had all the same introduced such a change, by defining the expression “wife” to include a divorced wife, and that a possible misconception about dower, as an amount payable on divorce, could not convert an amount payable as a mark of respect for the wife into an amount payable on divorce. The exchange is a compact lesson in the hierarchy of interpretive materials: ministerial assurances about what a bill was not meant to do cannot displace what the enacted section, in its definitions, plainly did.

The bench also had to dispose of the argument from the Shariat Application Act, because it was the contention with the deepest legal roots. Section 2 of the Act of 1937 directs that in questions regarding, among other subjects, marriage, dissolution of marriage, maintenance and dower, the rule of decision where the parties are Muslims shall be the Muslim personal law. The husband’s contention, as later recited by Nagarathna J. in 2024, was that after the passing of that Act the Quran was the sole repository governing the case, so that a wife’s claim to maintenance stood or fell by the personal law alone, and the amounts payable under that law on divorce exhausted her rights. The Constitution Bench rejected the contention at both of its levels. At the level of statutory fields, the Code’s maintenance chapter is a general welfare jurisdiction exercised by magistrates, not a rule of decision for questions of personal law between Muslims, and the Act of 1937 does not profess to govern it. At the level of substance, the Court held that there was in any event no conflict for the contention to bite on, since the personal law itself, correctly read, obliged the husband to make provision for the divorced wife. The double answer is characteristic of the judgment’s construction method throughout: where a conflict between statutes is alleged, first test whether the two instruments occupy the same field at all, and then test whether the alleged conflict exists on the true construction of each. On both tests the husband’s case failed, and it failed on materials, the two Acts and the Quran, that his own side had put at the centre of the appeal.

The question framed by the Court was whether Section 125 applies where the parties are Muslims, and, within that, whether the husband’s obligations under the personal law, discharged by payment of mahr and maintenance for iddat, freed him from the Code. The Court answered by a route that has two distinct stages, and the distinction between them is the key to everything that followed. At the first stage, the Court construed the Code. Section 125, it held, is a provision of general application: it operates on all persons within its terms, it is a measure of social justice for the prevention of destitution, and in the event of any conflict between its provisions and the rules of personal law, the Code prevails, because the Explanation’s inclusion of the divorced woman within “wife” is a legislative choice that cannot be read down by reference to a law Parliament did not mention in the section. The Court confirmed Bai Tahira and Fuzlunbi, with one correction: a statement in Bai Tahira suggesting that payment of mahr fell within the cognizance of Section 127(3)(b) was, the bench said, an error that had crept into that judgment, since mahr, not being payable on divorce at all, does not fall within the clause’s meaning. On the Code alone, the appeal failed.

At the second stage, the Court addressed the premise of the husband’s case, which was that the personal law itself confined his obligation to the iddat period. It examined the texts relied on for that proposition, including the verses of the Quran at Chapter II, verses 241 and 242, concerning provision for divorced women, and held that those verses impose an obligation on the husband to make provision for, or to provide maintenance to, the divorced wife. The conclusion was stated in terms of harmony rather than conflict: there was no conflict between the provisions of Section 125 and those of the Muslim personal law on the question of the husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself. The holding, then, had three elements. The general provision applies to a divorced Muslim woman unable to maintain herself, irrespective of religion, because that is what its text enacts. The payment of mahr does not by itself satisfy Section 127(3)(b), because mahr is not a sum payable on divorce. And the personal law, correctly read in the Court’s view, did not contradict either proposition. The appeal was dismissed and the High Court’s order stood.

Why did the Constitution Bench discuss the Quran in a maintenance appeal?

The husband’s case rested on an assertion about what Muslim personal law required, and the intervener organisations supported that assertion as a matter of religious law. A court asked to accept that a religious law limits a statutory right must either take the assertion as given or examine it.

The bench chose to examine it, and concluded that the obligation the husband denied was one the texts imposed. The bench read the verses on provision for divorced women in the standard translations and commentaries placed before it. That choice of method, more than the result, was what critics of the judgment fastened on, including critics who agreed with the result. A court construing a procedure code, they said, had no need to construe scripture, and by doing so it exposed its reasoning to a contest it was not equipped to conduct and invited the response that interpretation of religious texts belongs to the community’s own scholars. Defenders of the method answered that the Court could not have decided the case the other way without endorsing, untested, a proposition about religious law that the texts did not support, and that meeting the argument on its own ground was the more respectful course. The disagreement is about judicial method and it recurs wherever a court is asked to give effect to a claim stated in religious terms; it is recorded here because it shaped the form the public controversy took, in which the judgment was attacked less for what it ordered than for its having pronounced on the meaning of the Quran at all.

The judgment closed with a passage that was not necessary to any of these holdings. Having decided the appeal, the Court turned to Article 44 of the Constitution, the directive principle recording that the state shall endeavour to secure a uniform civil code for citizens throughout India. It said that it was a matter of regret that Article 44 had remained a dead letter, observed that a common civil code would help the cause of national integration by removing disparate loyalties in laws which have conflicting ideologies, and expressed the hope that the legislature would intervene. These were observations on a directive principle that the appeal had not required the Court to construe; they bound no one, decided nothing, and formed no part of the reasoning by which the maintenance order was upheld. Their presence in the judgment is for all that a fact of the first importance for the history, because the public controversy that followed treated the judgment as if the uniform civil code passage were its centre. The fuller parliamentary and public argument over that question belongs to the uniform civil code debate in India, which owns it; here the passage matters for two narrower reasons. It gave opponents of the judgment a target larger than a maintenance order, and it allowed the judgment to be described, inaccurately, as a direction to enact a code, which it was not. No direction was issued. The Court decided an appeal about one hundred and seventy-nine rupees and twenty paise a month, and said, in passing, what it thought about a constitutional aspiration. Keeping those two things separate is the first discipline the episode demands. The passage had a judicial afterlife of its own, which later benches had to police: in Sarla Mudgal v. Union of India in 1995 a bench returned to the Article 44 aspiration in the context of marriages across personal laws, and in Lily Thomas v. Union of India in 2000 the Court clarified that observations of that kind issue no direction to Parliament and that the earlier cases had not done so either. The clarification belongs to the same discipline: the maintenance holding of 1985 was law because it decided the appeal; the Article 44 passage was opinion because it decided nothing, and the distinction between the two is precisely what the political controversy of 1985 and 1986 obscured.

The controversy and the two cases made in public

The reaction to the judgment was immediate, organised and conducted on both sides by people of standing, in Parliament, in the press and in public meetings across the country. The positions were these. Those who sought legislation to displace the judgment argued that a general statute of criminal procedure had been applied to a matter governed by personal law; that the personal law of a community in family matters is part of its religious freedom and its identity; that the community is entitled to be governed by its own law in such matters unless reform comes from within it; and that a court had compounded the error by interpreting the community’s scripture against the community’s own understanding of it. Those who opposed legislation argued that a remedy available to every other divorced woman in the country had been confirmed for Muslim women by the highest court, and that to withdraw it by statute was to place one category of women, defined by religion, outside a protection the law gave to all others; that the judgment had found the obligation within the personal law itself, so no conflict with religion arose; and that the proper respondent to a judgment believed wrong was an appeal to legal argument, not a legislative reversal procured by organised pressure.

The division among commentators is part of the record and resists the same flattening. Tahir Mahmood, the period’s leading academic authority on Muslim law, defended the divorced woman’s entitlement to maintenance under the general law while criticising the judgment’s excursions, its reading of the Quran and its Article 44 passage, as unnecessary to the decision and inflammatory beyond it; his position, that the result was right and much of the reasoning imprudent, was shared by a number of the judgment’s supporters and is one reason the subsequent debate about the Act so often proceeded on two separate tracks, one about entitlement and one about method. The distinction mattered in 2001 and again in 2024, because the benches that settled the sequence were able to hold the entitlement firmly while saying nothing that committed them to every step of the 1985 reasoning, and the survival of the result owed something to the willingness of its defenders, from the beginning, to separate it from its obiter.

Both cases were argued in Parliament by named members taking opposite sides within the same government. Arif Mohammed Khan, a Minister of State in the Union government, defended the judgment on the floor of the House in 1985, arguing that it accorded with the Quran’s own injunctions and that the maintenance it ordered was a matter of justice to women who had no other support. Ziaur Rahman Ansari, also a Minister of State in the same government, attacked the judgment at length in Parliament in December 1985, in a speech reported as lasting three hours, describing the verdict in hostile terms and questioning the competence of the judges to interpret Islamic law. Syed Shahabuddin, a Member of Parliament and editor, argued in print and in debate that the judgment had injured Muslim feeling because the Court had undertaken to interpret the Quran itself. Asghar Ali Engineer, the scholar and activist, supported the judgment publicly and repeatedly, on the ground that the Quranic obligation to provide for a divorced wife was real and that the personal law as administered had departed from it; his edited volume on the controversy, published in 1987, remains a primary collection of the period’s arguments. G. M. Banatwala, a Member of Parliament, moved a private member’s bill that would have amended Article 44 itself so as to place Muslims outside the reach of any future uniform code, a measure aimed not at the maintenance holding but at the obiter that accompanied it. The All India Muslim Personal Law Board, which had intervened in the appeal, conducted the campaign for legislation, presenting the judgment as an interference with the Shariat that the government was bound to correct.

