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A Case Analysis On Landmark Case Of Maintenance

Mohd. Ahmed Khan v/s. Shah Bano Begum, 1985
(Popularly called as the Shah Bano Case)

"Women are the social conscience of a country. They hold our societies together"- Rajiv Gandhi.

This case analysis attempts to analyse the judgement of the Supreme Court in the historical decision of Mohd. Ahmed Khan v/s Shah Bano Begum reported in AIR 1985 SC 945. Which expands the scope of section 125 of the Criminal Procedure Code, 1973.

"Maintenance" has a very wide scope it is defined under section 125 of the Criminal Procedure Code; 1973 maintenance can be given to the wife who is unable to maintain herself or to the legitimate or illegitimate minor child. Maintenance can also be given to the father or mother who are unable to maintain themselves.

This case is regarded as one of the best judgements delivered by the Apex court as it widens the scope of the section 125 of Criminal Procedure Code,1973.

This decision was delivered by the 5-Judge Bench of the Hon'ble Supreme Court on 23rd April 1985, this decision, marked a new era in the development in the concept of maintenance and in the Muslim personal law.

This landmark judgement also shows us that how the law changed for Muslim's after 1986. The Muslim Women (Protection of Rights on Divorce) Act, 1986 was also introduced in this case.

The Hon'ble Supreme Court in the current case has talked over the relevance of Sections 125 and 127 of the Code of Criminal Procedure and provisions of Maintenance under Muslim Personal Law. The Court talked over the judgment of the Supreme Court in the Bai Tahira and Fazlunbi case. The Court likewise raised the necessity of the Uniform Civil Code in the civil integration of the country.

History Of The Case
  1. In 1978, the respondent filed an appeal against the defendant Under Section 125 of the Code of Criminal Procedure before District Magistrate First Class, Indore. She demanded monthly maintenance of ₹ 500 per month.
  2. In 1979, the court directed the appellant to pay ₹ 25 per month as conservation to women. The respondent filed the revisional application before the High Court of Madhya Pradesh in July 1980. The court increased the amount of maintenance to ₹179.20 per month.
  3. Challenging the judgment of the High Court the appellant appealed before Hon'ble Supreme Court.

Iddat Period

  1. It is necessary to fully understand the idea of iddat in order to analyse the Shah Bano Case law and the subsequent judgments. Iddat refers to the period of waiting observed by Muslim women. Such a waiting period is observed on the divorce or death timeline. During the period of waiting, a woman or wife isn't allowed to remarry. Iddat is observed for one primary reason: to determine parenthood in cases of pregnancy. A woman can lawfully remarry only when the iddat period finishes. Iddat may help the couple in reevaluating their 'divorce' decision, and the divorce may be revoked during the Iddat time.
  2. Intercourse with the wife (observing Iddat) would result in revocation of the verbalized Talaaq in the situation of revocable Talaaq. In the context of a marriage breakdown due to death, Iddat also serves as a period of mourning for the bereaved widow.

Facts Of The Case
  1. Mohd Ahmed Khan, an advocate by profession, married Shah Bano Begum (the defendant) in 1932 and had three sons along with two daughters from this marriage. Shah Bano was disputed by her partner and rolled out of her marital home with her children in 1975 when she was 62 years old.
  2. She petitioned the Judicial Magistrate of Indore in 1978 because she had been denied the maintenance of Rs. 200 per month that he was supposed to pay for her. She requested Rs. 500 per month as maintenance. After that, on November 6th, 1978, the husband gave her an irrevocable triple talaq and used or applied it as a security to not compensate for maintenance.
  3. In August 1979, the magistrate ordered her husband to pay her maintenance in full, which amounted to Rs. 25 per month. In July 1980, Shah Bano appealed to the High Court of Madhya Pradesh for a modification of the total sum of maintenance to Rs. 179 per month, and the high court enhanced the maintenance to the abovementioned amount, i.e., Rs. 179 per month. The spouse challenged the High Court's decision in a special leave appeal to the Supreme Court of India.

