Moot Court
Mohammed Ahmed Khan v. Shah Bano Begum (1985) AIR 945
K. Anand (H312001) K. Anusha (H312002) K. Ashwini (H312004) V. Sahaana (H312047) V. Savitha Sree (H312049) V. K. Vivek Siva (H312058) B.L. (Hons.) Semester V SOEL TNDALU
Team Members K. Anand
Roll Number H312001
Presentation Area
Subject Matter
Relevant Provisions
K. Anusha
H312002
Arguments (Appellant)
K. Ashwini
H312004
Arguments (Respondent)
V. Sahaana
V. Savitha Sree
V. K. Vivek Siva
H312047
H312049
H312058
Aftermath
Current Scenario
Facts
Issues
Judgment
Interpretation
Case Laws
Observations
CONTENTS
Facts
Subject Matter
Relevant Provisions
Issues
Arguments (Appellant)
Arguments (Respondent)
Judgment
Interpretation
Case Laws
Observations
Aftermath
Current Scenario
The husband, Mohammed Ahmed Khan (appellant), who is an advocate by profession, was married to the wife, Shah Bano Begum (respondent) in 1932. Three sons and two daughters were born out of that marriage. After 43 years of marriage, the husband drove the wife out of the matrimonial home in 1975.
In April 1978, the wife filed a petition against the husband under Section 125 of the Criminal Procedure Code, 1973, in the court of the learned Judicial Magistrate (First Class), Indore. She asked for maintenance at the rate of Rs. 500 per month, in view of the professional income of the husband which was about Rs. 5000 per month.
On 6th November 1978, the husband divorced his 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 to provide 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 or Mahr” during the period the of “iddat”.
In August 1979, the learned Magistrate directed the husband to pay a princely sum of Rs. 25 per month to the wife by way of maintenance.
In July 1980, in a revision application filed by the wife, the High court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month.
The husband has then filed the appeal by special leave before the Supreme Court, which is to be decided by a Five-Judge Bench.
Maintenance (Alimony) is an area of the law that falls under the personal codes, and Muslim law does not entitle women to ongoing maintenance. A divorced Muslim woman is entitled to her Mahr during the period of “iddat”. Following that, her family and community may help to support her. When the case reached the Supreme Court in 1985, it turned to the Code of Criminal Procedure, 1973, which applies to everyone.
Section 125-128 contained in Chapter IX (Order for Maintenance of Wives, Children and Parents) of the Code of Criminal Procedure, 1973 provide for maintenance of wives, children whether legitimate or illegitimate, and parents, against persons who neglect or refuse to maintain them.
Though the remedy provided in the Sections 125-128 is of a civil nature, it has nevertheless been included in the Criminal Procedure Code, 1973 with a view to ensure speedy relief to neglected wives, children or parents, who are not left to be beggars and destitute and compelled to live a life of immorality and criminality. The object of providing maintenance under Section 125 is to prevent starvation and vagrancy in the society which may lead to commission of crime by those who are unable to maintain themselves.
The proceedings under Section 125 of the Code of Criminal Procedure, 1973, not being in the nature of criminal proceedings, any neglect or refusal by the person in the maintenance of wives, children whether legitimate or illegitimate, and parents is not an offence. Accordingly, an application made under Section 125 is not a complaint under the Code of Criminal Procedure, 1973 and the person proceeded against under Section 125 is not an accused person.
Article 44 of the Indian Constitution
“Uniform civil code for the citizens . – The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
Sec. 125 of the Code of Criminal Procedure Code, 1973
“Order for maintenance of wives, children and parents. – (1) If any person having sufficient means neglects or refuses to maintain – (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person Explanation. – For the purposes of this Chapter, –
(a) “minor” means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority; (b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month‟s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation. – If a husband has contracted marriage with another woman or keeps a
mistress, it shall be considered to be just ground for his wife‟s refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceedings, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.”
Sec. 126 of the Code of Criminal Procedure Code, 1973
“Procedure. – (1) Proceedings under section 125 may be taken against any person in any district– (a) where he is, or (b) where he or his wife resides, or (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (2) All evidence to such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. (3) The Court in dealing with applications under section 125 shall have power to make such order as to costs as may be just.”
