In the Supreme Court of India Criminal Appellate Jurisdiction 1985 AIR 945, 1985 SCR(3) 844 Petitioner Mohd. Ahmed Khan Respondents Shah Bano Begum and Ors Date of Judgement 23rd April, 1985 Bench Hon’ble Justice Chandrachud, Y.V. (CJ), Desai, D.A., Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J), Misra Rangnath
The Hon’ble Supreme Court in present case has discussed the applicability of Section 125 and 127 of Code of Criminal Procedure and provisions of Maintenance under Muslim Personal Law. The Court discussed the judgment of Supreme Court in Bai Tahira and Fazlunbi case. The Court also expressed the necessity of Uniform Civil Code in the national integration of the country.
- Appellant (Muslim Husband) married the respondent (Muslim Woman) in 1932.
- The couple had 3 sons and 2 daughters.
- The respondent drove his wife (respondent) out of her matrimonial home in 1975.
- Appellant divorced his wife by an irrevocable talaq on 6th November 1978.
- In the trial the respondent alleged that appellant’s annual income is ₹60,000.
- In 1978, the respondent filled a petition against the appellant under S.125 of Code of Criminal Procedure before District Magistrate First Class, Indore. She asked for monthly maintenance of ₹500 per month. In 1979, the court directed the respondent to pay ₹25 per month as maintenance to wife.
- The respondent filled the revisional application before the High Court of Madhya Pradesh in July 1980. The court enhanced the amount of maintenance to ₹179.20 per month.
- Challenging the decision of High Court the appellant appealed before Hon’ble Supreme Court.
The appellant contended that the decision given by this court in Bai Tahir v. Ali Hussain Fidaalli Chothia & Fazlunbi v. K. Khader Vali needs reconsideration. These decisions are in contravention with S.127(3)(b) of CrPC,1973. The Muslim husband is liable to maintain divorced wife only till period of iddat. The appellant also contended that as per provision of S.127(3)(b) respondent’s application under S.125 is liable to be dismissed. And Mahr is the amount payable to wife on divorce.
- Whether S. 125 of Code of Criminal Procedure applies to Muslims also?
- Whether there is any conflict between provisions of S.125 of CrPC and Muslim Personal Law on point of maintenance by husband to Muslim divorced wife ?
- Whether any sum is payable to wife ‘on divorce’ under Muslim Personal Law?
- The Hon’ble Supreme Court noted that, Sir James FitzJames Stephen who piloted the Chapter 9 of CrPC in which Section 125 occurs, described it as ‘mode of preventing vagrancy.’ The Court stated that S.125 , S.127(3)(b) of Code of Criminal Procedure are of secular character and has no place for religion professed by the spouses. S.125 was enacted to provide quick and summary remedy to persons who are unable to maintain themselves. It is of prophylactic nature and cut across barriers of religion. The liability imposed by it is founded upon individual’s obligation to prevent destitution and vagrancy in the society. It is moral edict of law. Morality can’t be clubbed with religion.
Clause b) of explanation to S.125 defines wife as including divorced wife. It does not contain any word to exclude Muslim wife and limit its scope. In fact the genesis of clause b) of explanation of S.125 is to remove the hardship caused by defeat of right of maintenance of Muslim wife under S.488 of CrPC by way of unilateral divorce by her husband. Therefore divorced Muslim women is ‘wife’ for the purpose of S.125 so long she doesn’t remarry.
Therefore, S.125 of Code of Criminal Procedure applies to Muslims also and the expression ‘Wife’ extends to Divorced Wife if she has not remarried.
- The appellant contended that according to Muslim Personal Law, husband’s liability of maintenance to divorced wife is limited to period of iddat. Referring to variety of text books like Mulla Mohammedan Law, Tyabji, Muslim Law in Modern India they tried to establish proposition that Muslim Husband is not under any obligation to maintain their divorced wives.
The Court found these contentions inadequate to establish any such proposition and noted that it is required to have regard to entire conspectus of Muslim Personal Law to determine it. Mahr is the mark of respect to the wife. It takes care of ordinary requirements of wife during marriage and after. It does not countenance cases in which divorced muslim wife is unable to maintain herself after divorce. The court opined that these provisions of law must be restricted to cases where there is no possibility of destitution or vagrancy arising out of indigence of divorced wife. The subject matter of S.125 comprises limited cases where husband who has sufficient means but refuses to maintain his divorced wife who is unable to maintain herself. Since, the Muslim Personal Law does not countenance the situation envisaged by S.125, it would be wrong to hold that according to Muslim Law muslim husband is not under any obligation to provide maintenance beyond period of iddat to divorced wife who is unable to maintain herself. Therefore the court rejected the claim that muslim husband has no obligation to maintain divorced muslim wife beyond period of iddat.
The Holy Quran is believed to have been communicated by prophet muhammed. There can be no greater authority than it. According to verses 241 and 242 there is obligation on husband to provide for their divorced wives on the basis of fairness.
Referring to different English versions of it the court concluded that the Quran makes obligation on muslim husband to maintain his divorced wife.
- The court referred to Mulla’s principles of Mohammedan Law and Muslim Law in Modern India which denied mahr as consideration of marriage and mark of respect respectively. Under Muslim Law Mahr is split as prompt and deferred(payable in dissolution of marriage). Fact that differed mehr is payable on dissolution of marriage can’t justify that it is payable ‘on divorce’. As per Mulla’s Principles of Mohammedan Law Mahr is amount payable as consideration of marriage which is opposite of amount payable on Divorce. As per Paras Diwan’s Muslim Law in Modern India Mahr is amount payable to wife as mark of respect but contrarily divorce never happens as mark of respect. Therefore, as per both definitions Mahr is not amount payable to wife ‘on Divorce’.
Referring to decision of Allhabad High Court in Privy Council in Hamira Bibi v Zubaide Bibi the court affirmed above conclusion.
The court dismissed the appeal and confirmed the Judgement of the High Court. The court marked that respondent can ask for increasing the maintenance by application under S.127(1) of Code.
The Supreme court in Bai Tahira and Fazlunbi case has made error in the context of S.127(3)(b). In these cases the Supreme Court has made remark that payment of Mahr as customary discharge is within the cognizance of S.127(3)(b). But the provision contained in S.127(3)(b) is introduced by misconception that mahr is amount payable on Divorce.
Article 44 of Indian Constitution, where provision is made for Uniform Civil Code has become a dead letter. There is no evidence of any official activity for the formulation of UCC.
The Uniform Civil Code will remove desperate loyalties to laws with conflicting ideologies and help for national integration.
The Judgement recognised the right of maintenance of Muslim Divorced wife who is unable to maintain herself in cases where husband has sufficient economic means. It made observation that Mahr is not the amount payable ‘on Divorce’. It critically analysed the provisions of Mahr and its object under Muslim Personal Law.
“The views of the authors are personal“