The government’s own stated policy became part of the opposition’s case. Defending the Bill, the Law Minister told Parliament that it had been the consistent policy of the Government, since the time of Jawaharlal Nehru, that in matters pertaining to a community the views of the leaders of that community must be given priority and the Government would not move until a consensus had been reached within it. That statement is the clearest documentary evidence of the ground on which the legislation was carried: not a claim that the judgment was wrong in law, but a doctrine about who is entitled to settle a community’s family law, and by what process change within it may legitimately arrive. Opponents of the Bill fastened on precisely that premise, answering that maintenance against destitution is not an internal matter of doctrine at all, and that the women whom the doctrine of deference left unheard were the very persons the judgment had protected. Nor was the community’s first reaction uniform: research on the Urdu press of the period, including Nawaz B. Mody’s study in Asian Survey, records that substantial sections of it initially welcomed the verdict and called for introspection and reform, before the organised campaign consolidated opinion against it. Mass processions against the judgment were reported in several cities in December 1985 and January 1986, among them Bombay and Calicut.

Inside the community the argument was not one-sided, and the record should not be flattened into a picture of a single orthodox voice against a single reforming one. Muslim women’s organisations and individual Muslim lawyers and scholars were among the judgment’s defenders, and the women’s movement more broadly, including organisations such as the All India Democratic Women’s Association and the National Federation of Indian Women, campaigned against the Bill when it came, protesting that it withdrew a judicially confirmed right. The government of Rajiv Gandhi, which commanded an overwhelming majority in the Lok Sabha, initially allowed the judgment to be defended by its own minister. In November 1985 the woman at the centre of the case was drawn into the campaign in her own person. Reporting of the period, including a detailed account in the Sunday magazine of 1 to 7 December 1985, described sustained protests outside her home in Indore and the threat of social ostracism; on 15 November 1985 Shah Bano put her thumb impression to a public statement disavowing the verdict and giving up the maintenance it had secured for her, saying that she had been advised the judgment was against the Shariat. Her son later told journalists that the family had feared being branded for life as the people who had got the courts to interfere in the Shariat. She died in 1992. The maintenance order that five judges of the Supreme Court had upheld was, in the event, never the point again; the contest had moved entirely to Parliament.

The statute Parliament enacted in reply

The legislative timetable itself is part of the evidence. The judgment was delivered in April 1985. Through the remainder of that year the government allowed its own minister to defend the judgment in Parliament while the campaign against it consolidated; the Bill was announced as the government’s answer only after that consolidation, and the interval is the space in which the organised opposition, rather than the argument, determined the outcome. In February 1986 the government introduced the Muslim Women (Protection of Rights on Divorce) Bill in the Lok Sabha. It was passed in May 1986, with the Congress party issuing a whip to its members, and it received the President’s assent on 19 May 1986 as the Muslim Women (Protection of Rights on Divorce) Act, 1986, Act 25 of 1986. Arif Mohammed Khan resigned from the Council of Ministers in protest as the Bill moved through Parliament, telling an interviewer that under the new legislation Indian Muslim women would be the only women in the world to be denied maintenance. The Act is treated in full in the article on the Muslim Women Divorce Act 1986, which owns its provisions; what follows is the outline a reader of the interpretive sequence needs, and no more.

The Bill’s own Statement of Objects and Reasons, as later reproduced in the Danial Latifi judgment, stated its purpose with unusual candour: “This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests.” Two features of that sentence repay attention. The first is the word “controversy”: the Statement does not say the decision was wrong, unconstitutional, or beyond the Court’s competence; it identifies a political fact, a controversy, as the occasion for legislation. The second is the direction of the stated purpose, which is protective: the rights are to be specified and the woman’s interests protected, language a later court could and did hold the Act to. A legislature that intends to strip a right ordinarily says so in the vocabulary of restriction; this legislature described itself as specifying and protecting, and that description became one of the handholds by which the Constitution Bench fifteen years later sustained the statute while declining to read it as a deprivation. The Statement is the clearest early evidence for the article’s central claim: the confrontation between Court and Parliament in this episode was never a simple story of a right granted and then removed, because the removing instrument described itself, from its first page, as an instrument of protection.

The Act applies to a “divorced woman”, defined as a Muslim woman married according to Muslim law who has been divorced by, or has obtained a divorce from, her husband in accordance with that law. Section 2 defines the iddat period: three menstrual courses after the divorce where the woman is subject to menstruation, three lunar months where she is not, and, where she is pregnant at the divorce, the period until the delivery of the child or the termination of the pregnancy, whichever is earlier. Section 3 then sets out her entitlements at divorce: a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; where she maintains children born to her before or after the divorce, a reasonable and fair provision and maintenance for the children for two years from their dates of birth; the mahr or dower agreed to be paid to her; and all the properties given to her before, at or after the marriage by her relatives, her friends, the husband or his relatives or friends. Where the former husband does not pay, Section 3 gives her the right to apply to a Magistrate, who may order payment of such reasonable and fair provision and maintenance as he determines, having regard to her needs, the standard of life she enjoyed during the marriage and the means of the former husband, with enforcement by warrant and imprisonment for up to a year on default. Section 4 addresses the woman who, after the iddat period, has not remarried and is unable to maintain herself: the Magistrate may order her relatives who would inherit her property on her death under Muslim law to pay maintenance in the proportions in which they would inherit, and, where she has no such relatives able to pay, the State Wakf Board. Section 5 preserves a door back to the Code: if the divorced woman and her former husband declare jointly or separately, in writing, at the first hearing of an application under the Act, that they would prefer to be governed by Sections 125 to 128 of the Code, the Magistrate shall dispose of the application accordingly. Section 6 is a rule-making power. Section 7 is the transitional provision, and it mattered immediately, because applications under the Code were pending in magistrates’ courts across the country on the day the Act commenced.

What happened to maintenance applications already pending when the 1986 Act commenced?

Section 7 of the Act answered them directly. Every application by a divorced woman under Section 125 or Section 127 of the Code pending before a Magistrate on the commencement of the Act was to be disposed of in accordance with the provisions of the Act, notwithstanding anything in the Code.

The single exception ran through the election the Act itself preserved: if, at the first hearing, the woman and her former husband filed the declaration of preference contemplated by the scheme of Section 5, the Magistrate was to dispose of the application under the Code instead. The transitional provision is worth dwelling on because it shows the statute’s intended reach. Parliament did not merely legislate for future divorces. It redirected live proceedings, including proceedings at the stage Shah Bano’s own had occupied, into the new statutory channel, subject only to the joint election the Act required. A woman litigating alone, whose former husband had no reason to elect the Code that had just been held to give her a monthly right, would in practice find her pending claim converted into a claim under Section 3. The pending-applications rule is therefore part of the substance of the displacement, not a machinery footnote, and any account of what the Act did that omits Section 7 understates it.

The Act’s text nowhere says, in terms, that Section 125 ceases to apply to divorced Muslim women. What it does is construct a self-contained code for their entitlements at divorce, with its own forum, its own ladder of liable persons and its own transitional rule for pending cases, and it does so for a class defined entirely by religion and marital status. That construction choice, a complete code that displaces by occupation rather than by express repeal, set the terms of the constitutional challenge that followed and of the construction by which the challenge was answered. Writ petitions challenging the Act were filed in the Supreme Court in 1986 itself, among them Writ Petition Nos. 868, 996, 1001, 1055, 1062, 1236, 1259 and 1281 of 1986. They waited fifteen years for judgment.

Four decades in six steps

The table below is the article’s argument in miniature. Each row records one step of the sequence and states the legal position immediately afterwards on a single question: could a divorced Muslim woman who could not maintain herself obtain maintenance from her former husband beyond the iddat period? Reading down the final column shows the answer moving and then returning, which is what the four decades were about.

