Date : 23rd April,1985
Bench : Chandrachud, Y.V.(CJ), Desai, D.A., Reddy, O. Chinnappa (J), VenkataramiahVenkatarmiah, E.S. (J), Mishra Rangnath
Mohammed Mohamed Ahmedemad Khan, anand advocate, was married to Shah Bano Begum in 1923 and five children were born out of thisout this marriage. In 1975, he drove her out of histhe house. In April 1978, the wife approached a Magistrate’s court under S. 125 of the Criminal Procedure Code, asking for maintenance of Rs. 500 per month, stating that her husband’s monthly income was over Rs. 5,000. In November,1978, the husband divorced his wife by pronouncing a triple talaq. He argued before the Magistrate that he was under nowas no obligation to provide any maintenance for her ( as she was no longer his wife) and that he had already paid maintenance to her under the Muhammadan law) at the rate of Rs. 200 per month for about two years. He also deposited a sum Rs. 3,000 in the court by way of dower during the iddat period. In August,1979, the Magistrate ordered him to pay Rs.25 to his divorced wife every month – an amount later described by the Supreme court as “a princely sum of Rs.25 per month”. In appeal, the High Court contending that this amount was “excessive”.
Issued raised :
The two main questions before a 5-Member Bench of the Supreme Court were:
Whether S. 125 of the Criminal Procedure Code, which provides for maintenance of wives, including a divorced wife who has not re-married, applies to Muslims?.
Whether, under the Criminal Procedure Code, if a divorced woman has received the whole amount payable to her “on divorce” under customary or personal law, the maintenance order may be cancelled by the court?. In other words, can it be said that mahr (or dower) payable under Muhammadan law is an amount payable “on divorce”?
InAs regards to theregards the first question, the Supreme Court held that under S. 125 of the Criminal Procedure Code, a wife who is not maintained by the husband is entitled to approach the court for maintenance. For this purpose, the word “wife” includes a divorced spouse,which is is not at all relevant in such a casesuch case, as the Code applies to all. In other words of the court, “Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant” for S. 125 of the Code. As this section is secular in character, it applies to Muslims also.
In answer to the secondto second question, the court held that it cannot be said that, under MuhammadanMuhmmadan law, dower is an amount payable “on divorce”. Very often, although the dower is fixed at the time of marriage, a part of it (called deferred dower) is payable on dissolution of marriage by death or divorce. However, this does not mean that it is an amount payable “on divorce”. Divorce may be a convenient or identifiable time for payment of deferred dower, but such payment is not occasioned by divorce. It would be absurd to say that this amount is payable in consideration of divorce. On the contrary, it is an obligation imposed by Muslim law omnn
on the husband as a mark of respect for the wife. The Supreme court held that the wife did have such a right and observed that even the quranKoran imposes an obligation on a Muslim husband to make a provision for his divorced wife Lamenting Act that Art. 44 of the constitution had remained a dead letter, the then Chief Justice of India, Justice ChandrachudChandradhud, observed as under: “ A common civil code will help the cause of national integration by removing disparate loyalties to law which have conflicting ideologies.
The response to this judgement was prompt, strong and reactionary. Protestors took to the streets, disturbances erupted all over the country and Muslim leaders vowed that they were prepared for any sacrifice to protect their personal law. The government, led by Prime Minister Rajiv Gandhi, reacted immediately and Parliament passed the Muslim Women’s (Protection of Rights in Divorce) Act, 1986, which effectively nullified the decision of the Supreme court in Shah Bano’s case. The judgement of the court was delivered by Chandrachud, (C.J). women are one such segment. “Na stree swatantram arhatiswatantramarhati” said Manu, the law giver: The womenwomen does not deserve independence. And, it is alleged that the ‘fatal point in Islam is the ‘degradation of woman’(1). To the Prophet, is ascribed the statement, hopefully wrongly, that ‘Woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore treat your wives kindly. The appeal arising out of an appellation filed by a divorced Muslim woman for maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to or Muslim women generally but, to all those who are , aspiring to create an equal society of men and women and, lure themselves into the belief that the mankind has achieved a remarkable degree of progress in that direction. ‘Wife means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim women, so long as she has not remarried, is a ‘wife’ for the purpose of section 125. The statutory right available to her under that section is unaffected by the provision of the personal law applicable to her. It is too well known that “ A Mouhammadan 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. The explanation 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. It shows, unmistakably, that section 125 overrides the personal law, if there is anyis any there conflict between the two. Belief Islam does not mean mere confession of the existence of something. It really means the translation of the faith into action. This case was considered to be one of the landmark case.