September 30, 2022

Mohd. Ahmad Khan v. Shah Bano Begum- A Complete Analysis

The case of Mohd. Ahmed Khan vs Shah Bano Begum[2], is considered that landmark case not only in Constitutional history but also in political history of India, that changed a lot in India in the arena of personal law and muslim politics. This case started a debate on Triple Talaq and Uniform Civil Code in India.

The facts

This case arose out of appeal filed by a Muslim husband against the order of the high court to provide maintenance to his divorcee wife. The husband (Mohd. Ahmad Khan), was an advocate by profession, and was married to the Shah Bano in 1932. Three sons and two daughters were born of that marriage.

In 1975, the Ahmad khan drove Shah bano out of the matrimonial home. In April 1978, Shah Bano filed a petition against Ahmad Khan under section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore asking for maintenance at the rate of Rs 500 per month.

On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq (Triple talaq/ Talaq-e-Biddat). His defence to Shah bano’s petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to provide that he was therefore under no obligation maintenance for her, that he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat.

In August, 1979 the learned Magistrate directed Ahmad Khan to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. It may be mentioned that Shah Bano had alleged that Ahmad Khan earns a professional income of about Rs. 60,000 per year.

In July, 1980, in a revisional application filed by the wife, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. Therefore, husband reached the supreme court by special leave.

The important feature of the case was that the wife had managed the matrimonial home for more than 40 years and had born and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life – remarriage was an impossibility in that case.

The husband, a successful Advocate with an approximate income of Rs. 5,000/- per month provided Rs.200/- per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

The case before the Court

The husband had based his entire case on the claim, to be excluded from the operation of Section 125 CrPC on the ground that Muslim law exempted from any responsibility for his divorced wife beyond payment of any mahr due to her and an amount to cover maintenance during the iddat period and Section 127(3)(b) CrPC conferred statutory recognition on this principle.

Several Muslim organisations, which intervened in the matter, also addressed arguments. Some of the Muslim social workers who appeared as interveners in the case supported the wife brought in question the issue of ‘mata’ contending that Muslim law entitled a Muslim divorced woman to claim provision for maintenance from her husband after the iddat period.

Section 125 and Section 127(3) (b) CrPC

The provisions of both sections (as far it is relevant to the instant case) are mentioned below-

Section 125

Section 125 of the Code of Criminal Procedure which deals with the right of maintenance reads thus:

“Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself,

(b)…

(c)…

(d)… a Magistrate of the first class may, upon proof of such neglecter refusal, order such person to make a monthly allowance for the maintenance of his wife .. at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate think fit.

Explanation-For the purposes of this Chapter,-

(a)……

(b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband has not remarried.

(2)….. .

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided……

Provided further that if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation-If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”

Section 127(3)(b)

Section 127(3)(b), on reads thus:

“Alteration in allowance.

(1)…..

(2)……

(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)…..

(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 to the woman.”

The Principle question

Thus, the issue before this Court was:

the husband was claiming exemption on the basis of Section 127(3)(b) CrPC on the ground that he had given to his wife the whole of the sum which, under the Muslim law applicable to the parties, was payable on such divorce while the woman contended that he had not paid the whole of the sum, he had paid only the mahr and iddat maintenance and had not provided the mata i.e. provision or maintenance referred to in the Holy Quran, Chapter II, Sura 241.

Thus, the principle question for consideration before this Court was the interpretation of Section 127(3)(b) Cr.P.C that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband from his obligation under the provisions of Section 125 Cr.P.C.

The answer

A Five-Judge Bench of Supreme Court reiterated that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties. If there was a conflict between the terms of the Code and the rights and obligations of the individuals, the former would prevail.

The Court said that,

“The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions.

The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws which define and govern The rights and obligations of the parties belonging to particular, religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves….maintain themselves are the objective criteria which determine the applicability of section 125.”

The status of Mahr as a mean of maintenance to divorced wife

This Court pointed out that mahr is more closely connected with marriage than with divorce though mahr or a significant portion of it, is usually payable at the time the marriage is dissolved, whether by death or divorce.

This fact is relevant in the context of Section 125 CrPC even if it is not relevant in the context of Section 127(3)(b) CrPC. Therefore, this Court held that it is a sum payable on divorce within the meaning of Section 127(3)(b) CrPC and held that mahr is such a sum which cannot ipso facto absolve the husband’s liability under the Act.

The Conclusion

It was next considered whether the amount of mahr constitutes a reasonable alternative to the maintenance order. If mahr is not such a sum, it cannot absolve the husband from the rigour of Section 127(3)(b) CrPC but even in that case, mahr is part of the resources available to the woman and will be taken into account in considering her eligibility for a maintenance order and the quantum of maintenance.

This Court, after referring to the various text books on Muslim law, held that the divorced wife’s right to maintenance ceased on expiration of iddat period but this Court proceeded to observe that the general propositions reflected in those statements did not deal with the special situation where the divorced wife was unable to maintain herself.

The court declared the position that,

“The true position is that, if the divorced wife is able to 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 Code. The outcome of this discussion is that there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.”

In such cases, it was stated that it would be not only incorrect but unjust to extend the scope of the statements referred to in those text books in which a divorced wife is unable to maintain herself and opined that the application of those statements of law must be restricted to that class of cases in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife.

The Quran

The court referred the verses of Quran which impose an obligation on the muslim husbands to maintain their divorced wives.

The court referred the following Aiyat in support of its argument-

“Ayat No. 241

“Wa lil motallaqatay mata un bil maaroofay haqqan alal muttaqeena kazaleka yubaiyyanullaho lakum ayatehee la allakum taqeloon”

For divorced women Maintenance (should be provided on a reasonable Scale), This is a duty On the righteous. Thus doth God Make clear His Signs To you: in order that ye may understand.”[3]

The Court concluded that these Aiyats [the Holy Quran, Chapter II, Suras 241-242] leave no doubt that the Holy Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife.

Thus Supreme Court concluded that the divorced women were entitled to apply for maintenance orders against their former husbands under Section 125 CrPC and such applications were not barred under Section 127(3)(b) CrPC.

An urge for Uniform Civil Code

While concluding the case, the court expressed its appreciation to Begum Temur Jehan, a social worker who had been working in association with the Delhi City Women’s Association for the uplift of Muslim women, and intervened to support Mr. Daniel Latifi who appeared on behalf of the Shah bano.

With it, the court also expressed its opinion on the need of Uniform Civil Code in India, court said that,

“It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law.

A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.

A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”

The Consequences

This case created a big uproar in the country, several muslim organisation alleged that it was an attack on the personal laws. Therefore, with the intention of making the decision in Shah Bano’s case ineffective, government brought Muslim Women (Protection of Rights on Divorce) Act, 1986. This case was challenged in Daniel latifi v. Union of India (2001), but the court upheld the validity of the Act.

Reference

Mohd. Ahmed Khan vs Shah Bano Begum And Ors; 1985 AIR 945, 1985 SCR (3) 844

Danial Latifi & Anr vs Union Of India on 28 September, 2001


[1] 1985 AIR 945

[2] 1985 AIR 945

[3] ‘The Holy Quran’ by Yusuf Ali, Page 96