MOHD. AHMED KHAN VS SHAH BANO BEGUM AND ORS.

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CITATION	1985 AIR 945, 1985 SCR (3) 844
DATE	23rd April 1985
COURT NAME	The Supreme Court of India
PLAINTIFF/APPELLANT/PETITIONER	Mohd. Ahmed Khan
DEFENDANT/RESPONDENT.	Shah Bano Begum and Ors.
JUDGES	YV Chandrachud (CJ) Justice Misra Rangnath Justice D.A Desai Justice O. Chinnappa Reddy Justice E.S Venkataramiah

INTRODUCTION

The case Mohd. Ahmed Khan vs Shah Bano Begum is a landmark case on the right to maintenance. As in Hindu law, the wives after divorce get maintenance from their husbands, but there was a disparity in the rights of women in Muslim law. Muslim women were not liable for any maintenance from their husbands. Muslim wives were entitled to maintenance only during the iddat period, i.e., till three months. After that, husbands did not provide them any further maintenance.

FACTS OF THE CASE

Shah Bano Begum married Mohd. Ahmed Khan in 1932 and had 3 sons and 2 daughters .
After 43 years of marriage, in 1975, Mohd. Ahmed Khan disowned Shah Bano Begum, and at that time she was 62 years old.
Ahmed Khan forced the Shah Bano Begum and 5 children to leave their shared residence.
In 1978, Shah Bano Begum filed a petition against Mohd. Ahmed Khan under Section 125 of the Criminal Procedure Code, 1973.
Shah Bano requested the magistrate to pay her the maintenance under section 125 of the CrPC.
The income of Mohd. Ahmed Khan was 60,000 per annum, and Shah Bano was asking for an increase in the amount of maintenance from Rs. 200 to Rs. 500 per month.
All the 5 children were living with Shah Bano.
Mohd. Ahmed Khan divorced Shah Bano by triple talaq in 1978 so that he could save himself from paying maintenance to her because the husband is not liable to pay maintenance after divorce under Muslim personal law.
Mohd. Ahmed Khan claimed that he had already paid Rs. 200 per month for 2 years, and during the iddat period, he had deposited Rs. 3000 as a dower.
The magistrate ordered Mohd. Ahmed Khan to pay Rs. 25 per month as maintenance.
Shah Bano again appealed to the High Court of Madhya Pradesh.
The amount of Rs. 25 was further increased to Rs. 179 per month by the High Court of Madhya Pradesh.
Mohd. Ahmed Khan, through a special leave petition, appealed to the Supreme Court of India.

ISSUES OF THE CASE

Does section 125 of the CrPC include divorced Muslim women also?
Will section 125 of the CrPC prevail over Muslim personal law when there is a conflict between the two?
What is the period for which a Muslim husband is bound to give maintenance to his wife?
Whether by payment of dower, a Muslim husband is absolved from his liability to pay maintenance?

JUDGEMENT

The Supreme Court observed that section 125 of the CrPC is a secular provision and must be applied to every woman, irrespective of any religion. If it is not given to Muslim women, then this section violates Articles 14 and 21 of the Indian Constitution. Section 125 of the CrPC is a social welfare legislation.

The Court further stated that in case of conflict between a general provision and a special provision, the special provision will always prevail. Similarly, in this case, Muslim personal law is a general provision, and Section 125 of the CrPC is a special provision; therefore, Section 125 of the CrPC will prevail over Muslim personal law. Both of these provisions can be applied simultaneously for better protection. As Muslim personal law mandates the husband to provide maintenance till the iddat period, while section 125 of the CrPC obligates the husband to pay maintenance till when the wife is unable to maintain herself.

The court clarified that the Muslim husband is bound to maintain his wife till she does not remarry or she becomes financially stable. Section 125 is an enabling provision, which is a dominating provision over prohibitory provisions of Muslim personal laws.

The Court established that payment of dower cannot absolve the right to maintenance, as the objective of dower is different from that of maintenance.

REASONING

Islam believes in the term “believe and do good”. Belief means that man should adhere to such qualities and perform such actions. Believing in Allah means not only to acknowledge his existence but also to follow his path.

