Case Commentary

Mohd. Ahmed Khan V. Shah Bano Begum


Author: Kanika Mawri, 2nd year LL.B. student at Amity Law School, Noida.

Introduction

The Shah Bano case, also known as the “triple talaq” case, is a landmark judgment given by the Hon’ble Supreme Court of India, in which the Court upheld the right to maintenance of Muslim divorced women, who are unable to maintain themselves. This judgment clears the issue of conflict between the provisions of the Code of Criminal Procedure, 1973 (‘CrPC’) and Muslim Personal laws in the case of maintenance payable to Muslim divorced women, which has been a major point of contention in India.

Essential Details of the Case

Citation: 1985 AIR 945, 1985 SCR (3) 844

Petitioner: Mohd. Ahmed Khan

Respondents: Shah Bano Begum & Ors.

Petitioner’s lawyers: P. Govindan Nair, Ashok Mahajan, Mrs. Kriplani, Ms. Sangeeta and S.K Gambhir

Respondent’s lawyers: Danial Latifi Nafess Ahmad Siddiqui, S.N. Singh and T.N.Singh

Date of judgment: April 23, 1985

Bench: Hon’ble Justice Chandrachud, Y.V. (CJ); Desai, D.A.; Reddy, O.Chinnappa (J); Venkataramiah, E.S. (J)

Present status: Appeal dismissed

 Facts of the Case

The appellant (Mohd. Ahmed Khan) and respondent (Shah Bano Begum) got married in 1932. They have two daughters and three sons. The appellant drove out the respondent from the matrimonial home in 1975. The respondent filed a petition against the appellant in April 1978, demanding Rs. 500 per month as maintenance. The appellant divorced the respondent by an irrevocable talaq in 1978. He used the divorce as a defence against the respondent’s petition for divorce, stating that he was not liable to pay maintenance to her anymore. He also stated that during the period of iddat, he had already paid her maintenance at the rate of Rs. 200 per month for two years and that he had deposited a sum of Rs. 3000 in the court. In 1979, a Magistrate ordered the appellant to pay the respondent Rs. 25 per month in maintenance. The respondent had alleged that the appellant earned an annual professional income of Rs. 60,000. The respondent filed a revisional application, and in July, 1980, the Madhya Pradesh High Court increased the amount of maintenance to Rs. 179.20 per month. The instant case is based on the special leave petition filed by the husband before the Hon’ble Supreme Court, challenging the High Court’s order.

Issues Raised

The main issues raised before the Court were:

  1. Applicability of section 125 CrPC to divorced Muslim women;
  2. If there is any conflict between the Muslim personal laws and provisions of section 125 CrPC in case of payment of maintenance to divorced Muslim women;
  3. Whether the respondent’s application under section 125 CrPC would be dismissed because of the provisions of section 127 (3) (b) CrPC.

Argument From The Appellant

The appellant argued that the husband’s obligation to maintain his divorced wife extends until the end of the iddat period, for which he relied on the law stated in Muslim textbooks.

Argument From The Respondent

The respondent argued that there is no conflict between the provisions of Muslim Personal laws and provisions of CrPC in matters relating to maintenance and a Muslim husband is responsable to maintain his divorced wife under section 125 CrPC.

Judgment Held

The Court dismissed the appeal and ordered the appellant to pay the costs of the appeal to the respondent, quantified by the Court at Rs. 10,000. Further, the Court  requested that the respondent file an application under section 127(1) of the CrPC to increase the maintenance amount on the basis of proof of a change in the circumstances as provided by that section.

Judgment Reasoning

The first issue before the Court is the applicability of section 125 CrPC to Muslims. Section 125(1)(a) states that a Magistrate of the first class can order a husband having sufficient means who neglects his wife, to pay a monthly maintenance to her. The term “wife” has been defined under Section 125(1)(b) as a woman who has been divorced by her husband and has not remarried. The Court states that these provisions are very clear and precise and don’t contain any exceptions for any religion. Further, the Court established that the provisions given under Chapter XXXVI of CrPC which contained section 488, corresponding to section 125, serves a social purpose by referring to the judgment Jagir kaur v. Jaswont Singh.[1]

The wife’s right to maintenance was predicated on the continuation of her marital status under section 488. The genesis of clause b under section 125(1) was for the purpose of removing the hardship created under the Muslim personal law, in which the husband could divorce his wife unilaterally, thereby being exempted from paying maintenance to the divorced wife. Therefore, “wife” includes a divorced Muslim wife, who has not remarried.

The second issue before the Court was regarding the conflict between Muslim personal laws and provisions of section 125 CrPC related to the payment of maintenance to divorced Muslim women. By referring to various Muslim texts and laws, the appellant contended that a Muslim husband is not obligated to pay for the maintenance of his divorced wife and that the husband’s liability after divorce is only limited to the iddat period. However, the Court rejected this claim.