Step	What happened	Position on maintenance beyond iddat immediately afterwards
The 1985 judgment: Mohd. Ahmed Khan v. Shah Bano Begum, decided 23 April 1985	A Constitution Bench held that Section 125 of the Code applies to a divorced Muslim woman irrespective of religion, that mahr is not a sum payable on divorce within Section 127(3)(b), and that the personal law itself imposed an obligation of provision; the High Court’s order of Rs 179.20 a month was upheld	Yes, under Section 125, as a monthly allowance until remarriage or alteration of the order, with no terminal point at iddat
The 1986 statute: Muslim Women (Protection of Rights on Divorce) Act, Act 25 of 1986, assent 19 May 1986	Parliament enacted a self-contained code: reasonable and fair provision and maintenance within iddat from the former husband under Section 3, then relatives and the Wakf Board under Section 4; pending Code applications redirected by Section 7; a joint election back to the Code preserved by Section 5	Understood on all sides to be no, beyond the provision made within iddat; the husband’s obligation was taken to end with the iddat period, and support thereafter was assigned to relatives and the Wakf Board
The 2001 construction: Danial Latifi v. Union of India, decided 28 September 2001	A Constitution Bench upheld the Act against challenge under Articles 14, 15 and 21, and construed Section 3(1)(a) to require a reasonable and fair provision for the wife’s future, extending beyond iddat, to be made and paid within the iddat period	Yes, in substance: the entitlement beyond iddat survived, but its form changed from a monthly allowance under the Code to a provision for the future, assessed and paid as a settlement within iddat
The 2010 clarification: Shabana Bano v. Imran Khan, decided 4 December 2009, reported at (2010) 1 SCC 666	A two-judge bench held, on a cumulative reading of Danial Latifi and Iqbal Bano, that a divorced Muslim woman’s petition under Section 125 is maintainable and that the amount cannot be restricted to the iddat period	Yes, also under Section 125 itself: the general provision was held never to have been closed to her, so the monthly remedy stood alongside the statutory settlement
The recodification: the Bharatiya Nagarik Suraksha Sanhita, 2023, in force 1 July 2024	The maintenance provisions of the Code were re-enacted with renumbering: Section 125 corresponds to Section 144 of the Sanhita, Section 126 to Section 145, Section 127 to Section 146 and Section 128 to Section 147; pending proceedings continued under the old Code by the Sanhita’s savings provision	Unchanged in substance: the general remedy continues under its new number, carrying the case law built on the old one
The 2024 confirmation: Mohd. Abdul Samad v. State of Telangana, decided 10 July 2024	A two-judge bench, in separate concurring judgments, held that Section 125 applies to divorced Muslim women, that the 1986 Act is not in derogation of Section 125 but in addition to it, and that the option between the remedies lies with the woman	Yes, expressly and by her choice: both remedies are available, together or separately, and a payment under the 1986 Act is taken into account under Section 127(3)(b) rather than barring the general claim

Danial Latifi: the statute upheld, and read upwards

Danial Latifi and Another v. Union of India, (2001) 7 SCC 740, was decided on 28 September 2001 by a Constitution Bench of G. B. Pattanaik, S. Rajendra Babu, D. P. Mohapatra, Doraiswamy Raju and Shivaraj V. Patil JJ., with the judgment delivered by Rajendra Babu J. The lead petitioner was the advocate who had represented Shah Bano in the 1985 appeal, which gives the litigation an unusual symmetry: the lawyer who had won the general remedy in 1985 returned to challenge the statute that displaced it. The petitions argued that the Act violated Article 14, because it singled out divorced Muslim women for a regime less favourable than the one Section 125 gave every other divorced woman; Article 15, because the classification rested on religion; and Article 21, because a provision confined to the iddat period, on the reading the petitions attributed to the Act, would leave a woman without means exposed to destitution after it expired. The Union defended the Act as a special law consistent with the personal law it displaced the Code to protect, pointing to the Section 4 ladder of relatives and the Wakf Board as the mechanism by which a woman unable to maintain herself after iddat would be supported. The All India Muslim Personal Law Board intervened in support of the Act and, as it had in 1985, questioned the authority of a court to interpret religious texts. The petitions had been filed in 1986; the Act had operated, on the restrictive understanding of it, for the whole of the intervening fifteen years.

The Court’s reasoning began from a premise the petitions had not expected it to adopt. It accepted that if the Act were construed as confining the former husband’s liability to maintenance for the iddat period alone, grave constitutional difficulty would follow, because a construction that left a divorced woman worse off than every other divorced woman in the country, by reason only of her religion, would be exposed under Articles 14 and 15. But between a construction that invalidates and a construction that saves, the Court applied the settled rule of construction: where by an appropriate reading of an enactment its validity can be upheld, that interpretation is to be accepted, and not the other way round. The question therefore became what Section 3(1)(a) could bear. Its words entitle the divorced woman to “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband”. The Court fastened on two features of that sentence. The first is the pairing of “provision” with “maintenance”: a provision, the Court reasoned, is by its nature something made in advance for future needs, contemplating residence, food, clothing and the other requirements of life beyond the moment at which it is made. The second is the preposition. The section says the provision and maintenance are to be made and paid “within” the iddat period; it does not say they are to be “for” the iddat period. “Within” fixes the time by which the husband must act. It does not fix the period the provision must cover.

The Court was under no illusion about the pressure on its construction, and said so in terms that later benches quoted back. The provisions, it observed, prima facie appear to be violative of Article 14 of the Constitution, mandating equality, and also violative of Article 15, which prohibits discrimination on grounds of religion, since the Act would apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. That observation is the hinge of the judgment’s candour: the bench recorded the force of the constitutional objection before explaining why the statute, construed as it construed it, did not in the end offend. The core of the responsive construction was stated in paragraph 28, in words that Abdul Samad would repeat in 2024: while upholding the validity of the Act, the Court held that at the time of divorce the Muslim husband is required to contemplate the future needs of his divorced wife and make preparatory arrangements in advance for meeting those needs; reasonable and fair provision, the Court said, may include provision for her residence, her food, her clothes and other articles. On the other side of the ledger, the Court recorded what the Act had changed in reality: the benefit the husband drew from the statute was that he was absolved of the obligation to pay recurring monthly maintenance beyond the iddat period, being required instead to consolidate the whole of his liability into the provision made within it.

From those two features the Court drew its conclusions, which it numbered, and which have governed the Act since. First, a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well, and such a provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a). Second, the liability of the husband to pay maintenance under that clause is not confined to the iddat period. Third, a divorced Muslim woman who has not remarried and is unable to maintain herself after the iddat period may proceed under Section 4 against the relatives liable to maintain her in proportion to the property they would inherit from her, with the State Wakf Board directed to pay where relatives are unable. Fourth, the provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution. The writ petitions were dismissed. High Court decisions contrary to the construction were overruled.

The reception of the judgment completed the pattern the whole sequence exhibits. The organisations that had promoted the Act expressed satisfaction that the statute had been upheld and its validity placed beyond challenge, which, on the face of the order, it had been. Commentators for the women’s movement described the outcome as a defeat dressed as a compromise, on the ground that the settlement form leaves quantum to magistrates’ assessments of fairness at a single moment and that the record of such assessments, of the kind Agnes compiled for the preceding decade, gave no ground for confidence. Both receptions were accurate about the half of the judgment each attended to. The Act survived intact as a text; its restrictive reading did not survive at all. Which half mattered more could not be known in 2001, because it depended on a question the judgment had not answered, whether the woman who found her Section 3 settlement inadequate could go back to the Code. The years of divergence were, in substance, the period in which that unanswered question worked itself through the courts, and their history is unintelligible unless Danial Latifi is read as what it was: a judgment that settled the Act’s meaning and, by settling it, made the survival of the general remedy the only question left worth litigating.

The decision should be described with precision, because it is misdescribed in both directions in ordinary discussion. Danial Latifi did not strike the 1986 Act down; it upheld the Act and dismissed every challenge to it, and the Act remains on the statute book in the form Parliament enacted. Nor did Danial Latifi restore Section 125: the judgment is a construction of the 1986 Act alone, and it neither held nor said that a divorced Muslim woman could resume the general remedy as though the Act had not intervened. What it did was relocate the entitlement. The husband remained the primary obligor, as he had been under the Code; the measure of his obligation became a fair provision for his former wife’s future, including maintenance for her life unless she remarried; but the form of the obligation changed from a monthly allowance, variable as circumstances changed and enforceable month by month, to a settlement assessed at divorce and payable within a short window. A woman whose settlement proved inadequate had no monthly order to return to for enhancement; her statutory route after iddat ran against her relatives and the Wakf Board under Section 4, a route whose practical yield the record of the following years did little to advertise. Whether the substance delivered by the construction equals the substance the 1985 judgment had delivered is therefore a question with two honest answers, depending on whether one attends to the entitlement recognised or to the remedy’s shape, and the scholarly division on the case reflects exactly that split. Siobhan Mullally, writing in the Oxford Journal of Legal Studies in 2004, criticised the judgment for resolving a claim of equal citizenship through the frame of religious identity, saving the statute by construction rather than testing it against the equality the petitioners had invoked. Flavia Agnes’s empirical work on maintenance adjudication supplied the factual backdrop against which the construction’s generosity must be measured: her study of 243 maintenance judgments delivered between 1987 and 2000 found that in sixty per cent of them the award was only two hundred rupees a month, and in only six per cent more than five hundred. Defenders of the construction answer that a court asked to choose between invalidating a statute and reading it to conform with the Constitution is not merely permitted but expected to choose the reading that saves, and that the alternative outcome in 2001 was not Section 125 restored but the Act struck down and the field left to a Parliament whose last word on the subject had been the Act itself.

