MOHD. AHMED KHAN v.

SHAH BANO BEGUM

AND ORS.
PETITIONER: MOHD. AHMED KHAN
Vs.
RESPONDENT: SHAH BANO BEGUM AND ORS.
DATE OF JUDGMENT23/04/1985
BENCH: CHANDRACHUD, Y.V. ((CJ)
BENCH: CHANDRACHUD, Y.V. ((CJ)
MISRA RANGNATH DESAI, D.A. REDDY, O. CHINNAPPA (J)
VENKATARAMIAH, E.S. (J)
CITATION: 1985 AIR 945 1985 SCR (3) 844 1985 SCC (2)
556 1985 SCALE (1)767
CITATOR INFO : F 1986 SC 587 (4) RF 1987 SC1103 (10)
D 1988 SC 644 (5,6)
ACT:
Muslim Personal Law-Concept of divorce-Whether, on the pronounccments of
"talaq" and on the expiry
of the period of iddat a divorced wife ceases to be a wife.
Code of Criminal Procedure Code, 1973 (Act II of 1974) Sections 125(1) (a)
and Explanation (b)
There under, Section 125 (3) and the Explanation, under the proviso thereto and
section 127 (3) (b), scope and interpretation of-Correctness of three Judges.'
Bench decision reported in (1979) 2 SCR 75 and (1980) 3 SCR 1127 to the
effect that section 125 of the code applies to Muslims and divorced Muslim
wife is entitled to maintenance-Whether there is any conflict between the
provisions of section 125 and that of the Muslim Personal Law on the liability
of the Muslim husband to provide for the maintenance of his divorced wife.

Code of Criminal Procedure, 1973, section 127 (3) (b) read with section 2 of the
Shariat Act XXVI of
1937-Whether section 127 (3) (b) debars payment of maintenance to a divorced
wife, once the Mahar or dower is paid-Whether the liability of the husband to
maintain a divorced wife is limited to the period of "iddat"

Nature of Mahr or dower- Whether Mehr is maintenance.

Shah Bano case
The Shah Bano case is a famous divorce lawsuit in India and has generated
political controversy in the country. It is sometimes described as an example
of appeasement of the vote bank for political gains. This case caused
the Rajiv Gandhi government, with its absolute majority, to pass the Muslim
Women (Protection of Rights on Divorce) Act, 1986 which diluted the
secular judgment of the Supreme Court and, in reality, denied even utterly
destitute Muslim divorcees the right to alimony from their former husbands.
Brief of the Case
Shah Bano, a 62 year old Muslim woman and mother of five
from Indore, Madhya Pradesh, was divorced by her husband in 1978. The
Muslim family law (marriage, gifts, inheritance, adoption and a few other
civil laws are under the purview of personal laws in India - they are different
for Christians, Muslims and Hindus) allows the husband to do this without
his wife's consent: the husband just needs to say the word Talaaq before
witnesses for a valid divorce. There are different classifications on Talaaq.
There are also different aspects as well as other norms of Talaq which differ
from sect to sect in Islam. Some sects also have certain prerequisities for a
Talaq to be valid. They believe that during the Talaq, the woman should have
purified herself from menstruation and her husband should not have had any
sexual relationship with her.
Shah Bano, because she had no means to support herself and her children,
approached the courts for securing maintenance from her husband. When the
case reached the Supreme Court of India, seven years had elapsed. The
Supreme Court invoked Section 125 of Code of Criminal Procedure, which
applies to everyone regardless of caste, creed, or religion. It ruled that Shah
Bano be given maintenance money, similar to alimony.
The orthodox Muslims in India felt threatened by what they perceived as an
encroachment of the Muslim Personal Law, and protested loudly at the
judgement. Their spokesmen were Muslim community leaders Obaidullah
Khan Azmi, MJ Akbar and Syed Shahabuddin, They formed an organization
known as the All India Muslim Personal Law Board and threatened to agitate
in large numbers in all major cities. The then Prime Minister, Rajiv Gandhi,
agreed to their demands and cited the gesture as an example of "secularism".
The Indian Government's Reaction
In 1986, the Congress (I) party, which had an absolute majority in Parliament
at the time, passed an act The Muslim Women (Protection of Rights on
Divorce) Act 1986 that nullified the Supreme Court's judgment in the Shah
Bano case. This act upheld the Muslim Personal Law and writ as excerpted
below:
"Every application by a divorced woman under section 125… of the Code
of Criminal Procedure, 1973, pending before a magistrate on the
commencement of this Act shall, notwithstanding anything contained in
that code… be disposed of by such magistrate an accordance with the
provisions of this Act."

