This article is written by Shifa Qureshi, from the Faculty of Law, Aligarh Muslim University.

Honorable Court: Supreme Court of India

Petitioner:  Mohd. Ahmed Khan

Respondents: Shah Bano Begum & Ors.

Bench: Y. C. Chandrachud (CJ)

Rangath Misra, D. A. Desai, O. Chinnappa Reddy, E. S. Venkataramiah (JJ)

Date of Judgment: 23 April 1985

Equivalent Citation: 1985 AIR 945, 1985 SCR (3) 844.

Background

Section 125(1) of the Criminal Procedure Code deals with answers to the question as to “Who can Claim Maintenance?” 

1. Wife from his husband, 
2. Legitimate or illegitimate minor child from his father, 
3. Legitimate or illegitimate minor child (physical or mental abnormality) from his father, & 
4. Father or mother from his son or daughter.

Essentials conditions for granting maintenance include the following points:

1. Sufficient means for maintenance are available (person who has to give the maintenance should have means to give the same).
2. Neglect or refusal to maintain after the demand for maintenance ( if the person defaults or omits to provide maintenance or if he denies his obligation of maintaining then it amounts to neglect or refusal respectively). 
3. The person claiming maintenance must be unable to maintain himself/herself (only if the person is unable to maintain themselves).
4. Quantum of maintenance (depends on the standard of living).

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.

Issues

1. 1. Criminal Procedure Code (II of 1974), Section 125. Whether the “WIFE” definition includes a divorced Muslim woman?
   2. Criminal Procedure Code (II of 1974), Section 125. Whether it overrides personal law?
   3. Criminal Procedure Code (II of 1974), Section 125. 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. Criminal Procedure Code (II of 1974), Section 127(3) (b). 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.

Case laws Stated

1. Fuzlunbi Versus K. Khader Vali and another [(1980) 4 S.C.C. 125]
2. Bai Tahira V. Ali Hussain Fissali Chothia & ANR.  [(1979) 2 S.C.C. 316]
3. Nanak Chand V. Chandra Kishore Aggarwal & others [A.I.R. 1970 S.C. 446]
4. Mst Jagir Kaur & ANR V. Jaswant Singh [A.I.R. 1963 S.C. 1521]
5. Hamira Bibi v. Zubaida Bibi [A.I.R. 1916 P.C. 46]
6. SyedSabir Husain v. Farzand Hasan [A.I.R. 1938 P.C. 80.]

Reasoning

• Either Section 125 of the Code applies to Muslims and does the “WIFE” definition includes 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 Hindus, Muslims, Christians, Parsis, pagans, or heathens. 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, similar to the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. 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 Mahomedan 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 is any there 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, even if she is unable to maintain herself, has, therefore, to be rejected. The true position is that, if the divorced wife can maintain herself, 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 who is unable to maintain herself.”

• Is the payment of Mehar by the husband on divorce is 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 (referring to ‘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.”

Aftermath

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. C.J Chandrachud while giving judgment stated the need to implement the same. He said “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.” This simulated the debate on the Uniform Civil Code in India.

Shah Bano’s case judgment was criticized by many Muslims especially Muslim scholars. They considered this decision in conflict with the rules of the Quran and Islamic Laws/Islam. Subsequently, the Parliament of India in 1986 decided to enact the Muslim Women (Protection Of Rights Of Divorce) Act, 1986. Protecting the rights of the divorced Muslim Women and or those who have got divorced from their husbands, were the main objective of this act. Under this act:

• Muslim divorced women ought to be entitled to an adequate and reasonable sum of maintenance till the Iddat period. 
• When a divorced woman keeps up a child born by her anytime, sometime recently or after the divorce, the spouse is under a legal obligation to supply a certain whole of maintenance for the child to a period of 2 yrs.
• From the birth date of a child. The women are also authorized to get “Mehar” or “dower” and get back all the properties or estate which is given to her by her guardians, companions, relatives, husband, or husband’s friends.

Conclusion

Though the court took a long time the decision of rejecting the appeal is very historic because it keeps up the truth and faith of the individuals in the judiciary. 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.  The Shah Bano judgment pulled in a lot of opposition with authoritative bodies being against the decision for the reason of it being against the provisions of Islamic law, but SC passed the impartial judgment and at last, it had maintained the trust and faith of citizens in the judiciary. This lead to enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which given Muslim women receiving a huge, one-time payment from their husbands amid the period of Iddat, instead of a maximum month to month payment of ₹500 – an upper limit which has since been expelled.

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