Mohammed Ahmed Khan v/s Shah bano Begum 1985 AIR 945 1985 SCR (3) 844 1985 SCC(2) 556 1985 scale (1) 767 (1985) SCCR R294 ,1985 (87) BOM LR 435

Article By: Gaurashwari Rathod

ABSTRACT

India being a secular nation with various religion, traditions and practices stretches from The infinite ends , the rules and regulation followed  by each tradition varies respectively with each religion through Hindu or Muslim acts,  this case particularly deals with the provision of maintenance after divorce as defined in the section 125 CrPC is uniform for all and should be provided to each and every individual  irrespective of the religion the person belongs to.

This case mainly deals with their maintenance as a provision along with a view to oversee the contradiction between the section 125 CrPC and Muslim shariat personal application act (1937).¹

FACTS OF THE CASE

1.Mohammed Ahmed Khan being ( petitioner)was an advocate by the profession and married Shah bano  Begum (respondent) in 1932,  to which they had three sons and two daughters.

2.Shah Bano being the housewife of the Ahmed Khan’s house for 32 years but got disowned  by the husband along with the children in 1975,  the disownment  was made without any prior notice or reason.

2.In April 1978 Shah bano begum find a suit against Ahmed Khan for the sake of provision of maintenance of Rs.200/- for herself and the children, she also argued to increase the maintenance from rupees 200/- to 500/- as husband used to earn Rs.60000/- per annum .

3.In November 6th 1978, the petitioner divorced   respondent by  irrevocable triple  talaq and used it as a defence , as husband is not obliged to pay the maintenance after iddat  period , as per sharia law, he also argued that, he had paid a sum of rupees 3000/- as deposition to court as “mehr” for financial stability and took a defense by arguing of paying the maintenance since 2 years.

4. In August 1979 shah bano knocked the door of judicial magistrate district court, Indore,  for the provision of maintenance, in which the order came out in her favour and stated that Muhammad Ahmed Khan was liable to pay a sum of rupees 29/- per month as maintenance consecutively the respondent  filed revisional  application for increment of the maintenance from rupees 29 to an appropriate amount, following which the court ordered  to increase the maintenance up to rupees 129/-  per month.

In contrast Mohammed Ahmed Khan then filed  the case in supreme court through” special leave petitions”.

ISSUES RAISED

The issues raised in the cases are as follows

a. Whether the husband is liable to pay the maintenance after iddat period , as per Muslim personal law (sharia) application act 1937?

b.Is the provision of “Mehr” enough and valid for financial stability?

c.This section 125 of CrPC overrides the Muslim personal law shariat application act 1937?

Arguments

petitioner argument:-

The arguments from the petitioner’s  side,  included the fact stated  under Muslim personal law, shariat application and 1937 , where  the husband is only liable to pay the maintenance during the Iddat  period of 3 months after divorce, post which no liability then arises out of his side.

2. Petitioner being the creditor of rupees 3000/- as “Mehr”  during iddat period along with the creditor of a certain amount as maintenance since the last 2 years after separation, should not be held liable for paying the maintenance after divorce.

2.Respondents argument

The respondents argument was regarding the provision of maintenance as per section 125 CrPC where the “wife” irrespective of any religion , caste should be provided with the maintenance after divorce, if she is not able to support herself.

Relevant legal provisions

The case was  concluded under section 125 of CrPC now section 144 of BNSS as follows:-

Any person with a sufficient means if neglects or refuses to maintain

a. His wife unable to maintain herself

b. His legitimate or illegitimate minor child whether married or not unable to maintain itself or,

c. His father or mother unable to maintain himself or herself

Will be ordered to pay monthly maintenance of wife or such child father and mother at a monthly rate which the magistrate thinks  fits the best.

Decision

The supreme court on 23rd April 1985 concluded the case with judgement in the favour of respondent Shah Bano Begum where the petitioner Mohammed Ahmed Khan was liable to pay the monthly allowance or maintenance to the respondent Shah Bano Begum.

Following the section 125 CrPC section 144 BNSS which overrides the Muslim personal law and orders to pay the maintenance to a divorced wife who is incapable of maintaining herself.

The payment of “Mehr” during the iddat period is not sufficient to exempt him from the duty to pay the maintenance to wife.

Ratio discendi

The reasoning that court applied while the conclusion of the case was based on the section 125 CrPC where,

1. “Wife”, referring to a female who is divorced and not able to financially maintain herself irrespective of the religion, caste or any other ground she belongs to ,  is able to get the monthly allowances by the husband after divorce.
2. Section 125 CrPC being not a part of civil code, does not cause a change in the practice of any respective religious act that is applicable to all the religions and therefore grants the right to maintenance to each and every individual irrespective of the caste they belong to.
3. The court also noted that section 127 (3)(b) does not override the Muslim law as it can be observed under section 2 of Muslim personal law shariat application act 1937 hence it was argued that the effect of section 125 shall also apply to Muslim women .

Precedent case laws

The precedent case laws through which the court has made a rational reasoning for the judgement are as follows:-

1. Jagir Khan & Anr v/s  Jaswant Singh (1963). Where the payment of maintenance to the divorced wife only till the “iddat”  period is held flawed.²
2. Hamira bibi, Amina Bibi and Ors v/s  zubaida bibi  and Ors  (1916)³
3. Fuzlunbi v/s k khader vali & other (1980)⁴

Judgement analysis

The provision of justice ought  to be similar and uniform for each and every individual. irrespective of the religion one belongs to,  therefore the right to maintenance must be acquired by the Muslim women too  and should not be segregated due to the religious custom and personal laws based on them.

The judgement of this case emphasizes the condition of women in Muslim families and has played a significant role in the judicial history.

Conclusion

Shah Bano case 1985 being a landmark judgement case , led the people to oversee the principles and necessity  required for the provision of maintenance to the wife , not able to financially support herself, after divorce.irrespective  of the religion she belongs to,  the provision of justice is uniform and equal in nature. the section 125 CrPC overrides the Muslim personal law of shariat application act 1937 , clears  the liability of a husband to pay the maintenance to the divorced wife even after the “iddat” period.

---

1. Indiahttps://districts.ecourts.gov.inPDFMaintenance of Wives & Others
2. laws.comhttps://www.the-laws.comJAGIR KAUR Vs. JASWANT SINGH – Laws
3. ://indiankanoon.orgHamira Bibi, Amina Bibi And Ors. vs Zubaida Bibi And Ors.
4. ://indiankanoon.orgFuzlunbi vs K. Khader Vali And Anr. on 8 May, 1980
5. https://blog.ipleaders.in/case-law-summary-mohd-ahmed-khan-v-shah-bano-begum-others-1985-air-945/
6. https://testbook.com/landmark-judgements/mohd-ahmad-khan-v-shah-bano-begum
7. https://www.drishtijudiciary.com/landmark-judgement/muslim-law/mohd-ahmad-khan-v-shah-bano-begum-1985-scr-3-844