December 2, 2020

Case Brief: Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985

Citation:1985 AIR 945, 1985 SCR (3) 844

Court: In The Supreme Court of India

Bench: Chandrachud, Y.V. (CJ), Desai, D.A., Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J), Misra Rangnath

PETITIONER: MOHD. AHMED KHAN

RESPONDENT: SHAH BANO BEGUM AND ORS.

BACKGROUND

The present case is a landmark judgement on the question of maintaining Muslim woman after divorce. It talks about the secularity of section 125 of CrPC and whether uniform civil code apply to all religion.

FACTS OF THE CASE

The appellant, an advocate got married to respondent in 1932. In 1975, appellant drove respondent out of matrimonial home. In April 1978, respondent filed a petition under section 125 (crpc) in the court of learned judicial magistrate, Indore asking for maintenance of Rs. 500 per month. In November 1978, appellant divorced respondent by an irrevocable talaq (triple talaq, now a cognisable offence).

In defence appellant said that he had she had ceased to be his wife by reason of the divorce granted by him, therefore he is under no obligation of giving maintenance amount to her, that he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat. In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance.

It may be mentioned that the respondent had alleged that the appellant earns a professional income of about Rs. 60,000 per year. In July, 1980, in a revisional application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. The husband filed a special leave petition in supreme court.

LEGAL ISSUE

1. Whether section 125 of the code applies to Muslims also as concluded by two decision of this court reported in Bai Tahira v. Ali Hussain Fidalli Chothia and Fazlunbi v. K. Khader Vali.

2. Whether mahr is maintenance.

3. Whether uniform civil code apply to all religion.

STATUS AND PROVISION DISCUSSED

1. Section 125, code of criminal procedure, 1973

2. Section 127 (3) (b), CrPC, 1973

ARGUMENTS

The appellant put forward two arguments one of which was 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. The second plank of the appellant’s argument is that the respondent’s application under section 125 is liable to be dismissed because of the provision contained in section 127 (3) (b). The court said that the argument that has been advanced before us is whether there is any conflict between the provisions of section 125 and those of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife. Another argument advanced before us on behalf of the appellant and by the interveners supporting him, is that Mahr is the amount payable by the husband to the wife on divorce.

JUDGEMENT

Supreme Court held that section 125 is secular in nature and would prevail over the personal law of the parties, in cases where they are in conflict. There is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself. Supreme Court said that Bai Tahira and Fazlunbi are correct. Though Bai Tahira was correctly decided the court said that we would like to draw attention to an error which has crept in the judgement. There is a statement at page 80 of the report, in the context of section 127 (3) (b), that “payment of Mahr money, as a customary discharge, is within the cognizance of that provision”. The court has taken the view that Mahr, not being payable on divorce, does not fall within the meaning of that provision.

Supreme Court further held that “for these reasons, we dismiss the appeal and confirm the judgment of the High Court. The appellant will pay the costs of the appeal to respondent, which we quantify at rupees ten thousand. It is needless to add that it would be open to the respondent to make an application under section 127(1) of the Code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section.”

PRESENT STATUS OF JUDGEMENT

The Supreme Court’s verdict, though overturned by the Government and not enshrouded by muddy water politics, did not find pause. In many further verdicts, the Apex Court held that divorced Muslim women under Section 125 of CrPC, can affirm maintenance or alimony from their former husband and claim for money under the Muslim Women Act as well. The court’s judgment has made the lives of divorced Muslim women better.

REFERENCES

  • Bai Tahira v. Ali Hussain Fidalli Chothia
  • Fazlunbi v. K. Khader Vali
  • Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294
  • Syed Sabir Hussain v. Farzand Hasan, 65 Indian Appeal 119

Author Details: Abhishekta Sharma (Dharmashastra National Law University)

The views of the author are personal only. (if any)

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