The years of divergence

Between the construction of 2001 and the confirmation of 2024, the law in the books and the law in the magistrates’ courts were not always the same thing, and the Supreme Court returned to the subject in smaller formations that progressively widened what Danial Latifi had left unsaid. Three of those decisions carry the sequence forward, and two others from the same period frame its practical setting.

The divergence ran in both directions at once, and on both statutes. On the Act of 1986 itself, the High Courts divided over the very words Danial Latifi would later construe. The Kerala High Court, in Ali v. Sufaira in 1988, read “reasonable and fair provision” generously, holding that the provision a husband must make within the iddat period is not exhausted by maintenance for that period and must answer the woman’s future needs. The Andhra Pradesh High Court, in Usman Khan Bahamani v. Fathimunnisa Begum in 1990, took the restrictive course, treating the Act as a self-contained code that displaced the Code and confined the husband’s obligation within the Act’s own terms. Between those poles, magistrates and family courts across the country worked the same two instruments to different results for fifteen years, which is the practical meaning of the divergence: a woman’s remedy depended on the state in which her marriage had ended. The Supreme Court’s own interventions in the period therefore carry a weight beyond their individual holdings, because each one narrowed the space in which the restrictive reading could operate.

The first is Iqbal Bano v. State of Uttar Pradesh, (2007) 6 SCC 785. Its facts concerned forum: where proceedings under Section 125 may be taken. The Court read Section 126 to permit the application where the wife resides, and in doing so restated, as settled, that a divorced woman is a “wife” within Section 125 and that the provision is a measure of social justice whose benefit must reach her. The decision decided a procedural point, but its restatement of the substantive entitlement, without any suggestion that a divorced Muslim woman stood outside it, became one of the two pillars on which the next step rested.

The second is Shabana Bano v. Imran Khan, (2010) 1 SCC 666, decided on 4 December 2009 by B. Sudershan Reddy and Deepak Verma JJ. The appellant’s application under Section 125 had been rejected below on the footing that, as a divorced Muslim woman, her remedy lay under the 1986 Act. The Supreme Court allowed the appeal. A cumulative reading of Danial Latifi and Iqbal Bano, it held, made it crystal clear that even a divorced Muslim woman is entitled to claim maintenance from her former husband under Section 125 so long as she does not remarry; the proceedings under Section 125 are civil in nature; the petition would be maintainable before the Family Court; and the amount of maintenance to be awarded cannot be restricted to the iddat period only. The reasoning deserves attention because of what it did not do. It did not hold the 1986 Act displaced or impliedly repealed, and it did not rest on any new construction of the Act’s words. It treated the question as already answered by reading the two earlier lines of authority together: Danial Latifi had decided that the husband’s obligation was not confined to iddat, and nothing in the Act, so construed, had ever in terms abolished the Section 125 jurisdiction. On that footing the general remedy had survived the statute all along, and the restrictive practice in the courts below rested on an assumption about the Act that its own authoritative construction did not support. Shabana Bano was a two-judge decision, and for fifteen years its authority was debated in the High Courts by those who doubted whether a bench of two could settle what the interaction of a Constitution Bench construction and a statute required. That debate is part of what the 2024 bench was later asked to close.

Around these decisions sat the ordinary law of maintenance, which continued to develop for all women and which forms the background against which the Muslim woman’s position must be compared. Noor Saba Khatoon v. Mohd. Quasim, (1997) 6 SCC 233, had already established that children of a divorced Muslim woman hold their own independent right under Section 125 until majority, unaffected by the two-year provision for children in Section 3(1)(b) of the 1986 Act, so that the Act’s limits never governed the children’s claims. Shamim Bano v. Asraf Khan, decided in 2014, repeated the Shabana Bano position in the setting of an application that had been dealt with under Section 3 of the 1986 Act, holding that the woman’s resort to the general remedy was not barred by the Act. Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705, addressed quantum for wives generally and held that maintenance must be measured by the standard of a life consistent with dignity, not by the minimum needed for animal existence, and that an able-bodied husband cannot plead inability while choosing not to earn. Rajnesh v. Neha, (2021) 2 SCC 324, confronted the proliferation of overlapping maintenance remedies across statutes, the 1986 Act among the regimes in view, and laid down guidelines for disclosure of assets and liabilities by affidavit and for the adjustment of amounts awarded under one statute when proceedings run under another, holding that maintenance should ordinarily be awarded from the date of application. None of these decisions was about the Shah Bano sequence as such. Together they show the general remedy growing more structured and more generous across the very decades in which the divorced Muslim woman’s access to it remained contested, which is why the contest mattered: the gap between the general law and the special regime was not static, and every development of the general law widened what was at stake in it.

For readers revising this sequence for the judicial services or civil services examinations, where it is among the most frequently examined lines of authority in family and constitutional law, the six steps repay being laid out side by side rather than read in isolation; the ReportMedic presentation viewer is a practical way to open the slide decks and study presentations in which teachers customarily summarise a line of cases of this length.

The three remedies side by side

Because the 2024 decision makes the remedies cumulative, a reader needs them distinguished with precision, since the choice between them, and the conduct of both together, turns on structural differences that the settlement of the entitlement question did not remove. The first remedy is the general one: Section 125 of the former Code, Section 144 of the Bharatiya Nagarik Suraksha Sanhita. Its trigger is a state of affairs, not an event: a person with sufficient means neglects or refuses to maintain a wife, which by definition includes a divorced wife who has not remarried, who is unable to maintain herself. Its product is a monthly allowance, quantified against the claimant’s needs and the respondent’s means, payable for so long as the conditions last, variable on proof of changed circumstances under the alteration provision, and enforceable month by month by warrant and imprisonment. Its obligations rest on the husband personally and on no one else. Its time horizon is open ended: it looks forward indefinitely and adjusts as it goes.

The second remedy is the Act of 1986. Its trigger is an event, the divorce, and its enquiry is conducted at that moment. Its product is a settlement: a reasonable and fair provision for the woman’s future, which on the Danial Latifi construction includes her maintenance beyond the iddat period, together with maintenance itself for the iddat period, the children’s provision for two years, the mahr, and the return of her properties. Its time structure is the reverse of the Code’s: the whole liability is assessed once and must be made and paid within the iddat period, and the Act provides no machinery for revisiting the assessment when circumstances change. Its obligations rest primarily on the former husband, but behind him stands the ladder of Section 4, relatives liable in the proportions of their inheritance and then the State Wakf Board, a feature the Code’s remedy has no counterpart to. Its enforcement is by application to the Magistrate, who weighs her needs, the standard of life enjoyed during the marriage and the former husband’s means, with warrant and imprisonment for up to a year on default. Since 2001 the second remedy, on its authoritative construction, is not smaller than the first in what it can deliver at the moment of divorce; it is different in shape, delivering as capital what the Code delivers as income, with the risks and advantages that follow from each shape.

The interval around which the second remedy is built deserves a note of its own, because its legal character explains the shape Danial Latifi gave the settlement. The iddat is, in the classical law, a waiting period observed after the dissolution of a marriage. Its purposes are functional: it establishes certainty about pregnancy, so that parentage is not in doubt, and in the case of a revocable pronouncement it leaves room within which the marriage may be resumed. The Act of 1986 took that interval as its organising unit, requiring the former husband to make and pay, within it, the whole of the provision the Act contemplated. Parliament’s choice of the interval as the time for performance was intelligible in the personal law’s own terms. What the choice did not settle, and what the litigation then turned on, was the period the performance had to cover: an interval designed as a pause for certainty and possible reconciliation was made to carry, as well, the whole economic consequence of the marriage’s end, and the pressure that design placed on the words “reasonable and fair provision” is the pressure the Constitution Bench relieved by reading those words at their full width.

