SHAH BANO BEGUM AND AFTER
Introduction
Long back, in 1985, came the landmark judgment of the Supreme Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum, which gave way to controversies in the Muslim world. This paper brings out the mandate of the decision along with the repercussions of the decision on future Legislative and Judicial Proceedings.
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. In 1975 the appellant drove the respondent out of the matrimonial home.
In April 1978, the respondent filed a petition against the appellant under Section 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 defense to the respondent’s petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to provide that he was therefore under no obligation maintenance for her, 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 the appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance.
The respondent filed a revision application to the High Court on July 1980. The High Court of Madhya Pradesh enhanced he amount of maintenance to Rs. 179.20 per month.
The husband applied before the SC under special leave petition.
Questions before the Supreme Court:
1. Does S. 125 of CrPC apply to Muslim women?
2. Does the Muslim Personal Law impose an obligation upon the husband to provide for the maintenance of his divorced wife beyond the period of Iddat?
3. Is there any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’ so as to bar payment of maintenance as per S. 127(3)(b) of CrPC?
Does the S. 125 CrPC apply to Muslim Women?
a. The Court took cognizance of two decisions of the Supreme Court in the cases of Bai Tahira Ali Hussain Fidaalli Chothia and Fuzlunbi v. K. Khader Vali, wherein the Court held that the divorced Muslim wife is entitled to apply for maintenance under Section 125. But, a Bench consisting of Murtaza Fazal Ali and A. Varadarajan, J.J. was inclined to the view that those cases are not correctly decided. Therefore, they referred this appeal to a larger Bench which said that these decisions require reconsideration because they were in direct contravention of the plain and unambiguous language of Section 127(3) (b) of the CrPC, 1973. The decision was said to be against the fundamental concept of divorce by the husband and its consequences under the Muslim law which has been expressly protected by Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 – an Act which was not noticed by the aforesaid decisions.
b. Reading the relevant portions of S. 125 of the CrPC which deals with the right to maintenance:
Order for Maintenance of Wives, Children and Parents
125. (1) If any person having sufficient means neglects or refuses to maintain
(a) his wife, unable to maintain herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife…, at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate think fit….
Explanation for the purpose of this Chapter,
(a)……
(b) “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her not remarried.
(2)……
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the older, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided….
Provided further that if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation If a Husband has Contracted Marriage with Another Woman or keeps a mistress, it shall be considered to be a just ground for his wife’s refusal to live with him.
a. A cumulative reading of S. 125(1) (a) brings to light that a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By Clause (b) of the Explanation to Section1 25(1), ‘wife’ includes a divorced woman who has not remarried. The Court held that:
“These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective are the objective criteria which determine the applicability of Section 125. Clause (b) of the Explanation to Section 125(1), which defines ‘wife’ as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section1 25 is truly secular in character.”
Also, the point of the right granted u/s. 126, CrPC overriding Muslim Personal Law, is fortified in the Explanation to the proviso which says that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wife’s refusal to live with him. This is where the Appellants contended that S. 125, CrPC and S. 2 of the Muslim Personal Law (Shariat) Application Act, 1937 come into conflict with each other. The Court proceeded on the assumption that the two sections were in conflict when it held that:
“It is too well-known that a Mahomedan 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 any conflict between the two.”
Hence, they embarked on the decision of the question of priority between the Code and the Muslim Personal Law on the assumption the it there was a conflict between the two because, in so far as it lies in our power, we wanted to set at rest, once and for all, the question whether Section 125 would prevail over the personal law of the parties, in cases where they are in conflict. Thus, we see that the Court opined that a Muslim woman is entitled to maintenance as S. 125 would be applicable to her, even where it comes in conflict with Muslim Personal Law.
Does Muslim Personal Law impose an obligation on the Husband to pay Maintenance to the wife beyond the period of Iddat?