864. Women divorced from women have been included and brought under the ambit of clause 125, but this amendment is imposing a restriction on clause 127, i.e., that the maintenance orders would lose their effect after payment to her of the amounts due to her under the personal law. This is a reasonable compromise between which has been called a conservative theory of law or a concession to conservative public opinion and liberal treatment of the issue. We have taken a step forward and not attempted to overstep what are the individual rights of Muslim women. So this, I believe, must satisfy Hon. Members that whatever progress we have made is in the right direction, and it should be welcomed. ” It does seem from this speech that the government did not want to encroach upon the personal law of the Muslim under the Criminal Procedure Code. It wanted the Muslim public opinion to crystallise and the Muslim community to take the initiative and the lead over the changes in their personal law. But we are not concerned with the question of whether the government did not want to make any change in the Muslim Personal Law by enacting sections 125 and 127 of the Code. For, as we have already said and as the minister has admitted, the government did make such a change by defining the expression ‘wife’ so as to include a divorced wife. It also made another major change by enacting that the fact that the husband has contracted marriage with a woman other than the wife is a reasonable cause for refusal of the wife to live with him. The provision under section 127(3)(b) may have been introduced due to the misconception that dower is an amount payable “on divorce”. But that cannot turn an amount payable as a mark of respect for the wife into an amount payable on divorce.

Although Bai Tahira was rightly decided, we would respectfully like to point out a mistake which has crept into the judgement There is a mention at page 80 of the report, in the context of section 127 (3) (b), to the effect that “payment of Mahr money, as a customary discharge, is within the cognisance of that provision”. We have adopted the view that Mahr, as not being payable in case of divorce, is not covered by the meaning of that provision.

It is a cause of profound regret that a few of the interveners who joined the cause of the appellant adopted an extreme stand by showing an unwholesome enthusiasm to defeat the right of maintenance of women who cannot support themselves. The All India Muslim Personal Law Board’s written arguments have resorted to the extent of arguing that it does not matter to ask how a Muslim divorce must keep herself. The easy solution of the Board is that the personal law has formulated the system of Mahr to satisfy the needs of women, and if a woman is poor, she will have to look towards her relations, such as nephews and cousins, to help her. This is a most unreasonable approach to law as well as life. We acknowledge that Begum Temur Jehan, a social worker who has been carrying out work in collaboration with the Delhi City Women’s Association for the improvement of Muslim women, stepped in to assist Mr Daniel Latifi who appeared on behalf of the wife It is also a regrettable fact that Article 44 of our Constitution has been a dead letter. It states that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no indication of any official effort for 867 preparing a common civil code for the nation. A notion appears to have taken hold that it is for the Muslim people to set an example in the matter of reforms of their personal law. A common civil code will serve the cause of national integration by eliminating disparate allegiances to laws which have conflicting philosophies. No group is likely to bell the cat by making gratuitous sacrifices on this question. It is the state which is bound by duty to provide a uniform civil code for the citizens of the nation, and, indisputably, it has the legislative expertise to do so. A counsel in the case whispered, though perhaps audibly, that legislative expertise is one thing; the political will to employ that expertise is another. We realise the obstacles involved in getting persons belonging to various faiths and persuasions to a common platform But a start must be made if the Constitution is to have any purpose. Inevitably, the role of the reformer has to be taken by the courts because it is beyond the tolerance of sensitive minds to permit injustice to be endured when it is so glaring. But piecemeal efforts of courts in narrowing the gap between personal laws cannot substitute a common civil code. Justice for all is a much more acceptable manner of dispensing justice than justice from case to case.

CONCLUSION

This judgement gave the right of maintenance to Muslim women under section 125 of the CrPC. In a case when there is a conflict between the CrPC and Muslim personal law, the CrPC, being the special law, will prevail over the general law, i.e., Muslim personal law. Section 125 of the CrPC applies to every woman, irrespective of religion. This case not only provided justice to Shah Bano but also protected the right to maintenance of every Muslim woman who was not given maintenance after divorce. Section 125, being the secular provision, protects the rights of every woman in the country.

REFERENCES

Written by Akhya Tripathi of United University, an intern under Legal Vidya.

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