Mohd. Ahmed Khan v.

Shah Bano Begum and Others

Equivalent Citation: 1985 AIR 945

Bench: Y. C. Chandrachud (CJ),Rangath Misra, D. A. Desai, O. Chinnappa Reddy, E. S.

Venkataramiah (JJ)

Facts of the Case

Mohd Ahmed Khan (the appealing party) who was a lawyer by profession, married to Shah
Bano Begum (the respondent) in 1932, had three sons and two daughters from this marriage.
In 1975, when Shah Bano’s age was 62 years, she was disowned by her spouse and was tossed
out from her marital home together with her children. In 1978, she filed an appeal in the
presence of Judicial Magistrate of Indore, because she was abandoned from the maintenance
of Rs. 200 per month, which was guaranteed to be provided by him. She demanded Rs. 500
per month as maintenance. Subsequently, the husband gave her irrevocable triple talaq on
November 6th, 1978, and used it as a defence to not pay maintenance. The magistrate, in
August 1979, directed the husband to pay an entirety of Rs 25 per month as maintenance.
Shah Bano in July 1908 made a plea to the High Court of M.P, to change the sum of
maintenance to Rs. 179 each month, and high court increased the maintenance to the said
amount i.e. Rs. 179 per month. The same was challenged by the spouse within the Supreme
Court as a special leave petition to the High court’s decision.

Section 125(1) of the Criminal Procedure Code deals with answers to the question as to “Who
can Claim Maintenance?” Some questions arising regarding the same were-

1) Whether the “WIFE” definition includes a divorced Muslim woman?

2) Whether it overrides personal law?
3) Whether a Muslim husband’s obligation to provide maintenance for a divorced wife
is in or not in the conflict between section 125 and Muslim Personal Law?
4) What is the sum payable on divorce? The meaning of Mehar or dower is not
summed payable on divorce?
Judgment
The verdict was given by C.J, Y.C Chandrachud, and the appeal of Mohd. Ahmed Khan was
dismissed.
• Supreme Court said Section of the code applies to all citizens independent of their
religion and consequently Section 125(3) of Code of Criminal Procedure is pertinent to
Muslims as well, without any sort of discrimination. The court further stated that Section
125 overrides the personal law if there is any conflict between the two It makes clear that
there’s no strife between the provisions of Section 125 and those of the Muslim Personal
Law on the address of the Muslim husband’s obligation to provide maintenance for a
divorced wife who is incapable to maintain herself.
• Supreme Court in this case duly held that since the obligation of Muslim husband
towards her divorced wife is restricted to the degree of” Iddat” period, indeed though this
circumstance does not contemplate the rule of law that’s said in Section 125 of CrPc., 1973
and subsequently the obligation of the husband to pay maintenance to the wife extends
beyond the iddat period in the event that the wife does not have sufficient means to
maintain herself. It was further stated by the court 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.
• The payment of Mehar by the husband on divorce is not sufficient to exempt him
from the duty to pay maintenance to the wife.
• After a long court procedure, the Supreme Court finally concluded that the
husbands’ legal liability will come to an end if a divorced wife is competent to maintain
herself. But this situation will be switched in the case when the wife isn’t able in a condition
to maintain herself after the Iddat period, she will be entitled to get maintenance or alimony
under Section 125 of CrPC.
Reasoning
• Either Section 125 of the Code applies to Muslims and does the “WIFE” definition
include a divorced Muslim woman or not?
The SC after referring to Section 125 of CrPC said that “The religion professed by a spouse or
by the spouses has no place within the scheme of these provisions. It would be irrelevant
within the application of these provisions if the spouses are of any ethnicity. The rationale
for this can be self-evident, in the sense that Section 125 is a part of the CrPC, not of the
Civil Laws which define and govern the rights and commitments of the parties belonging to
specific religions. Section 125 was enacted to provide a fast and summary remedy to a
category of persons who are unable to maintain themselves…” (Para 7)
“Clause (b) which is the Explanation to section 125(1), which defines ‘WIFE’ as including a
divorced wife’, contains no words of limitation to justify the exclusion of Muslim women
from its scope. Section 125 is truly secular in character.” (Para 7)
Hence, the code applies to any or all religions including Muslims.
Para 9 of the judgment asserts that “’Wife’ means a wife as defined, irrespective of the
religion professed by her or by her husband. Therefore, a divorced Muslim woman, unless
remarried, is a ‘wife’ under section 125 of the code. The statutory right available to her
under it is unaffected by the provisions of the personal law applicable to her.”
This clears the very fact that “Wife” includes divorced women too.
• Either Section 125 of CrPC overrides personal law or not?
The Court in replying to the present question gave the illustration of the Islamic Law
concerning polygamy: It is too well-known that “A Mohameddan may have as many as four
wives at the same time but not more. If he marries a fifth wife when he has already four, the
marriage isn’t void, but is irregular”.
. Subsequently, the court stated “The explanation confers upon the wife the right to refuse
to live together with her husband if he contracts another marriage, leave alone three or four
other marriages. It shows, indubitably, that section 125 overrides the personal law if there is
any conflict between the two.”
• Is there’s any disagreement between the provisions of Section 125 and those of the
Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance
of his divorced wife?
Answering this proposition court stated- “The argument of the appellant that, according to
the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is
prescribed only to the period of iddat, if she is unable to maintain herself. The true position
is that, if the divorced wife can maintain herself, then the husband’s liability to provide
maintenance for her ceases with the expiration of the period of iddat. If she is unable to
maintain herself, she is entitled to take recourse to section 125 of the CrPC. The result of
this discourse is that there’s no strife between the provisions of section 125 and those of
the Muslim Personal Law on the question of the Muslim husband’s commitment to
providing maintenance for a divorced spouse.
• Is the payment of Mehar by the husband on divorce adequate enough to exculpate
him of any obligation to pay maintenance to the wife?
Quoting the ruling given in Bai Tahira where Justice Krishna Iyer held that “…The payment of
illusory amounts (Mehar) by way of customary or personal law requirement is to be
considered within the reduction of maintenance rate but cannot annihilate that rate unless
it’s a reasonable substitute.” (p.82, Bai Tahira), the SC in this case held “…there is no escape
from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under
section 125 and that, Mehar isn’t a sum which, under the Muslim Personal Law, is payable
on divorce.”

Conclusion:
This judgment has marked the significance of maintenance which ought to be given to the
divorced Muslim women who are not in the condition to earn and maintain themselves.
Article 44 of the Directive Principles in the Constitution, directs the state to provide for its
citizens a Uniform Civil Code throughout the territory of India, “A common civil code will help
the cause of national integration by removing disparate loyalties to laws which have
conflicting ideologies. A beginning has to be made if the Constitution is to have any meaning.”
Shah Bano’s case judgment was criticized by many Muslims especially Muslim scholars as it
was in conflict with the rules of the Quran and Islamic Laws/Islam but Supreme Court passed
the impartial judgment and at last, it had maintained the trust and faith of citizens in the
judiciary. Subsequently, the Parliament of India in 1986 decided to enact the Muslim Women
(Protection Of Rights Of Divorce) Act, 1986.