Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

IN THE HON’BLE

SUPREME COURT OF INDIA

In the matter of

Mohd. Ahmed Khan

(Appellant)

V.

Shah Bano Begum and Ors.

(Respondent)

On Submission to the Hon’ble Supreme Court

MEMORANDUM FOR THE APPELLANT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS 3

Memorandum on Behalf of Appellant Page 1

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

INDEX OF AUTHORITIES 4

STATEMENT OF JURISDICTION……………………………………………...5

STATEMENT OF FACTS 6

ISSUES RAISED 7

SUMMARY OF PLEADINGS 8

WRITTEN SUBMISSION 10

PRAYER FOR RELIEF 15

LIST OF ABBREVIATIONS

& And

Memorandum on Behalf of Appellant Page 2

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

AIR All India Reporter

Edn. Edition

Etc. Et Citra.

Govt. Government

Hon’ble Honorable

P. Page Number

SC Supreme Court

SCC Supreme Court Cases

v. Versus

INDEX OF AUTHORITIES

JUDICIAL DECISIONS:

 Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Anr

Memorandum on Behalf of Appellant Page 3

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

BOOKS:

 Basu, DD, ‘Constitutional Law of India’ (Wadhwa and Company, 7TH Edition,
Nagpur) (Rep. 2003)
 Mulla, Principles of Mahomedan Law, (Lexis Nexis Butterworths, India, 19th
Edn., 16th Reprint, New Delhi) (2007)
 Narayana, P. S., Law of Divorce in India, (Gogia Law Agency, India, Hyderabad)
(2007)
 Bakshi, P.M., The Constitution of India, (Universal Law Publishing Co., India, 8 th
Edn, New Delhi) (2007)
 Kuran' Edward William Lane 1843, Reprint 1982; Mulla's Mahomedan Law,
18th Edition
 Baillie's Digest of Moohummudan Law Ameer Ali's Mahomedan Law, 5 th
Edition, Vol. II
 Tyabji's Muslim law 4th Edition Mulla's Mahomedan Law, 18th Edition
 The Quran Interpreted by Arthur J. Arberry 'The Holy Quran' by Yusuf Ali
Muhammad Zafrullah Khan's' The Quran'
 Dr. Tahir Mahmood in 'Muslim Personal Law' 1977 Edition

DICTIONARIES:
 Concise Oxford Dictionary, 12th. Edn, Oxford University Press, 2002
 Garner Bryan, Black’s Law Dictionary, 9th Edn, West Group Publications, 2002.

STATEMENT OF JURISDICTION

Mohd. Ahmed Khan has approached the Hon’ble Supreme Court of India under Article 32 of the
Constitution of India. Article 32 of the Constitution of India reads as hereunder:

Memorandum on Behalf of Appellant Page 4

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

32. Remedies for enforcement of rights conferred by this Part

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
2. The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part
3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
4. The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution

STATEMENT OF FACTS

1. The appellant, who is an advocate by profession, was married to the respondent in

1932. Three sons and two daughters were born of that marriage. In 1975 the appellant
drove the respondent out of the matrimonial home.

Memorandum on Behalf of Appellant Page 5

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

2. In April 1978, the respondent filed a petition against the appellant under
Section 125 of the Code in the court of the learned Judicial Magistrate (First Class),
Indore asking for maintenance at the rate of Rs. 500 per month.
3. On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq.
His defence to the respondent's petition for maintenance was that she had ceased to be
his wife by reason of the divorce granted by him, to provide that he was therefore
under no obligation maintenance for her, that he had already paid maintenance to her
at the rate of Rs. 200 per month for about two years and that, he had deposited a sum
of Rs. 3000 in the court by way of dower during the period the of iddat.
4. In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs.
25 per month to the respondent by way of maintenance. It may be mentioned that the
respondent had alleged that the appellant earns a professional income of about Rs.
60,000 per year. In July, 1980 in a revisional application filed by the respondent, the
High court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per
month. The husband is before us by special leave.

ISSUES RAISED

1. Whether the payment of Mahr by the husband on divorce is sufficient to absolve

him of any duty to pay maintenance to the wife?

Memorandum on Behalf of Appellant Page 6

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

2. Whether Muslim Personal Law imposes no obligation upon the husband to provide
for the maintenance of a divorced wife?

3. Whether Section 125 of the CrPC applies to Muslims?

Memorandum on Behalf of Appellant Page 7

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

SUMMARY OF PLEADINGS

1. The payment of Mahr by the husband on divorce is sufficient to absolve him

of any duty to pay maintenance to the wife.

Mahr can defined as "a sum of money or other property which the wife is entitled
to receive from the husband in consideration of the marriage." Dr. Paras Diwan in
his book, "Muslim Law in Modern India" criticizes this definition on the ground
that Mahr is not payable "in consideration of marriage" but is an obligation
imposed by law on the husband as a mark of respect for the wife, as is evident
from the fact that non-specification of Mahr at the time of marriage does not
affect the validity of the marriage. Under 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. If there is already a sum of
money described in Muslim law to be paid on divorce, then what is need to pay
maintenance.