Sec. 127 of the Code of Criminal Procedure Code, 1973
“ Alteration in allowances. – On proof of a change in the circumstances of any person, receiving, under section 125 a monthly allowance for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance, to his wife, child, father or mother, as the case may be, the Magistrate may make such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance, as the case may be. (2) Where it appears to the Magistrate that, in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that – (a) the woman has, after the date of such divorce, remarried; cancel such order as from the date of her remarriage; (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order(i) In the case where such sum was paid before such order, from the date on which such order was made, (ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman; (c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be after her divorce, cancel the order from the date thereof. (4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom monthly allowance for the maintenance and interim maintenance
or any of them has been ordered to be paid under section 125, the civil court shall take into account the sum which has been paid to, or recovered by, such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.”
Sec. 128 of the Code of Criminal Procedure Code, 1973
“Enforcement of order of maintenance. – A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be, shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the nonpayment of the allowance, or as the case may be, expenses, due.”
1. Whether the payment of „Mahr‟ by the husband on divorce is sufficient to absolve him of any duty to pay maintenance to the wife? 2. Whether there is any provision in the Muslim Personal Law under which a sum is payable to the wife 'on divorce'? 3. Whether Section 125 of the Criminal Procedure Code, 1973 applies to Muslims? 4. Whether Section 125 would prevail over the personal law of the parties, in cases where they are in conflict? 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?
Section 127 of the Code of Criminal Procedure, 1973 provides for alteration of maintenance allowance. According to Section 127 (3) (b), “Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order – (i) In the case where such sum was paid before such order, from the date on which such order was made, (ii) In any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;”
The appellant had already divorced the respondent by an irrevocable “talaq”. As the respondent had ceased to be his wife by reason of the divorce granted by the appellant, he is under no obligation to provide maintenance for her.
In the case of Bai Tahira A v. Ali Hussain Fissalli Chothia (1979), the Court held that, “ payment of Mahr money, as a customary discharge is within the cognizance of that provision” (under Sec 127(3)(b) of the Code of Criminal Procedure, 1973). The
concept and meaning of „Mahr‟ under the Muslim Personal Law is well defined in certain text books of learned scholars (Mulla 1, Paras Diwan2). Further, under the Muslim Personal Law, the liability of the husband to maintain a divorced wife is limited to only during the period of “iddat”. In support of this proposition, the
1
Mulla's Mahommedan Law (18th Edition, page 301) “Mahr is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage." 2 Dr. Paras Diwan’s Muslim Law in Modern India (1982 Edition, page 130) "Mahr is not payable "in consideration of marriage" but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the fact that non-specification of Mahr at the time of marriage does not affect the validity of the marriage.
appellant relies upon the following statement of law as contained in certain text books of learned scholars (Mulla 3, Tyabji4, Paras Diwan5). The appellant had already paid maintenance to the respondent wife at the rate of Rs. 200 per month for about two years and further he has deposited a sum of Rs. 3000 in the court by way of “dower or Mahr” during the period the of “iddat”.
Clause (b) of the Explanation to section 125 (1) of the Criminal Procedure Code, 1973, which defines "wife" as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. 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 married, is a wife for the purpose of section 125 of the Criminal Procedure Code, 1973. Thus, the statutory right available to the respondent under section 125 of the Criminal Procedure Code, 1973, is unaffected by the provisions of the personal law applicable to her.
One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and in duration, of the husband's liability to provide for the maintenance of an indigent wife who has been divorced by him. The contention of appellant that, according to Muslim Personal Law, his liability to
3
Mulla's Mahommedan Law (18th Edition, page 301) "Where an order is made for the maintenance of a wife under Section 488 of the Criminal Procedure Code (Section 488 of the Criminal Procedure Code, 1898 which is replicated substantially as Section 125 of the Criminal Procedure Code, 1973) and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of iddat. After divorce, the wife is entitled to maintenance during the period of iddat. The result is that a Mahommedan may defeat an order made against him under Section 488 by divorcing his wife immediately after the order is made. His obligation to maintain his wife will cease in that case on the completion of her iddat.” 4 Tyabji's Muslim law (4th Edition, pages 268) "On the expiration of the iddat after talaq, the wife's right to maintenance ceases, whether based on the Muslim Law, or on an order under the Criminal Procedure Code" 5 Dr. Paras Diwan’s Muslim Law in Modern India (1982 Edition, page 130) "When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat. On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognize any obligation on the part of a man to maintain a wife whom he had divorced."
provide for the maintenance of his divorced respondent wife is limited only to the period of iddat, despite the fact that respondent wife is unable to maintain herself, cannot be accepted, since the Muslim Personal Law does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973.