The third remedy entered the field in 2019 and belongs to a subset of cases. Where a divorce is effected by a pronouncement that the Muslim Women (Protection of Rights on Marriage) Act, 2019 renders void and illegal, that Act entitles the woman to a subsistence allowance from her husband, for herself and her dependent children, in an amount the Magistrate determines. The 2024 decision treats that allowance as cumulative with the general remedy in the same way as the 1986 Act: neither displaces the other, and amounts received under one are accounted for in the other. The three remedies therefore form a stack rather than a menu in the strict sense. The personal law supplies the underlying obligations the whole sequence began with, maintenance during marriage and across the iddat period, mahr, and the return of the woman’s property. The Act of 1986 converts the post-divorce obligation into a settlement claim against the husband and, behind him, the family and the Wakf Board. The Code supplies the continuing income remedy of general application, and the Act of 2019 adds a subsistence floor for the cases its prohibition covers. The stack has one internal boundary that the case law drew early and never revisited, and it concerns children. Section 3(1)(b) of the Act entitles the divorced woman to a reasonable and fair provision and maintenance for the children born to her before or after the divorce, for a period of two years from the dates of their respective births, where she herself maintains them. Read alone, that two-year limit might appear to fix the father’s exposure for his children. Noor Saba Khatoon established in 1997 that it does not: the children’s right under the general code is their own, independent of their mother’s claim and of the Act’s scheme, and it runs until majority. The two provisions coexist because they belong to different claimants: the Act’s clause is an element of the mother’s settlement, quantified with her claim at the divorce; the Code’s child provision is the child’s personal remedy, quantified against the child’s need for the whole of minority. The boundary is a further instance of the sequence’s master principle. A provision enacted for the divorced woman’s protection was not read as silently cutting down a distinct entitlement held by someone else, her child, under a different instrument; the cut-down would have had to be expressed, and it was not. Parents stand in a comparable position at the other end of the chapter, entitled in their own right where they cannot maintain themselves, wholly outside the Act’s field.

What the litigation of forty years decided is that no layer of the stack abolishes another by implication. What it left to practice is the accounting between them, conducted through the cancellation provision of the Code and the disclosure discipline Rajnesh v. Neha imposed, under which a claimant must disclose the proceedings she has brought and the amounts she has received, so that the stack operates as one system rather than as three opportunities for double recovery.

The recodification of the maintenance provisions

On 1 July 2024 the Code of Criminal Procedure, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023, Act 46 of 2023, and the maintenance provisions were re-enacted in it with new numbers. Section 125 of the Code corresponds to Section 144 of the Sanhita; Section 126, on procedure, to Section 145; Section 127, on alteration and cancellation of allowances, to Section 146; and Section 128, on enforcement, to Section 147. The wording of the maintenance provisions was carried across in substance, with the Sanhita substituting “child” for “minor” in the order provision, and the Sanhita’s savings provision continued proceedings pending at its commencement under the old Code. The renumbering is noted here, as the comparison of the former criminal codes with the codes that replaced them sets out in full, so that a reader searching by the old section number is not misled: the remedy this article has followed under the name Section 125 is, in the Sanhita, Section 144, and the four decades of authority built on the old number apply to the new one, because the provision they construe was re-enacted without material change to the wife’s entitlement. Parliament, in recodifying, made no attempt to revisit the interaction between the general remedy and the 1986 Act. It re-enacted the general remedy in full knowledge of the case law on it, eight days before the Supreme Court delivered the judgment that confirmed what that case law had settled.

The renumbering has one further consequence the reader should hold, because it governs how the authorities in this article are to be cited in proceedings begun under the Sanhita. Where a provision is re-enacted in substantially the same terms after receiving a settled judicial construction, the re-enactment is treated as carrying that construction with it, unless the new text shows a contrary intention. The Sanhita shows none on the wife’s entitlement: the definition that carries the divorced woman into the remedy, the disqualifications, the alteration power with its cancellation clause, and the enforcement machinery all crossed over in substance. A magistrate dealing with an application under Section 144 of the Sanhita therefore works with the same authorities, from Bai Tahira to Abdul Samad, that governed Section 125, and a party who wishes to argue that the renumbering unsettled the sequence must point to a change in the words, not merely to the change in the number. None has been identified in the maintenance provisions material to this article.

The 2024 confirmation

Mohd. Abdul Samad v. State of Telangana, 2024 INSC 506, was decided on 10 July 2024 by B. V. Nagarathna and Augustine George Masih JJ., who delivered separate but concurring judgments. The appeal, Criminal Appeal No. 2842 of 2024, arose from ordinary facts. The appellant had divorced his wife; she applied under Section 125, and the Family Court directed interim maintenance of twenty thousand rupees a month. The Telangana High Court reduced the interim figure to ten thousand rupees but declined to quash the proceedings. The husband’s case in the Supreme Court was the case that had been made since 1986: that the 1986 Act is a complete code for a divorced Muslim woman, that it is the more beneficial regime for her, and that recourse to Section 125 is therefore barred. The Court dismissed the appeal.

Nagarathna J traced the entire line of authority from Bai Tahira through Shah Bano, the 1986 Act and Danial Latifi to Shabana Bano, and held that the right to seek maintenance under Section 125 is a statutory right embedded in the constitutional commitment recorded in Article 15(3) read with Article 39(e), a measure of social justice to protect women and children irrespective of the faith a woman belongs to. The 1986 Act, on her reading, conferred rights in addition to those under Section 125; it did not derogate from them. A divorced Muslim woman could therefore proceed under Section 125, and if she had been divorced by a pronouncement rendered illegal under the Muslim Women (Protection of Rights on Marriage) Act, 2019, she could also claim the subsistence allowance that statute provides, the two remedies again being cumulative rather than exclusive. Her judgment addressed the social setting of the remedy as well, observing that the economic independence the provision protects is bound up with the position of the homemaker within the Indian family, and closing with the remark that if families are to be the foundation of society, women in the family have to be respected and empowered. Masih J, concurring, analysed the scheme of the 1986 Act in detail and concluded that the rights under Section 125 and under Section 3 of the 1986 Act exist in parallel, in distinct domains, leading to their harmonious construction and to the continued existence of the right under the Code notwithstanding the enactment of the 1986 Act.

The conclusions recorded in the Court’s order state the settled position in terms that leave little room for the old debate. Section 125 applies to all married women, including Muslim married women. As regards divorced Muslim women married and divorced under Muslim law, Section 125 and the provisions of the 1986 Act are both applicable; the option lies with the woman to seek remedy under either law or under both, because the 1986 Act is not in derogation of Section 125 but in addition to it. If Section 125 is resorted to, any order passed under the 1986 Act shall be taken into consideration under Section 127(3)(b) of the Code, which is the provision through which double provision is prevented. A divorced Muslim woman may equally proceed under the 1986 Act alone. And where a divorce is illegal under the 2019 Act, the remedies under that Act and under Section 125 are likewise cumulative, and a woman divorced during the pendency of a Section 125 petition may proceed under either regime. The old cancellation clause of Section 127(3)(b), over whose meaning Bai Tahira, Fuzlunbi and Shah Bano had been fought, thus reappears at the end of the sequence in a new role: not as the husband’s answer to the claim, but as the accounting mechanism between two remedies the wife may hold together.

Two features of Nagarathna J.’s judgment deserve separate notice, because they discipline the use that may be made of the decision. The first is her treatment of Shabana Bano. She recorded that the position that the rights under Section 125 would also be accessible to a divorced Muslim woman was substantially reiterated in Shabana Bano, whereby the Court, through a cumulative reading of Danial Latifi, reached that conclusion; the cumulative character of the reading was, for her, a strength rather than the weakness the husband’s side alleged, because it showed the entitlement emerging from the Constitution Bench’s own construction rather than contradicting it. The second is her refusal to let the appeal become a second challenge to the Act. The constitutionality of the 1986 Act, she held in substance, had been adjudicated by a Constitution Bench, and nobody could be heard to challenge it again on grounds already decided, since to permit that would disturb the discipline of law; the appeal was about the survival of a remedy, not the validity of a statute, and it was decided on that footing. Masih J.’s concurrence, working through Sections 5 and 7 of the Act, reached the same destination from the statute’s interior: an Act that itself preserves an election into the Code, and itself redirects pending Code applications subject to that election, cannot sensibly be read as having abolished the Code’s jurisdiction for the class it governs.

Did the 2024 bench overrule Danial Latifi?

It did not, and a bench of two judges does not overrule a Constitution Bench of five. The 2024 judgments treat Danial Latifi as good law and build on its construction, agreeing that the husband’s liability under the 1986 Act is not confined to the iddat period.