The appellant referred to the following Muslim texts and laws:

  • Mulla’s Mohammedan law, which states that a husband’s obligation to maintain his wife ceases on the completion of the iddat period.
  • Tyabji’s Muslim law, which states that: Whether based on Muslim Law or an order under the Criminal Procedure Code, the wife’s right to maintenance ends when the iddat following talaq expires.
  • According to Dr. Paras Diwas, a wife is entitled to maintenance during the iddat period, but she is not entitled to maintenance after that term has expired under any circumstances, and Muslim law does not recognise any obligation on the part of the husband to maintain a divorced wife.

The Court, however, contended that these texts and laws were inadequate to prove that a man was not liable to maintain a woman who was not able to maintain herself and are applicable only in those cases where the wife is able to maintain herself. The Court also cited verses from the Holy Quran that require Muslim spouses to make provision for or provide support to their divorced wives.

 Hence, the Court found no conflict between Muslim Personal laws and section 125 of CrPC.

The third issue before the Court was whether the respondent’s application under section 125 CrPC should be dismissed because of a provision contained in section 127 (3). (b).

Section 127(3)(b) of CrPC states as follows:

“(3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that—

     (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,— (i) in the case where such sum was paid before such order, from the date on which such order was made: (ii) In any other circumstance, from the date of the expiration of the period, if any, during which the husband has actually paid the woman maintenance”

The provisions under section 127(3)(b) cancels any order made under section 125 and exempts a husband from payment of maintenance to his wife on divorce, if it is already paid, under any customary or personal law. The Court rejects this contention of the appellant.

The Court dealt with this issue by ascertaining whether any sum is payable to the divorced wife under the Muslim Personal laws or not. Mahr is the amount that a husband is required to pay to his wife as a token of respect. It is divided into two, prompt mahr (payable on demand) and deferred mahr (payable on dissolution of marriage by death or divorce). After referring to various Muslim texts and laws, the Court came to the conclusion that payment of mahr is not occasioned by divorce, which is the condition provided under section 127(3)(b) for the cancellation of an order for maintenance. Mahr is payable to the wife as a token of respect and cannot be a sum payable on divorce.

Pointing out an error in the case of  Bai Tahira v. Ali Hussain Fidalli Chothia[2], where it was held that “payment of Mahr money, as a customary discharge, is within the cognizance of the provision of section 127(3)(b)”, the Court, in the instant case, analyzed that since mahr is not payable on divorce, it does not fall within the meaning of section 127(3)(b) and hence, the application made by the respondent under section 125 CrPC cannot be dismissed.

Critical Analysis 

The Hon’ble Supreme Court of India, through the instant case, has provided assistance to all those Muslim women who have been traditionally subjected to unjust treatment, in divorce related matters. The Court has critically analysed the Muslim Personal laws before pronouncing the final judgment in favour of the respondent, thereby granting her the right to claim maintenance from her husband, the appellant; concluding that section 125 of CrPC is secular in nature and applicable to everybody, irrespective of their religion and was included in CrPC with the aim of providing remedy to those who are not able to maintain themselves.

The issue of conflict between the Muslim Personal laws and provisions of CrPC in matters related to maintenance have been set at rest, through this judgment, once and for all.

Resolving this conflict, the Court held that “wife” under section 125 of CrPC includes within its purview, a divorced Muslim woman, who has not remarried. Furthermore, the Court determined that there is no conflict between Muslim Personal Laws and provisions of CrPC regarding the issue of maintenance, and that the respondent’s application under section 125 CrPC cannot be dismissed due to the provisions of 127 (3) (b) CrPC.

Expressing the importance of a uniform civil code, the Apex Court suggested the State to frame laws regarding the same, making it easier to deal with cases involving conflict between personal laws and domestic laws and providing a common platform for different faiths; because according to the Court, “Justice to all is a far more satisfactory way of dispensing justice than justice from case to case”.

Lastly, the Court drew attention to the Report of the Commission on Marriage and Family Laws, which was appointed by the Government of Pakistan in August, 1955. The Report highlighted that thousands of middle-aged women, who are being divorced for no apparent reason, should not be thrown out on the streets without a roof over their heads or any means of supporting themselves and their children. In conclusion to the Report, Allama Iqbal was quoted, who stated that the dilemma that Muslim countries are likely to face in the near future is whether Islam’s rule is capable of evolution—a question that will take a lot of thought and will certainly be answered in the affirmative.


References

[1] 1963 AIR 1521, 1964 SCR (2) 73

[2] 1979 AIR 362, 1979 SCR (2) 75

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