Under the Muslim Personal Law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that the appellant may settle any amount he likes by way of dower upon his respondent wife, but one must have regard to the realities of life. 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 the Muslim Personal Law do not countenance cases in which the respondent wife is unable to maintain herself after the divorce. Thus, the application of the statements of law in text-books on Muslim Law must be restricted to only that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife.
The appellant husband and the respondent wife had been married for 43 years before the ill and elderly respondent wife had been thrown out of her husband‟s residence. The respondent wife had managed the matrimonial home for 43 years and had borne and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life and remarriage is an impossibility. The appellant husband, a successful Advocate, is reluctant to pay maintenance to his divorced wife, who had shared his life for almost half a century and mothered his five children and was in desperate need of money to survive.
Dismissing the appeal and confirming the judgment of the Madhya Pradesh High Court, the Supreme Court held the following decisions:
The payment of “Mahr” by the husband on divorce is not sufficient to absolve him of the duty to pay maintenance to the wife.
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.
Section 125 of the Criminal Procedure Code, 1973 applies to all citizens irrespective of their religion.
Section 125 of the Criminal Procedure Code, 1973 overrides the personal law, if is any there conflict between the two.
There is no conflict between the provisions of Section 125 of the Criminal Procedure Code, 1973 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.
Further, the Supreme Court ordered that the appellant will pay the costs of the appeal to respondent and concluded that it would be open to the respondent to make an application under Section 127 (1) of the Code of Criminal Procedure, 1973, for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section.
The Supreme Court held that Section 125 of the Criminal Procedure Code, 1973 applies to all citizens irrespective of their religion and overrides the personal law, if there is any conflict between the two. Thus, there is no conflict between the provisions of Section 125 of the Criminal Procedure Code, 1973 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.
Referring to Section 125 of the Code of Criminal Procedure, 1973, the Supreme 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.” The Court gave the example of the Islamic Law regarding
polygamy: “It is too well-known that a Mahommedan 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. It 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, showing, unmistakably, that Section 125 overrides the personal law, if is any there conflict between the two.” Further, the Supreme Court held that, “ 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.”
The Supreme Court held that the payment of “Mahr” by the husband on divorce is not sufficient to absolve him of the duty to pay maintenance to the wife and 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.
Though all the authors (Mulla, Tyabji, Paras Diwan) are of the view that the position in Islamic Law is that the divorced wife is entitled to maintenance from the husband only upto the iddat period, the Supreme Court on referring to the views put forth by the learned scholars in the present case were of the opinion 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. 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. ”
The Supreme Court held that , ”Mahr” is not the amount payable by the husband to the wife on divorce and therefore, does not fall within the meaning of section 127 (3) (b) of the Code of Criminal Procedure, 1973. It observed that, “Divorce may
be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression 'on divorce', which occurs in section 127 (3) (b) of the Code.” In sharp contrast to the learned scholars‟ view regarding “Mahr”, the
Supreme Court said that Mahr is neither “consideration of marriage” nor paid by the husband “as a mark of respect for the wife. It opined that, “ If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the Marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce. A man may marry a woman for love, looks, learning or nothing at all. And he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable 'on divorce'. ”
The Supreme Court after studying the Islamic Scriptures in Aiyats (Verses) 241 6 and 2427 of the Quran was of the opinion that, “These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife.”
6
Aiyat 241 “Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with a year's maintenance and should not be turned out of their homes. But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way; Allah is AllPowerful, All-wise. Likewise, the divorced women should also be given something in accordance with the known fair standard. This is an obligation upon the God- fearing people.” 7 Aiyat 242 “Thus Allah makes clear His commandments for you: It is expected that you will use your common sense.”