What the bench decided was the question Danial Latifi had not been asked: whether the existence of the 1986 Act extinguished the remedy under Section 125. That division of labour between the two benches is the analytical heart of the sequence. Its practical consequence runs to every application pending in the country on the day the judgment was delivered, and to every application filed since. A woman whose Section 125 proceedings had been obstructed for years by the objection that the Act of 1986 stood in her way held, after 10 July 2024, a ruling from the Supreme Court that the objection was misconceived, delivered in a case whose own subject was an interim order, so that the ruling speaks to the stage at which most maintenance litigation is actually fought and most often abandoned. The judgment’s timing, nine days after the Sanhita commenced, also means that the confirmation governs the general remedy under both its numbers, the one under which the older applications were filed and the one under which new applications are made, since the bench spoke of Section 125 in terms that the re-enacted Section 144 carries forward without material change. The Constitution Bench of 2001 answered the question put to it, which was the validity and meaning of the 1986 Act, and answered it by construction of that Act alone. The bench of 2024 answered the anterior question, which was whether the older general remedy had ever been taken away, and answered it by pointing to the absence of any words taking it away and to the line of authority, running through Shabana Bano, that had proceeded on its survival. Each answer is consistent with the other. Together they produce a position neither bench stated alone: the statute enacted to displace the general remedy coexists with it, at the election of the woman it was enacted to govern.

How the settled law operates in a magistrate’s court

The sequence was litigated at the level of principle, but its product is applied at the level of the individual application, and a composite illustration shows what the four decades changed for the parties in an ordinary case. A divorced woman who cannot maintain herself files under Section 144 of the Sanhita, the successor of Section 125. Her former husband’s first line of defence, for a generation, was that the Act of 1986 is her only law; after Abdul Samad that defence fails at the threshold, because the bench held the two regimes cumulative and the option hers. His second line was that any payment he made at divorce closed the account; that defence runs into the cancellation provision in its adjudicated form, under which he must prove that the sum he paid was one payable under the personal law on divorce and in lieu of maintenance, and a payment recorded as mahr, or as the price of the wife’s surrender of her claims, does not meet that description. His third line concerns quantum, and it is here that the general law’s development governs: the Rajnesh discipline requires both sides to file affidavits of assets and liabilities, the amount is measured against a standard of life consistent with dignity on the Shamima Farooqui approach, and the order ordinarily runs from the date of application. Interim maintenance is available while the application pends, on the Savitri principle placed on an express footing in 2001, and the very order under appeal in Abdul Samad was an interim order, which is why the 2024 holding governs the interim stage with the same force as the final one. If the woman also proceeds under Section 3 of the 1986 Act, the magistrate assesses the consolidated provision against the same means and needs, and the accounting between the two orders runs through the Code’s provision, so that she is maintained once, but by whichever combination of the two instruments her election and the evidence support. If the husband defaults, the Code’s enforcement follows, warrant and imprisonment month by month; if circumstances change, the alteration provision, not a fresh suit, is the route. Every step of that composite is traceable to a decision identified in this article, and the steps are worth laying out because they show the distance between the law the 1986 campaign expected to create and the law a magistrate applies: the campaign expected the Act to be a door closing the Code; the composite shows it functioning as a second door standing open beside the first.

What remains open

The 2024 confirmation settles the availability of the remedies. It does not settle everything, and the matters it leaves open are worth stating structurally, because they define where the next litigation in this line will occur. The first is adequacy. A settlement under Section 3 of the 1986 Act is assessed once, at divorce, by a Magistrate, on the material then available; the general remedy, by contrast, produces an allowance that can be altered on proof of a change in circumstances. The 2024 order directs that a payment under the Act be taken into consideration under Section 127(3)(b) when the general remedy is invoked, but the standards by which a magistrate is to judge whether a settlement made years earlier answers a woman’s present inability to maintain herself will have to be worked out case by case, and High Courts have already been required, in litigation under the Act, to insist that a settlement recorded in an agreement does not mechanically dispose of a Section 125 application without an independent assessment of whether the woman can maintain herself. The second open matter is the Section 4 route. Danial Latifi preserved the relatives-and-Wakf-Board ladder as part of the Act’s constitutionality, yet the reported record of women actually maintained by Wakf Boards under Section 4 orders is thin, and the construction of 2001 reduced the route’s importance by keeping the husband liable for a provision for the future; how Section 4 operates for a woman whose settlement has run out is a question the case law has barely touched. The third is election and adjustment in practice. Rajnesh v. Neha imposed a disclosure discipline across maintenance statutes, and the 2024 conclusions invite parallel proceedings under two regimes with set-off between them; the procedural habits of family courts in managing that parallelism are unformed in large measure. A fourth open matter is structural and follows from the Act’s own text. The general code contains, in Section 127, a standing power to alter an allowance on proof of a change in the circumstances of either party. The 1986 Act contains no counterpart power in respect of its own orders: a Section 3 provision is made once, and the Act supplies no machinery by which the woman, or the husband, may return to the Magistrate for its revision as circumstances change. The practical consequence is that changed circumstances push the parties back into the Code’s system, where alteration is possible and where the 2024 order locates the accounting for what was paid under the Act. Whether a magistrate may, in substance, achieve revision of an inadequate Section 3 settlement through that route, and on what showing, is among the questions the next decade of family court litigation in this line will have to answer, and it is a question created not by any court’s choice but by the asymmetry between the two instruments Parliament left standing side by side.

None of these open matters reopens the question the sequence answered. They concern the administration of a position that is settled at the level of entitlement: both remedies exist, the choice is the woman’s, and neither statute has been held to repeal the other. The account given here is legal information about a line of authority and not advice on any individual claim; a woman considering an application needs advice on her own facts, because the choice between the two remedies can carry consequences that outlast the first order.

The interpretive lesson: an override that did not override

The series to which this article belongs has met the mirror image of this episode in another cluster. In the land acquisition cluster it found an amendment defeated in Parliament being substantially achieved afterwards by construction of other instruments, in the sequence carried by the land acquisition ordinance article. Here the current ran the other way: an amendment carried in Parliament, with a whip, against the background of the largest governing majority of its era, was substantially undone by construction, and the remedy it displaced was in the end confirmed never to have been displaced at all. Taken together the two episodes establish the proposition this series has returned to in cluster after cluster: in India, the last word on a contested provision is frequently interpretive rather than legislative, whichever direction the politics ran.

The mechanics deserve to be stated coldly, because they are general and they recur. A legislature that wishes to displace a judgment must do one of three things: remove the legal basis of the judgment by altering the underlying provision; enact an express ouster of the remedy the judgment confirmed; or validate retrospectively what the judgment forbade. The 1986 Act did none of these in terms. Section 125 was left untouched in the Code. No non-obstante clause addressed the general remedy. Instead Parliament enacted a parallel code for a defined class and redirected pending proceedings into it, leaving the relationship between the parallel code and the general remedy to be inferred from the scheme. Inference is the judiciary’s home ground. Once the question was one of inference, the construction that preserved constitutionality was available, and once that construction had held that the husband’s obligation was not confined to iddat, the further inference that the general remedy survived required no more than attention to the absence of repealing words. Each step was taken by a court applying ordinary principles: prefer the construction that upholds validity; do not read a repeal by implication where a harmonious construction is possible; give beneficial legislation the reach its purpose indicates. The result was not judicial defiance of a legislative instruction. It was the consequence of a legislature giving an instruction in a form that left its decisive term, the relationship to Section 125, unstated.

The episode also refines the general doctrine of legislative reversal that Indian courts apply across subjects, and it is worth stating the doctrine plainly because the sequence is one of its clearest illustrations. A legislature dissatisfied with a judgment has constitutionally distinct instruments available to it. It may change the underlying law, removing the foundation on which the judgment rested, in which case courts will ordinarily give the change effect, including retrospectively where the legislature has spoken clearly. It may not merely pronounce the judgment wrong while leaving the foundation untouched, because the adjudication of disputes between parties is a judicial function, not a legislative one. Measured against that doctrine, the 1986 Act was a foundation-changing statute in form but an incomplete one in execution: it built a new foundation for the class it governed, yet it neither removed the old foundation nor stated what was to happen where the two overlapped. The four decades of litigation are, on this view, the working out of that single omission. Danial Latifi construed the new foundation and found it more capacious than its promoters intended; Shabana Bano and Abdul Samad construed the overlap and found the old foundation intact beneath it. A legislature drafting in the sequence’s aftermath knows precisely what a complete displacement would require: express words addressing the general remedy itself. Whether any legislature will judge the political return on such words worth their cost is a question the doctrine cannot answer, but the doctrine fixes the price of the attempt with unusual clarity, and in advance.

