Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985)

Case Name: Mohd. Ahmed Khan v. Shah Bano Begum and Others (1985)

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

Petitioner: Mohd. Ahmed Khan

Respondent: Shah Bano Begum and Ors.

Date of judgment: April 23, 1985

Court: The Supreme Court of India

Facts of the Case

The petitioner, Mohd Ahmed Khan who was an advocate married the respondent, Shah Bano Begum in 1932. The couple had 5 children, two daughters and three sons. While the respondent was 62 years, she was thrown out of her matrimonial home along with her children when the petitioner married a young woman. Due to lack of source of income, Shah Bano Begum sought maintenance for her livelihood. But her husband refused it. In 1978, the abandoned Shah Bano Begum, filed a petition against her husband under S.125 of Code of Criminal Procedure, 1973(which is the current S.144 of Bharatiya Nagarik Suraksha Sanhita,2023) in First Class Judicial Magistrate Court. In rivalry, the petitioner pronounced triple talaq and divorced the respondent. He used it as a defence to avoid paying maintenance as he is no longer the husband of the respondent so, he possesses no obligation to maintain her. The Magistrate Court gave direction to the petitioner to pay Rs.25 per month as nominal maintenance to the respondent.

Then the respondent filed a revisional petition in Madhya Pradesh High Court to raise the maintenance amount. The court thus, increased the maintenance amount up to Rs.179.20 per month. The petitioner, Mohd. Ahmed Khan aggrieved by the decision of Madhya Pradesh High Court filed an appeal in Supreme Court of India challenging its decision.

Issues Raised

1. Whether the definition of term wife includes divorced woman under S.125 of CrPC?

2. Whether the provision under CrPC is contrary to the Muslim personal law?

3. Whether the husband is exempted from paying maintenance if he already paid Dower under S.125 of CrPC?

Arguments of Petitioner

The petitioner contented that under Muslim law, there is no provision stating to provide maintenance to divorced wife after the observation of iddat period except Mehr which he had already deposited in the court. He added that he had already paid Rs three thousand as Mehr so it will absolve him from paying further maintenance. He argued that the foundation of Muslim law, Quran provides no obligation to the husband to pay maintenance to his divorced wife. The petitioner opinioned that the provision under CrPC is contrary to Muslim personal law and violative to Islamic principles. He also added that forcing a Muslim husband to pay maintenance to his ex-wife even after divorce is actually infringing the religious freedom guaranteed under Article 25 of the Constitution of India.

Arguments of Respondent

Respondent argued that there is no conflict between the CrPC provision and Muslim law. A harmonious interpretation of laws by the court will secure the rights of Muslim women who completely rely upon the husband. Being a woman with 65 years old with no source of income, the respondent claimed that maintenance is her right. She argued that S.125 of CrPC is a secular provision applicable to all woman belonging to any religion. She added that payment of Dower or Mehr is an integral part of Muslim marriage and it is different from the concept of maintenance. The respondent also contented that denying the maintenance to her will be violative to Article 21 of the Indian Constitution which guarantees right to life and personal liberty.

Judgment of the Case

In Mohd. Ahmed Khan v. Shah Bano Begum, Supreme Court held that Section 125 under CrPC is secular in nature and it applies to all women irrespective of their religion. It addressed the major issue of a Muslim woman who was abandoned without any means to sustain herself, who could claim maintenance despite of constraints prescribed by the personal laws. Court added that religion is not only the sole criterion taken into account. Whether the husband had the sufficient means or whether the woman could maintain herself are the parameters which really matters. Through this case, court clarified that S.125 of CrPC is related to providing remedy to those who cannot maintain themselves and completely rely upon the another. If the divorced woman has sufficient means, then she is not entitled to be maintained by her ex husband. Here the court referred the case of Jagir Kaur and Another v. Jaswant Singh (1963).1

Section 125 of CrPC states that, if any person having sufficient means neglects or refuses to maintain –

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct.

The explanation provides that “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

The current S.144 of BNSS corresponds the S.125 of CrPC.

The court stated that the term wife under S.125 of CrPC includes the divorced woman who is not remarried. So, a woman belonging to any religion is entitled to claim maintenance even after the divorce under this provision. Supreme Court also emphasized that there is no contradiction between the Muslim law and S.125 of CrPC. The Court supported it by citing the translation of Holy Quran, Aiyat No.241 by Dr. Allamah Khadim Rahmani Nuri that “for a divorced woman (also) a provision (should be made) with fairness (in addition to her dower); (This is) a duty (incumbent) on the reverent.”

The Court held that the obligation of husband to pay Mehr after the observation of iddat period is different from what it is outlined in Section 125 of CrPC and rejected the contention of petitioner. Court also reiterated the decision in the case, Bai Tahira A v. Ali Hussain Fissalli Chothia and Another (1979)2 which expanded the rights of maintenance of divorced Muslim women under CrPC. The Court opinioned that forcing a former husband to provide reasonable and fair maintenance to divorced woman after iddat period is not the violation of Article 25 of the Indian Constitution. While pronouncing the judgment of this case, Chief Justice also emphasized the importance of Uniform Civil Code as given in Article 44 of the Constitution of India which the part of Directive Principles of State Policy, as it is necessary to integrate laws together.

Thus, the Supreme Court dismissed the appeal preferred by the appellant and decided in favor of the respondent, Shah Bano Begum. Court also directed the appellant to pay Rupees ten thousand as maintenance.

Relevance of the Case

The landmark judgment in Mohd. Ahmed Khan v. Shah Bano Begum strengthens the rights of Muslim women. The Supreme Court decision giving secularity to S.125 of CrPC which is the current S.144 of BNSS, created widespread turmoil all over the country. It is was criticized especially by Muslim scholars as providing maintenance even after iddat period was new to
them. They argued that it was against the basic principles of Islamic laws. In order to maintain peace and harmony among the masses, the Parliament enacted Muslim Women (Protection of Rights on Divorce) Act, 1986. This act secures the rights of Muslim women and also demarcated the duties of husband towards his wife after their divorce. The provisions of this act allow a divorced women a reasonable amount of maintenance till the observation of iddat period. It also obligated the former husband to give Mehr as well as all properties obtained by him before or after the marriage. However, this act has been criticized for limiting the maintenance till iddat period. This act gives more significance to personal laws rather than the judicial precedents and constitutional values.

But the Supreme Court in Danial Latifi v. Union of India (2001)3, upheld the validity of Muslim Women (Protection of Rights on Divorce) Act, 1986. But the Court also ruled that Muslim women are entitled to get maintenance even after the observation of iddat period until they remarry. Thus, affirmed its former decision. An upcoming Bollywood film Haq based on the given case, Mohd. Ahmed Khan v. Shah Bano Beegum (1985) has brought the attention of the people back towards this case. Still this case marks as a cornerstone fostering the Muslim women rights, Uniform Civil Code, constitutional values and more.

Reference(S):

1Jagir Kaur & Another v. Jaswant Singh, 1963 AIR 1521

2 Bai Tahira A v. Ali Hussain Fissalli Chothia and Another, 1979 AIR 362

3 Danial Latifi v. Union of India, 2001 AIR SCW 3932