Mohd. Ahmed Khan

vs.

Shah Bano Begum

AIR 1985 SCR (3) 844]

DATE OF JUDGMENT- 23^rd April, 1985.

BENCH-  D A Desai, E S Venkataramiah, Rangnath Mishra, O C Reddy, Y V Chandrachud.

BACKGROUND OF THE CASE- The case revolves around a long battle fought by a muslim woman, Shah Bano (appellant) against the system of triple talaq for the price of hatred by the community as well as her husband. The appellant got married to the respondent in 1932, who happened to be renowned advocate in Indore. 14 years after marriage the respondent got married to another woman younger to him and disowned the appellant and his 5 children that he had with her. Three years later to be disowned the appellant brought a petition for maintenance under Sec. 125 of the CrPC, 1973 because the respondent kept her deprived of the monthly maintenance of 200 rupees which he had promised to pay. In the same year he divorced her pronouncing talaq three times instantaneously which could not be revoked. He took the defence that since she does not remain to be his legal wife anymore he was not obliged to provide her maintenance of monthly alimony. At the instant the magistrate directed the respondent to pay her a monthly amount of 25/- after which she pleaded before the Madhya Pradesh HC to increase that amount up to 179 rupees. The court enhanced the amount to 179.20/-. The respondent filed a petition in the Apex court challenging the verdict of the HC pleading that the Islam or Islamic law does not permit to keep a connection with a spouse after divorce and therefore he is not liable to pay her maintenance on monthly basis.   

UNDERSTANDING SECTION 125 OF THE CrPC- In this particular case clause 1 of Section 125 mentions about individuals who can claim maintenance, namely:

• A wife from the husband.
• A minor child (whether legitimate or illegitimate) from the father.
• A minor child (whether legitimate or illegitimate) who is suffering from physical or mental anomaly, from the father.
• Parents from their son or daughter.

There are certain conditions necessary for granting maintenance:

• The person granting maintenance should have ‘sufficient’ means to do so.
• If the person supposed to provide maintenance either refuses with his duty to provide the same or overlooks the same or defaults then it shall be considered as neglect or refusal.
• The person asking for maintenance should be inefficient or unable to maintain himself then only he/she can claim for it.
• The quantum of maintenance to be granted depends on the standard of living of both the parties.

ISSUES RAISED BEFORE THE COURT:

• Whether the definition of the ‘wife’ within the purview of Sec. 125 of CrPC, 1973 includes a divorced Muslim woman.
• Whether the Muslim husband after paying the due amount of ‘mehr’ is free from his duty to pay the maintenance afterwards.
• Whether this section overrides the personal law of muslims.
• Whether the uniform civil code can be extended to all the religions.  

FINAL VERDICT:

The apex court after dismissing the plea of the respondent and upholding the decision of the HC came up with the following opinion:

• That Section 125 of CrPC applies to all citizens of the country irrespective of their religion without resorting to any sort of discrimination; therefore there is no chance that the muslims shall be left out by any exception.
• That if any conflict arises between the muslim personal law and Sec. 125 then the latter shall prevail.
• That even if the duty of the husband to maintain his divorced wife extends only till the iddat period, still he has to maintain her beyond that period provided she is unable to maintain herself.
• Husband having paid mehar does not absolve him of the duty to maintain his divorced wife beyond that. Mehar as it is not the amount paid on divorce under muslim personal law, rather it is paid either at the time of marriage or after that as a part of marriage by virtue of muslim custom being followed since time immemorial until it got recognition by the personal law.  
• She should be unable to maintain herself.
• If she is able to maintain herself or she is willing to maintain herself after the divorce takes place then the husband is relieved of his duty to provide her monthly maintenance.
• Section 125 is of secular nature.
• The divorced wife shall be described as ‘wife’ within the meaning of sec. 125 unless she remarries.
• That there exists no animosity between the Muslim personal law and Section 125 in context to husband’s duty to maintain the wife because the latter comes into play after the Muslim personal law has been applied as per which the husband is required to maintain till the iddat period and beyond that if she still remains unable to maintain herself, his duty to maintain her extends until she remarries.

CONCLUSION

Despite facing huge criticism and disagreement from the muslim community the Honourable SC played a remarkable role in upholding the decision in the favour of muslim women rights. But the aftermath involved the nullifying of the decision by the enactment of the “Muslim Women (Protection of Rights on divorce) ACT, 1986” by the Congress govt. under immense pressure placed by the muslim community. The Act said that the muslim husband’ s duty to maintain wife shall extend only to the period of the ‘iddat’ or 90 days after the divorce and incase a child takes birth the uptil the period of 2 years since the birth of the child. This brought the culture if muslim women demanding a onetime lump sum amount of alimony for a life time but most of the women who were illiterate or unaware still remained in a helpless condition. Eventually the constitutional validity of the Act was challenged in Daniel Latifi and Anr. Vs UOI.