Shah Bano Case: Section 125 of Criminal Procedure Code is secular in nature

Charu Singhal | Bharati Vidyapeeth University | 20th October 2019

MOHD. AHMED KHAN V. SHAH BANO BEGUM

DATE OF JUDGMENT: 23 April, 1985

CITATION: 1985 AIR 945, 1985 SCR (3) 844

BENCH: Chandrachud, Y.V. (CJ), Desai, D.A (J), Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J), Misra Rangnath (J)

FACTS OF THE CASE

• The appellant, who was an advocate by profession, was married to the respondent in 1932. Three sons and two daughters were born of that marriage. He divorced his wife; the reason being disputes between Shah Bano’s children and her husband’s other wife. As per Muslim personal law, he paid rupees 3000 to his divorced wife during the period of iddat.

• In April 1978, the respondent filed a petition against the appellant under Sec. 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore asking for maintenance at the rate of Rs. 500 per month.

• On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq. His defence to the respondent’s petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, he was therefore under no obligation to provide maintenance to her and also that 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 during the period the of iddat.

• In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. It may be mentioned that the respondent had alleged that the appellant earns a professional income of about Rs. 60,000 per year. In July, 1980, in a revision application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month.
• Her former husband, Mohammed Ali Khan petitioned the Supreme Court in 1981 to challenge the decision of the High Court.

LEGAL ISSUES

1. Whether section 125 of the Code applies to Muslims also as has been concluded by two decisions of this Court which are reported in Bai Tahira v. Ali Hussain Fidalli Chothia[1] and Fazlunbi v. K. Khader Vali.[2]
2. Whether the payment of Mahr by the husband on divorce is sufficient enough to rid him of any duty to pay maintenance to his wife.

JUDGEMENT

The Constitutional Bench delivered a unanimous verdict and upheld the decision of the High Court.

• The court alluded to the religious neutrality of Section 125 of CrPC stating the religion of the spouses was wholly irrelevant as the purpose of this section was to protect dependents from vagrancy and destitution and hence, there was no reason to exclude Muslims from its ambit. Section 125 is secular in nature and would prevail over the personal law of the parties, in cases where they is any conflict.

• The Court refused to accept that an order for maintenance under Section 125 could be struck down by Section 127 only for the mere fact that the husband had made a payment to the wife at the time of divorce under the concerned personals laws. The court thus looked into the meaning of ‘Mahr’ and inferred that it was not a payment that the husband was liable to make to a Muslim women on divorce but was instead an amount that a wife was entitled to in respect of consideration of marriage. The court held that it was only paid on divorce but the meaning of it was rather different and the payment of Mahr was no bar to the Court awarding maintenance. The court also referred to the Quran during its interpretation that husbands were bound by the duty to maintain their wives. The Supreme Court thus allowed maintenance of Rs. 179.20 per month.
• Though Bai Tahira was correctly decided, we would like, respectfully, to draw attention to an error which has crept in the judgment There is a statement at page 80 of the report, in the context of Sec. 127 (3)(b), that “payment of Mahr money, as a customary discharge, is within the cognizance of that provision”. We have taken the view that Mahr, not being payable on divorce, does not fall within the meaning of that provision.

The Court also expressed anguish in view of Article 44 of Indian Constitution in relation to bringing of Uniform Civil Code in India as it remained a dead letter and held that a common civil code will help the cause of national integration by removing disparate loyalties to laws with conflicting ideologies. The honorable court emphasized and clearly stated in its judgment that the fact that fragmentary attempts of the court to bridge the gap between personal laws cannot take the place of a common civil code.

Supreme Court further held that “for these reasons, we dismiss the appeal and confirm the judgment of the High Court. The appellant will pay the costs of the appeal to respondent, which we quantify at rupees ten thousand. It is needless to add that it would be open to the respondent to make an application under Sec. 127(1) of the Code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section.”

CRITICAL APPRAISAL:

To give a just appraisal of the judgment it is important to have a little backdrop of the time back when this judgment was delivered (April 1985). Muslim Women were not as educated and self-dependent like the rest of the Woman. Education was denied to them and they were not allowed to work either, hence post-divorce the need for maintenance only became greater.