The episode also disciplines a common way of talking about courts and legislatures as adversaries taking turns to win. The fuller record shows something more complicated. Parliament in 1986 acted on a political demand stated in constitutional vocabulary, the vocabulary of religious freedom and community autonomy; the Court in 2001 answered in the same vocabulary, testing the Act against Articles 14, 15 and 21 and saving it on terms; the Court in 2024 completed the work by reading the two statutes together, which is the most conventional judicial operation of all. At no point did any institution claim a power the constitutional text does not give it. The judgment of 1985 construed a section. The statute of 1986 created a code. The judgment of 2001 construed the code. The judgment of 2024 construed the relationship. Whoever describes the sequence as a war between institutions has to explain why every move in it was made with the ordinary tools of the mover’s own trade.

The position the sequence leaves

Stated as a test, the law the four decades produced is this. A divorced Muslim woman who is unable to maintain herself and has not remarried may apply under the general maintenance provision, Section 125 of the former Code and Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for a monthly allowance from her former husband, and the amount cannot be restricted to the iddat period. She may instead, or in addition, claim under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 a reasonable and fair provision for her future, including maintenance extending beyond the iddat period, which her former husband must make and pay within the iddat period, together with her mahr and her properties. A payment received under the 1986 Act is taken into account under the cancellation provision of the general code; it does not bar the general claim. If after iddat she remains unable to maintain herself, Section 4 of the 1986 Act gives her a claim against the relatives who would inherit from her and, failing them, against the State Wakf Board. Every element of that test was contested at some point in the sequence, and every element of it is supported by a decision identified in this article. That is the sense in which the maintenance question is settled: not that the politics of personal law have ended, which no judgment could accomplish, but that the remedial question the litigation was always about has received, from benches of increasing finality across forty years, a single consistent answer that arrived by three different roads.

For the reader who has followed the series through its other court and legislature sequences, the pattern this episode contributes is the most instructive of them, because it is the pattern least visible in the headlines the episode generated. The headlines of 1985 and 1986 described a defeat: a court overruled by a legislature, a right granted and withdrawn within a year. The documents tell a slower and stranger story, in which the withdrawal instrument was drafted as an instrument of protection, construed as an instrument of protection by the bench asked to destroy it, and finally held never to have withdrawn the right at all by the bench asked to confirm the withdrawal. Nothing in that story required any institution to exceed its authority, and nothing in it was inevitable: a differently drafted statute would have displaced the remedy, a differently constituted bench might have struck the statute down, and either outcome would have been a lawful exercise of power by the institution that reached it. The sequence is therefore best read neither as a victory for courts over legislatures nor the reverse, but as a demonstration that in a system of separated powers with a written constitution, the meaning of a statute is not exhausted by the intention of the majority that enacted it. It is fixed, in the end, by the words enacted, construed by the institution charged with construing them, against the constitutional text that stands above both. The divorced Muslim woman’s entitlement survived because three benches, across forty years, read the words that were actually there. That is the whole of the episode, and it is enough. A series that follows Indian legislation from enactment to settled meaning could ask for no clearer demonstration of its premise: that an Act is not finished when it receives assent, and that the history of a statute is incomplete until the history of its construction has been written alongside it.

Frequently Asked Questions

Q: What did the Supreme Court decide in Shah Bano?

The Constitution Bench in Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, dismissed the husband’s appeal and upheld the Madhya Pradesh High Court’s order of Rs 179.20 a month. It held that Section 125 of the Code of Criminal Procedure applies to a divorced Muslim woman unable to maintain herself, irrespective of religion, because the Explanation to the section includes a divorced woman within “wife”. It held that payment of mahr does not by itself cancel the obligation under Section 127(3)(b), because mahr is not a sum payable on divorce. And it held that the personal law itself, in the verses of the Quran the Court examined, imposed an obligation of provision for a divorced wife, so that no conflict with Section 125 arose.

Q: Why was the Shah Bano judgment controversial?

The controversy had three distinct layers. The result itself was contested: organisations led by the All India Muslim Personal Law Board argued that a general statute had been applied to a matter governed by personal law and that a community is entitled to be governed by its own law in family matters. The method was contested separately: the Court had interpreted verses of the Quran to hold that the personal law imposed the very obligation the husband denied, and critics, including some who welcomed the result, objected that a court deciding a maintenance appeal had undertaken to construe scripture against the community’s own scholars. The observations on Article 44 and a uniform civil code, which were not necessary to the decision, supplied a third and larger target, allowing the judgment to be debated as a ruling about national integration rather than about maintenance.

Q: How did Parliament respond to Shah Bano?

Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, Act 25 of 1986, which received assent on 19 May 1986. The government introduced the Bill in the Lok Sabha in February 1986 and carried it in May under a party whip; a minister who had defended the judgment, Arif Mohammed Khan, resigned in protest. The Act created a self-contained code for divorced Muslim women: a reasonable and fair provision and maintenance within the iddat period from the former husband under Section 3, claims against relatives and the State Wakf Board under Section 4, a joint election back to Sections 125 to 128 of the Code under Section 5, and a transitional rule in Section 7 redirecting applications pending under the Code into the new regime.

Q: Did the 1986 Act actually reverse the Shah Bano judgment?

In intention and in immediate understanding, yes: the Act was enacted to displace the judgment, and for fifteen years it was generally administered as confining the former husband’s obligation to the iddat period. In legal effect, the answer is qualified. The Act never amended Section 125 and never stated that the general remedy ceased to apply; it built a parallel code and redirected pending cases into it. In Danial Latifi in 2001 the Supreme Court construed the Act to require a provision for the wife’s future extending beyond iddat, and in 2024 it held that the Act is not in derogation of Section 125 but in addition to it, with the choice of remedy lying with the woman. The judgment was displaced as a practical matter for a generation and never displaced as a matter of the Code’s text.

Q: What did the Supreme Court decide in 2024 about maintenance?

In Mohd. Abdul Samad v. State of Telangana, 2024 INSC 506, decided on 10 July 2024, Nagarathna and Masih JJ. delivered separate concurring judgments dismissing a husband’s appeal against interim maintenance. The Court held that Section 125 of the Code applies to all married women, including Muslim women, and to divorced Muslim women as well. For a woman married and divorced under Muslim law, Section 125 and the 1986 Act are both applicable, and the option lies with her to proceed under either law or both, because the 1986 Act is not in derogation of Section 125 but in addition to it. An order under the 1986 Act is taken into account under Section 127(3)(b). Remedies under the Muslim Women (Protection of Rights on Marriage) Act, 2019 are likewise cumulative.

Q: What did Shah Bano say about a uniform civil code?

The judgment recorded regret that Article 44 of the Constitution, the directive principle on a uniform civil code, had remained a dead letter, and observed that a common civil code would help the cause of national integration by removing disparate loyalties in laws which have conflicting ideologies. Those remarks were observations, not holdings. The appeal required the Court to decide only whether a maintenance order under Section 125 could stand against a divorced woman’s former husband; no direction to enact a code was sought, issued or capable of being issued in that proceeding, and the Article 44 passage formed no part of the reasoning by which the order was upheld. Describing the judgment as a mandate for a uniform civil code misstates it; the passage is obiter, and its weight is that of a considered aside by a Constitution Bench on a question outside the case.

Q: What does the Shah Bano episode show about courts and legislatures?

It shows that the last word on a contested provision is frequently interpretive rather than legislative. Parliament displaced a judgment by enacting a parallel code that left the general provision unamended and its relationship to the new code unstated; the courts then settled that relationship by ordinary construction, first by reading the new code to preserve constitutionality in 2001 and then by holding in 2024 that the general remedy had never been removed. Each institution used its own ordinary tools: Parliament legislated, the courts construed. The episode also shows the limits of legislative reversal by implication: a legislature that intends to oust a remedy must say so, because a court faced with two statutes will prefer the construction under which both operate over a repeal it has to infer.

Q: Is the maintenance question now settled?

At the level of entitlement, yes, on the authority of the 2024 decision. A divorced Muslim woman unable to maintain herself may claim a monthly allowance under the general provision, Section 125 of the former Code and Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, or a reasonable and fair provision under Section 3 of the 1986 Act, or both, with payments under the Act taken into account under the cancellation provision. What remains open is administrative rather than doctrinal: how magistrates are to assess the adequacy of an old Section 3 settlement when a general application follows it, how the Section 4 claim against relatives and the Wakf Board operates where a settlement has run out, and how parallel proceedings are to be managed under the disclosure discipline of Rajnesh v. Neha.

Q: What was Section 127(3)(b) of the CrPC, and why did it matter in the Shah Bano case?

Section 127(3)(b) required a Magistrate to cancel a maintenance order made under Section 125 in favour of a divorced woman if satisfied that she had received the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce. It mattered because it was the husband’s textual route out of Section 125: if the mahr he had paid counted as a sum payable on divorce, the Code itself directed cancellation of the order against him. The Shah Bano bench held that mahr is not such a sum. Mahr is an obligation of the marriage, fixed at the wedding as a mark of respect and often payable during the marriage; it is not quantified against post-divorce need, and it does not become payable on divorce merely because it is settled when a marriage ends.

