The Shah Bano Case

Case law

The Shah Bano Case

Mohd. Ahmed Khan v. Shah Bano Begum

Mohd. Ahmed Khan v. Shah Bano Begum And Ors

Citation - 1985 SCR (3) 844

Decided -             23 April 1985

Bench - Chandrachud, Y.V. ((Cj),

              Desai, D.A., Reddy,

              O. Chinnappa (J),

              Venkataramiah, E.S. (J),

              Misra Rangnath

 

shah bano begum case is a mile stone in personal law .the Muslim women"s search for justice and the beginning of the political battle over personal law. A 60-year-old woman went to court asking maintenance from her husband who had divorced her. The court ruled in her favour. Shah Bano was entitled to maintenance from her ex-husband under Section 125 of the Criminal Procedure Code (with an upper limit of Rs. 500 a month) like any other Indian woman. The judgment was not the first granting a divorced Muslim woman maintenance under Section 125. But a voluble orthodoxy deemed the verdict an attack on Islam.

 

The Congress Government, panicky in an elect

Facts -

Under section 125(1) (a), if any person, having sufficient means neglects or refuses to maintain his wife, unable to maintain 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 at such monthly rate not exceeding five hundred rupees in the whole. Under Explanation (b) thereunder " wife" includes a woman     who has been divorced by, or has obtained a divorce from her   husband and   has            not   remarried. 

 

Under the explanation below sub section 3 of section 125, if a husband has contracted marriage with another woman or  keeps  a mistress it  shall be considered to be a just ground for his wife"s refusal to live with him. Keeping this in view, if in the trial arising out of 845 an application made under  section 125,  and if the husband offers to maintain his wife on condition of living with him, the Magistrate may consider any of the grounds of the wife"s refusal to  live  with her  husband  before  ordering the maintenance. Under section 127 (3) (b), the Magistrate shall cancel the order passed by him under section 125, in favour of a woman who has been divorced by,    or has obtained a divorce from her husband if the woman who has been divorced by her husband 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.

    

The appellant.  Who is an advocate by profession was married to the respondent in 1932.  Three sons and           two daughters were born of that marriage in 1975; the appellant drove the respondent out of the matrimonial home.

In April 1978, the  respondent filed a petition against the appellant under section  125 of the Code of Criminal Procedure, in the Court of  the  Judicial              Magistrate  (First  class)  Indore, asking for  maintenance at the rate of Rs. 500 per month, in view of the professional  income of the appellant which was about Rs.  60,000  per      annum.On  November  6,  1978 ,the appellant divorced  the respondent by an irrevocable "talaq" and took  up the  defense that she had ceased to be his wife by reason  of the divorce granted  by      him;  that  he     was, therefore, under  no obligation to provide  maintenance for her; that  he had  already paid maintenance for  her at the rate of            Rs. 200 per month for about two years, and that, he had deposited  a sum  of Rs. 3,000 in the court  by way of "dower or  Mahr" during the period  of "iddat".  In August 1979, the Magistrate  directed the appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance.

 

 In   a  revisional  application  Sled  by the respondent the High Court  of Madhya  Pradesh enhanced the amount of  maintenance to  Rs. 179.20  per month.  Hence the appeal by special leaves by the husband.

The view taken in the earlier  two three                Judges" Benches of the Supreme Court presided over  by Krishna  Iyer, J. and reported in [1979] 2 SCR 75, and [1980]  3 SCR  1127, to the effect that section 125 of the Code applies to Muslims also and that therefore, the  divorced Muslim wife is entitled to apply for maintenance was doubted, by  the Bench consisting of Fazal Ali and Varadarajan, JJ.,  since in  their opinion the said decisions  required  reconsideration  by a  larger  Bench consisting of  more than  three judges   as the decisions are not only in direct contravention of the plain and unambiguous language  of section  127 (3)  (b) of  the Code which far  from overriding  the Muslim law on the subject protects and  applies the same in case where a wife has been divorced by  the husband  and the  dower specified  has been paid and  the period  of iddat has been  observed but also militates against  the fundamental concept of divorce by the husband and  its consequences under the Muslim law which has been expressly protected by section 2 of the Muslim Personal Law (Shariat) 

Application Act, 1937-an Act which was not noticed in the said two decisions.

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