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Mohd. Ahmed Khan v. Shah Bano Begum

Supreme Court of India · 23 April 1985 · 5 judges · 1985 AIR 945; 1985 SCR (3) 844; 1985 SCC (2) 556

A five-Judge Bench held that a divorced Muslim wife unable to maintain herself may claim maintenance from her former husband under Section 125 CrPC, and that Mahr is not a sum payable 'on divorce' under Section 127(3)(b).

Facts

The appellant, an advocate, married the respondent in 1932; they had five children. In 1975 he drove her out of the matrimonial home. In April 1978 she applied under Section 125 CrPC at Indore for maintenance. In November 1978 he divorced her by an irrevocable talaq and pleaded that she had ceased to be his wife, that he had paid maintenance for about two years and deposited Rs. 3000 as dower during iddat. The Magistrate awarded Rs. 25 a month; the Madhya Pradesh High Court enhanced it to Rs. 179.20. On the husband's appeal, a two-Judge Bench doubted Bai Tahira and Fazlunbi, which had held Section 125 applicable to divorced Muslim wives, and referred the matter to a larger Bench.

Questions before the Court

  1. Does Section 125 CrPC apply to a divorced Muslim wife, and does it prevail over personal law in case of conflict?
  2. Does Muslim Personal Law limit the husband's liability to maintain a divorced wife who cannot maintain herself to the iddat period?
  3. Is Mahr a sum 'payable on such divorce' under Section 127(3)(b) CrPC, so that its payment ends the husband's liability?

What the Court held

  • Section 125 CrPC is secular. 'Wife' in Explanation (b) to Section 125(1) includes a divorced woman who has not remarried, whatever her religion, and the right under the section is unaffected by personal law. If there is a conflict, Section 125 overrides personal law.
  • There is no conflict on this point. If the divorced wife can maintain herself, the husband's liability ends with iddat; if she cannot, she may invoke Section 125. Aiyats 241 and 242 of the Quran impose an obligation on the husband to make provision for or maintain the divorced wife.
  • Mahr is payable in consideration of the marriage or as a mark of respect for the wife, not on divorce. Even deferred Mahr payable on dissolution is not occasioned by divorce, so it does not fall within Section 127(3)(b).
  • Bai Tahira and Fazlunbi were correctly decided, except the statement in Bai Tahira that payment of Mahr as a customary discharge is within Section 127(3)(b). The appeal was dismissed with costs of Rs. 10,000.
  • The Court regretted that Article 44 had remained a dead letter and observed that the State should act to secure a uniform civil code.

Why it matters

The judgment holds that the remedy of maintenance under Section 125 CrPC is available to women of every religion, including a divorced Muslim wife who has not remarried and cannot maintain herself, and that the provision overrides personal law where they conflict. It confines the iddat limit to cases where there is no risk of destitution and reads Mahr as outside Section 127(3)(b). It also contains the Court's call for a uniform civil code under Article 44.

In the Court's words

Copied from the official judgment; each passage links to its page.

“The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws which define and govern The rights and obligations of the parties belonging to particular, religions”
Chandrachud, C.J.Page 9 of the judgment
“The true position is that, if the divorced wife is able to maintain herself, the husband's liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself.”
Chandrachud, C.J.Page 12 of the judgment
“We have attempted to show that taking the language of the statute as one finds it, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under section 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce.”
Chandrachud, C.J.Page 16 of the judgment
“It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.”
Chandrachud, C.J.Page 17 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Mohd. Ahmed Khan v. Shah Bano Begum and Ors.
Case
Criminal Appeal No. 103 of 1981
Decided
23 April 1985
Bench
Chandrachud, Y.V. (CJ), Misra Rangnath, Desai, D.A., Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J)
Opinions
Unanimous. The Judgment of the Court was delivered by Chandrachud, C.J.

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