CASE NAME:

Mohd. Ahmed Khan vs Shah Bano Begum and Ors

CITATION:

1985 Scr (3) 844

PETITIONER:

Mohd. Ahmed Khan

RESPONDENT:

Shah Bano Begum and Ors.

JUDGES:

Chandrachud, Y.V. (CJ), Desai, D.A., Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J), Misra
Rangnath
FACTS OF THE CASE
In 1978, a Muslim Lawyer in Madhya Pradesh divorced Shah Bano, his wife by pronouncing
‘triple talaq’. The main reason behind the divorce being disputes between Shah Bano’s children
and her husband’s other wife.

As per Muslim personal law, he paid rupees 3000 to his divorced wife during the period of Iddat.

Shah Bano was driven out of her matrimonial house and hence, filed a petition under Section 125
of the CrPC before the Judicial Magistrate at Indore.

She sought maintenance from her former husband who he claimed has an annual income of
Rupees 60,000.

The magistrate ordered the husband to pay Shah Bano twenty-five rupees every month as
maintenance. She further appealed to Madhya Pradesh High Court in 1979 where the amount
was revised to Rupees 179.20 per month.

Her former husband, Mohammed Ali Khan petitioned the Supreme Court in 1981 to challenge
the decision of the High Court.

The matter was looked into by a five-judge Constitution Bench of Supreme Court to resolve the
issue.

JUDGEMENT
The Constitutional Bench delivered a unanimous verdict and upheld the decision of the High
Court.

The Court alluded to the religious neutrality of Section 125 of the CrPC stating the religion of
the spouses was wholly irrelevant as the purpose of this section was to protect dependents from
vagrancy and destitution and hence, there was no reason to exclude Muslims from its ambit.
Thus, Shah Bano shall be given maintenance money, similar to alimony.

The Court refused to accept that an order for maintenance under Section 125 could be struck
down by Section 127 only for the mere fact that the husband had made a payment to the wife at
the time of the divorce under the concerned personal laws. The Court thus looked into the
meaning of ‘Mehr’ and inferred that it was not a payment that the husband was liable to make to
a Muslim woman on divorce but was instead an amount that a wife was entitled to in respect of
consideration of marriage. The Court held that it was only paid on divorce but the meaning of it
was rather different and the payment of Mehr was no bar to the Court awarding maintenance.
The Court also used the Quran during its interpretation that husbands were bound by the duty to
maintain their wives. The Supreme Court thus allowed maintenance of Rs.179.20 per month.

Court also expressed anguish in relation to Article 44 of Constitution of India in relation to

bringing of Uniform Civil Code in India as it remained a dead letter and held that a common civil
code will help the cause of national integration by removing disparate loyalties to laws with
conflicting ideologies.

The Court emphasized and clearly stated in its judgement that the fact that fragmentary attempts
of courts to bridge the gap between personal laws cannot take the place of a common civil code.

ISSUES
(1) Whether Section 125 of the CrPC applies to Muslims.

(2) Whether the payment of Mehr by the husband on divorce is sufficient enough to rid him of
any duty to pay maintenance to the wife.

Whether Section 125 of the CrPC applies to Muslims.

 Section 125 of the Criminal Procedure Code talks about a wife who is without any
source of income and is neglected by her husband is entitled to maintenance,
 Explanation (b) of section 125 includes a divorced wife who is not remarried. So
contains no words of limitation to justify the exclusion of Muslim women from its scope.
 section 125 of CrPC is a secular law, and hence, applies to all women, irrespective of
their religion. Conflict between secular law and personal law
 Hence, the Supreme Court settled the position of law that in case a Muslim woman is
divorced, incapable of maintaining herself and has not remarried, then she shall be
entitled to maintenance under section 125 of the CrPC.
 The Muslim law only spoke about making it mandatory for the husband to pay the wife
the entire Mehr amount during the Iddat Period and not about a situation where the
wife is unable to maintain herself after the completion of the period while she is still
unmarried and in such a situation the wife will have to resort to Section 125 of the CrPC
for seeking help of the court.
 .
1) Whether the payment of Mehr by the husband on divorce is sufficient enough to rid
him of any duty to pay maintenance to the wife.

