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Mohammad Ahmed Khan v. Shah Bano Begum - Case Summary

Introduction

The Supreme Court delivered a judgment on the maintenance that a divorced Muslim woman would be entitled to from her former husband. The judgment was delivered on the 23rd of April, 1985.


Facts of the Case

In 1978, Shah Bano was expelled from the house by her husband Mohammed Ahmed Khan, a prosperous Muslim lawyer she married in 1932. The husband stopped paying the promised maintenance of 200 rupees to Shah Bano. After being driven out of her matrimonial house, Shah Bano sought maintenance from her former husband by approaching the Judicial Magistrate. The appellant divorced the respondent by pronouncing triple talaq and took up the defence that she had ceased to be his wife and he has already paid her rupees 200 for 2 years as maintenance and rupees 3000 as the Mahr during the iddat. The iddat period refers to the three months directly after the divorce during which the divorced woman is not permitted to marry. The Magistrate ordered the husband to pay her 25 rupees per month. Shah Bano filed an appeal in Madhya Pradesh High Court where the sum was revised to 179.20 per month. The former husband petitioned the Supreme Court against the High Court’s decision.



Issues Raised

  1. Whether Muslims come under the ambit of section 125 of the CrPC?

  2. Whether the subject matter of section 125 of the CrPC was in conflict with Muslim personal law?

  3. Whether section 125 prevails over Muslim personal law in case of conflict?

  4. Whether payment of Mahr during iddat absolve the husband from providing maintenance to the divorced wife?

Judgment

Although The Muslim personal law mentions that a divorced Muslim wife should be provided with Mahr during the iddat period, it has no contemplation of a situation where after the completion of the iddat period the divorced wife is unable to maintain herself. On the other hand, section 125 envisages the case where after the completion of the iddat the divorced wife is unable to maintain herself. Section 125(1)(a) deals with a person who neglects or refuses to maintain his divorced wife or who is unable to maintain herself. Hence the court stated that the subject matter of section 125 and Muslim personal law was not at loggerheads. If the wife is able to maintain herself after the iddat period the husband can cease the payment of maintenance but if she is unable to she can take the remedy available under section 125 of CrPC.


The Court stated that although Muslim men under the Muslim personal law could have a maximum of four wives, section 125 allowed the wife to seek divorce and maintenance if her husband has another wife irrespective of their religion. Since no exception for the Muslims was made in this Section, it implied that section 125 overrides Muslim personal law in cases of conflict.

The Court dismissed the plea of the appellant regarding the cancellation of the respondent’s plea under section 127(3) (b) of the CrPC. This section extends the magistrate's power to alter the allowance awarded to the divorced wife under section 125 if the divorced woman has received "the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce". Mulla's Principles of Mahomedan Law was cited by the court to define Mahr or Dower as "a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage." Hence the court concluded that an amount which was paid as marriage consideration cannot be expounded as a divorce payment and therefore cannot absolve the husband from his liability to pay for the maintenance to the divorced wife.


Analysis

Although Shah Bano side-lined herself from the Supreme Court Judgment, it opened doors for the remedy for many estranged poverty-stricken divorced Muslim women. The government quickly implemented the Muslim Women (Protection of Rights in Divorce) Act,1986 which overruled the Shah Bano Judgement by providing that the Mahr and maintenance were to be paid during iddat. Although in Danial Latifi .v. Union of India, the SC allowed the divorced women to seek lump-sum during iddat that would survive her after the iddat period too.


Conclusion

The judgment turned out to be one of the major developments in the Muslim Laws for the women. It also called for the debate of the Uniform Civil Code on the forefront.

ABOUT THE AUTHOR

Mansi Mishra is currently pursuing law from Damodaram Sanjivayya National Law University, Vishakapatnam. You can contact them on mansimishra@dsnlu.ac.in

Edited by: Swathi Ashok Nair

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