Case analysis on Mohd.Ahmed Khan V. Shah Bano Begum

Author : R.Pon Aishwarya, Alliance University, Bengaluru

Court; The Supreme Court of India

Case number : 1985 SC 945, 1985 SC 556 and 1985 SC 767

Appellant: Mohd. Ahmed Khan

Respondant : Shah Bano Begum

Citation: 1985 AIR 945 1985 SCR (3) 844

                  1985 SCC (2) 556 1985 SCALE (1) 767

Judges: Chandrachud, Y.V, Misra Ranganath, Desai D.A, Reddy O. Chinnappa and Venkataramiah E.S.

Introduction

Man has always taken advantage of things that he feels trivial to him. Women were considered as such a thing in the eyes of man. To regulate his activities and to create hope religion was created. Today many flaws can be identified from such religious books or rules. It should be noted that religion was created during that time when there was no civilization. It’s the religion that made us civilized. The later country was formed and laws to ensure the well being of its citizen. People had to follow two rules one is the law of the country which is mandatory and the other one is that of the religion which has become a part of his sentiment. The judiciary always had trouble while giving judgments when these two things collided. The case resulted in divisions of people, one who respected the court’s decision and the other who claimed that the court has no right to interpret the Quran. The Muslim personal law can be practiced simultaneously with [1]the constitution as it already existed before the birth of the constitution. The question which arises is that to what extent is the applicability and this case is regarding it. This case is such a case that resulted in a spark among the Indian Muslims and later the legislature had to make a new law named the Muslim protection of divorce Act, 1986 to solve the crisis.    

Facts

 The parties are both practicing Muslims in India. They were married in the year 1932 and the couple had three sons and two daughters. It was in the year 1975 that the appellant drove away from the respondent out of the matrimonial home. Later, the wife had few financial problems so she filed a suit for the payment of maintenance asking the appellant to pay for Rs.500 per month. This was refused by the husband. It was stated that he has pronounced his divorce through the method of triple Talaq. The appellant further contended that the Muslim personal law gives no liability for the husband to pay maintenance if the dower was paid. The dower or Mahir amount was Rs.200 which was paid for 2 years and 3,000 was deposited.  In, response the respondent stated that she has not yet remarried which makes her eligible for maintenance. The magistrate has asked Mohd. Ahmad Khan to pay Rs.25 per month which was appealed in the high court of Madhya Pradesh. The high court has enchanted Rs.179.20 per month which was again appealed by the husband in the Supreme Court of India.    

Issues:

1. Whether the husband had to pay maintenance for the wife after giving the Mahir or dower?

2. Whether the husband had to pay for maintenance for the wife after the Iddat period?

3. Whether Section.125 of the Criminal procedure code conflicts with the Muslim personal law?

4. Whether Section 125 and 127(3)(b) coincide with each other?

Laws involved

One of the major section which was involved in this case was section.125 of the Indian criminal procedure code, 1973. This section specifies maintenance.

Section.125(1)(a) of the Criminal procedure code, 1973

[2]An order for maintenance can be claimed by the wife in court if the husband neglects or refuses to maintain her. It can be claimed by her if she cannot maintain herself.

Section.127(3)(b) of the Criminal procedure code, 1973

[3]If the amount for maintenance is paid according to any customary or personal law then the amount for maintenance under this act can be cancelled.

The Muslim Customary law

Iddat

It is an interval period between the husband and wife which is generally after the death of the husband or their divorce. During this period the wife should not remarry and remain secluded.

Maintenance

A Muslim woman is entitled to maintenance during the Iddat period if:

1. The divorce with her husband after the consummation of marriage.

2. The wife is eligible for maintenance even before consummation but should be informed about the divorce.

3. The wife is an adult and her husband is a child. If there is no source of income for the husband then his father should pay

A Muslim woman is not entitled to maintenance if :

1. The divorce is on unreasonable grounds.

2. If she is a minor or unable to consummate during the time of divorce.

3. If the separation was due to her fault.

4. If the wife is a widow.

5. If she was abducted from her house or eloped or imprisoned for a crime.

The Muslim Protection of Divorce Act, 1986

Section.3(1) of [4]the Act states that a divorced woman is entitled to a reasonable and fair amount of maintenance during the Iddat period.

Section.4 of the Act:

The act states [5]that after the Iddat period if the wife is unable to maintain herself then her legitimate heir who would get her property should. If that is also not possible then Wakf board should.

Judgment

In this case, the Supreme Court of India has stated that Sec.125(1) of the Crpc applies to all the wife who is citizens of India irrespective of their religion. It was stated that the section is a statutory right and remains effective even if it overrides any personal law, The scope in Section.125 is mentioned properly that is it applies to any women if her husband refuses to maintain her and she is not able to maintain herself. In Section.127(3)(b), it was stated that the mahr or dower money is not maintenance. It was also stated that this law does not coincide with the personal law as the Quran imposes a divorced husband to make necessary provisions to survive. 

The summary is that the Supreme court has stated that the husband has to pay for the maintenance even after the Mahir or Dower is paid during the Iddat period. The amount for maintenance should continue after the Iddat period. Section.127(3)(b) cannot be used as an excuse for Section.125. Finally, this law doesn’t override the Muslim personal law according to Ayatas 241 and 242 of Sura 2 of the Holy Quran.

Analysis of the judgment

Through the analysis, the conclusion is that this judgment has changed a narrow view of society. Even this is just a reiteration as a similar judgment was given in [6]Bai Tahira V. Ali Hussain. This judgment created a stir. The Muslim women protection act,1986 was created to cool down the fire. This act was left to many criticisms as it had many overriding effects. For example, Section.3 (1)(a) of the act stated that a reasonable and fair amount of maintenance should be given for herself during the Iddat period. In [7]Danial Latifi V. Union of India, this section was put to question and it is against Islam and the Constitution. For this, the court has stated that ‘within’ should be read as during or for. This would extend to the whole of her life unless she remarries.Section.4 of the act is ambiguous. The Section states that after the iddat period, the wife’s heirs should provide maintenance if she is unable to maintain herself. In [8]Tamil Nadu wakf Board V. Syed Fatima Nachi, it was stated that the relatives imply the ones who would get her property sequentially after her childer.

This act had a narrow impact whereas the judgment was wider. It spoke bravely against the existing social evil. The criticisms of this act, states that the Indians are now open to the broader view. This judiciary states that the judiciary is not only the watchmen of the law but can also interpret the law to eliminate social evil.

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[1] The Constitution of India, Article.372;

[2] Criminal Procedure code, 1973, Section.125(1)(a);

[3] Criminal procedure code, 1973, Section 127(3)(b);

[4] The Muslim protection of divorce acr,1986, Sec.3(1);

[5] The Muslim protection of divorce acr,1986, Sec.4;;

[6] 1979 AIR 362, 1979 SCR (2) 75

[7] (civil) 868  of  1986 

[8] SLP [Cr.] No. 2026 of 1994