ABOUT THE AUTHOR
Surabhi P, author of this case analysis is a 4th sem Three Year student from Govt Law College Trivandrum
INTRODUCTION
Mohd. Ahmed Khan v. Shah Bano Begum (1985) commonly referred to as the Shah Bano case, was a controversial maintenance law suit inIndia, in which the Supreme Court delivered a judgment favoring maintenance given to an aggrieved divorced Muslim woman.
PROVISION OF LAW RELATED
Section 125 of CrPC
As per the section, a wife who is without any income and is neglected by her husband is entitled to maintenance, which includes a divorced wife who is not married.
FACT OF THE CASE
In 1932, Shah Bano, a Muslim woman, was married to Mohd.AhmedKhan an affluent and well known Advocate in Indore, Madhya Pradesh and had 5 children from the marriage. After 14 years, Khan took a younger woman as his second wife. Then after years of living with both wives, he divorced Shah Bano when she was 62 years old. In April 1978, when Khan stopped giving her an amount of rupees 200 per month he had apparently promised, claiming that she had no means to support herself and her children. She filed a criminal suit at a local court in Indore, against her husband under S. 125 of CrPC, asking him for a maintenance amount of rupees 500 for herself and her children. In November 1978 her husband gave an irrevocable Triple Talaq (divorce) to her which his prerogative under Islamic law and took up the defense that hence Bano ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total rupees 5400 as ‘MEHR’. In August 1979, the local court directed khan to pay a sum of rupees 25 per month to Bano by way of maintenance. On 1st July 1980, on a revision application of Bano, the high court of Madhya Pradesh enhanced the amount of maintenance to rupees 179 per month. Then Khan appealed in the supreme court by saying, after divorce he cannot keep any form of alliance or connection with his divorced wife as it is not allowed by the Islamic law and it is ‘ HARAM’ in Islam, so he is not legally entitled to maintain his divorced wife.
ISSUES RAISED
- Whether S.125 of CrPC is applicable in case of a Muslim woman?
- 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?
- Whether uniform civil code is applicable to all religions or not?
JUDGEMENT
On 3rd February 1981, the two bench judge composed of Justice Murtaza Fazal Ali and A Varadarajan who first heard the matter, in light of the earlier decisions of the court which had held that S.125 of the code applies to Muslim woman also, referred Khan’s appeal referred to a large bench. Muslim bodies all India Muslim Personal Law Board and Jamait-Uleme-e-Hind joined the case as interveners. The matter was then heard by a five-judge bench composed of Chief Justice Y. V Chandrachud, Ranganath Misra, D. A Desai, O. Chinnappa Reddy and E.S Venkataramiah. On 23rd April 1985, Supreme Court in a unanimous decision, dismissed the appeal and confirmed the judgement of the Highcourt. The Verdict was given by C. J. Y. V. Chandrachud. Supreme court concluded that “there is no conflict between the provisions of s.125 and those of the Muslim personal law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself. After referring to the Quran, holding it to the greatest authority on the subject, it held that there was no doubt that the Quran impose an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. Shah Bano approached the court for securing maintenance from her husband. When the case reached the Supreme Court of india, seven years had elapsed. The Supreme Court invoked s.125 of code of criminal procedure, which applies to everyone regardless of caste, creed or religion. It ruled that Shah Bano be given maintenance money, similar to alimony. Supreme Court in this case duly held that, since responsibility of Muslim husband towards her divorced wife is limited to the extent of ‘Iddat’ period, even though this situation does not contemplates the rule of law, that is mentioned in s.125 of CrPc. According to Supreme Court this rule according to Muslim law was against humanity or was wrong because here a divorced wife was not in a condition to maintain herself. Thus at the end, after very long procedure court finally concluded that the husband’s legal liability will come to an end if divorced wife is competent to maintain herself. But this situation will be reversed in the case when wife is not able in a condition to maintain herself after the iddat period, she will be entitled
to receive maintenance or alimony under s.125 of CrPC. Article 44 of the Directive Principles in the Constitution, directs the state to provide for its citizens a Uniform Civil code throughout the territory of India. C. J Chandrachud while giving judgment stated the need to implement the same. He said “A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. A beginning has to be made if the Constitution is to have any meaning”. This stimulated the debate on the Uniform Civil Code in India.
LATER DEVELOPMENTS
The Shah Bano judgment, as claims became the centre of raging controversy, with the press turning it into a major national issue. The Shah Bano judgment led to protests from many sections of Muslims.They believed it as a violation of their own religious personal laws. At the forefront was all India Muslim Personal Law Board, an organization formed in 1973 devoted to upholding what they saw as Sharia (Muslim Personal Law).In 1986, the Parliament of India (Congress Government) passed an act titled The Muslim Women (Protection of rights on Divorce) act, 1986, that diluted the Supreme Court’s judgment in Shah Bano Case. The act then allowed maintenance to a divorced Muslim woman only during the period of ‘Iddat’ or till 90 days after the divorce, according to the provision of the Islamic law. This contradicts s.125 of the code of Criminal Procedure. Thus the liability of Husband to pay the maintenance was restricted to the period of the ‘Iddat’ only. However, in later judgments including the Daniel Latifi v. Union of India case and Shamima Farooqui v. Shahid Khan, The Supreme Court of India interpreted the act in a manner reassuring the validity of the case and consequently upheld the Shah Bano judgment, and The Muslim (Protection of Rights on Divorce) Act was nullified.
CONCLUSION
In this case of Mohd.Ahmed Khan v. Shah Bano Begum, the supreme court specifically underlined that Triple Talaq cannot take away the maintenance right of a divorced Muslim woman who is not in a condition to maintain herself or her children when she is disowned or divorced by her husband. When the verdict of Shah Bano case was delivered by the Supreme Court, at that period of time it faced a lot of criticism as the points of criticism was that Muslim women who are married or unmarried were not given freedom even they were debarred from the basic freedom which other women had and it is against humanity as well as it also violates the fundamental rights of humans. Muslim Women were very backward as compared to other women in their status. They were not allowed to be educated and self-reliant as compared to others. Due to all these they led to lose in their confidence and knowledge in various sectors. They were not allowed to work too as they were not allowed to educate themselves. As in this case “justice and equality” has overcome the religion. This was very impartial and unique decision. This case has given the judgment in the importance of maintenance which should be provided to the divorced Muslim women who are not in the condition to earn and maintain them.
