Mohd. Ahmed Khan vs. Shah Bano Begum (1985)
Full Name Of The Case:- Mohd. Ahmed Khan vs. Shah Bano Begum And Ors. (1985)
Citation:- Mohd.
Ahmed Khan vs. Shah Bano Begum And Ors. (1985) AIR 945, 1985 SCR (3) 844, SC
945, 1985 (2) SCC 556.
This case analysis is written by - Archana Gupta,B.A.LL.B(H), S.S.Khanna
Girls' Degree College,University of Allahabad.
Landmark Judgment on
maintenance of Muslim women after divorce and Talaq- ul- Biddat
Abstract:-
Mohd. Ahmed Khan v. Shah Bano Begum (1985)
was a cornerstone judgment which played the significant role in the field of
Muslim women. It protects the rights of the Muslim women after the dissolution
of the marriage. Same was happened with Shah
Bano ( the respondent) in the present case who married with Ahmed Khan ( the Petitioner) in 1932
but after 43 years of her marriage her husband was married with another women
and denied to give maintenance to Shah Bano due to which she approached to the
Court for seeking maintenance. It was counter argued by the petitioner, Ahmed
Khan that according to Shia Law,
there is no more moral obligations to give maintenance to his spouse after the
end of the Iddat period. Eventually, on 23rd
April, 1985 the judgment was passed in the favor of Shah Bano stating that
since, Shah Bano is not capable enough to take care of her children hence it is
her husband’s duty under Section 125 of CrPC to give maintenance to his spouse
even after the end of the Iddat period.
Keywords:-
Shia
law and Sunni law, Iddat period, Mehr(dower), Talaq-e-mugallazah, The Muslim
Personal ( Shariat) Application Act 1937, Talaq-ul-Biddat, Muslim Women
(Protection of Rights on divorce) 1986, polygamy etc.
Primary Details:-
|
Jurisdiction:- |
Supreme Court Of India |
|
Case Number:- |
Civil Appeal No. 7454 of 1981 |
|
Case filed on:- |
April, 1978 |
|
Judgment passed on:- |
23rd, April, 1985 |
|
Petitioner:- |
Mohd. Ahmed Khan |
|
Respondent:- |
Shah Bano Begum & Ors. |
|
Bench:- |
Chief Justice Y.V. Chandrachud Justice Mishra Rangnath Justice D.A. Desai Justice O. Chinnappa Reddy Justice E.S. Venkataramiah |
|
Legal aspects involved:- |
Section 125 of CrPC, Shia Law,
Section 127(3)(b) of CrPC, Muslim Personal Law (Shariat)
Application Act, 1937. |
|
Case summary prepared by:- |
Archana Gupta B.A.LL.B. (Hons.) S.S.Khanna Girls’ Degree College,
Prayagraj. |
Brief Facts Of The Case:-
Muslim
marriage is a contract in nature in which concurrence from both the parties is
obligatory to solemnized the marriage. There are two types of Muslim law
popularly known as Shias and Sunnis. These both are contrary in
nature such as in Sunni law there is provision that till the end of iddat period, it is husband’s
obligation to give maintenance to his woman indeed her child is conceived due
to infidelity. Also the fresh iddat period will start after the husband’s death
or dissolution of the marriage i.e. talaq-
e- mughallazah ( divorce) where as in Shia law, marriage will be consider
as void during the iddat period although the maintenance will be provided by
the husband to his woman till the end of iddat period but there is no provision
for maintenance to the woman if the child is conceived due to infidelity, it
only can be extend to three months of iddat period.
In the present case, Mohd. Ahmed Khan, the petitioner;
solemnized the marriage with Shah Bano
Begum ( the respondent) on 1932
due to which three sons and two daughters was born. But after 43 years of their
marriage i.e. on 1975, Shah Bano was
thrown out of his house together with her children by his second woman and her
husband was also denied to provide maintenance to Shah Bano. Aggrieved from
this, respondent i.e. Shah Bano filed the petition before the Court of Judicial Magistrate, Indore
under Section 125 of the Criminal Procedure Code (CrPC) stating
she should be provided monthly maintenance of Rs. 200 by her husband. Further,
she also prayed to the Court for increasing her maintenance Rs. 200 to 500.
Subsequently, her husband divorced his woman by Triple Talaq on 6th,
November, 1978 and he denied to provide maintenance stating there is no
provision to give maintenance after dissolution of marriage under Shia law.
Further, he also argued that he has formerly paid Rs. 3000 to the Court a Mehr (dower) during iddat period.
In August 1979, judgment was passed in the favor of respondent stating
that petitioner will paid Rs. 25 per month to respondent but Shah Bano filed
the petition before The Madhya Pradesh
High Court to increase the maintenance. Again judgment was in the favor of
respondent and maintenance was increased by Rs. 179. Aggrieved from the
judgment of High Court, petitioner approached to Supreme Court of India.
