Mohd. Ahmed Khan V. Shah Bano Begum & Ors.

Author: Manishka Seal

Student, Amity University, Kolkata


Introduction:

The Shah Bano Begum case is a landmark judgement in Indian history. In this case, the Supreme Court favoured the right for maintenance to be given to an aggrieved divorced Muslim woman. It is considered to be a controversial lawsuit, which goes against Islamic ideologies. It fought for the rights of Muslim women in India.

In Mohd. Ahmed Khan v. Shah Bano Begum & Ors.[1], the Supreme Court held that Muslim women have the right to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973. The remedy under Section 125 is available to “wife” which includes a divorced wife, setting aside her religion.

Facts of the Case:

In 1932, Mohd. Ahmed Khan, an eminent lawyer in Indore, married Shah Bano Begum. She gave birth to three sons and two daughters. After 14 years of marriage, Mohd. Ahmed Khan married another woman in 1946. The woman was much younger than him. In 1975, when Shah Bano Begum was 62 years old, she was disowned by her husband and was thrown out of her matrimonial house, with her children.  Mohd. Ahmed Khan used to pay Rs. 200 per month as maintenance. Later, he abruptly abandoned his promise and stopped giving her any maintenance. Owing to lack of source of income to maintain her 5 children, Shah Bano, in April 1978, brought an appeal before the Judicial Magistrate of Indore, under Section 125[2] of the Code of Criminal Procedure, 1973. In November 1978, Mohd. Ahmed Khan divorced his wife by uttering the irrevocable ‘triple talaq’. After that, he defended himself in court, saying that since Shah Bano was not legally his wife anymore, he is not liable to pay any financial support to her. Nonetheless, the Local Court directed him to pay Rs. 25 per month as maintenance to Shah Bano. Though Rs. 25 had a lot of value, back in the 1970s, it was not sufficient to maintain 5 children and Shah Bano herself.  Thus, on 1st July 1980, Shah Bano filed a revisional application before the Madhya Pradesh High Court. The High Court of Madhya Pradesh increased the amount of maintenance to Rs. 179.20 per month. Mohd. Ahmed Khan filed an appeal before the Supreme Court. He argued that after the divorce, he was not supposed to have any sort of connection with his divorced wife, which is prohibited by Islamic law and is known as ‘Haram’. Thus, he is not legally responsible to maintain Shah Bano.

Issues and Judgement:

In this case, the judgement was passed on 23rd April 1985, by a bench of judges consisting of the then Chief Justice Y.C. Chandrachud, Justice Rangnath Misra, Justice D.A. Desai, Justice O. Chinnappa Reddy, Justice E.S. Venkataramiah. The court dismissed Mohd. Ahmed Khan’s appeal and validated the judgement of the Madhya Pradesh High Court. The following issues were addressed in the judgement:

  1. Whether the definition of “wife” involves a divorced Muslim woman too?

Section 125 (1) (b)[3] of the Code of Criminal Procedure, 1973 states that the definition of wife, includes in its ambit, a divorced woman, who has not remarried. There has no mention, whatsoever, of a woman belonging to a specific religion. Hence, the Supreme Court ruled that Section 125 is purely secular in character.


  1. Whether Section 125 of the Code of Criminal Procedure deals with Muslims?

Section 125 (3)[4] of the Code of Criminal Procedure, 1973 states that a Magistrate can issue a warrant or sentence a person who fails to comply with the maintenance order, without sufficient reason. The Supreme Court, in this case, held that this section applies to women of all religions, irrespective of their religions. There is no element of discrimination, based on religion, in this section. The provisions of Section 125 of the Code of Criminal Procedure, 1973 and the provisions under the Muslim Personal Law are different and there is no conflict between them.

  1. Is the amount of ‘Mehr’ given by the husband to his wife at the time of divorce adequate to maintain his divorced wife or is the husband still responsible to pay maintenance to his divorced wife?

The responsibility of a Muslim husband was confined to the period of ‘Iddat’ only. The Supreme Court held that it was not moral, since the divorced wife was not in a condition to maintain herself and the amount of ‘Mehr’ is not sufficient to exempt the husband from his duty to pay maintenance to his divorced wife. Thus, it was the obligation of the husband to maintain his wife. A husband is liable to maintain his divorced wife, till she is capable to sustain herself.

Post Developments:

Chief Justice Chandrachud stressed the importance of a Uniform Civil Code, provided in Article 44[5] of the Indian Constitution. Uniform Civil Code refers to a set of governing laws, which seeks to protect the fundamental and constitutional rights of every citizen, irrespective of their religion. It would serve national integration and help to eradicate fanaticism, supporting contrasting ideologies. This sparked a debate on Uniform Civil Code.

This case enraged many Muslims, who felt that the judgement went against Islamic law. Consequently, the government, led by Rajiv Gandhi, enacted the Muslim Women (Protection of Rights of Divorce Act), 1986[6], to invalidate the Supreme Court’s judgement. The Act provides that Muslim women, who are divorced, deserve sufficient maintenance till the Iddat period. If the divorced woman gives birth to a child, recently or after the divorce, then the husband is supposed to provide maintenance for the child up to 2 years from the birth date of the child.

Despite such circumstances, in Danial Latifi v. Union of India[7] and Shamima Farooqui v. Shahid Khan[8], the Supreme Court’s interpretation reassured and upheld the Shah Bano judgement.

Conclusion:

In spite of facing such adversity from society, Shah Bano Begum stood firmly on her decision. Not only did she bravely struggle against her husband, but she also fearlessly fought against the patriarchal society, which only favoured her husband and turned a blind eye to her situation. The Shah Bano case was a significant development in the fight for women’s rights. The Supreme Court, through its impartial judgement, preserved the faith the people had in the judiciary as well as the country.

[1] Mohd. Ahmed Khan v. Shah Bano Begum, 1985 AIR SC 945.

[2] Code of Criminal Procedure, 1973.

[3] Ibid.

[4] Supra note 2.

[5] India Const. art. 44.

[6] Muslim Women (Protection of Rights of Divorce Act), 1986.

[7] Danial Latifi v. Union of India, (2001) 7 SCC 740.

[8] Shamima Farooqui v. Shahid Khan, AIR 2015 SC 2025.

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