The Code of Criminal Procedure, 1973

Case Study on Section 125: Order for maintenance of wives, children and
parents.

Mohd. Ahmed Khan vs Shah Bano Begum, 1985 AIR 945,

1985 SCR (3) 844

Appellant: Mohd. Ahmed Khan

Versus
Respondent: Shah Bano Begum,

Introduction:

Section 125 Of CrPC in India is an important provision in many regards

as it enforces the Right to Maintenance of the Wives, Children and Parent
from the pockets of the Husband, Father and Son or Daughter respectively. It
reinforced the position of the dependant one in a relation ship by making their
dependence on the person, a right to be fulfilled by that person. This law
ensured the safety and dignity of the person dependant on the other. While
this seems like a Law that was framed in a secular context, the different
personnel law followed within the country makes this impossible for the
provision to be utilised to this full potential.
One of Hurdles this Provision it faced in its course is the case of Shah
Bano. This particular case questions the validity of Section 125 and its
application to cases of different religion. This case went on to become of the
controversial debates in India. Both the parliament and the Judiciary were
taking turns to tune the effectiveness of this provision through legislations and
Precedents respectively. But at last, the precedents set up by the Judiciary
became the Law of the Land. Thereby cementing the efforts of Shah Bano in
this case.
 Case Background

Parties:

Appellant: Mohd. Ahmed Khan

Respondent: Shah Bano Begum

Judges:

Chief Justice. CHANDRACHUD, Y.V.,

Justice. MISRA RANGNATH
Justice. DESAI, D.A.
Justice. REDDY, O. CHINNAPPA
Justice. VENKATARAMIAH, E.

Facts:

The facts of the case are:

 Shah Bano was married to Mohd. Ahmad Khan, a well-known Indore lawyer.
In their marriage they had 5 children.
 After 14 yrs of their marriage Shah Bano's husband married another women,
after this marriage Shah Bano was disowned by her Husband at the age of 62.
 She was thrown out of her matrimonial home with the promise that her
husband would pay her 200 per month as maintenance.
 In April of 1978 she brought in a appeal under Sec. 125 of code of criminal
procedure, 1973 (CrPC) in the presence of judicial magistrate of Indore after
her refused to pay the maintenance of Rs. 200 per month which he
guaranteed to give.
 She was during this appeal was not married to another person and she was
also not divorced from her previous marriage.
 In November 1978, he gave his wife Shah Bano an irrevocable divorce by
uttering "Triple Talaq." And proceeded to establish that ”She was no longer
his legal wife as a result of the divorce, and he was no longer obligated to
provide her with maintenance or alimony.
  The court directed Mr. Ahmed to furnish her Rs. 25 per month to Shah Bano
in a form of maintenance. But in July 1908 Shah Bano made a plea to HC of
M.P to alter the amount of maintenance to Rs 179 per month through Section
127 of CrPC.
 Mr. Ahmed’s main argument is that after divorce, he cannot maintain any
form of alliance or connection with his divorced wife because it is forbidden
by Islamic law and is "Haram," and thus he is not
legally obligated to support her.

Procedural History:

This Petition filed by Shah Bano for altering the

maintenance amount to Rs. 179, the High Court on July
1908, The HC directed Mr. Ahmed to pay the
maintenance to Shar Bano in its judgement. But Mr.
Ahmed Appealed to the SC. Therefore, this case was appealed to the Supreme court
where the decision of the HC was upheld.

Issue Raised:

 Whether or not Section 125 of the Code of Criminal Procedure applies to

Muslims like it applies for the rest of the population.
 Whether the Mehr given by the husband on divorce is sufficient to get the
husband rid of his wife and make him liable to support her or not.
 Whether or not the Uniform Civil Code applies to all religions

Holding:

The Supreme Court held that this rule according to Muslim Law was against
humanity or was wrong because here a divorced wife was not in a condition to
maintain herself. This conclusion was achieved after the SC conducted the case
study on Iddat period. Which is not a situation contemplated under section 125
CrPC. Therefore, the court held that Section 125(3) of Code Of Criminal Procedure
is applicable to Muslims too, without any sought of discrimination. Thereby Shah
Bano was ensured of her maintenance and this case set up a precedent which will
become debatable due to the enactment of Muslim Women ( Protection Of Rights
On Divorce) Act, 1986.
After this long process a idea was set up that the liability of the husband will
come to a rest when the divorced is capable of maintaining herself. It may either be
another marriage or a good economic stand of
the divorced wife.

Analysis:

The Supreme Court's decision in the Shah

Bano case drew a lot of criticism during that
time period. At the time, Muslim women,
whether married or unmarried, were denied basic
freedom, which was against humanitarian ideas and violates the basic or
fundamental rights of humans.
In comparison to other women around the world, Muslim women had a lower
status in India households. In comparison to other women, they were uneducated
and less self-sufficient. They were confronted with serious issues and problems,
which resulted in a loss of self-confidence and knowledge in various areas.
In addition to these restrictions, they were not permitted to study or educate
themselves, nor were they permitted to work. Because they had been exposed to all
of these things since childhood, it was only natural that they would be unable to
earn a living and maintain themselves during this difficult time, necessitating
alimony or maintenance.

Subsequent developments:

This judgement was the result of the efforts taken strong minded women like
Shah Bano. While the Judiciary was able to take into consideration the problems
faced by the Women in Muslim households, the political pressure put up by the
Muslim parties resulted in the creation of the Muslim Women ( Protection Of
Rights On Divorce) Act, 1986.
This legislation was enacted with an intention to overrule the precedent set
up by the Shah Bano case, this legislation limited the maintenance to the Iddat
period or 90 days after divorce period which when compared to the judgement and
Section 125 of CrPC, the difference is Night and Day.
However, the court was able to maintain its position in the subsequent
judgements, where a divorced woman could gain a maintenance or alimony from
their former husband under Section 125 of CrPC. These judgements are some of the
areas where the independence of the Judiciary shines through to gain the trust and
faith of citizens on judiciary.