2. Whether Muslim Personal Law imposes no obligation upon the husband to

provide for the maintenance of a divorced wife.
A divorced wife is entitled to maintenance during her period of probation (iddat).
In case of divorce, the wife cannot re-marry a second time for three months and in
the case of death of the husband for four months and ten days. This period is
called iddat. Because of this condition, she is entitled to get maintenance for this
period. It would be right to hold that the Muslim husband, according to his
personal law, is not under an obligation to provide maintenance, beyond the
period of iddat, to his divorced wife who is unable to maintain herself. According
to the Muslim Personal Law, his liability to provide for the maintenance of his
divorced wife is limited to the period of iddat despite the fact she is unable to
maintain herself.

Memorandum on Behalf of Appellant Page 8

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

3. Section 125 of the CrPC does not apply to Muslims.

Section 127(3)(b), is a valid defense for this issue. This section reads as “Where
any order has been made under Section 125 in favor of a woman who has been
divorced by, or has obtained a divorce from her husband, the Magistrate shall, if
he is satisfied that 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.”

Memorandum on Behalf of Appellant Page 9

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

WRITTEN SUBMISSION

ISSUE 1– The payment of Mahr by the husband on divorce is sufficient to absolve him of any
duty to pay maintenance to the wife.

1.1 Definition of Mahr: In Mulla's principles of Mahomedan Law 1, Mahr or Dower is

defined in paragraph 285 as "a sum of money or other property which the wife is entitled to
receive from the husband in consideration of the marriage." Dr. Paras Diwan in his book,
"Muslim Law in Modern India"2 criticizes this definition on the ground that Mahr is not
payable "in consideration of marriage" but is an obligation imposed by law on the husband as
a mark of respect for the wife, as is evident from the fact that non-specification of Mahr at the
time of marriage does not affect the validity of the marriage. We sued not enter into this
controversy and indeed, Mulla's book itself contains the further statement at page 308 that the
word 'consideration' is not used in the sense in which it is used in the Contract Act and that
under the Mohammedan Law, Dower is an obligation imposed upon the husband as a mark of
respect for the wife. We are concerned to find whether Mahr is an amount payable by the
husband to the wife on divorce. Some confusion is caused by the fact that, 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.

In an appeal from a Full Bench decision of the Allahabad High Court, the Privy Council in
Hamira Bibi v. Zubaide Bibi3 summed up the nature and character of Mahr in these words:
“Dower is an essential incident under the Muslim Law to the status of marriage; to such an
extent that is so that when it is unspecified at the time the marriage is contracted, the law
declares that it must be adjudged on definite principles. Regarded as a consideration for the
marriage, it is, in theory, payable before consummation; but the law allows its division into
1
18th Edition, page 308
2
1982 Edition, page 60
3
(1916) ILR 38 All 581

Memorandum on Behalf of Appellant Page 10

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

two parts, one of which is called "prompt" payable before the wife can be called upon to enter
the conjugal domicile; the other "deferred", payable on the dissolution of the contract by the
death of either of the parties or by divorce.”

1.2 Mahr is sufficient: Often the deferred amount is larger than the amount paid at marriage.
In theory, the deferred amount is supposed to provide the wife with a means of support, and is
associated with the death or divorce of the husband. Here the Muslim law has the concept of
Mahr for the maintenance of a woman who is divorced, so, what is the need for a separate
provision for maintenance in Muslim law?
Maliki School holds that when the husband is at fault for the divorce, the wife does not forfeit
her right to the mahr even if she initiates the divorce. The schools also differ over the requisite
number of witnesses to the contract.  According to some scholars, even if the Mahr is not
mentioned in the nikahnama, the Mahr would still be an obligation and the law will award it
on the demand of the wife. The amount, in this case, would be determined by the Mahr of the
females of her class or of her father’s family, known as mahr misl, or the financial position of
the groom, the social status of the bride, the prevalent custom of the time and place and the
agreement that the bride and the groom can reach over the amount. There is no upper limit on
the amount of the Mahr, but the amount should be a realistic one. It can be from a “heap of
gold” to anything that the parties agree to and is non-refundable. So no question can be raised
on determination of Mahr, as it the sum of money to be pain is determined on reasonable
grounds.

ISSUE 2 – Muslim Personal Law imposes no obligation upon the husband to provide for the
maintenance of a divorced wife.

No maintenance on the expiration of iddat: Does the Muslim Personal Law impose no
obligation upon the husband to provide for the maintenance of his divorced wife? No this is
not the case. Muslim personal law imposes adequate obligation upon the husband to provide
maintenance of a divorced wife, but again you need to follow the law enshrined in muslim law
to get maintenance. In this the period of iddat was already over and thus there arises no
responsibility on behalf of the husband to pay the divorced wife. The Muslim Personal Law

Memorandum on Behalf of Appellant Page 11

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

limits the husband's liability to provide for the maintenance of the divorced wife to the period
of iddat. According to the Muslim Personal Law, his liability to provide for the maintenance
of his divorced wife is limited to the period of iddat despite the fact she is unable to maintain
herself.