Law Before The Judgment
  • Whether Section 125 of the Code of Criminal Procedure applies to Muslims likewise?
  • Whether there's any conflict between provisions of Section 125 of the Code of Criminal Procedure and Muslim Personal Law on the point of maintenance by the husband to Muslim divorced woman?
  • Whether any sum total is payable to the woman "on divorce" under Muslim Personal Law?

  • The Hon'ble Supreme Court held that Mehr or Dower is the responsibility of the husband and the lawful right of the wife in which the husband has to pay some maintenance amount to the wife as a consideration in the marriage.
  • The Hon'ble Supreme Court referred to the case of Bai Tahira v. Ali Hussain Fidaalli Chothia, to prove the fact that the amount of Mehr doesn't reduce the liability of a husband to compensate the maintenance of a divorced woman or wife.
  • Thus, a Muslim divorced wife is entitled to maintenance by her husband, and this extends the period of Iddat if the wife is unfit to maintain herself.
  • The Hon'ble Supreme Court also held that section 125 of the Code of Criminal Procedure is applicable to all citizens irrespective of their religion, and in case of a clash between individual laws and provisions of section 125, the Code of Criminal Procedure would be given dominance.

Law Before The Judgment
  1. The section 125 of the Criminal Procedure code, 1973 was enforced regarding the maintenance of Muslim women, equally with the Hindu women until 1985 the courts in India were giving the judgements awarding the maintenance to Muslim wives also.
  2. But after this judgment this case caused a sensational agitation among the Muslim community throughout the country. The entire Muslim community felt that by the Supreme Court decision in Shah Bano's case, section 125 of Criminal Procedure Code, 1973 overrides the Muslim personal law.
  3. Thus, a great controversy arose and to satisfy the Muslims, The Prime Minister of that time Rajiv Gandhi made an Act "Muslim Women (Protection of Rights on Divorce) Act, 1986.

Law After The Act The Muslim Women (Protection Of Rights On Divorce) Act, 1986
  1. The Muslim Women (Protection of Rights on Divorce) Act, 1986 changed the previous terms. Now Under Section 125 of the Criminal Procedure Code of 1973, the Muslim wife is no longer entitled to maintenance.
  2. According to the section 5 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 if both the wife and husband give their consent admitting the section 125 of the Criminal Procedure Code, 1973 through an affidavit, then the concerned Magistrate/Judge shall dispose of the case according to the provisions of the section 125 of the Criminal Procedure Code, 1973.
  3. But generally, no husband gives his consent for trial under section 125 of the Criminal Procedure Code, 1973 because it puts burden upon the husband. While his personal law permits him to pay the maintenance only for the Iddat period.
  4. Justice V.R. KRISHNA IYER suggested that the section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 shall have to be amended by withdrawing the power given to husband, and such power shall be given only to the wives who is the aggrieved party, then only the act can be called as The Muslim Women (Protection of Rights on Divorce) Act, 1986.

  • The case is considered a landmark case in that it gave a new and highly wider scope to the meaning of maintenance under section 125 of the Criminal Procedure Code, 1973.
  • This decision also restored the faith of Muslim people in the Judicial system and guaranteed that their fundamental rights and personal law are protected by law.
  • The judgment also introduced a new Act established by due process of law called "The Muslim Women (Protection of Rights on Divorce)" Act, 1986. Following the 1986 Act, a Muslim husband is not anymore required to maintain his wife after divorce; he is only required to pay maintenance for the period of Iddat.

Case Law Referred
  • Bai Tahira V. Ali Hussain Fissali Chothia & ANR. [(1979) 2 S.C.C. 316]
I, Himanshu M. Mendhe, hereby declare that this work is the result of my own intellect and the necessary references are provided in the article. This article is only for an academic purpose.

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