Mohd. Ahmed Khan v Shah Bano Begum
Tags: Maintenance, Islamic Law, Islam

Written by SAHR member, Natasha Latiff.

The husband (appellant) was married to the wife (respondent) in 1932. In 1975 the husband drove the wife out of the matrimonial home. In April 1978, the wife filed a petition against the husband under Section 125 of the Criminal Procedure Code 1973 (hereinafter referred to as the ‘Code’/ ‘CrPC’) in the court of the learned Judicial Magistrate (First Class), Indore. She asked for maintenance at the rate of Rs. 500 per month . On November 6, 1978 the husband divorced wife by an irrevocable talaq. His defence was that she had ceased to be his wife by reason of the divorce granted by him. He therefore claimed to be under no obligation maintenance for her since he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat. In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. In July, 1980 in a revisional application filed by the respondent, the High court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month.

(hereinafter referred to as the ‘Code’/ ‘CrPC’) in the court of the learned Judicial Magistrate (First Class), Indore. She asked for . He therefore claimed to be under no obligation maintenance for her since he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat. In July, 1980 in a filed by the respondent, the The husband has filed this appeal by special leave before the Supreme Court.

Legal Reasoning

1) Whether the payment of mehar by the husband on divorce is sufficient to absolve him of any duty to pay maintenance to the wife.

“…there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under Section 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce.” (para 32)

The Court reached the above conclusion in support of the ruling in Bai Tahira where Justice Krishna Iyer held that “…The payment of illusory amounts (referring to ‘mehar’) by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute.” (p.82, Bai Tahira)

2) Whether there is any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’

Referring to the views put forth by the learned scholars (Mulla, Tyabji and Paras Diwan), the Court concluded that “These statements in the text book are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself.” (para 16)

“The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We are of the opinion that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife” (para 16)

“Since the Muslim Personal Law, which limits the husband’s liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by Section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself.” (para 16)

The Court concluded that the liability of the husband to pay maintenance to the wife extends beyond the iddat period if the wife does not have sufficient means to maintain herself.

3) Whether Section 125 of the Code applies to Muslims.

Referring to Section 125 of the Code, the Court said: “The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens is wholly irrelevant in the application of these provision. The reason for this is axiomatic, in the sense that Section 125 is a part of the code of Criminal Procedure, not of the Civil Laws which define and govern the right and obligations of the parties belonging to particular religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act.” (para 7)

“Clause (b) of the Explanation to Section 125(1), which defines ‘wife’ as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope.” (para 7)

“‘Wife’ means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a ‘wife’ for the purpose of Section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.” (para 9)

4) Whether Section 125 would prevail over the personal law of the parties, in cases where they are in conflict.

The Court in answering this question, gave the example of the Islamic Law regarding polygamy:

“It is too well-known that “A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular”.1 The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages.” and held-“It shows, unmistakably, that Section 125 overrides the personal law, if is any there conflict between the two.” (para 11)

5) Whether there is any conflict between the provisions of Section 125 and those of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife

“The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of Section 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.” (para 16)

Conclusion

Dismissing the appeal, the Court held:

1) The payment of mehar by the husband on divorce is not sufficient to absolve him of the duty to pay maintenance to the wife.

2) The liability of the husband to pay maintenance to the wife extends beyond the iddat period if the wife does not have sufficient means to maintain herself.

3) Section 125 of the Code applies to all citizens irrespective of their religion

4) Section 125 overrides the personal law, if is any there conflict between the two.

5) There is no conflict between the provisions of Section 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.

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