Case Analysis: Mohd. Ahmed Khan v. Shah Bano Begum

Mohd. Ahmed Khan

v.

Shah Bano Begum

Citation  AIR 1985 SC 945
CourtSupreme Court of India  
Case numberCriminal Revision No. 320 of 1979, Madhya Pradesh High Court
BenchHon’ble Chief Justice Chandrachud, Justice Ranganath Misra, Justice D.A. Desai, Justice O. Chinnappa Reddy, and Justice E.S Venkataramiah. 
Acts ReferredMuslim Personal Law (Shariat ) Application Act, 1937
The Code of Criminal Procedure, 1973 
SectionsSection 2 of the Shariat Act 
Sections 125 and 127 of the Criminal Procedure Code, 1973 

Introduction

In Mohd. Ahmed Khan v. Shah Bano Begum which is commonly referred to as the Shah Bano Case, the lawsuit provided a proper judgement recognizing the rights of Muslim women. Shah Bano could have stayed quiet, but instead, she decided to fight against the male-dominant Muslim society. Despite facing discrimination from her husband’s community, she fought for women like her. The judgement, thus, confirmed that married Muslim women are entitled to all benefits under Sec. 125 of the Code of Criminal Procedure.

Background of the Case

According to the Muslim Personal Law, after the pronouncement of “Talaq”, once the Iddat period expires, a married woman ceases to remain married. Previously, divorced Muslim women were not entitled to maintenance under Sec. 125 of the CrPC once the Mahr or Dower was paid and as a result, the husband’s liability to maintain his wife expired within the Iddat period. 

Facts

Shah Bano, a Muslim woman was married to a well-known advocate named Mohammed Ahmed Khan in 1932 in Indore, Madhya Pradesh. They were married for 14 years and had 5 children when Ahmed Khan married a younger woman. Few years passed and after living with both the wives, he divorced Shah Bano who was then 62 years old.
She then filed a Criminal Suit in the local Court of Indore against her ex-husband in April 1978 as he stopped giving her an amount of Rs. 200 as promised since she had no means to support herself and her children. She claimed an amount of Rs. 500 for herself and her children under Section 125 of the Code of Criminal Procedure.
In November 1978, Ahmed exercised his right to give irrevocable Talaq to his wife and contended that consequently, Shah Bano ceased to be his wife due to which he was not liable to provide maintenance.
In August 1979, Khan was directed to pay a sum of Rs. 25 by the local Court to Bano as maintenance.
After a Revisional Application was filed by Shah Bano, the Hon’ble High Court of Madhya Pradesh directed Khan to pay a sum of Rs. 179.20 as maintenance.
Khan filed an appeal before the Apex Court contending that since Shah Bano was no longer his wife, it was not his responsibility to take care of her as he had a second marriage which is permitted under the Muslim law.   

Issues 

  • Whether there is any conflict between Section 125 of the CrPc, 1973 and the Muslim Personal Law with respect to payment of maintenance?
  • Whether after the pronouncement of Talaq and the Iddat period, a Muslim married woman ceases to be a wife?
  • Whether Section 127 of the CrPc, 1973 read with Section 2 of the Shariat Act, 1937 applies to the ceasing of payment of maintenance to a divorced wife after the Iddat period, once the Mahr or Dower is paid? 

Related Provisions

  • The case deals with the provisions of Section 125 (1) of the Criminal Procedure Code, 1973 which states that if the wife is unable to take care of herself, then the Magistrate can order the husband to make a monthly allowance of an amount not exceeding Rs. 500. 
  • Section 127 of the CrPC, i.e. Alteration in Allowance.
    As per Sec.127(3), “Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-
    (a) The woman has, after the date of such divorce, remarried, cancelled such order as from the date of her remarriage;
    (b) The woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,-
    (i) In the case where, such sum was paid before such order, from the date on which such order was made,
    (ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband by the woman;
    (c) The woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof.
  • Section 2 of the Shariat Act which talks about the applicability of the Act to the Muslims. If the parties to the case are Muslims, the decision shall be made based on Muslim Personal law. 

Related Cases 

The Supreme Court interpreted the relevant sections of the The Muslim Women (Protection of Rights on Divorce) Act, 1986 in the cases of :

  • Abdul Khader v. Smt. Razia Begum

The Petitioner, Abdul Khader married the Respondent on 27.04.1977. The Respondent, Razia Begum deserted the Petitioner and lived with her parents. Abdul made efforts to bring her back, but all in vain. The Respondent filed a petition under Sec. 125 of the CrPC seeking maintenance of Rs. 300 monthly but was granted only an amount of Rs.150. The Petitioner aggrieved by this order filed a Criminal Revision Petition under Sec. 127(3) (b) of the Code in the Sessions Court at Belgaum and was ordered to pay Rs. 100. 

The Petitioner contended that there had been a proper pronouncement of Talaq and it had been communicated to the Respondent through a registered post which the Respondent denied accepting. He said that Razia had already acquired the status of a divorced woman, and he was not liable to pay maintenance. He also added that if she required the maintenance, she could approach the Judicial Magistrate under The Muslim Women (Protection of Rights on Divorce) Act, 1986.