The Supreme Court was of the view that the payment of “Mahr” does not absolve the husband‟s duty to pay maintenance to his wife under Section 127(3)(b) of Code of Criminal Procedure, 1973. It stated that, “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.” The Supreme
Court reached the above conclusion in support of the ruling in Bai Tahira A v. Ali Hussain Fissalli Chothia (1979)8 wherein it was held that, “ the payment of illusory amounts (referring to ‘Mahr’) 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.”
The Supreme Court referred the decisions in the cases of Bai Tahira A v. Ali Hussain Fissalli Chothia (1979) and Fuzlunbi v. K. Khader Vali (1980)9 to decide the question as to whether Section 125 of the Code of Criminal Procedure, 1973, applies to Muslims. The decisions in the above two cases took the view that the divorced Muslim wife is entitled to apply for maintenance under Section 125 of the Code of Criminal Procedure, 1973. The Supreme Court in the present case quoted the above decisions and clarifying an error in the ruling of Bai Tahira A v. Ali Hussain Fissalli Chothia (1979), added that “ Mahr, not being payable on divorce, does not fall within the meaning of that provision” (Section 127(3)(b) of Code of Criminal Procedure, 1973).
The Supreme Court referred to the decision in the case of Nanak Chand v. Shri Chandra Kishore Agarwala (1970)10 to decide the question as to whether Section 125 of the Code of Criminal Procedure, 1973, applies to all the citizens irrespective of their religion. The decision in the above case took the view that Section 488 (of the Code of Criminal Procedure, 1898) was “applicable to all persons belonging to all religions and has no relationship with the personal law of the parties”. Affirming the
8
1979 AIR 362 1980 AIR 1730 10 1970 AIR 446 9
decision in Nanak Chand v. Shri Chandra Kishore, the Supreme Court in the present case upheld that Section 488 of the Code of Criminal Procedure, 1898 (which is replicated in substance as Section 125 of Code of Criminal Procedure, 1973) is applicable to all the citizens irrespective of their religion, thereby concluding that Section 125 of the Code of Criminal Procedure, 1973, is applicable to Muslim women.
The Supreme Court commented on the All India Muslim Law Board that, “ It is a matter of deep regret that some of the interveners who supported the appellant, took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women who are unable to maintain themselves. The written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how a Muslim divorce should maintain herself. The facile answer of the Board is that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephew and cousins, to support her. This is a most unreasonable view of law as well as life. ”
Regarding the need for Uniform Civil Code, the Supreme Court observed that, “Article 44 of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which incharged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of
a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.”
The legal questions that arose in Mohammed Ahmed Khan v. Shah Bano Begum (1985) are not unique to this case. Nonetheless, the controversy that this case created makes it a landmark decision in Islamic Jurisprudence within India. What caused this controversy is extremely interesting because unlike its precedents, namely, Bai Tahira A v. Ali Hussain Fissalli Chothia (1979) and Fuzlunbi v. K. Khader Vali (1980), the judgment did not confine itself to Section 125 of the Criminal Procedure Code, 1973, but went on to interpret the provisions of the Quran itself. What might have infuriated the Muslim community in India is the fact that the Apex Court took on the task of interpreting the Shariat Law. This might have been perceived as “interference” in their personal laws by the Muslim community.
The obiter dicta stressed on the importance of a uniform Civil Code in the country and the radical Islamists raised a hue and cry that the judgment suggested that the legislative laws should prevail over the Shariat Law. The ruling in Mohammed Ahmed Khan v. Shah Bano Begum was flawless in its ratio decidendi but rather insensitive in its obiter dicta – the latter could be, and indeed was, misused in a manner that was provocative for many sections of the Muslims in India. For this reason, it raised a big controversy which later became political and eventually led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986, in a bid to nullify the secular judgment of the Supreme Court in Mohammed Ahmed Khan v. Shah Bano Begum case.
