BENCH: G.B. Pattanaik, S. Rajendra Babu, D.P. Mohapatra, Doraiswamy Raju, Shivaraj V. Patil
• In Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844), commonly referred to as the Shah Bano case, Shah Bano, a 62-year-old Muslim mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978.
• Thereby, she filed a criminal suit under Section 125 of the Cr.P.C in the Supreme Court of India, where she won the right to alimony from her husband. However, she was subsequently denied the alimony when the Indian Parliament reversed the judgment under pressure from Islamic orthodoxy.
• A writ petition was then filed in the Supreme Court of India challenging the validity of The Muslim Women (Protection of Rights on Divorce) Act, 1986 under Article 14 and Article 21 of the Constitution of India
• Whether The Muslim Women (Protection of Rights on Divorce) Act, 1986 was constitutionally valid being violative of Article 14 and 21
• That Section 125 CrPC is enacted to prevent destitution of a divorced wife in furtherance of the objective of social justice embodied in Article 21 of the Constitution.
• That the Act suffocates the Muslim women being unconstitutional as against the protection of Article 14 and 21 of the Constitution.
• That under section 3, the maintenance to be made out by the former husband is only within the iddat period and not the whole life
• That the Parliament can amend Section 125 of CrPC to apply personal law and that the policy of Section 125 CrPC is not to create a right of maintenance
The court upheld the validity of the Act while reiterating the principles laid down under Shah Bano case that the husband’s liability to maintain his wife is not confined and doesn’t end with the iddat period. A distinction has to be made between ‘provision’ and ‘maintenance’. A divorced Muslim woman who has not remarried and is unable to maintain herself after iddat period can proceed under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death