The case started in 1985 in Indore, Madhya Pradesh, where Shah Bano, a 62-year-old dejected lady, and a mother of five, filed a suit for nonpayment of divorce settlement against her better half, Ahmed Khan, from whom she had been separated for forty-six years. Shah Bano requested a month to month support of 500 rupees, in light of Section 125 of the Criminal Procedure Code, 1973 (CrPC 1973). Referring to the Shariʿa, Ahmed Khan divorced her, reimbursed 3,000 rupees of her dowry (Mehr), and stopped all alimonies.
Facts of the case:
In 1932, Shah Bano, a Muslim lady, was hitched to Mohammed Ahmed Khan, a wealthy and notable lawyer in Indore, Madhya Pradesh, and had five kids from the marriage. Following 14 years, Khan accepting a more youthful lady as the second spouse and following quite a while of living with the two wives, he separated from Shah Bano, who was then matured 62 years. In April 1978, when Khan quit giving her the ₹200 every month he had guaranteed, asserting that she had no way to help herself and her kids, she documented a criminal suit at a neighborhood court in Indore, against her better half under segment 125 of the Code of Criminal Procedure, approaching him for an upkeep measure of ₹500 for herself and her kids. On November 1978 her better half gave an unalterable talaq (separate) to her which was his right under Islamic law and took up the protection that consequently Bano had stopped to be his significant other and in this manner, he was under no commitment to give support to her as aside from endorsed under the Islamic law which was altogether ₹5,400.
In August 1979, the neighborhood court guided Khan to pay a total of ₹25 every month to Bano by a method of upkeep. On 1 July 1980, on a revisional use of Bano, the High Court of Madhya Pradesh upgraded the measure of support to ₹179.20 every month. Khan at that point documented a request to advance under the watchful eye of the Supreme Court guaranteeing that Shah Bano isn’t his duty any longer since Mr Khan had a second marriage which is likewise allowed under Islamic Law.
- Whether Section 125 of the Criminal Procedure Code will apply to Muslims.
- Whether the mere payment of Mehr by the husband on divorce is sufficiently adequate to free him of any obligation to pay upkeep to the wife from that point.
Examination of the Judgment:
Concerning Sections 125 and 127 (3) (b) of the Code, the spouse had documented a suit for support under section 125 of CrPC. The spouse built his defence on Section 127(3)(b) of CrPC. Stanzas (Aiyats) 241 and 242 of the Quran show that as per the Prophet, there is a commitment on Muslim spouses to accommodate they’re separated from wives. (See ‘The Holy Quran’ by Yusuf Ali, Page 96). The translation of Aiyats 240 to 242 in ‘The Meaning of the Quran’ (Vol. I, published by the Board of Islamic Publications, Delhi) reads thus:
Aiyats 240-241: “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 the homes of their own accord, you shall not be answerable for whatever they fairly choose for themselves; Allah is All-Powerful, All-wise. Likewise, divorced women should also be given something under the known fair standard. This is an obligation upon the God-fearing people.”
Aiyat 242: “Thus Allah makes clear His commandments for you: It is expected that you will use your common sense.”
The Supreme Court after studying the Scriptures believed: “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.” (Paragraph 25). The Supreme Court in the current case cited Bai Tahira v. Ali Hussain Fidaalli Chothia and Fuzlunbi v. K. Khader Vali as these decisions took the view that the separated from Muslim spouse is qualified for apply for upkeep under Section 125. The summit court additionally explained a mistake in the decision of Bai Tahira included that “Mehr, not being payable on separate, doesn’t fall inside the significance of that arrangement (Section 127(3) (b) of CrPC)” (para 33). The Court was of the view that the instalment of Mehr doesn’t clear the spouse’s obligation to pay support to his significant other under Section 127(3) (b) of the Code.
Whether there is any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’. Referring to the views put forth by the learned scholars (Mulla, Tyabji and Paras Diwan), the Court concluded that “These statements in the textbook 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.” (Paragraph 16) “The sum settled by way of Mehr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after.
But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. 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. We believe that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife” (para 16)
Dismissing the appeal, the Court held:
1) The instalment of Mehr by the spouse on divorce isn’t adequate to pardon him of the obligation to pay maintenance to the wife.
2) The risk of the spouse to pay maintenance to the wife stretches out past the iddat period if the wife doesn’t have adequate intends to look after herself.
3) Section 125 of the Code applies to all residents regardless of their religion
4) Section 125 supersedes the personal law if there is any contention between the two.
5) There is no contention between the arrangements of Section 125 and those of the Muslim Personal Law on the topic of the Muslim spouse’s commitment to give maintenance to a divorced wife who can’t look after herself.
Citation of the case: [1985 SCALE 767 = 1985 SCR 844 = 1985 SCC 556 = AIR 1985 SC 945]
Judges: the bench consisted of 5 judges, Chief Justice Chandrachud, Rangnath Misra, D. A. Desai, O. Chinnappa Reddy, and E. S. Venkataramiah