Mohd Ahmed Khan v. Shah Bano Begum & Ors.

Legal Principle:

The maintenance for divorced Muslim women is governed by the Code of Criminal Procedure, 1973., which is a secular law and would prevail over the personal law if in conflict.

Related Provisions:

Section 125, CrPC, 1973: Order For Maintenance Of Wives, Children & Parents.

{This is a welfare law that prevents destitution by ordering financial support for neglected dependents. It legally compels individuals with sufficient financial means to provide monthly maintenance to their wives, children, and parents.}

Section 127(3)(b), CrPC, 1973: Cancellation Of A Maintenance Order.

{If a woman has been divorced by her husband and has received, either before or after the maintenance order, the entire amount payable to her on divorce under the customary or personal law applicable to the parties, the Magistrate must cancel the maintenance order.}

Facts:

1. Mohd. Ahmed Khan, the petitioner, an advocate, married Shah Bano Begum, the respondent in 1932 and they had three sons and two daughters. The respondent was a housewife.
2. In 1975, when Shah Bano’s age was 62 years old, she was disowned by her husband and was drove out from the marital home together with her children. Initially, he paid her a small monthly allowance but later stopped.
3. In 1978, Shah Bano filed a petition under section 125 of the CrPC, 1973, claiming maintenance because she was unable to maintain herself.
4. After the petition was filed, Mohd. Ahmed Khan pronounced triple talaq and argued that under Muslim Personal Law, his obligation was limited to paying Mehr (Dower) & maintenance only during iddat period, which is the mandatory waiting period a Muslim woman observes after divorce or her husband’s death.

Before the Court of Judicial Magistrate (First Class), Indore, the respondent argued that she was deprived of the maintenance of Rs. 200 per month. In her petition she prayed for monthly maintenance u/s 125 of the CrPC, 1973. She also asked for an increase in the amount of maintenance from Rs. 200 to Rs. 500 per month as all five children were living with her and not with petitioner and the petitioner was also earning around Rs. 60,000 annually. The Magistrate, in August 1979, directed the husband to pay Rs. 25 per month as maintenance u/s 125 of the CrPC, 1973.

High Court's Judgement:

The respondent filed a revision application to the High court of Madhya Pradesh, to further increase the amount of maintenance. The High Court enhanced the maintenance from Rs. 25 per month to Rs. 179.20 per month under section 125 of the CrPC, 1973. The husband challenged the order before the Supreme Court.

Issues Raised:

• Whether a Muslim husband is liable to maintain his divorced wife under section 125 CrPC after the expiry of the iddat period, if she is unable to maintain herself.
• Whether Section 125 CrPC, a secular provision, applies to divorced Muslim women notwithstanding Muslim Personal Law.
• Whether payment of mehr (dower) and maintenance during the iddat period amounts to payment of the ‘whole sum’ under section 127(3)(b) CrPC, thereby extinguishing the husband’s liability to pay maintenance under section 125 CrPC.

Supreme Court's Judgement:

The Court dismissed the appeal, affirming the High Court’s decision to grant maintenance to Shah Bano Begum, and clarified that Mahr is not a sum payable on divorce under section 127(3)(b) of the CrPC. The Court further held that Section 125 CrPC is a secular provision applicable to all citizens irrespective of religion. A Muslim woman unable to maintain herself can claim maintenance from her former husband. A Muslim husband’s liability is not restricted to iddat period. It continues until the divorced wife remarries or is able to maintain herself.

Payment of mehr (dower) does not discharge the husband’s obligation under section 125 CrPC, as mehr is not an amount payable “on divorce” for the purpose of replacing maintenance. There is no conflict between the Muslim personal law and section 125 regarding the obligation of the husband to provide for the maintenance of his divorce period. The Muslim personal law obligates the husband to provide maintenance for the iddat period. While section 125 mandates it when the wife is unable to maintain herself. Section 127(3)(b) CrPC applies only when the divorced woman has received the entire amount payable under the personal law applicable to her, and not merely the amount of mehr. The Court also noted that Section 127(3) (b) does not override the Muslim law, as can be observed under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which states that all the matters relating to divorce under Muslim law be governed by the aforesaid act. However, the act only mentions maintenance till the iddat period but does not prohibit the payment of maintenance beyond that period.

The Court also observed that Article 44 of the Constitution, which directs the State to endeavour to secure a Uniform Civil Code for citizens, had remained unimplemented for a long time. The Court expressed regret over the absence of efforts towards achieving a common civil code and stated that a Uniform Civil Code would help in promoting national integration by removing conflicting ideologies found in different personal laws.