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FAMILY LAW, 1st ASSIGNMENT
BBA.LLB, DIVISION E

Mohd. Ahmed Khan V. Shah Bano Begum

CRITICAL APPRAISAL OF THE JUDGEMENT
CASE NAME:

Mohd. Ahmed Khan vs Shah Bano Begum and Ors

CITATION:

1985 Scr (3) 844

PETITIONER:

Mohd. Ahmed Khan

RESPONDENT:

Shah Bano Begum and Ors.

JUDGES:

Chandrachud, Y.V. ((Cj), Desai, D.A., Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J), Misra
Rangnath
 FACTS OF THE CASE
In 1978, a Muslim Lawyer in Madhya Pradesh divorced Shah Bano, his wife by pronouncing
‘triple talaq’. The main reason behind the divorce being disputes between Shah Bano’s children
and her husband’s other wife.

As per Muslim personal law, he paid rupees 3000 to his divorced wife during the period of Iddat.

Shah Bano was driven out of her matrimonial house and hence, filed a petition under Section 125
of the CrPC before the Judicial Magistrate at Indore.

She sought maintenance from her former husband who she claimed has an annual income of
Rupees 60,000.

The magistrate ordered the husband to pay Shah Bano twenty-five rupees every month as
maintenance. She further appealed to Madhya Pradesh High Court in 1979 where the amount
was revised to Rupees 179.20 per month.

Her former husband, Mohammed Ali Khan petitioned the Supreme Court in 1981 to challenge
the decision of the High Court.

The matter was looked into by a five-judge Constitution Bench of Supreme Court to resolve the
issue.
 JUDGEMENT
The Constitutional Bench delivered a unanimous verdict and upheld the decision of the High
Court.

The Court alluded to the religious neutrality of Section 125 of the CrPC stating the religion of
the spouses was wholly irrelevant as the purpose of this section was to protect dependents from
vagrancy and destitution and hence, there was no reason to exclude Muslims from its ambit.
Thus, Shah Bano shall be given maintenance money, similar to alimony.

The Court refused to accept that an order for maintenance under Section 125 could be struck
down by Section 127 only for the mere fact that the husband had made a payment to the wife at
the time of the divorce under the concerned personal laws. The Court thus looked into the
meaning of ‘Mehr’ and inferred that it was not a payment that the husband was liable to make to
a Muslim woman on divorce but was instead an amount that a wife was entitled to in respect of
consideration of marriage. The Court held that it was only paid on divorce but the meaning of it
was rather different and the payment of Mehr was no bar to the Court awarding maintenance.
The Court also used the Quran during its interpretation that husbands were bound by the duty to
maintain their wives. The Supreme Court thus allowed maintenance of Rs.179.20 per month.

Court also expressed anguish in relation to Article 44 of Constitution of India in relation to

bringing of Uniform Civil Code in India as it remained a dead letter and held that a common civil
code will help the cause of national integration by removing disparate loyalties to laws with
conflicting ideologies.

The Court emphasized and clearly stated in its judgement that the fact that fragmentary attempts
of courts to bridge the gap between personal laws cannot take the place of a common civil code.

ISSUES

1) Whether Section 125 of the CrPC applies to Muslims.

2) Whether the payment of Mehr by the husband on divorce is sufficient enough to rid him of
any duty to pay maintenance to the wife.
 CRITICAL APPRAISAL
To give a just appraisal of the judgement it is important to have a little backdrop of the time back
when this judgement was delivered (April 1985). Muslim Women were not as educated and self-
dependent like the rest of the Woman. Education was denied to them and they were not allowed
to work either, hence post-divorce the need for maintenance only became greater.

In India there are different personal laws governing each community like Muslim Laws are
governed by their own Personal laws, Hindu Laws are governed by the Hindu Marriage Act,
Hindu Succession Act. These personal laws are not penalizing in nature. For example, adultery
becomes a ground of divorce and Judicial Separation. But if you want your husband to be
punished for adultery, you have to resort IPC (Indian Penal Code). Personal Laws are also called
Family laws.