The Government with its absolute majority passed the Muslim Women
(Protection of Rights on Divorce) Act, 1986 to dilute the secular judgment of
the Supreme Court. The Statement of Objects and Reasons of this Act (i.e.
the objective of the Act) needs a mention. According to the stated objects of
the Act, where a Muslim divorced woman is unable to maintain herself after
the period of iddat, the Magistrate is empowered to make an order for the
payment of maintenance by her relatives who would be entitled to inherit her
property on her death according to Muslim Law. But where a divorced
woman has no relatives or such relatives, and does not have enough means to
pay the maintenance the magistrate would order the State Waqf Board to pay
the maintenance. The 'liability' of husband to pay the maintenance was thus
restricted to the period of the iddat only.
Critics strongly contend that this Act was passed in order to appease
minorities and safeguard the Muslim vote bank.
Consequences
The Shah Bano case generated tremendous heat in India. It proved that
fundamentalist minorities can exert pressure on government and judicial
decisions. The mainstream media disapproved of the decision. The
opposition reacted strongly against the Congress party's policies (which,
according to BJP, reflect "Pseudo-secularism".)
The case has led to Muslim women receiving a large, one-time payment from
their husbands during the period of iddat, instead of a maximum monthly
payment of Rs. 500 (around 12 US Dollars) - an upper limit which has since
been removed. Cases of women getting lump sum payments for lifetime
maintenance are becoming common.
Critics of the Shah Bano case point out that while divorce is within the
purview of personal laws, maintenance is not, and thus it is discriminatory to
exclude Muslim women from a civil law. Exclusion of non-Muslim men
from a law that appears inherently beneficial to men is also pointed out by the
Indian orthodoxy.
The Shah Bano case once again spurred the debate on the Uniform Civil
Code in India. Ironically, the Hindu Right led by parties like the Jan
Sangh which had strongly opposed reform of Hindu law in the 50's, in its
metamorphosis as the Bharatiya Janata Party became an advocate for secular
laws across the board. However, their opposition to the reforms was based on
the argument that no similar provisions would be applied for the Muslims on
the clumsy claim that they weren't sufficiently advanced.The pressure exerted
by orthodox Muslims caused women's organizations and secularists to cave
in. This was strange because the Congress government at the center enjoyed
an absolute 2/3rd majority.
 Personal Laws
The existence of personal laws is, in itself, an indicator of a constitutional
bias towards maintaining religious harmony. They have been part of the Civil
Law since the British Raj. The importance of personal laws lies in the fact
that India is a secular nation with a sizeable concentration of several different
religious groups. However, personal laws have been criticized
by Feminists for their orthodox approach and for disadvantaging women.
Religious rights and women's rights remain at conflict due to the disparities
in religious laws. The likelihood that a common civil code for India may be
introduced in the future seems bleak as even a discussion of the topic evokes
strong reactions.
Judicial craftsmanship has ensured that The Muslim Women's [Protection of
Rights on Divorce] Act has not completely violated the rights of women.
High Courts have interpreted "just and fair provision" that a woman is
entitled to during her iddat period very broadlly to include amounts worth
lakhs (hundreds of thousands) of rupees. More recently the Supreme Court in
Danial Latifi v. Union of India read the Act with Art 14 and 15 of the
constitution which prevent discrimination of the basis of sex and held that the
intention of the framers could not have been to deprive Muslim women of
their rights. Further the Supreme Court construed the statutory provision in
such a manner that it does not fall foul of Articles 14 and 15. The provision
in question is Section 3(1)(a) of the Muslim Women (Protection of Rights on
Divorce) Act, 1986 which states that "a reasonable and fair provision and
maintenance to be made and paid to her within the iddat period by her former
husband;". The Court held this provision means that reasonable and fair
provision and maintenance is not limited for the iddat period (as evidenced
by the use of word, "within" and not "for"). It extends for the entire life of the
divorced wife until she remarries.

