INTRODUCTION
Mohd. Ahmed Khan vs Shah Bano Begum case is one of the revolutionary cases of the Supreme Court. It dealt with the issue of maintenance; which has to be given to an aggrieved divorced Muslim woman by her husband after the divorce. The Supreme Court in this case referred to the Holy Quran as the authoritative text. The court also relied upon various cases to conclude. The court in this case has put great emphasis on the friction between Section 125 of the Criminal Procedure Code and Muslim Personal Law. This case has been a controversial one and has undergone many changes in subsequent years. The case met with resentment by the Muslim community. An act is pass in the legislation to nullify this case.
This article analyses the case in detail and also discusses the aftermath of the case.
FACTS OF THE CASE
- In 1932, Shah Bano was married to a lawyer, Mohd. Ahmed Khan.
- In 1975, the husband divorced Shah Bano, by pronouncing ‘Triple Talaq’.
- There was disputes between Shah Bano’s children and her husband’s other wife.
- She was disowned by her husband and was thrown out from her matrimonial home along with her children.
- She was promised ₹ 200 per month as maintenance by her ex-husband, but the same got suspended in 1978.
- As per Muslim personal laws, the husband used to pay the wife ₹3000 during the period of Iddat.
- The husband contended that the amount of ₹200 was paid for about two years. An additional amount of ₹ 3000 had been deposited as dower in court for the period of Iddat.
- In April, 1978, she brought a petition under Section 125 CrPC, 1973. It is in the presence of the judicial magistrate of Indore for ₹500 per month as maintenance.
- The magistrate ordered the husband to pay her ₹25 every month as maintenance.
- She then appealed to Madhya Pradesh High Court. The court revised the amount to ₹179.20 per month.
- The husband appealed to the Supreme Court. He challenge the decision of the High Court by way of special leave petition.
- The matter was looked into by a five-judge Constitution Bench of Supreme Court.
ISSUES
- Whether Section 125 of the CrPC applies to Muslims?
- Does the payment of Mehr by the husband on divorce is sufficient enough to rid him of any duty to pay maintenance to the wife?
- Whether there is any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’?
- Whether Section 125 would prevail over the personal law of the parties, in cases where they conflict?
ANALYSIS
1) Whether Section 125 of the CrPC applies to Muslims?
Section 125 of the Criminal Procedure Code talks about a wife who is without any income, has no source of income. And also neglectes by her husband is entitled to maintenance, which includes a divorced wife who is not remarried.
The Appellant argues that the Muslim Personal Laws says that a husband is entitle to pay the wife the entire Mehr amount or any maintenance during the Iddat period. After the expiration of the Iddat period, the responsibility of the husband gets over. Then he is not liable to pay her wife anything after that.
The court clarified on this point by saying that the CrPC is religiously neutral. Also it is applies the same way for every Indian citizen irrespective of the personal laws that govern them. The Muslim law only spoke about making it mandatory for the husband to pay the wife the entire Mehr amount during the Iddat Period. However it does not about a situation where the wife is unable to maintain herself. Specifically after the completion of the period while she is still unmarried. In such a situation the wife will have to resort to Section 125 of the CrPC. It is for seeking the help of the court.
In any situation it was declare that whenever the CrPC and Personal laws would collide the former would prevail. Hence the court concluded that Section 125 CrPC would apply to anyone irrespective of their religion. Hence for the aforementioned reasons it applies to Muslims too.
2) Does the payment of Mehr by the husband on divorce is sufficient enough to rid him of any duty to pay maintenance to the wife?
“…there is no escape from the conclusion; that a divorced Muslim wife is entitled to apply for maintenance under Section 125. Also that Mehr is not a sum which, under the Muslim Personal Law, is payable on divorce.” (para 32)
The Appellant said that since he had already paid the wife the complete Mehr amount. Also the maintenance amount for the 2 years when she lived away from him. Thats why he is not entitle to pay any more money to her. Either in the form of alimony or maintenance as the Iddat Period was over. He further argue that the order passed by the High court under Section 125 should be cancele under Section 127. As he had already paid the entire Mehr amount on divorce as per the personal Laws.