The case that we are dealing with was no unique case and similar judgements had been delivered
by the Supreme Court earlier too but what made this judgement a landmark one was the fact that
it questioned the sanctity of personal religious laws, brought on the debate on a Uniform Civil
Code (UCC) for all religions and the controversy of whether the CrPC prevails over personal
laws. Now dealing with the main issues that the judgement dealt with:

1) Whether Section 125 of the CrPC applies to Muslims.

Section 125 of the Criminal Procedure Code talks about a wife who is without any income, has
no source of income and is neglected by her husband is entitled to maintenance, which includes a
divorced wife who is not remarried. But according to the Muslim personal laws a husband is
entitled to pay the wife the entire Mehr amount or any maintenance during the Iddat Period.
After the expiration of the Iddat period the husband’s responsibility is over and he is not liable to
pay his divorced wife anything. This was the argument resorted to by the Appellant’s counsel but
the court clarified that irrespective of what the personal law was CrPC was religiously neutral
and applied the same way for every Indian citizen irrespective of the personal law that governs
them. They further added that the subject areas covered by the personal law and CrPC were
different. The Muslim law only spoke about making it mandatory for the husband to pay the wife
the entire Mehr amount during the Iddat Period and not about a situation where the wife is
unable to maintain herself after the completion of the period while she is still unmarried and in
such a situation the wife will have to resort to Section 125 of the CrPC for seeking help of the
court. In any situation it was declared that whenever the CrPC and Personal laws would collide
the former would prevail. Hence the court concluded that Section CrPC would apply to anyone
irrespective of their religion and hence for the aforementioned reasons it is applicable to Muslims
too.
2) Whether the payment of Mehr by the husband on divorce is sufficient enough to rid
him of any duty to pay maintenance to the wife.

The Appellant said that since the he had already paid the wife the complete Mehr amount and the
maintenance amount for the 2 years when she lived away from him he was not entitled to pay
any more money to her in form of alimony or maintenance as the Iddat Period was over. The
Appellant further argued that the order passed by the High court under Section 125 should be
cancelled under Section 127 as he had already paid the entire Mehr amount on divorce as per the
personal Laws. The court reached the conclusion that Section 127(3) (b) says if a woman has
been divorced and the husband has paid any sum on or before the date of the said order that he
has to pay according to a customary law then in the situation any further orders are not to be
found applicable. The amount paid by the appellant is the complete Mehr amount which was not
paid at the time of the marriage. This Mehr amount is not a payment for divorce but instead
considered to be an amount that the wife is entitled to as consideration for marriage. The mere
fact the Mehr amount was paid at the time of dissolution of marriage did not mean that it was
paid because the marriage was being dissolved. The wife is entitled to that money since the day
they were married. The court even proved this point by interpreting the sections of the Quran that
said a man who believed in Allah and was a true Muslim had a duty to maintain his wife with
dignity as she was now his responsibility. Hence this amount was not to be considered as a sum
paid in form of alimony or maintenance which meant he was not rid of any duty to pay
maintenance to the wife.
 CONCLUSION
This judgement expressed the dissatisfaction over the legislative’s failure to establish a UCC for
all citizens. The judgement was way ahead its time hence created an uproar amongst the Muslim
population of India who believed that the Supreme Court did not give regard to the Muslim
Personal Laws. The pressure and uproar amongst the people caused the legislation for pass the
Muslim Women (Protection of Rights in Divorce) Act, 1986 (MWA) to nullify the SC’s Shah
Bano Judgment, purely due to vote bank politics. This law contrary to its name limited the rights
of Muslim women to the extent that the husband’s liability towards the wife would remain only
to the extent of the Iddat Period during which the wife can ask for lump sum maintenance for the
rest of her life and the complete Mehr amount within the 3 months. The act successfully deprived
the women the right to claim maintenance under Section 125.

Though the judgement was nullified by the enactment of the MWA the court in future
judgements claimed that a divorced Muslim woman is free to either seek maintenance under
section 125 of the CrPC or claim lump sum alimony under the MWA. The Supreme Court has
found a way to impart reasonable and just judgment even amongst the dirty vote bank politics
and religious sensitivity that India suffers owing to its secular nature.