In India there are different personal laws governing each community like Muslim Laws are governed by their own Personal laws, Hindu Laws are governed by the Hindu Marriage Act, Hindu Succession Act. These personal laws are not penalizing in nature. For example, adultery becomes a ground of divorce and Judicial Separation. But if you want your husband to be punished for adultery, you have to resort IPC (Indian Penal Code).

The case that we are dealing with was no unique case and similar judgments had been delivered by the Supreme Court earlier too but what made this judgment a landmark one was the fact that it questioned the sanctity of personal religious laws, brought on the debate on a Uniform Civil Code (UCC) for all religions and the controversy of whether the CrPC prevails over personal laws. Now dealing with the main issues that the judgment dealt with:

Whether Section 125 of the CrPC applies to Muslims.

Section 125 of the Criminal Procedure Code talks about a wife who is without any income, has no source of income and is neglected by her husband is entitled to maintenance, which includes a divorced wife who is not remarried. But according to the Muslim personal laws a husband is entitled to pay the wife the entire Mahr amount or any maintenance during the Iddat Period. After the expiration of the Iddat period the husband’s responsibility is over and he is not liable to pay his divorced wife anything. This was the argument resorted to by the Appellant’s counsel but the court clarified that irrespective of what the personal law was CrPC was religiously neutral and applied the same way for every Indian citizen irrespective of the personal law that governs them. They further added that the subject areas covered by the personal law and CrPC were different. The Muslim law only spoke about making it mandatory for the husband to pay the wife the entire Mahr amount during the Iddat Period and not about a situation where the wife is unable to maintain herself after the completion of the period while she is still unmarried and in such a situation the wife will have to resort to Section 125 of the CrPC for seeking help of the court. In any situation it was declared that whenever the CrPC and Personal laws would collide the former would prevail. Hence the court concluded that Section 125 of CrPC would apply to anyone irrespective of their religion and hence for the aforementioned reasons it is applicable to Muslims too.

Whether the payment of Mahr by the husband on divorce is sufficient enough to rid him of any duty to pay maintenance to the wife.

The Appellant said that since the he had already paid the wife the complete Mahr amount and the maintenance amount for the 2 years when she lived away from him he was not entitled to pay any more money to her in form of alimony or maintenance as the Iddat Period was over. The Appellant further argued that the order passed by the High court under Section 125 should be cancelled under Section 127 as he had already paid the entire Mahr amount on divorce as per the personal Laws. The court reached the conclusion that Sec. 127(3)(b) says if a woman has been divorced and the husband has paid any sum on or before the date of the said order that he has to pay according to a customary law then in the situation any further orders are not to be found applicable. This Mahr amount is not a payment for divorce but instead considered to be an amount that the wife is entitled to as consideration for marriage. The mere fact the Mahr amount was paid at the time of dissolution of marriage did not mean that it was paid because the marriage was being dissolved. The wife is entitled to that money since the day they were married. The court even proved this point by interpreting the sections of the Quran that said a man who believed in Allah and was a true Muslim had a duty to maintain his wife with dignity as she was now his responsibility. Hence this amount was not to be considered as a sum paid in form of alimony or maintenance which meant he was not rid of any duty to pay maintenance to the wife.

CONCLUSION

This judgment expressed the dissatisfaction over the legislative’s failure to establish a Uniform Civil Code for all citizens. The judgment was way ahead its time hence created an uproar amongst the Muslim population of India who believed that the Supreme Court did not give regard to the Muslim Personal Laws. The pressure and uproar amongst the people caused the legislation to pass the Muslim Women (Protection of Rights in Divorce) Act, 1986 (MWA) to nullify the SC’s Shah Bano Judgment, purely due to vote bank politics. This law contrary to its name limited the rights of Muslim women to the extent that the husband’s liability towards the wife would remain only to the extent of the Iddat Period during which the wife can ask for lump sum maintenance for the rest of her life and the complete Mahr amount within the 3 months. The act successfully deprived the women the right to claim maintenance under Section 125.

Though the judgment was nullified by the enactment of the MWA the court in future judgments claimed that a divorced Muslim woman is free to either seek maintenance under section 125 of the CrPC or claim lump sum alimony under the MWA. The Supreme Court has found a way to impart reasonable and just judgment even amongst the dirty vote bank politics and religious sensitivity that India suffers owing to its secular nature.

[1] 1979 AIR 362, 1979 SCR (2) 75

[2] 1980 AIR 1730, 1980 SCR (3)1127