The court reached to the conclusion that Section 127(3) (b) says if a woman has been divorced and the husband has paid any sum on or before the date of the said order that he has to pay according to a customary law. Then in this situation any further orders are not founds applicable. The amount paid by the appellant is the complete Mehr amount which was not paid at the time of the marriage. This Mehr amount is not a payment for divorce. But consider to be an amount that the wife is entitle to as consideration for marriage.
The mere fact the Mehr amount was paid at the time of the dissolution of marriage did not mean that it was paid because the marriage was being dissolved. The wife is entitle to that money since the day they marry. The court even proved this point by interpreting the sections of the Quran. That says a man who believe in Allah and was a true Muslim has a duty to maintain his wife with dignity as she was now his responsibility. Hence this amount is not consider as a sum paid in the form of alimony or maintenance. This means he is not rid of any duty to pay maintenance to the wife.
3) Whether there is any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’?
Referring to the views put forth by the learned scholars (Mulla, Tyabji and Paras Diwan), the Court concluded that:
“These statements in the textbook are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself.” (para 16)
“Since the Muslim Personal Law, which limits the husband’s liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by Section 125, it would be wrong to hold that the Muslim husband, according to his law, is not under an obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself.” (para 16)
The Court concluded that the liability of the husband to pay maintenance to the wife extends beyond the iddat period if the wife does not have sufficient means to maintain herself.
4) Whether Section 125 would prevail over the personal law of the parties, in cases where they are in conflict?
The Court in answering this question gave the example of the Islamic Law regarding polygamy:
“It is too well-known that “A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular” The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages.” and held-“It shows, unmistakably, (para 11).
The court held that Section 125 overrides the personal law, if there is any conflict between the two.
JUDGEMENT
The Constitutional Bench delivered a unanimous verdict and upheld the decision of the High Court. The court held that the payment of Mehr by husband on divorce is not sufficient to absolve him from the duty to pay maintenance to the wife. The Court alluded to the religious neutrality of Section 125 of the CrPC. Stating that religion of the spouses was wholly irrelevant as the purpose of this section. Also it was to protect dependents from vagrancy and destitution. Hence, there was no reason to exclude Muslims from its ambit.
The liability of the husband to pay maintenance to the wife extends beyond the iddat period, if the wife does not have sufficient means to maintain herself. Section 125 overrides the personal law, if there is any conflict between the two. The court held that there is no conflict between the provisions of Section 125 and those of the Muslim Personal Law. Specifically on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.
Court also expressed anguish in relation to Article 44 of the Constitution of India in relation to bringing of Uniform Civil Code in India. As it remained a dead letter. The Court held that a common civil code will help the cause of national integration by removing disparate loyalties to laws with conflicting ideologies.
CONCLUSION
In Muslim Law, maintenance post-divorce as always been a controversial subject matter. The court in this judgment expressed their dissatisfaction over the legislature’s failure to establish a Uniform Civil Code for all citizens. This is a landmark judgment where justice and equality have overcome religion. The judiciary in this case has tries to maintain the trust and faith of the people in the judiciary as it marks the importance of maintenance which should be provided to the divorced Muslim women who are not in a condition to maintain themselves.
This judgment created an uproar amongst the Muslim population of India. This protest led to the enactment of Muslim Women (Protection of Rights in Divorce) Act, 1986 to nullify this judgment of the Supreme Court. This act states that the husband is oblige to provide fair and reasonable maintenance within the iddat period only.
However, in the case of Daniel Latifi vs. Union of India, Supreme Court upheld the constitutional validity of the Act. And recreate the position that was created in the Shah Bano case. This case protects the rights of Muslim women in India.
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