A number of writ petitions had been filed in 1986-87 challenging the Constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, on the plea that it had overruled the decision in Mohammed Ahmed Khan v. Shah Bano Begum case in an entirely unconstitutional way. Interpreting the said Act in tune
with the ruling in the case, the Supreme Court has now decided in Danial Latifi v. Union of India (2001) that the Act is constitutionally valid and has not superseded the decision in Mohammed Ahmed Khan v. Shah Bano Begum case.
It is erroneous to think that after the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim women cannot claim maintenance under Section 125 of the Code of Criminal Procedure, 1973. The Muslim Women (Protection of Rights on Divorce) Act, 1986 furnishes a penal law and applies to the Muslims of all schools of law “notwithstanding anything contained in any other law for the time being in force.” Thus, consequent to the passing of the said Act, the liability for maintenance of divorced Muslim wife on her husband is limited only to the period of “iddat” and thereafter on her parents or members of the family and in the case she has no parents or any member of her family, then the liability will be on the Muslim Wakf Board.
Section 511 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, Act gives the divorced couple an “option to be governed by the provisions of Sections 125-128 of the Code of Criminal Procedure,1973”, which they can jointly or severally exercise at the first hearing of the case. Thus, now before proceeding under Section 125 in a Muslim woman‟s maintenance case, the Magistrate will first hear the husband and wife both and it is only when they jointly or separately declare that they would prefer to be governed by the provisions of Sections 125-128 of the Code of Criminal Procedure, 1973, the Magistrate would start proceedings under Section 125. In the absence of such declaration, the divorced Muslim wife‟s petition for
11
Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 , “Option to be governed by the provisions of Section 125 to 128 of Code of Criminal Procedure, 1973. – If, on the date of the first hearing of the application (date fixed in the summons for the attendance of the respondent) under sub-section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Section 125 to 128 of the Code of Criminal Procedure, 1973, and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly.”
maintenance would not be governed by the provisions of Section 125 of the Code of Criminal Procedure, 1973.
As per the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman is entitled to reasonable and fair provision and maintenance from her former husband and this should be paid within the period of “iddat”. In the case of Shakeela Parveen v. Haider Ali (2000)12, the Court held that the expression “during iddat period” should not be strictly construed to mean actual “iddat” period but it should be extended till a Muslim divorced female enters remarriage. The liability to pay maintenance did not come to end by merely pronouncing talaq.
It is not sufficient in law to allow the husband to disown liability merely by uttering the word „talaq‟ three times. For the purposes of Section 125 of the Code of Criminal Procedure, 1973 and Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the talaq must be for a reasonable cause and be preceded by attempts of reconciliation between the husband and the wife by two arbitrators. Further, the plea of the husband that Mahr had already been paid to the divorced Muslim wife and iddat period was over is not a relevant ground to disown liability for payment of maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Courts in India have liberally interpreted "reasonable and fair provision" that a woman is entitled to during her iddat period very broadly to include amounts worth hundreds of thousands of rupees and have extended it for the entire life of the divorced wife until she remarries. More recently, the Supreme Court in Danial Latifi v. Union of India (2001)13 read the Act with Article 14 and 15 of the Indian Constitution which prevent discrimination on the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. Further the Supreme Court construed the statutory provision in such a manner that it does not fall foul of Articles 14 and 15. The provision in question is
12
(2001) 2 CALLT 413 HC 2001 AIR 3958
13
Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that "a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband". The Court held this provision means
that reasonable and fair provision and maintenance is not limited for the iddat period (as evidenced by the use of word "within" and not "for"). It extends for the entire life of the divorced wife until she remarries. In a little noticed case of Shabana Bano v. Imran Khan (2009)14, the Supreme Court has again intervened in support of maintenance for a divorced Muslim woman. Instead of Shahbano, this time it was Shabano Bano who approached the courts for maintenance, appealing against a lower court‟s decision that a divorced Muslim woman was entitled to maintenance only during the iddat period to ensure she is not pregnant. The Apex Court held that, divorced Muslim women who are having no means to maintain herself, is entitled to get maintenance from their former husband even after the period of iddat, as long as she did not remarry, and she can claim the same under Section 125 of the Code of Criminal Procedure, 1973 itself.
14
(2010) 1 SCC 666