Tyabji's Muslim law4 contains the statement that: On the expiration of the iddat after talaq, the
wife's right to maintenance ceases, whether based on the Muslim Law, or on an order under the
Criminal Procedure Code. Paras Diwan’s 5: When a marriage is dissolved by divorce the wife is
entitled to maintenance during the period of iddat. On the expiration of the period of iddat, the
wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognise
any obligation on the part of a man to maintain a wife whom he had divorced. All the authors are
of the view that the position in Islamic Law is that ‘the divorced wife is entitled to maintenance
from the husband only up to the iddat period.

Maintenance during the iddat is provided for there is possibility of pregnancy and the woman is
not free to re-marry. But after the expiration of the period, the erstwhile husband and wife have
become complete strangers to each other and they are free to marry anyone that they like. It is
illogical to insist that the husband should go on maintaining a stranger. In discussing such points,
it is presumed that the woman is the wronged party while in fact the cause of divorce may be
wholly imputable to her, examples of which have been given before.

ISSUE 3 – Section 125 of the CrPC cannot be applied to Muslims.

3.1 Section 127 (3) should be applied before application of section 125:Section 127(3)(b) of the
Crpc, on which the main argument can be built reads: Where any order has been made under
Section 125 in favour of a woman 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

4
4th Edition, para 304, pages 268-269
5
Muslim Law in Modern India, 1982 Edition, page 130

Memorandum on Behalf of Appellant Page 12

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

of the sum which, under any customary or personal law applicable to the parties, was payable
on such divorce, cancel such order,

The respondent's application under Section 125 of the CrPC is liable to be dismissed because of
the provision contained in Section 127(3)(b) CrPC. That section provides, to the extent material,
that the Magistrate shall cancel the order of maintenance, if the wife is divorced by the husband
and, she has received "the whole of the sum which, under any customary or personal law
applicable to the parties, was payable on such divorce". That raises the question as to whether,
under the Muslim Personal Law, any sum is payable to the wife 'on divorce'.

3.2 Muslim personal law should remain untouched: It is contended on behalf of the
appellant that the proceedings of the Rajya Sabha dated December 18, 1973 6, when the bill
which led to the Code of Criminal Procedure, 1973 was on the anvil, would show that the
intention of the Parliament was to leave the provisions of the Muslim Personal Law
untouched. In this behalf, reliance is placed on the following statement made by Shri Ram
Niwas Mirdha, the then Minister of State, Home Affairs:

Dr. Vyas very learnedly made certain observations that a divorced wife under the Muslim law
deserves to be treated justly and she should get what is her equitable or legal due. Well, I will not
go into this, but say that we would not like to interfere with the customary law of the Muslims
through the Criminal Procedure Code. If there is a demand for change in the Muslim Personal
Law, it should actually come from the Muslim Community itself and we should wait for the
Muslim public opinion on these matters to crystalize before we try to change this customary right
or make changes in their personal law. Above all, this is hardly, the place where we could do so.
But as I tried to explain, the provision in the Bill is an advance over the previous situation.
Divorced women have been included and brought within the admit of Clause 125, but a
limitation is being imposed by this amendment to Clause 127, namely, that the maintenance
orders would ceases to operate after the amounts due to her under the personal law are paid to
her. This is a healthy compromise between what has been termed a conservative interpretation of
law or a concession to conservative public opinion and liberal approach to the problem. We have
made an advance and not tried to transgress what are the personal rights of Muslim women. So

6
volume 86, column 186

Memorandum on Behalf of Appellant Page 13

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

this, I think, should satisfy Hon. Members that whatever advance we have made is in the right
direction and it should be welcomed.

3.3 Precedents need reconsideration: As this case involves substantial questions of law of far-
reaching consequences, we feel that the decisions of this Court in Bai Tahira v. Ali Hussain
Fidaalli Chothia7 and Anr. and Fuzlunbi v. K. Khader Vali and Anr. 8 require reconsideration
because, in our opinion, they are not only in direct contravention of the plain and an
unambiguous language of Section 127(3)(b) of the CrPC, 1973 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.
The decision also appears to us to be 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—:in Act which was not noticed by the
aforesaid decisions. We, therefore, direct that the matter may be placed before the Hon'ble Chief
Justice for being heard by a larger Bench consisting of more than three Judges.

7
1979 AIR SC 362
8
AIR 1980 SC 1730

Memorandum on Behalf of Appellant Page 14

 Mohd. Ahmed Khan V. Shah Bano Begum and Ors.

PRAYER FOR RELIEF

Wherefore in the lights of the facts stated, authorities cited, arguments advanced, the Appellants
humbly requests the Hon’ble Court to adjudge and declare that: -

1. To admit the Appeal.

2. To hold that payment of Mahr at the time of divorce was enough to absolve
the appellant from any liability thereon.
3. To hold that there no obligation on the Appellant to pay maintenance to the
Respondent.

And, pass any order or decree in the favor of the defendants as the Court may deem fit in the
lights of Justice, Equity & Good Conscience.

All of which is most humbly prayed.

COUNSEL ON BEHALF OF APPELLANT 2016, 2th April

New Delhi

Memorandum on Behalf of Appellant Page 15