Under section 125 (1) (a), if any person, having sufficient means neglects or
refuses to maintain his wife, unable to maintain herself, a Magistrate of the first
class may, upon proof of such neglect or refusal order such person to make a
monthly allowance for the maintenance of his wife at such monthly rate not
exceeding five hundred rupees in the whole. Under Explanation (b) thereunder '
wife" includes a woman who has been divorced by, or has obtained a divorce
from her husband and has not remarried. Under the explanation below sub
section 3 of section 125, if a husband has contracted marriage with another
woman or keeps a mistress it shall be considered to be a just ground for his
wife's refusal to live with him. Keeping this in view, if in the trial arising out of
an application made under section 125, and if the husband offers to maintain his
wife on condition of living with him, the Magistrate may consider any of the
grounds of the wife's refusal to live with her husband before ordering the
maintenance. Under section 127 (3) (b), the Magistrate shall cancel the order
passed by him under section 125, in favour of a woman who has been divorced
by, or has obtained a divorce from her husband if the woman who has been
divorced by her husband 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. The appellant. who is an
advocate by profession was married to the respondent in 1932. Three ions and
two daughters were born of that marriage In 1975, the appellant drove the
respondent out of the matrimonial home. In April 1978, the respondent filed a
petition against the appellant under section 125 of the Code of Criminal
Procedure, in the Court of the Judicial Magistrate (First class) Indore, asking for
maintenance at the rate of Rs. 500 per month, in view of the professional
income of the appellant which was about Rs. 60,000 per annum. On November
6, 1978, the appellant divorced the respondent by an irrevocable "talaq" and
took up the defence that she had ceased to be his wife by reason of the divorce
granted by him; that he was, therefore, under no obligation to provide
maintenance for her; that he had already paid maintenance for her at the rate of
Rs. 200 per month for about two years, and that, he had deposited a sum of Rs.
3,000 in the court by way of "dower or Mahr" during the period of "iddat". In
August 1979, the Magistrate directed the appellant to pay a princely sum of Rs.
25 per month to the respondent by way of maintenance. In a revisional
application Sled by the respondent the High Court ofMadhya Pradesh enhanced
the amount of maintenance to Rs. 179.20 per month. Hence the appeal by
special leave by the husband. The view taken in the earlier two three Judges'
Benches of the Supreme Court presided over by Krishna Iyer, J. and reported in
[1979] 2 SCR 75, and [1980] 3 SCR 1127, to the effect that section 125 of the
Code applies to Muslims also and that therefore, the divorced Muslim wife is
entitled to apply for maintenance was doubted, by the Bench consisting of Fazal
Ali and Varadarajan, JJ., since in their opinion the said decisions required
reconsideration by a larger Bench consisting of more than three judges as the
decisions are not only in direct contravention of the plain and unambiguous
language of section 127 (3) (b) of the Code which far from overriding the
Muslim law on the subject protects and applies the same in case where a wife
has been divorced by the husband and the dower specified has been paid and the
period of iddat has been observed but also militates against the fundamental
concept of divorce by the husband and its consequences under the Muslim law
which has been expressly protected by section 2 of the Muslim Personal Law
(Shariat) Application Act, 1937-an Act which was not noticed in the said two
decisions.

Dismissing the appeals, the Court Held: (Per Chandrachud, C. J.) 1. The
Judgments of the Supreme Court in Bai Tahira (Krishna lyer, J., Tulzapurkar, J.
and Pathak, J.) and Fazlunbi (Krishna pyer, J, Chinnappa Reddy, J. and A.P.
Sen, J.) are correct, except to the extent that the statement at page 80 of the
report in Bal Tahira made in the context of section 127 (3) (b) namely,
"payment of Mahr money, as a customary discharge is within the cognizance of
that provision". Justice Krishna Lyre who spoke for the Court in both these
cases, relied greatly on the teleological and schematic method of interpretation
90 as to advance the purpose of the law. These constructional techniques have
their own importance in the interpretation of statutes meant to ameliorate the
conditions of suffering sections of the society.A divorced Muslim wife is,
therefore, entitled to apply for maintenance under section 125 of the Code.
[865H, 866A-C]

Maintenance to Muslim wife: The law revisited

In a recent decision, the Supreme Court has revisited and rejuvenated the law of
maintenance relating to divorced Muslim wives. The Supreme Court was
considering the propriety of the decision given by the Family Court and
confirmed by the High Court where maintenance was allowed to the divorced
wife only upto the period of Iddat. The Husband sought to justify the decision
of these courts arguing that in terms of the 'Muslim Women (Protection of
Rights on Divorce) Act, 1986', the maintenance was to be restricted till the
period of Iddat only. However from the side of the wife it was argued before the
Supreme Court that the lower courts failed to take notice of the fact that in
terms of Section 125 of the Code of Criminal Procedure the divorced wife was
entitled to maintenance till the time she remarried and that Section 125 being a
specific and beneficial legislation would prevail.

In these circumstances, the Supreme Court called upon itself to decide as under.
"The basic and foremost question that arises for consideration is whether a
Muslim divorced wife would be entitled to receive the amount of maintenance
from her divorced husband under Section 125 of the Cr.P.C. and, if yes, then
through which forum." The Court took note of the provisions of the 1986 Act,
Code of Criminal Procedure and the Family Courts Act, 1984 to find favour
with the arguments raised on behalf of the divorced wife. It observed,
. In our opinion, the point stands settled by judgment of this Court reported
in (2001) 7 SCC 740 titled Danial Latifi & Anr. Vs. Union of India pronounced
by a Constitution Bench of this Court. Paras 30, 31 and 32 thereof fully
establish the said right of the appellant. The said paragraphs are reproduced
hereinunder :

