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?
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.
Click here to download the original copy of the judgement