CASE COMMENTARY

Mohd. Ahmed khan vs shah Bano begum and Ors

In supreme court of India

CITATION CIVIL APPEAL NO. 7454 OF 1981,

1985 AIR 945, 1985, SCC (2) 556

APPELLANT SHAH BANO BEGUM AND ORS

RESPONDENT Mohd. AHMED KHAN

BENCH/JUDGE Y.V CHANDRACHUD ,MISRA RANGNATH

,D.A DESAI, REDDY, O. CHINNAPPA,

E.VENKATARAMIAH

SATATUES/CONTITUTION 1950 ACT, CONTITUTION OF INDIA

INVOLVEED

IMPORTANT SECTION SECTION 125 OF THE CODE OF CRIMINAL

PROCEDURE,1973 , SECTION 125(3) OF THE

CODE OF CRIMINAL PROCEDURE,1973 WAS

APPLICABLE TO MUSLIMS AS WELL.

DATE OF CASE 23/4/1985

MOHAMMED AHMED KHAN V/S SHAH BANO BEGUM (AIR 1985 SC 945)

1. INTRODUCTION

India is a largest democratic country which rests its foundation on the ideals of equality.
Accordingly. There persists uniform set of laws in constitution that binds all citizens.
Irrespective of religion, race ,cast, sex and place of birth. However , in respect of matters
involving family issues- marriage , divorce, maintenance and succession-there exists
distinct personal laws as per different faiths.

During 1970s and 1980s there were widespread conflicts as to the application of Indian
laws on the personal affairs of the citizens who were governed by their own distinct
personal laws. One such area of conflict, was the applicability of sec 125 of the code of
criminal procedure, 1973(CrPC) on citizens of Islamic faith. As specified by this section,
a first class magistrate could order a husband to provide a monthly allowance to his wife /
divorced wife (as long as she had not remarried ) if he neglected to maintain her and she
was unable to maintain herself. The primary objective of law was to ensure the
emancipation of women who were economically dependent on their husbands, it was a
benign provision enacted to ameliorate the economic condition of neglected wives and
discarded divorces.

In Islam, at the time of marriage the bride is entitled to a “ marriage gift” which is known
as mahr. this can be paid either promptly or deferred to a later date ( death husband or at
the time of divorce) the supreme court encountered this issue in two cases. Can the
payment of mahr (irrespective of its amount) exonerate the liability of Muslim husband
under section 125 of the CrPC? In both cases, the court gave a very liberal view and
observed that payment of mahr will not fetter the women’s entitlement to maintenance
under section 125 CrPC. Though significant, these decisions were inconspicuous and did
not receive must coverage till the Shah Bano case emerged.
2. FACT
In 1932 Mohammad Ahmed khan a prosperous Muslim lawyer got married with shah
Bano and they mahr that was fixed was Rs 3000. Out of this wedlock three sons and
two daughters were born. Subsequently, in 1978 he unilaterally divorced his forty-
year-old wife by pronouncing ‘triple talaq’ (talaq-Ul-Biddat). Consequently , as per
the provisions of Islamic law he paid the agreed mahr to his divorced wife during
Iddat. Having been thrashed out of her matrimonial home in Madhya Pradesh , she
filed a petition under section 125 of the CrPC before judicial magistrate in Indore
asking for a maintenance. The magistrate ordered the husband to pay shah Bano a
meagre Rs25 pe month as maintenance. Dissatisfied with the amount, she appealed to
the Madhya Pradesh high court in 1979, accordingly maintenance amount was
increased to Rs 197.20 per month. It was then that shah Bano’s ex- husband petitioned
the supreme court in 1981 to challenge the high court decision. He vehemently
contended that as per the provisions of Muslim personal law, a husband’s liability to
maintain his wife after divorce extends only up to the iddat period, therefore
provisions of sec 125 CrPC stands overruled.

