MOHAMMED
AHMED KHAN V. SHAH BANO BEGUM AND ORS (1985)
In
the Supreme Court of India
|
NAME
OF THE CASE |
Mohammed
Ahmed Khan v. Shah Bano Begum and Ors |
|
CITATION |
AIR
945, 1985 SCR (3) 844 |
|
DATE
OF JUDGMENT |
April
23, 1985 |
|
PETTIONER |
Mohammed
Ahmed Khan |
|
RESPONDANT |
Shah
Bano Begum |
|
BENCH/
JUDGE |
Chandrachud Y.V, Desai D.A, O. Chinnappa Reddy,
E.S. Venkataramiah, Rangnath Mishra |
|
STATUTES/
CONSTITUTION INVOLVED |
Criminal Procedure
Code 1973, Muslim personal law
(Shariat) Application Act 1937 |
|
IMPORTANT
SECTIONS/ARTICLES |
Criminal
Procedure Code 1973 – Section 125, Section 127 Muslim
personal law (Shariat) Application Act 1937 – Section 2 |
ABSTRACT
Mohammed
Ahmed Khan v. Shah Bano begum and Ors (1985) was an inflexion point for the
development of Muslim law concerning divorce. The core contextual matter of the
case was maintenance to be given to the divorced woman by her husband. Shah
Bano forty year old was divorced by her husband Mohammed Ahmed Khan by
pronouncing ‘triple talaq’. He paid her the maintenance (mahr) according to the
mandate under Muslim law. Against this shah, Bano filed a petition under sec
125 of CrPC. Therein; this case questioned whether section 125 of CrPC applies
to Muslims. Is the concept of ‘mahr’ correctly interpreted? This judgment held
the notion of applying a uniform set of laws while safeguarding the religious
and traditional aspects. It also raised the notion of feminism versus
secularism. After this verdict, all the cases were held under the jurisdiction
of section 125 of CrPC.
INTRODUCTION
Every
landmark judgment has its significance. The law is for the relation of the
society hence the decision of law impacts society in either way. India being an
ethnic diverse country with various cultures can sometimes be in a spot of
dilemma while deciding a judgment for a ethnic sensitive case. Every culture
and religion has its own customary norms which are seen as sacred in Indian
context. When any such case dealing with religious norms is taken to the
courts, it results to be very difficult for the judiciary to decide on them,
keep the constitution and religious factors in mind. One such case is Mohammed
Ahmed Khan v. Shah Bano Begum and Ors.
In
the present case the Muslim Sharia law and law of the land came into the
conflict. The bench of five judges gave their decision, reasoning that though
personal laws are also followed, that does not make Muslims excluded from
section 125 of CrPC. Hence the judgment made the husband liable to give
maintenance to shah Bano of Rs. 179.20 every month as stated by Madhya Pradesh
high court. The court also awarded her for the expenses she faced to take this
case to the court and appeal costs (10,000 Rs).
It
is the role judiciary body [courts] to bridge the gap between the civil laws
and personal laws of a nation. The court has faced a lot of criticism in
various judgments through varied periods. Muslim women always faced the burden
of backwardness in society due to the limited granted freedom by their
community, which restricted them to enjoy fundamental rights. It was a fight
against a typical patriarchal society.
FACTS
OF THE CASE
The
core contextual matter of the case was maintenance to be given to the divorced
woman by her husband. The petitioner Mohammed Ahmed Khan, was a well off and
known advocate in Indore was married to the respondent, Shah Bano Begum in 1932
and were parents to their five children.
After
fourteen years Mohammed Ahmed Khan announced another new young woman to be his wife.
Later in 1975, Shah Bano was disowned by Mohammed Ahmed Khan her husband. And
the respondent was thrown out of the matrimonial house along with the children.
She was at the age of 62.
The
petitioner gave rupees 200 per month as maintenance charges. In April, 1978 he
stopped to give the maintenance. Hence as a reciprocal action to it Shah Bano
filed a suit against her husband in lower court, under section125 Criminal
Procedure Code (CrPC)[1].
In the November of the same year Mohammed Ahmed Khan articulately pronounced
“Triple Talaq” which was irrevocable hence declaring a divorce between the
petitioner and the respondent.
As
now the petitioner and respondent were divorced, Shah Bano Begum was no longer
wife of Mohd. Ahmed Khan. Hence he argued that he is no longer accountable to
furnish the respondent with any kind of maintenance. He is only entitled to
give her Rs. 5400 as a total which was seen as ‘mehr’ under the Islamic law. He
had already paid the discussed ‘mehr’ during the ibadat period.