The Appellant said that since the he had already paid the wife the complete Mehr amount and the
maintenance amount for the 2 years when she lived away from him he was not entitled to pay
any more money to her in form of alimony or maintenance as the Iddat Period was over.

 The contention that, according to Muslim Personal Law the husband’s liability to provide
for the maintenance of his divorced wife is limited to the period of iddat. despite the fact
that she is unable to maintain herself cannot be accepted, since that law does not
contemplate or countenance the situation envisaged by section 125 of the Code.


if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance
for her ceases with the expiration of the period of iddat. there is no conflict between the
provisions of section 125 and those of the Muslim Personal Law on the question of the
Muslim husband’s obligation to provide maintenance for a divorced wife 848 who is unable
to maintain herself.

It is true under the Muslim Personal Law, the amount of Mahr is usually split into two
parts, one of which is called ’prompt" which is payable on demand, and the other is
called "deferred", which is payable on the dissolution of the marriage by death or by
divorce. But, the fact that deferred Mahr is payable at the time of the dissolution of
marriage, cannot justify that it is payable ’on divorce’. even assuming that, in a given
case, the entire amount of Mahr is of the deferred variety payable on the dissolution of
marriage by divorce, it cannot be said that it is an amount which is payable on divorce.

If Mahr is an amount which the wife is entitled to receive from the husband in
consideration of the marriage, that is the very opposite of the amount being payable in
consideration of divorce. Divorce dissolves the marriage. Therefore. no amount which is
payable in consideration of the marriage can possibly be described as an amount payable
in consideration of divorce. Therefore, a sum payable to the wife out of respect cannot be
a sum payable on divorce’. Thus, the payment of Mahr may be deferred to a future date
as, for example, death or divorce. But, that does not mean that the payment of the
deferred dower is occasioned by these events.
 is the law so ruthless in its inequality that, no matter how much the husband pays
for the maintenance of his divorced wife during the period of iddat, the mere fact
that he has paid something, no matter how little, absolves him forever from the duty
of paying adequately so as to enable her to keep her body and soul together ?

Muslim Women (Protection Of Rights On Divorce) Act, 1986:-

The judgement given in Shah Bano Case was criticized among Muslims and according to them
this decision was in conflict with the rules of "Quran" and "Islamic Laws/ Islam".

 So Parliament of India in 1986, (Congress govt.) decided to enact the Muslim women
(Protection Of Rights Of Divorce) Act, 1986 to invalidate the decision/decree passed by
Supreme Court in Shah Bano Begum Case..
 According to this act, Muslim divorced women should be entitle to adequate and reasonable
amount of maintenance till the Iddat period.
 The relevant provisions of this act are sections 3(1)(a) and 4(1), which stated that the former
husband must provide “a reasonable and fair provision” and maintenance within the period of
iddat20 and, that in case she is unable to maintain herself after the period of iddat , she can claim
maintenance from her relatives and if they cannot pay , then she can claim from the Wakf Board
as per S.4(2),21respectively. It doesn't characterize a maximum limit to the maintenance. It
expresses that women may look for fair and reasonable remuneration amid the iddat, and that any
kids borne of the marriage are eligible for a further maintenance.

Criticism

The Constitutional validity of the Act was challenged on the ground of being violative of Article
14, 15 and 21. The basic question raised by right activists was the necessity of enacting an Act,
which completely segregates a portion of the population by having a special enactment despite a
secular remedy being available.

Daniel Latifi v Union of India:-

In this case, a writ was filed under Article 32 challenging the constitutional validity of the Act.

 In this case the constitutional validity of the Act was upheld and an interpretation of the
provisions of the Act was provided. The Court looked into the Preamble, Statement of
Objectives and Reasons of the Act.
 fair and reasonable, the court arrived at the conclusion that the maintenance, being fair
and reasonable, should exceed the iddat period but must be made within the iddat period.
 Such maintenance made during iddat period should be for her entire future, that is the
time after the expiration of iddat period as well.
 The liability of the husband, therefore, is not limited to the iddat period. Therefore, this
Act is not in contravention of section 125 of CrPC.