The Court further went into a discussion on whether the Act of 1986 was prospective or retrospective. The Court relied on Section 3 of the Act which discussed the Mahr or other properties of Muslim woman to be given to her at the time of divorce and Section 4 of the said Act which spoke about the Order for Payment of Maintenance to decide upon whether the law framed is prospective or retrospective. Eventually, the Court concluded that the act is not retrospective. 

The next issue which arose was whether the Order obtained before the commencement of the Act was valid? 

On this issue, the court contented that there is no conflict between Section 125 of the CrPc and the Muslim Personal law. The case deals with the provisions of Section 125 (1) of the Criminal Procedure Code, 1973 which says if the divorced woman is unable to take care of herself, then the magistrate can order the husband to make a monthly allowance of an amount not exceeding Rs. 500. 

The Supreme Court heard the verses of Quran on Mahr and concluded that it is not something which is paid at the time of divorce, instead it is an obligation which is paid by the groom to the bride at the time of marriage. Since the Respondent has not remarried and as long as she remains unmarried, and is unable to maintain herself, she has the right to obtain maintenance. 

  • Jubair Ahmad v. Ishrat Bano

In this case, the Petitioner, a school teacher, married the Respondent on 22.10.1988, as per the Muslim Law Customs and had a daughter. Ishrat bano lived with her parents after 2 years of her marriage as she was beaten and ill-treated for non-fulfilment of Dowry. She did not remarry. She approached the Court for obtaining maintenance. 

It was decided that the Application filed for providing maintenance was valid and an amount of Rs.500/- per month was to be given by the Petitioner to the Respondent for whom earning was not permissible. 

  • Shamima Farooqui v Shahid Khan

In this case, relying on the Shah Bano case, the Respondent contended that he had divorced his wife before she filed an application under the Muslim Women (Protection of Rights on Divorce) Act, 1986 and hence was not entitled to provide maintenance. The Supreme Court asserted that even after disposal of the petition as per the said Act, the wife is entitled to maintenance as long as she stays without remarrying. The Court also added that a woman might be thrown out of the house, she might have lost her life, she might suffer and in all these pain she approaches the Court expecting her life will become better and all the Court can do is to help her monetarily. 

Judgement

In February 1981, the case was heard by a two-judge bench, comprising Justice Murtaza Fazal Ali and Justice A. Varadarajan who decided that Section 125 of the CrPc applies to Muslims also. They then referred the case to a larger bench and on 23rd February, the matter was heard by a bench comprising then Chief Justice Chandrachud, Justice Rangnath Misra, Justice D. A. Desai, Justice O. Chinnappa Reddy, and Justice E. S. Venkataramiah. The bench through a unanimous decision dismissed the Appeal filed by Ahmed Khan and upheld the decision of the Hon’ble High Court. 

The Hon’ble Court held that Mahr is not given at the time of divorce and that there is no conflict between the Personal Law and the CrPc. 

It was already seven years by the time the case reached the Hon’ble Supreme Court where it was held that there is no conflict between Sec. 125 of the CrPc and the Muslim Personal law. After going through the Quran, it was concluded that the Quran paves way for women to be paid their maintenance even after their divorce. The Court invoked Section 125 of the CrPc and said it applied to all irrespective of the religion, creed, and caste they belonged to. It also added that the maintenance money granted to Shah Bano was similar to alimony. 

 It thereby termed Article 44 of the Indian Constitution to be a dead letter and said that bringing in a Uniform Civil Code will play a major role in removing disparities having conflicting ideologies. 

Conclusion

It is commendable of the Hon’ble Supreme Court to uphold the judgement of the  Hon’ble High Court. It dismissed the appeal of the Appellant and added, “It is needless to add that it would be open to the respondent to make an application under section 127 (1) of the Code for increasing the allowance of maintenance.” 

It was clarified that in case of a conflict between a Personal Law and the Code, the law which is fair and just will apply. If a woman is self- reliant, she need not be provided maintenance. If she is dependent on someone else, she is not in a situation to take care of herself and needs to be provided with maintenance. A Shariat Law is always applicable to a woman even after her divorce as she still remains a Muslim and even if she has received a small or the whole amount of money which is promised as per the Personal Law and is still dependant, she has the right to receive the monthly allowance as per Section 127(3) (b) of the Code. The judgement given by the Hon’ble Court was a big step towards an egalitarian society. This landmark judgment recognised the rights of women and voiced their views as a mark towards respecting women.

References

  1. Mohd. Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945)
  2. Abdul Khader v. Smt. Razia Begum (1991(1) REC CR 524)
  3. Jubair Ahmad v. Ishrat Bano
  4. Shamima Farooqui v Shahid Khan (AIR 2015 SC 2025)
  5. www.indiankanoon.org

Questions

  1. What are the requirements for a woman to obtain maintenance from her husband after divorce? When can maintenance be provided? 
  2. What according to the Quran is Mahr?
  3. Is there any conflict between the Islamic Personal Law and the CrPC? 

Leave a Reply

Your email address will not be published. Required fields are marked *