To
this the lower court gave judgment in favor to Shah Bano, asking Mohd. Ahmed
Khan to pay maintenance of Rs. 25 to her per month. Not satisfied with the
amount and asking for alteration in the amount, Shah Bano Begum appealed in
High court of Madhya Pradesh. The High court gave judgment in favor to Shah
Bano and increased the maintenance amount from 25 Rs. which was decided by the
lower court to 179.20 Rs.
Disappointed
with the decision and judgment passed, Mohd. Ahmed Khan appealed in Supreme
Court saying that he is not at all entitled to give any maintenance amount to
Shah Bano as he no longer has any ties with her and legally divorced according
to the Muslim law.
In
February of 1981, the bench of two judges declared that section 125 of Criminal
Procedure Code is applicable to Muslims also. Mohd. Ahmed Khan himself being an
advocate appealed for a larger bench. Muslim social bodies were intervened in
the case (All India Muslim Personal Law Board and Jamiat Ulema-e- Hind). The
Supreme Court bench for this case was non- Muslim.
ISSUES
RAISED BEFORE THE COURT
Issue
1: Whether section 125 of Criminal Procedure code (CrPC), overrides personal
law?
· Whether
Muslim women entitled to seek remedy of maintenance under Section 125 of CrPC?
Issue
2: Whether amount of ‘mehr’ be deemed as ‘sum payable on divorce’ and adequate
to get husband not liable to maintain his wife?
ARGUMENTS
FROM THE PETITIONER SIDE
§ Learned
counsel for the petitioner submitted that petitioner is no longer liable to
give any amount of maintenance to his divorced wife, Shah Bano Begum, the
respondent.
§ Mohammed
Ahmed Khan claimed that because he had no further ties to Shah Bano and had
already paid the previously discussed mahr, which was 3000 Rs. during the ibadat
period, he was not entitled to continue paying maintenance.
§ Stating
that as he has already paid the mahr so section 125 could be canceled under
section 127 of CrPC. Section 125 [2]states
order of maintenance for wives, children, and parents. Here wife also includes
divorced wife. Whereas section 127 of CrPC [3]provides
with alterations in allowance to have maintenance.
§ Mohammed
Ahmed Khan had exercised his prerogative right of ‘Triple Talaq’ under the
Muslim personal law. Hence he is not under any obligation to pay any
maintenance amount to his divorced wife, Shah Bano Begum.
§ According
to the Muslim personal law he is not allowed to keep any connection or ties
with Shah Bano Begum as now that they are divorced, as it counts as ‘Harm’
under Islam, i.e. it is forbidden under Islam.
§ Mohammed
Ahmed Khan has already performed his part of duty on legal basis as, as per the
Muslim law the husband is not obliged to pay any amount even for the sake of
maintenance after the ibdat period.
§ The
petitioner argued that if this is the case then it is never enough no matter
how much a husband pays to his divorced wife so it is important to consider the
personal law and abide by it. Hence, interpreting the meaning of mehr
from the Muslim law, the petitioner claimed not to be entitled to pay any
amount to the respondent, and therefore the decision of high court should taken
back.
ARGUMENTS FROM THE RESPONDENT SIDE
§ Learned
counsel of respondent submitted that Mohammed Ahmed Khan, the petitioner is
liable and legally entitled to give sufficient amount of maintenance to her.
§ The
respondent states that if, personal law overrides section 125 of CrPC then
there is no doubt about the system being unfair on the basis of sex, and
religion. Personal law should be respected according to the norms they lay down
but by the virtue of being a human there are certain rights which should be
uniform to all the people of the land.
§ On
this, the respondent argued that the law not having the essence of equality if
it states that the amount of mahr, which may or may not be significant, is all
that a woman will get as maintenance from her husband. She questioned if that
amount was enough for keeping her alive till her last breath.
§ The
prerogative right of the petitioner, Mohammed Ahmed Khan should not be
misinterpreted as being superior or setting free from duties.
§ The
concept of ‘mehr’ under the Islamic law, it is a legal right of the
women which is given to her at the time. And is to be allowed to exercise
complete authority on it. In this case, there is a difference in time period
when the amount of mehr was decided and when the parties actually got divorced.
The petitioner and respondent got married in the year 1932 and divorced in
1978. There is a difference in requirement of necessities and having at least
an average lifestyle.