Though, the concerned question of law was already discussed by supreme court in its
previous judgements? However , when the matter came up before two judge bench of
the court judges were of opinion that the present judgements are not vigorous and Had
not been accurately pronounced. Therefore, in order to decide the issue involved, a
five- judge constitution bench comprising of chief justice Y.V. CHANDRACHUD,
justices D.A.DESAI, E.S.VEKATARAMIAH , RANGANATH MISHRA AND O.
CHINNAPPA REDDY was constituted.

3. ISSUE

The supreme court articulately framed the agonizing issues before it.

Is sec 125 of CrPC a secular provision ?

 Is there any provision in the Muslim personal law under which a sum is payable to
the wife “on divorce”?
  Is the law so ruthless in its equality that, no matter how much the husband pays
for the maintenance of his divorced wife during the period of iddat absolves him
forever from the duty of paying adequately so as to enable her to keep her body
and soul together?

4. ARGUMENT

The arguments presented before the court can be divided into parts- respondent and
applicant.

APPLICANT

The argument of the appellant that, according to the Muslim personal law , his liability to
provide for the maintenance of his divorced wife is limited to the period of iddat, despite
the fact she is unable to maintain herself, has therefore to be rejected.

Maintenance under the Muslim personal law board : the applicant in shah Bano case
argued that the responsibility for providing maintenance ton Muslim women rested with
the Muslim personal law board and civil courts lacked the authority to grant maintenance
to Muslim women under Muslim personal law. Under section 125 of the criminal
procedure code.

RESPONDENT

THE MUSLIM WOMEN (PROTECTIONOF RIGHTS ON DIVORCE) ACT , 1986: the

respondent in shah Bano case argued that this act, which aimed to overturn the supreme
court’s decision, was constitutional and essential for safeguarding the rights of Muslim
women.

INTERPRETATION OF QURANIC INJUCTONS : the respondent contended that the

Quranic guidelines on maintenance and divorce should be interpreted in manner
consistent with contemporary principes of justice and equity. They believed that the act
aligned with Quranic injunctions and aimed to prevent Muslim women from being left
destitute after divorce.

CASE Shayara Bano vs union of India and others. (2016) (Tripal talak)

ss

JUDGMENT

The verdict of shah Bano case was delivered by chief justice Y.C Chandrachud and it
resulted in the dismissal of Mohd. Ahmed khan’s appeal. The supreme court ruled that
section 125 of the code of criminal procedure applied to all citizens, irrespective of their
religion, without discrimination. The court clarified that section 125(3) of the code of
criminal procedure was applicable to Muslims as well. It was emphasized that in case of
any conflict between section 125 and Muslim personal law, section 125 prevailed.

The supreme court in shah Bano case concluded that a Muslim husband’s obligation to
provide maintenance to a divorced wife who was unable to support herself extended
beyond the Idaat period, as specified in the Muslim personal law. The court expressed
that this rule in Muslim law was inhumane or incorrect because it left a divorced wife in a
situation where she couldn’t support herself.

The court also Stated that the payment of Mehr ( Asum paid by the husband on divorce)
was not sufficient to absolve him of the responsibility to provide maintenance to his wife.

After a thorough legal process, the supreme court ultimately ruled in shah Bano case that
a husband’s legal obligation would cease if the divorced wife could support herself.
However, this obligation would be reinstated if the wife remained unable to support
herself after the iddat period and she would be entitled to receive maintenance or alimony
under section 125 of the code of criminal procedure.
CONCLUTION

In shah Bano case , shah Bano sought maintenance from her husband under section 125
of the code of criminal procedure. This case raised crucial question about the maintenance
of Muslim personal law and the clash between personal laws and a uniform civil code.

The supreme court ruled in favour of shah Bano case , stating that section 125 applied to
Muslims as well , ensuring maintenance beyond the iddat period. This decision in shah
Bano case led to the enactment of the Muslim women (protection of right on divorce ) act
in 1986, which faced criticism for discussions on Muslim women’s rights in India. Shah
bano and her courageous fight against the system, the patriarchy in light of triple talaq
verdict.