In order to accomplish the goal of secularism, the state must not administer religion-based personal laws blind-foldedly.

 

[CASE BRIEF] Mohd. Ahmed Khan V/s Shah Bano Begum & Ors.


Case name: Mohd. Ahmed Khan V/s Shah Bano Begum & Ors.

Case Number: Criminal Appeal No.103 of 1981

Court: The Hon’ble Supreme Court

Bench: Chandrachud, Y.V. ((Cj), Desai, D.A., Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J), Misra Rangnath

Decided on: April 23,1985

Relevant Act/Sections: Section 125 and 127(3)(b),Criminal Procedure Code,1973,  Section 2, Muslim Personal Law (Sheriat) Application Act,1937, The Hindu Adoptions and Maintenance Act, 1956,Parsi Marriage and Divorce Act,1936

 

 

Brief Facts and Procedural History:

1. The appellant was a Muslim man married in 1932 and in 1975 he compelled his wife to leave her own matrimonial home.In response to this, the respondant filed an application before the Hon’ble Court under section 125 Of the Criminal Procedure Code claiming a maintenance of 500 rupee per month.

2. Later the appellant divorced the respondent by an irrevocable mode of Talaq in November 1978. He used this divorce as defence to the petition filed by the respondant  that she is no longer in a matrimonial relation with him so he had no obligation upon himself to maintain her.Adding on, he stated that he had been providing 200 rupees per month for her maintenance for a period of 2 years and had deposited 3000 rupees in the Court as dower during the period of her iddat.

3. There was a revision application filed by the respondant before the High Court which further raised the amount of maintenance as fixed by the Magistrate which was 25 rupees to 179.20 rupees.The appellant by means of Special Leave Petition has approached the Hon’ble Supreme Court and a two Judge Bench referred the matter to the present Bench.

 

Issue Before the Court:

1. Whether the section 125 of Criminal Procedure Code, 1973 applies to Muslims and were the personal laws in conflict with the Provisions of this code ?

2. Whether the amount of Mehr given by the husband on divorce is adequate to get the husband rid and is liable to maintain his wife or not.

 

Ratio of the Decision:

1. Arguments on behalf of the appellant were made by P.Govindan Nair who relied on cases namely, Bai Tahira v. Ali Hussain Fidaalli Chothia (1979) 2 SCC 316 and Hamira Bibi v. Zubaida Bibi AIR 1916 PC 16 which involved substantial questions of law involve far reaching consequences, the case was referred the larger present bench.

2. Section 125 of the Criminal Procedure Code deals with order for maintenance of wives, children and parents on a person having sufficient means. These provisions are crystal clear and far from any ambiguity. There is no scope for refinement and these provisions are not concerned with the religion or community of the spouses. This is just to ensure remedy and fair and just treatment to those who are not able to look after themselves. These provisions do not bar any religion and the religion of the people doesn’t affect its applicability.

3. Under section 488 of the Code of 1898, the maintenance rights were only subject to the marital status which could have been easily done away by the husband by obtaining divorce unilaterally. This is the reason there was birth of section 125 which assures maintenance unless the woman remarries.

4. The exercise of this law is irrespective of the personal laws of the parties and if the husband has a pre-requisite condition for maintenance that the wife shall live with him the it is the duty of the Courts to look forth reason which may compel a wife not to live with the husband such as if he keeps a concubine.

5. Payment of Dower and Mahr by husband to wife is not attracting Section 127(3)(b) and any order made under section 125 is not going to be cancelled by such payment by the husband. They are both payable on marriage and not on divorce and deferred dower doesn’t concern Divorce.Mahr is a mark of respect for the wife and he doesn’t divorce her as a mark of respect. 

6. The next contention of the appellant was that there was no obligation and the order of maintenance ceases to operate on the expiration of the period of iddat for which they relied on books by Authors such as Mulla, Tyabji and Dr. Paras Diwan. The Court expressed that there could be no authority greater than the holy Quran which imposes obligations to husbands for maintaining divorced wives. Adding on, the Article 44 of our Constitution which is Uniform Civil Code shall not be a dead letter. The Court cited a Pakistani report which said that a large number of woman are divorced without rhyme and reason and shouldn’t be thrown on the streets without roof on their heads and no means to sustain them and their children.

 

Decision Held by the Court:

1. The Maintenance fixed by the High Court was upheld. The appellant’s contentions were dismissed and the appellant was made to pay cost of the appeal to respondent which was quantified at 10,000 rupees.



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