A comparison of these provisions with Section 125 CrPC will make it clear

that requirements provided in Section 125 and the purpose, object and scope
thereof being to prevent vagrancy by compelling those who can do so to support
those who are unable to support themselves and who have a normal
and legitimate claim to support are satisfied. If that is so, the argument of the
petitioners that a different scheme being provided under the Act which is
equally or more beneficial on the interpretation placed by us from the
one provided under the Code of Criminal Procedure deprive them of their right,
loses its significance. The object and scope of Section 125 CrPC is to prevent
vagrancy by compelling those who are under an obligation to support those who
are unable to support themselves and that object being fulfilled, we find
it difficult to accept the contention urged on behalf of the petitioners. Even
under the Act, the parties agreed that the provisions of Section 125 CrPC
would still be attracted and even otherwise, the Magistrate has been conferred
with the power to make appropriate provision for maintenance and, therefore,
what could be earlier granted by a Magistrate under Section 125 CrPC
would now be granted under the very Act itself. This being the position, the Act
cannot be held to be unconstitutional.

As on the date the Act came into force the law applicable to Muslim divorced
women is as declared by this Court in Shah Bano's case [(1985) 2 SCC 556
Mohd. Ahmed Khan vs. Shah Bano Begum & Ors.]. In this case to find out the
personal law of Muslims with regard to divorced women's rights, the starting
point should be Shah Bano's case and not the original texts or any other material
- all the more so when varying versions as to the authenticity of the source are
shown to exist. Hence, we have refrained from referring to them in detail. That
declaration was made after considering the Holy Quran, and
other commentaries or other texts. When a Constitution Bench of this Court
analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant
textual material, we do not think, it is open for us to re-examine that position
and delve into a research to reach another conclusion. We respectfully abide
by what has been stated therein. All that needs to be considered is whether in
the Act specific deviation has been made from the personal laws as declared by
this Court in Shah Bano's case without mutilating its underlying ratio. We have
carefully analysed the same and come to the conclusion that the Act actually
and in reality codifies what was stated in Shah Bano's case. The
learned Solicitor General contended that what has been stated in the Objects and
Reasons in Bill leading to the Act is a fact and that we should presume to be
correct. We have analysed the facts and the law in Shah Bano's case and
proceeded to find out the impact of the same on the Act. If the language of
the Act is as we have stated, the mere fact that the Legislature took note of
certain facts in enacting the law will not be of much materiality."
Judgment of this Court reported in (2007) 6 SCC 785 titled Iqbal Bano Vs.
State of U.P.& Anr. whereby the provisions contained in Section 125 of the
Cr.P.C. have been aptly considered and the relevant portion of the order passed
in Iqbal Bano's case reads as under:

"10. Proceedings under Section 125 Cr.P.C. are civil in nature. Even if

the Court noticed that there was a divorced woman in the case in question, it
was open to it to treat it as a petition under the Act considering the beneficial
nature of the legislation. Proceedings under Section 125 Cr.P.C. and claims
made under the Act are tried by the same court. In Vijay Kumar Prasad Vs
State of Bihar (2004) 5 SCC 196it was held that proceedings under Section
125 Cr.P.C. are civil in nature. It was noted as follows: (SCC p.200, Para
14). 14. The basic distinction between Section 488 of the old Code and
Section 126 of the Code is that Section 126 has essentially enlarged the venue
of proceedings for maintenance so as to move the place where the wife may
be residing on the date of application. The change was thought necessary
because of certain observations by the Law Commission, taking note of the fact
that often deserted wives are compelled to live with their relatives far away
from the place where the husband and wife last resided together. As noted by
this Court in several cases, proceedings under Section 125 of the Code are
of civil nature. Unlike clauses (b) and (c) of Section 126 (1) an application
by the father or the mother claiming maintenance has to be filed where
the person from whom maintenance is claimed lives."

 In the light of the findings already recorded in earlier paras, it is not necessary
for us to go into the merits. The point stands well settled which we would like to
reiterate.

 The appellant's petition under Section 125 of the Cr.P.C. would be

maintainable before the Family Court as long as appellant does not remarry.
The amount of maintenance to be awarded under Section 125 of the Cr.P.C.
cannot be restricted for the iddat period only.

Learned Single Judge appeared to be little confused with regard to different

provisions of Muslim Act, Family Act and Cr.P.C. and thus was wholly
unjustified in rejecting the appellant's Revision. 
 Cumulative reading of the relevant portions of judgments of this Court
in Danial Latifi (supra) and Iqbal Bano (supra) would make it crystal clear that
even a divorced Muslim woman would be entitled to claim maintenance from
her divorced husband, as long as she does not remarry. This being a beneficial
piece of legislation, the benefit thereof must accrue to the divorced Muslim
women. 

Being of this view, the Supreme Court declared the law as under;

In the light of the aforesaid discussion, the impugned orders are hereby set
aside and quashed. It is held that even if a Muslim woman has been divorced,
she would be entitled to claim maintenance from her husband under Section
125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does
not remarry.