FAMILY LAW ASSIGNMENT

-Anubhuti Anand Singh (BA0190007)

-Anushka Kashyap (BA0190008)

Mohd. Ahmed Khan vs Shah Bano Begum And Ors.

Equivalent Citation: Mohd. Ahmed Khan v Shah Bano Begum [1985] 2 SCC 1

Area of Study: Section 125 and 127 of CrPC, 1973 and Shariat Act, 1937.

Facts: In 1978, a divorced Muslim woman Shah Bano filed a petition in the HC of Madhya
Pradesh for maintenance under Section 125 of Code of Criminal Procedure (herein referred to
as CrPC) from her husband Ahmed Khan. The Court directed Ahmad Khan to pay maintenance
of Rs 179.20. However, Khan contested that on the grounds of the Muslim Personal Law
(Shariat) Application Act, 1937 the husband is required to maintain his divorced wife till Iddat
period and filed a special leave petition challenging the decision of HC.

Issues:

(i) Whether Section 125 of CrPC is applicable to Muslims.

(ii) Whether the payment of Mehr by the husband on divorce is sufficient to avoid
maintenance to wife.

Analysis: According to clause (b) of Section 125(1) of CrPC, a wife who does not have
sufficient means to maintain herself is eligible to get maintenance on divorce. The Court stated
that “Section 125 is a part of the code of Criminal Procedure, not of the Civil Laws which define
and govern the right and obligations of the parties belonging to particular religions.”The
religion followed by spouses has no place as the provision contains no words of limitation to
justify the exclusion of Muslim women from its scope. Religion shouldn’t act as a barrier in
upholding rights of divorced women. That is the moral edict of the law and morality cannot be
clubbed with religion. The court analyzed the condition of Indian Society where high percentage
of women are uneducated and not in a position to fulfill their basic necessities. Even the Holy
Quran imposes an obligation on the Muslim husband to maintenance wife on divorce. Therefore,
there is no conflict between the provisions of Section 125 of CrPC and those of the Muslim
Personal Law to provide maintenance. Further, the Court stated that if there are any conflicts
between the same; Section 125 of CrPC will prevail.

Moreover, mere payment of Mehr doesn’t imply that the husband doesn’t have an obligation to
maintain his divorced wife. Mehr is not a sum payable on divorce as maintenance. The Mehr
may act as a ground by reducing the amount payable as maintenance but can’t annihilate the
maintenance itself.

Judgement: The apex court of India upheld the Muslim women’s right to maintenance under
section 125 of CrPC, and further stated that the payment of Mehr by the husband on divorce is
not sufficient to absolve him of the duty to pay maintenance.

Opinion: The judgment is significant and potentially transformative decision safeguarding the
dignified life of Muslim women. It also brings our notice to the highly regressive attitude of the
Indian society restrained in myths and social prejudices. However, the judgment paved the way
for meaningful and respected life for the divorced Muslim women without any means of
sustaining themselves.
 Daniel Latifi and another v Union of India

Equivalent Citation: Daniel Latifi and another v Union of India (2001) 7 SCC 740

Area of Study: Section 125 and 127 of CrPC, 1973 and Section 3 and 4 of Muslim Women
(Protection of Rights on Divorce) Act, 1986.

Facts:
After the ruling of Shah Bano case, the conservative Muslim boards pressurized the government
into passing The Muslim Women (Protection of Rights on Divorce) Act in 1986. Section 3 of
this Act mentioned that a husband is liable to pay maintenance only till the period of iddat. Thus,
this Act led to nullification of the judgement in Shah Bano case. The petitoner, Daniel Latifi,
then claimed that this act was unislamic, unconstitutional and violates Article 14, 15 and 21 of
the Indian Constitution as Section 125 of the CrPC (maintenance) doesn't extend to Muslim
women.

Issue:
(i) Whether the Muslim Women (Protection of Rights on Divorce) Act constitutionally
valid.
(ii) Whether a divorced Muslim woman is entitled to maintenance after the period of iddat.

Judgement:
The Supreme Court upheld the validity of the Muslim Women (Protet of Rights on Divorce) Act.

Analysis:
The bench of five judges referred to various Islamic religious texts and came to a conclusion that
a divorced woman who is unable to maintain herself is eligible to receive Mata, i.e. maintenance
referred to in the Holy Quran, Chapter ll, Sura 241. The Muslim personal law does mention
about maintenance until Iddat, but it neither permits nor prohibits maintenance after Iddat. The
texts didn't take into consideration rare situations where a woman couldn't maintain herself.
Section 3 of the act mentions “a reasonable and fair provision and maintenance to be paid to
the divorced woman within the Iddat period by her former husband.” The court interpreted
'reasonable and fair provision' as all the essential needs that might arise in the future including
shelter, food, etc. And the total amount was to be paid during the Iddat, even though it wasn't
restricted to the iddat period. The court claimed that the legislature doesn't intend to enact
unconstitutional laws. Thus, the provisions of the act weren't in conflict with section 125 of the
CrPC, neither did it violate article 14, 15 and 21 of the Indian Constitution.