§ This
being the reason the respondent here had previously approached the High Court
of Madhya Pradesh asking to increase the amount of maintenance received.
§ Paying
a sum amount during the ibadat period does not free the husband from his duty
to maintain his divorced wife. Section 125 of CrPC should be well considered
for this case and it is not overruled by section 127 of CrPC.
Section
125 of Criminal Procedure Code
(1)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
‘wife’ includes a woman who has been divorced by,
or has obtained a divorce from, her husband and has not remarried.[4]
§ According to section 125 of CrPC if a person is
having sufficient means and still neglects to maintain his children, wife or
parents who are unable to maintain themselves. In this case the respondent
mentioned that the income of petitioner, Mohd Ahmed Khan was 60,000 per annum. [5]Even
if a wife is divorced but has not remarried any other person and is not in the
capacity to maintain her then she is very well entitled to get maintenance from
her divorced husband.
§ Interpreting
the concept of ‘Haram’ the respondent, states that it asks not keeping any ties
with the divorced wife to assure that the husband does commit to the present
wife with his trust. And hold the sacredness of the concept of ‘triple talaq’.
When a husband gives maintenance to his divorced wife it is not establishing
any kind of connection or ties instead it is a legal duty he is bond to
perform.
RELATED PROVISIONS
· Criminal
Procedure Code of 1973
o
Section 125(1)(a)
(1) If any person having sufficient
means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
o Section
125(1) Explanation (b)
"wife" includes a woman who has been divorced
by, or has obtained a divorce from, her husband and has not remarried.
o Section
125(3)
If any person so ordered
fails without sufficient cause to comply with the order, any such Magistrate
may, for every breach of the order, issue a warrant for levying the amount due
in the manner provided for levying fines, and may sentence such person, for the
whole or any part of each month' s allowances remaining unpaid after the
execution of the warrant, to imprisonment for a term which may extend to one
month or until payment if sooner made: Provided that no warrant shall be issued
for the recovery of any amount due under this section unless application be
made to the Court to levy such amount within a period of one year from the date
on which it became due: Provided further that if such person offers to maintain
his wife on condition of her living with him, and she refuses to live with him,
such, Magistrate may consider any grounds of refusal stated by her.
Explanation
under subsection 3:
If a husband has contracted marriage with another woman
or keeps a mistress, it shall be considered to be just ground for his wife' s
refusal to live with him.[6]
o Section 127(3)(b)
(3) Where any order has been made under section 125 in
favour of a woman who has been divorced by, or has obtained a divorce from, her
husband, the Magistrate shall, if he is satisfied that-
(b) the woman has been divorced by her husband and that
she has received, whether before or after the date of the said order, the whole
of the sum which, under any customary or personal law applicable to the
parties, was payable on such divorce, cancel such order[7]
·
Muslim personal law(Shariat)
Application Act, 1937
o Section 2
Application of Personal law to Muslims.—Notwithstanding any
custom or usage to the contrary, in all questions (save questions relating to
agricultural land) regarding intestate succession, special property of females,
including personal property inherited or obtained under contract or gift or any
other provision of Personal Law, marriage, dissolution of marriage, including
talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship,
gifts, trusts and trust properties, and wakfs (other than charities and
charitable institutions and charitable and religious endowments) the rule of
decision in cases where the parties are Muslims shall be the Muslim Personal
Law (Shariat).[8]
JUDGMENT
The Hon’ble Supreme Court
witnessed varied controversies political and communal grounds nationwide. The
judgment was delivered by Chandrachud (CJ), along with the bench of other four
justices. The question raised in this case may not be in importance to the
constitutional rights but states the societal importance of the question
raised. Judgment was given on 23rd April, 1985. [9]The judgment dismissed the
petition of the petitioner and confirmed the judgment passed by High Court of
Madhya Pradesh.
The petition was filed
against the appellation by the respondent here, Shah Bano Begum under section
125 of Criminal Procedure Act. To which the bench concluded that there is no
conflict between the Muslim personal law and section 125 of CrPC. Court answered
the question of whether the Muslim law imposes no obligations on husband for
providing of maintenance to his divorced wife. Muslim husband enjoys the privilege of
being (1) 'Selections from Kuran'-Edward William Lane 1843, Reprint 1982, able
to discard his wife whenever he chooses to do so, for reasons good, bad or
indifferent. [10]But this does not with hold the notion that once a husband
pays the amount of mehr he is not entitled to give maintenance to his
divorced wife as the amount of mehr may vary at a large scale.
