CJI Y.V Chadrachud, Justice Rangnath Misra, Justice D.A Desai, Justice Chinnappa Reddy, Justice E.S Venkataramaih.
Mohammed Ahmed Khan
Shah Bano Begum
I) Whether section 125 of Cr.PC which provides for maintenance of wives including a divorced wife who has not remarried applies to Muslim?
II) Whether under Cr.PC if a divorced woman has received the entire amount payable to her under personal law, the maintenance allowed can be cancelled? In other words, Whether Mehr or Dower payable is an amount payable on divorce?
- A lawyer by profession Mohammed Ahmed Khan married Shah Bano Begum in the year 1932 and 5 children were born out of said wedlock.
- In the year 1975, Shah Bano Begum at the age of 60 years was thrown out of the house due to constant conflict and fights between Mohammed Ahmed Khan's 2nd wife who was 14 years younger than M.A Khan. He married his 2nd wife in the year 1946.
- In 1978, Shah Bano begum approached the magistrate's court under section 125 of Cr.PC that is criminal procedure code asking for maintenance of rupees 500 per month by stating that her husband's income was over rupees 5000 per month.
- In November 1978, Mohammed Ahmed Khan divorced his wife by pronouncing ‘triple talaq.’
- Mohammed Ahmed Khan argued before the bench that he was under no obligation to maintain his wife as she was no longer his wife and that he had already paid maintenance to her rupees 200 per month for 2 years.
- He had deposited a sum of rupees 3000 in the court by way of dower. However, in the year 1979, the magistrate ordered him to pay rupees 25 every month to his divorced wife.
- In an appeal, the High Court increased the maintenance amount up to rupees 179.20. Being aggrieved by the said order for increasing the amount of maintenance M.A Khan filed an appeal by way of a special leave petition in the Supreme Court of India contending that the maintenance amount ordered to be paid was excessive.
- The appellant stated that according to the Muslim Personal Law, maintenance to a divorced wife is only up to the period of iddat.
- He further stated that if the divorced wife is capable of maintaining herself then there is no liability on the part of the husband to maintain her after the period of iddat ends.
- If the divorced wife is unable to maintain herself she can take recourse under section 125 of Cr.PC as there is no difference on the question of a husband responsibility to maintain both in Muslim Personal laws and section 125 of Cr.PC.
- The Supreme Court held that under section 125 of Cr.PC a wife who is not maintained by her husband is entitled to approach the court for maintenance. The term ‘wife’ includes a divorced woman who has not remarried.
- It was further stated by the religion followed by the spouse is not at all relevant in such a case as the code applies to all. Section 125 of this code is secular in character and it applies to all and even Muslims also.
- With regards to the second issue involved the court held that it cannot be said that under Muslim law dower/ Mehr is an amount payable on divorce. It is stated that the dower is an amount fixed at the time of marriage and part of it is payable on dissolution of marriage that is by death or divorce.
- However, this does not mean that the amount is payable on divorce. In fact, it is an obligation imposed by Muslim law on the husband as a mark of respect for his wife.
In my view, this case became a landmark judgement on the grounds that it raised many important questions like the need for a uniform civil code, are Muslim women entitled to maintenance under section 125 of the Criminal Procedure Code or the question relating to mehr. While the apex court made it amply clear that a Muslim divorced woman's right to maintenance cannot be taken away in cases where she is disowned or divorced by her husband and is unable to maintain herself and her kids.
The court further giving meaning to section 125 of the Criminal Procedure Code, said that the provisions of this section have nothing to do with which religion a person professes as it is irrelevant whether a person is a Hindu, Muslim, Christian, Sikh, Jain or Parsi. Also under section 125, the term ‘wife’ was defined by the apex court as including a divorced wife who has not remarried. This giving the term wife a broader interpretation. Any personal law applicable to a woman does not defeat the statutory rights available under this section. The court expanding its view on polygamy under Islamic law suggests that if there is any conflict between personal law and section 125 of the criminal procedure code then section 125 would override the personal laws.
Verses of the Holy Quran were referred to know the position of Muslim divorced women and their rights as a divorced woman and a husband’s duty towards his wife whom he divorced. Ayats 241, 242, 243 were referred wherein it stated that it is the obligation of husbands towards their wives to provide them after divorce. Furthermore, it states that there is an obligation upon God fearing people to give something to their divorced wives with regards to reasonable standards except if the wife leaves her husband’s home on her own consent then there is no responsibility of husband neither he shall be answerable for whatever the wife chooses for herself.
Many cases were taken into consideration while deciding on this matter like Hamida Bibi v. Zubaida Bibi (1916), Mst. Jagir Kaur & Another v. Jaswant Singh (1963), Syed Sabir Hussain v. Farzand Hasan (1938), Nanak Chand v. Chandra Kishore Aggrawal & Others (1970), Fuzlunbi v. K. Khader Vali & Another (1980). But taking reference to another leading case which was once quoted by Justice Krishna Iyer in one of the cases was Bai Tahira v. Ali Hussain Fissali Chothia & Another (1980) taking note of the same case the apex court, in this case, concluded that ‘Mehr' is not payable at the time of divorce under Muslim Personal Law. This, the payment of Mehr or Dower won’t absolve a husband to pay maintenance to his divorced wife.
Further, in my view, this judgement paved way for a lump sum settlement amount instead of the old monthly payment method received from their husbands. Also, the maintenance amount was directed to be paid till the time the woman did not remarry. The case emphasised the need for a uniform civil code as the need of the hour.
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