Q: Why was the Shah Bano appeal heard by a Constitution Bench?

Because a smaller bench had doubted the authorities on which the wife’s entitlement rested. Bai Tahira and Fuzlunbi, decided by benches speaking through Krishna Iyer J., had held that a divorced Muslim woman could claim under Section 125 and that mahr was not a sum payable on divorce within Section 127(3)(b). By an order dated 3 February 1981, Murtaza Fazal Ali and A. Varadarajan JJ. recorded their view that those decisions were in direct contravention of the plain language of Section 127(3)(b) and had not noticed Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, and referred the appeal to a larger bench of more than three judges. The Constitution Bench of five was thus assembled not because the claim was large, it was Rs 179.20 a month, but because reconsidering two considered decisions of the Court required a bench of greater strength.

Q: What had Bai Tahira and Fuzlunbi already decided before Shah Bano?

Bai Tahira v. Ali Hussain Fissalli Chothia, (1979) 2 SCC 316, held that Section 127(3)(b) cancels a maintenance order only where the sum received under personal law is a genuine substitute for maintenance, judged against the provision’s purpose of preventing destitution; a consent decree transferring a flat and paying mahr did not automatically end the claim. Fuzlunbi v. K. Khader Vali, (1980) 4 SCC 125, supplied the measure: the payment contemplated by the clause must be more or less the present worth of the monthly allowance the divorced woman may need until death or remarriage, and mahr, promised at the wedding without any thought of divorce, is not a quantification of maintenance in lieu of divorce. Together the two decisions meant that by 1981 the Supreme Court had already held the general remedy open to a divorced Muslim woman. Shah Bano confirmed them, corrected one stray statement in Bai Tahira, and gave the position Constitution Bench authority.

Q: How did Danial Latifi read the words “within the iddat period”?

Section 3(1)(a) of the 1986 Act entitles a divorced woman to a reasonable and fair provision and maintenance “to be made and paid to her within the iddat period by her former husband”. The Constitution Bench in Danial Latifi held that “within” fixes the time by which the husband must make and pay the provision; it does not confine the period the provision must cover, because the section does not say the provision is “for” the iddat period. Reading “provision” together with “maintenance”, the Court held that a provision is by nature made in advance for future needs: residence, food, clothes and other requirements of life. The husband must therefore, within the iddat period, make a reasonable and fair provision for his former wife’s future extending beyond iddat, in substance for her life unless she remarries, even though the payment itself is completed within that window.

Q: Did Danial Latifi strike down the 1986 Act?

No. Danial Latifi and Another v. Union of India, (2001) 7 SCC 740, upheld the Muslim Women (Protection of Rights on Divorce) Act, 1986 and dismissed the writ petitions challenging it, holding expressly that the provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution. The outcome is often misreported because of the route by which it was reached. The Court accepted that the Act, if read to confine the husband’s liability to the iddat period, would face grave constitutional difficulty, and it therefore adopted the alternative construction under which Section 3(1)(a) obliges the husband to make a reasonable and fair provision for the wife’s future within the iddat period. A statute saved by construction remains a valid statute; the challenges failed, and High Court decisions inconsistent with the construction were overruled.

Q: What did Shabana Bano decide about maintenance after the iddat period?

Shabana Bano v. Imran Khan, (2010) 1 SCC 666, decided on 4 December 2009, held that a divorced Muslim woman’s petition under Section 125 of the Code is maintainable before the Family Court and that the maintenance awarded under it cannot be restricted to the iddat period only. The bench of B. Sudershan Reddy and Deepak Verma JJ. reasoned cumulatively from Danial Latifi, which had held the husband’s liability under the 1986 Act to extend beyond iddat, and Iqbal Bano, which had restated the divorced woman’s position under Section 125. The conclusion was that a divorced Muslim woman is entitled to claim maintenance from her former husband under Section 125 after the expiry of the iddat period as long as she does not remarry, Section 125 being a beneficial provision whose benefit must accrue to her. The decision treated the general remedy as never having been closed by the 1986 Act.

Q: If a divorced Muslim woman has received a payment under the 1986 Act, can she apply under Section 125 as well?

Yes. The 2024 decision in Mohd. Abdul Samad holds that the 1986 Act is in addition to Section 125 and not in derogation of it, so a payment under the Act does not bar an application under the general provision. The payment is not ignored, however. The Court’s conclusions direct that where Section 125 is resorted to, any order passed under the 1986 Act shall be taken into consideration under Section 127(3)(b) of the Code, the clause through which double provision is prevented. A magistrate dealing with the general application must therefore examine what was in fact paid, whether it was a reasonable and fair provision for the woman’s future as Danial Latifi requires, and whether she is in fact able to maintain herself; a recorded settlement does not mechanically dispose of the application without that assessment.

Q: What happened to Shah Bano’s own maintenance claim after the judgment?

The order the Supreme Court upheld entitled her to Rs 179.20 a month. Within months the claim was overtaken by the campaign against the judgment. Reporting of the period described sustained protests outside her home in Indore and the threat of social ostracism against her family; on 15 November 1985, about seven months after the judgment, she put her thumb impression to a public statement disavowing the verdict and giving up the maintenance, saying she had been advised that the judgment was against the Shariat. Her son later explained to journalists that the family feared being permanently branded as the people who had brought the courts into the Shariat. The 1986 Act then redirected pending claims of her description into its own regime. She died in 1992. The case that bears her name was decided in her favour; she did not keep its benefit.

Q: What is the Section 125 remedy called in the Bharatiya Nagarik Suraksha Sanhita?

The remedy sits at Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which corresponds to Section 125 of the Code of Criminal Procedure, 1973. The Sanhita, Act 46 of 2023, replaced the Code with effect from 1 July 2024 and renumbered the maintenance chapter: Section 126 of the Code corresponds to Section 145 of the Sanhita, Section 127 to Section 146, and Section 128 to Section 147. The substance of the wife’s entitlement was re-enacted without material change, with “child” substituted for “minor” in the order provision, and proceedings pending at the changeover continued under the old Code under the Sanhita’s savings provision. Because the provision construed across four decades was re-enacted in materially identical terms, the authority built on Section 125 governs applications under Section 144.

Q: What arguments were made against the 1986 Act in the Danial Latifi challenge?

The petitions, filed in the Supreme Court in 1986 and led by the advocate who had appeared for Shah Bano in the 1985 appeal, attacked the Act under three articles. Under Article 14, the Act was said to create an unreasonable classification, subjecting divorced Muslim women to a regime less favourable than the general remedy available to every other divorced woman. Under Article 15, the classification was said to rest on religion alone. Under Article 21, confining the former husband’s obligation to the iddat period was said to expose a woman without means to destitution, offending the right to life with dignity. The Union defended the Act as a special law consonant with personal law, relying on the Section 4 ladder of relatives and the State Wakf Board. The All India Muslim Personal Law Board intervened for the Act and questioned the Court’s authority to interpret religious texts. The Court dismissed the petitions, answering the equality arguments through its construction of Section 3.

Q: What part did the All India Muslim Personal Law Board play in the Shah Bano litigation?

The Board intervened in the 1985 appeal in support of the husband, placing before the Constitution Bench the case that Muslim personal law governed the obligation and that Section 125 should not be read across it; the judgment recorded regret at the extreme position taken by some interveners supporting the appellant. After the judgment, the Board conducted the public and political campaign for legislation to displace it, presenting the ruling as an interference with the Shariat and pressing the government to legislate, which it did in 1986. When the 1986 Act was challenged in Danial Latifi, the Board intervened again, this time in defence of the statute, and questioned the authority of the Court to interpret religious texts. Across sixteen years the Board therefore appeared at every stage of the sequence, on the side of the personal law in the appeal, as the campaign’s organiser between the judgments, and as the statute’s defender in the challenge.

Q: Why is Danial Latifi described as a reading down of the 1986 Act?

Because the Court upheld the Act by construing one of its central expressions against the meaning its enactment history suggested. Parliament in 1986 was understood by supporters and opponents alike to have confined the former husband’s obligation to the iddat period, and the petitions in Danial Latifi attacked the Act on that footing. Rather than strike the Act down or accept that reading, the Court read Section 3(1)(a) so that “within the iddat period” governed the timing of payment and not the duration of the provision, producing an obligation extending for the wife’s life unless she remarried. Reading down is the technique by which a court, faced with two available constructions of a statute, one of which would render it unconstitutional, adopts the construction that preserves validity. The description captures both the technique and the controversy: the Act survived, and the text as construed delivered substantially what its critics said Parliament had intended to withdraw.