Opinions:
The act was definitely discriminatory on the basis of gender and religion, but the court
interpreted it in a way that would keep social activists working for welfare of women and the
conservative Boards at bay.
 Shayara Bano V. Union of India

Equivalent citation: Shayara Bano v Union of India [2017] 9 SCC 1

Area of Study: Section 5 of Shariat Act, 1937 and Article 14, 15, 21, and 25(1) of the
Constitution of India, 1950.

Facts: The case revolves around Shayara Bano, a Muslim woman divorced by her husband
through instantaneous triple- talaq or Talaq-e-biddat. She filed a Writ Petition in the Supreme
Court challenging the validity of triple talaq, polygamy, and Nikah- Halala on the touchstone of
Article 14, 15, 21 and 25 of the Constitution. Respondents claimed that Triple- Talaq is essential
religious practice of Islam and hence, protected by Article 25(1) of the Indian Constitution.

Issues:

(i) Whether Talaq-e- biddat is an essential religious practice of Islam.

(ii) Whether the practice Talaq-e-biddat violates fundamental rights guaranteed by the
Constitution of India.

Analysis: The court concluded that Talaq-e-biddat is not an essential practice of Islam. The
court justified its point of view in the sense, triple- talaq is against the basic tenets of Quran and
whatever is against Quran is contrary to Shariat Act and stated that “what is bad in theology
cannot be good in law.” The bench observed that merely because the practice is widespread and
continuing from time immemorial it cannot be held as an essential religious practice and should
get protection of Article 25(1). Essential religious practices are those on which the religion is
founded upon and are fundamental to the profession and propagation of the religion. Striking
down Triple- Talaq doesn’t cause substantial damage to the religion. Most of the Islamic
countries have done away with this practice also reflects that the said practice is not an essential
religious practice.  

Moreover, Triple-Talaq is against Article 14, 15 and 21 of the Constitution. It violates the Right
to Equality as women have no say in divorce unlike the women of other religions. The impugned
practice is a tool by which marital tie can be broken on whims of Husband without any attempt
of reconciliation to save it. The Court held that “practices solely based on physiological factors
which neither serves any valid object nor satisfies the test of reasonable classification under
Article 14 of the Constitution is unconstitutional.” Equality means equal status of every
individual irrespective of their gender. Triple- talaq violates of Right to dignified life, as there
are many uneducated women from poor economic background who are not capable to fulfill their
necessities. “Individual dignity cannot be allowed to be subordinate to the morality of the mob.”
So, this provision allows Muslim husbands to divorce their wife without any say, subsequently
undermining the dignity of women.

Judgement: The SC by a majority of 3:2 declared Triple-talaq unconstitutional and inconsistent

with the fundamental rights set out in the Constitution, and not an essential religious practice of
Islam.

Opinion: The judgement was successful in bringing justice to victims of triple-talaq. This
practice treats women like chattel which is against the principles of human rights and gender
equality and dignity. We as an individual have to understand that those provisions are not
morally and constitutionally correct and encourage ground level implementation of judgement.
 Sarla Mudgal v Union of India

Equivalent Citation: Sarla Mudgal v Union of India, AIR 1995 SC 1531

Area of Study: Section 494 of IPC, 1860 and Section 13 of Hindu Marriage Act,1955.

Facts:
There are four petitions in this case. The first petitioner is the President of KALYANI, a
registered society which worked for the welfare of needy families and women in distress.
The second petitioner, Meena Mathur married to Jitender Mathur learned that her husband had
converted to Islam and solemnised marriage with Sunita Narula @ Fatima. He claimed that due
to his conversion, he can have four wives even if his first wife was a Hindu. The purpose of
conversion was only to escape charges of bigamy. However, Jitender converted back to
Hinduism and agreed to maintain his first wife and the three children born out of first marriage.
Sunita continued to be a Muslim and claimed that neither of the personal laws guarantees her any
protection.
The next petitioner, Geeta Rani was often subjected to physical violence by her husband Pradeep
Kumar. He later ran away with Deepa to marry her after converting to Islam. The only reason he
converted was to marry for the second time.
The last petitioner, Sushmita Ghosh was asked by her husband, G.C. Ghosh to agree to mutual
divorce. He revealed that he has converted to Islam and would marry Vinita Gupta. The
petitioner claimed that the husband is not eligit for second marriage.

Issue:
(i) Whether a marriage solemnised under Muslim personal be valid while a prior marriage
still persists.
(ii) Whether the said person is liable for bigamy.

Judgement:
The second marriage was void and the offenders were held liable for bigamy under Section 494
of IPC.
Analysis:
Since Hindus practice monogamy and Muslim personal law allows more than one marriage,
there is an open inducement for the Hindu husbands to convert to Islam. Marriage solemnized
under different personal laws guarantee different rights to spouses. However, converting to Islam
doesn't mean that the marriage solemnized and the rights granted in the prior marriage and under
the Hindu religion would automatically dissolve. The marriage will only dissolve when divorce
is granted to the spouses under Section 13 of the Hindu Marriage Act. Therefore, the husbands
who convert to Islam for the sole purpose of marrying again when the prior marriage still persists
are liable for bigamy.

Opinion:
There have been various instances where husbands have converted to Islam just to facilitate a
second marriage. This landmark judgement helped in curbing such incidences by interpreting the
personal laws without hurting the faith of religions.