Taking
the case of Bai Tahira v. Ali Hussain Fidalli Chothia [11]as
precedent for this case the court stated that, that it should be reconsidered
because the contravention of section 127 (3)(b) of CrPC[12]
does not override the Muslim personal law.
The
bench of five judges gave their decision, reasoning that though personal laws
are also followed, that does not make Muslims excluded from section 125 of
Criminal Procedure Code. Then the court stated the interpretation of ‘mahr’ according
to the Muslim law itself. Mahr was a capital in form of money that a woman was
entitled to, no matter if she gets divorced or not. It is just one of the
situations that it could be given at the time of divorce, not a compulsion.
Hence instead of misinterpreting it as a divorce payment whereas it is a
marriage payment, providing a response to Mohammed Ahmed Khan's argument about
the repeal of Section 125 under Section 127 of the CrPC. Hence the judgment
made the husband liable to give maintenance to shah Bano of Rs. 179.20 every
month as stated by Madhya Pradesh high court. The court also awarded her for
the expenses she faced to take this case to the court and appeal costs (10,000
Rs)[13]
The
controversial matter of the case was not the decision but the way it was
reasoned. Showcasing that there was unwanted interference of the judiciary
within the framework of Muslim law. This dragged the attention of society at
large. The stairs towards the building of the Uniform Civil Code in India
collapsed all of sudden due to these controversies. At first, it was seen by
the legislature that Muslims, though following the jurisdiction of Muslim law
for personal affairs were in favor of having a state with a Uniform Civil Code.
But as reasoned above, now the Muslim community at large developed this uniform
civil code will not be the law of all instead it will change the law of the
majority community. These differences in thoughts not just came across
different communities but also within the Muslim community itself. The
conservative Muslims opposed the court verdict saying that how a bench with all
the non-Muslim judges decides a case under Muslim law. Hence stating that the
true essence of laws from the Quran was not taken, instead, it was westernized.
The remarks of the court were also questioned. They argue that instead of
interpreting Muslim law the court could have given the same decision just with
constitutional principles. Though few liberals did support the court’s decision
and also the way it was interpreted.
CONCLUSION
Every
landmark judgment has its significance. The law is for the relation of the
society hence the decision of law impacts society in either way. It is the role
judiciary body [courts] to bridge the gap between the civil laws and personal
laws of a nation. The court has faced a lot of criticism in various judgments
through varied periods. Muslim women always faced the burden of backwardness in
society due to the limited granted freedom by their community, which restricted
them to enjoy fundamental rights. It was a fight against a typical patriarchal
society. It was comparatively more difficult for them to maintain themselves
after divorce. Hence a judgment like this was a significantly positive aspect.
Not the facts of the case but the petitioner herself made a major contribution
in making this a landmark judgment. By giving courage to all the women in the
future who might face the same situation. Shah Bano at the age of forty fought
this case with boldness and enough courage to face the criticism from society
during and after the case where everyone supported her husband throughout the
case proceedings. This judgment can be phrased as ‘Justice and equality
overcomes religion’ as it was an unbiased and unique decision. After this
verdict, all the cases were held under the jurisdiction of section 125 of CrPC.
Though the environment in which this judgment was held was not supportive
enough. But this judgment must be taken in accordance to bring a change.
Muslim
women (protection of rights in divorce) act, 1986 was enacted under Rajiv
Gandhi’s government to invalidate the decision of the supreme court. Contrary
to its name it started focusing on the dissolution of rights in divorce over
protecting them. It was again restricted to the concept of mahr, of which the
amount was not significant. This again leads to confusion that whether the
amount that was given to the Muslim woman as mahr is sufficient for her
throughout her life. This judgment held the notion of applying a uniform set of
laws while safeguarding the religious and traditional aspects. It also raised
the notion of feminism versus secularism.
[1] section125 Criminal Procedure Code
[2] Section 125 Criminal Procedure Code
[3] Section 127 Criminal Procedure Code
[4] Section 125 Criminal Procedure Code
[7]https://indiankanoon.org/doc/778934/#:~:text=(1)%20On%20proof%20of%20a,fit%3A%20Provided%20that%20if%20he
[11] Bai Tahira v. Ali Hussain Fidalli Chothia 1979 AIR 362
[12] Section
125 and Section 127 of the CrPC
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