Issue raised before the Court:-
Issue
came before the Apex Court that whether Section
125 of CrPC quash the Muslim
Personal Law? Since, according to Shia Law, there is no maintenance for the
partner once she gets divorce and also this law states that marriage will be
consider void after the dissolution of marriage but Section 125 of CrPC provide the maintenance to the woman if she
gets divorce.
Other issue was that although Section 125(1) gives maintenance to the
wife but the question raised is there any provision for the separated wife?
According to Section 127(3)(b) of CrPC, Magistrate can
dissolve the maintenance if wife gets full Mehr or Dower provided under Section
125 of CrPC. Since, petitioner has formerly paid Rs. 3000 to the Court as dower
so the question raised whether husband has moral obligation to pay maintenance
to his separated woman under Section 127(3)(b)?
Contentions from the Parties:-
Petitioner’s Contention:-
Mohd. Ahmed Khan contented that since
he belongs to Shia sect in which there is no provision for maintenance once
marriage gets dissolved. Therefore, petitioner is no longer obligated to provide
maintenance after the dissolution of marriage.
Furthermore, it was argued by him
that since he has formerly paid Mehr
of Rs. 3000 to the Court which is counted as maintenance hence his moral duty
to provide maintenance to his woman.
It is mentioned in the Shia law that
husband is no longer to pay maintenance even after the end of the iddat period.
Since according to said law marriage is consider as void after the end of the
iddat period hence it was contented by him he is not obligated to give maintenance.
Respondent’s Contention:-
Shah Bano argued that she is obliged to
get maintenance from her husband since her children are in her guardianship and
for their take care, he is obliged to give maintenance.
Subsequently, she gratified that
under Section 125 of CrPC there is
provision for woman after the iddat period to get maintenance and also it is
not contrary to Muslim Personal law, hence he has entitled to provide
maintenance after the end of the iddat period.
Legal Aspects of Case:-
1. Under Section 125 of CrPC states that there
is provision for the woman to get maintenance. Therefore, Shah Bano claimed
maintenance under Section 125 of CrPC.
2. Also there is provision
under Section 127(3)(b) of CrPC that
Magistrate can quash the maintenance if the partner formerly get maintenance
under Section 125 of CrPC.
3. Moreover, The Muslim Personal Law (Shariat)
Application Act, 1937 provides maintenance to woman if she is not
financially capable to take care of herself and her children.
Judgment:-
The
present case was heard before the Supreme Court and judgment was passed in the
favor of respondent by stating that although there is no provision for
maintenance in Muslim Law but it was held by the Court that if woman is
financially incapable then hers husband duty to provide maintenance to his
woman after the iddat period under Section
125 of CrPC.
It was also held that husband cannot
use Mehr as a defense in the
replacement of maintenance because it is husband’s duty to provide
maintenance his woman if she is
financially incapable. For explaining the distinction between Mehr and
maintenance, Court appertained the case of Bai
Tahira A. vs. Ali Hussain Fissali Chothia and Anr. (1979).
The Court appertained the case Jagir Kaur and Anr vs. Jaswant Singh (1963)
to explain the relevance of Section 125
by stating that husband cannot denied from his duty to provide maintenance if
his woman is financially dependent upon him.
Also Court held that Section
125 (1)(b) of CrPC although address about ‘wife’ but it was held
after this judgment that said Section is also applicable for separated wife.
Further it was also stated that Section
127(3)(b) does not hinder the Section
2 of Muslim Personal Law Application
Act (1937).
Significance and impact:-
This
was a milestone judgment which establish Article
44 of Indian Constitution i.e. Uniform
Civil Code among all the civil laws. In another words, it established the
harmony among all the Civil Laws which are distinguished due to customs and Personal Laws. Also, this
was a historic judgment which played a significant role for Muslim woman. It
helped to provide proper maintenance those who deprived from it after Talaq-ul-Biddat i.e. triple talaq
because due to this Muslim women suffer a lot. Section 144 chapter X of Bhartiya Nagrik Suraksha Sahinta, 2023
provides maintenance to wives, children and parents hence, there should be
provision for the women to get maintenance once she gets divorced. For the
protection of rights of Muslim women,
Parliament of India passed the Muslim
Women (Protection of Rights on Divorce ) Act, 1986 which ensure the rights
and dignity of Muslim women.
Conclusion:-
Hence,
from the above stated case analysis, we can concluded as Muslim Personal Law, Section 125 of CrPC ensures the rights
and maintenance for women. Shah Bano case is an example in the Indian legal
system which protects the woman’s rights. Further, it also emphasized that no
Muslim woman can be denied to get maintenance even after the iddat period until
she is financially independent. Moreover. It also states that if woman is
enough financially capable then she cannot claim for maintenance after the iddat
period but if she is totally dependent upon her husband then she can claim for
the same. Hence, this judgment was played an important role in the field of
women’s rights and the woman who suffers after the dissolution of marriage.
Since in Muslim Culture, man can marriage with more than one woman popularly
known as polygamy hence, sometimes
first woman may suffer due to other one. Therefore, this was the cornerstone
judgment who worked to protect the Muslim woman.
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#JusticeForShahBano
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