Updated: Mar 12, 2022
MOHD.AHMED KHAN VS. SHAH BANO BEGUM
Citations: 1985(3) SCR 844 or, 1985(2) SCC 556 or, AIR1985 SC 945. FACTS: · The respondent, SHAH BANO BEGUM, and the petitioner, MOHD. AHMED KHAN, who was an affluent and well known advocate in INDORE, was married in 1932. And then they had 5 children from the marriage. · After 14 years, the petitionertook a younger woman as his new wife. · In 1975, the respondent, who was 62 years old at that time was disowned by her husband and was thrown out along with her children from her matrimonial house. · In April 1978, the petitioner stopped giving maintenance of rupees 200 per month as he promised before. Shah Bano filed a suit in lower court, against her husband (petitioner in SC), under section 125 of CODE OF CRIMINAL PROCEDURE (CrPC). · In November1978, the respondent gave divorce to the plaintiff by articulating “TRIPLE TALAQ” and which was irrevocable. · After the respondent pronounced the irrevocable “TRIPLE TALAQ” he took a safeguard that since because of this divorce the plaintiff has been terminated from being the respondent’s legal wife and due to that the respondent was not accountable to furnish her with maintenance or alimony. Except the amount prescribed under Islamic law which was in total of rupees 5,400 as “MEHR”. · The lower court gave the judgement in the favour of Shah Bano and directed Mohd Ahmed to give the maintenance of rupees 25 per month to the plaintiff. Then · Shah Bano appealed in high court as to alter the amount of maintenance decided by the lower court. · The high court gave the judgement in which it increased the amount of maintenance from rupees 25 to rupees 179.20 every month. Then Mohd Ahmed appealed in the Supreme Court by saying after divorce he cannot keep any form of alliance or connection to his divorced wife as it is not allowed by the Islamic law, and it is “HARAM” in ‘ISLAM’ so he is not legally entitled to maintain, his divorced wife, plaintiff.
· On 3 February 1981, the two-judge bench composed of Justice MURTAZA FAZAL ALI and A. VARADARAJAN who first heard the case matter, and gave the judgement that held that section 125 of CrPC, applies on Muslims also. · Then he appealed to a larger bench. · Muslim bodies, All India Muslim Personal Law Board and Jamiat Ulema-e-Hind joined the case as intervenor.
ISSUES: · Whether section 125 of Code of Criminal Procedure (CrPC), is concerned with Muslims or not. · Whether uniform civil code applies to all the religions or not. · Whether the amount of “MEHR” given by husband on divorce in Islamic law is adequate to get the husband rid or is liable to maintain his wife or not.
CONTENTIONS: The Shah Bano's contentions was that according to section 125 of Code of Criminal Procedure says that any person having sufficient means neglects or refuses to maintain his wife, children or parents who are unable to maintain themselves, a Judicial Magistrate First Class may order such person to pay maintenance to them. And essentials for a wife who can claim maintenance are: a. A wife who is unable to maintain herself can claim maintenance from her husband even if she is minor. b. Only a legally married wife can get maintenance and second wife or mistress cannot get maintenance. A woman is not entitled to maintenance merely because she had stayed together with a person c. A wife who has been divorced and has not remarried is entitled to maintenance.
And the plaintiff (plaintiff in lower case and respondent at SC) was unable to maintain herself and she was legally married to him and has been divorced by her husband and has not remarried so, she was entitled to claim the maintenance by her husband. But the contentions of Mohd Ahmed was that as according to the Islamic law, after irrevocable divorce “TRIPLE TALAQ” which was his prerogative under Islamic law, the plaintiff had ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total of Rs. 5,400 as “MEHR”. And he cannot keep any form of alliance or connection to his divorced wife as it is not allowed by the Islamic law, and it is “HARAM” in ‘ISLAM’ so he is not legally entitled to maintain, his divorced wife, plaintiff.
JUDGEMENT After the appeal of the respondent the matter was then heard by a five judge bench. The five judge bench was composed of Chief Justice CHANDRACHUD, RANGNATH MISHRA, D.A. DESAI, O.CHINNAPPA REDDY, and E.S. VENKATARAMIAH. On 23 April 1985, Supreme Court in a unanimous and like- minded decision, dismissed the appeal and confirmed the judgement of the High Court. Supreme Court concluded 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”. After referring to the Quran, holding it to the greatest authority on the subject, it held that there is no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to his divorced wife. The Supreme Court invoked section 125 of Code of Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled that Shah Bano be given maintenance money, similar to alimony. Supreme Court in case duly held that, since responsibility of Muslim husband towards her divorced wife is limited to the extent of “IDDAT” period, even though this situation does not contemplates the rule of law that is mentioned in section 125 of Crpc.,1973. Thus at the end, after very long procedure court finally concluded that the husband’s legal liability will come to an end if divorced wife is competent to maintain herself. But this situation will be reversed in the case when wife is not able to finance or maintain herself after the “iddat” period, she will be entitle to receive maintenance or alimony under section 125 of CrPC.
RULE OF LAW/LAW POINTS According to the Supreme Court this rule of Islamic law that the divorced wife will get maintenance only for the period of “iddat” was against the humanity or was wrong because here a divorced wife was not in a condition to maintain herself.
In this case of Mohd. Ahmed vs Shah Bano Begum, the Supreme Court specifically underlined that Triple Talaq cannot take away the maintenance right of a divorced Muslim women who is not in a condition to maintain herself or her children when she is disowned or divorced by her husband. When the verdict of shah bano case was delivered by the Supreme Court, at that period of time it faced a lot of criticism as the points of criticism was that Muslims women who are married or unmarried were not given freedom even they were debarred from the basic freedom which other women had and it is against humanity as well as it also violates the fundamental rights of humans. Muslim women were very backward as compared to other women in their status. They were not allowed to be educated and self-reliant as compared to others. Due to all these they led to lose in their confidence and various knowledge in various sectors. There were not allowed to work too as they were not allowed to educated themselves. They were facing all these things since their childhood so it was very natural that they cannot able to earn their living and cannot maintain themselves in the difficult time and that’s why the maintenance or alimony was much needed for them after divorce. And this case of triple talaq “the irrevocable talaq” was a historic verdict as it has maintained the truth and faith of the people on the judiciary. As in this case “justice and equality” has overcome the religion. This was very impartial and unique decision. This case have gave the judgement in the importance of maintenance which should be provided to the divorced Muslim women who are not in the condition to earn and maintain themselves. And I think that judgement was impartial, bold and courageous too. And I think this case was a milestone in judiciary.
a. AIR 1985 SCR (3) 844.
b. SECTION 125 OF CrPC CODE OF CRIMINAL PROCEDURE,1973
Authored and Briefed BY: MANSI RAWAT,
Student, 2ND Year B.B.A.LL.B(Hons.), FIMT school of Law, GGSIPU