Since the Court held that S. 125 can be availed of by Muslim women, it now considered the question whether there is any conflict between the provisions of Section 125 and those of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife. The contention of the husband and of the interveners who support him is that, under the Muslim Personal Law, the liability of the husband to maintain a divorced wife is limited to the period of Iddat. They relied on the text of Mulla’s Mahomedan Law. Wherein there is a statement to the effect that, “After divorce, the wife is entitled to maintenance during the period of Iddat”. At page 302, the learned author says:
“Where an order is made for the maintenance of a wife under Section 488 of the Criminal Procedure Code and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of Iddat. The result is that a Mohamedan may defeat an order made against him under Section 488 by divorcing his wife immediately after the order is made. His obligation to maintain his wife will cease in that case on the completion of her Iddat.”
The appellants also cited various other passages from books written by authorities such as Dr. Paras Diwan and Tyabji, J. But the Court held that these statements in the text book 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. One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent both, in quantum and in duration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him.
“Since the Muslim Personal Law, which limits the husband’s liability to provide for the maintenance of the divorced wife to the period of Iddat, does not contemplate or countenance the situation envisaged by Section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond the period of Iddat, to his divorced wife who is unable to maintenance of his divorced wife is limited to the period of Iddat despite the fact she is unable to maintain herself, has therefore to be rejected.”
The Court also looked into the highest authority of Muslim Law, the Qoran which imposes an obligation on the husband to provide for his divorced wife. Also, the Court relied upon the Aiyat Nos. 240-242 which provide that for divorced women, there shall be a provision according to what is fair. No where does it limit the period of providing ‘Mata’ (as it appears in Aiyat No. 241) to the period of Iddat. But the Appellants also argued that the word ‘Mata’ appearing in Aiyat No. 241 means ‘provision’ and not ‘maintenance’. However, the Court disregarded this contention as ‘a distinction without a difference’.
Finally, the Court clarified the position when it held that:
“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 Section1 25 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.”
Thus we see that the Court has maintained that a Muslim woman can take recourse to S. 125 when the husband has sufficient means to maintain her, but refuses to do so, and this applies even to the time beyond the Iddat period. However, if she is able to maintain herself, then the provision of maintenance is restricted to the period of Iddat.
Is there any provision in the Muslim Personal Law under which a sum is payable to the wife ‘on divorce’ so as to bar payment of maintenance as per S. 127(3) (b) of CrPC?
The Appellant argued that the respondent’s application under Section 125 is liable to be dismissed because of the provision contained in Section 127(3) (b) which reads as follows:
Alteration in allowance:
127.(1)…….
(2)……
(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that
(a)……
(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,
(i) in the case where such sum was paid before such order, from the date on which such order was made.
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman.
Hence, this section provides that the Magistrate shall cancel the order of maintenance, if the wife is divorced by he husband and, she has received “the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce”. That raises the question as to whether, under the Muslim Personal Law, any sum is payable to the wife ‘on divorce’. The Appellants proposed that Mahr is the amount payable by the husband to the wife on divorce.
Under Muslim law, the husband is bound to pay Mahr to the wife as a mark of respect to her. The Court looked into various definitions of Mahr advanced by both parties and tried to find out whether Mahr is an amount payable by the husband to the wife on divorce. Dr. Paras Diwan in his book, “Muslim Law in Modern India” defines Mahr as :
“Mahr is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the fact that non-specification of Mahr at the time of marriage does not affect the validity of the marriage.”
However, some confusion was caused by the fact that, under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called “prompt”, which is payable on demand, and the other is called “deferred”, which is payable on the dissolution of the marriage by death or by divorce. But, the Court observed that the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable ‘on divorce’. The Court held:
“Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce maybe a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which occurs in Section 127(3)(b) of the Code. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable ‘on divorce’.”
The provision contained in Section 127(3) (b) may have been introduced because of the misconception that dower is an amount payable “on divorce”. But, that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce.
The Court held:
“The sum settled by way of Min 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.”
Thus the Court has interpreted Mahr to be an amount payable on marriage, and not on divorce, and thus, held that a Muslim woman is entitled to maintenance u/s. 125, CrPC because Mahr does not bar payment of maintenance u/s. 127(3)(b) since it does not qualify as amount payable ‘on divorce’.
Conclusion
The Court concluded 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. Also, the Court deliberated on the issues of Art. 44 of the Constitution which provide for a uniform civil code, and regretted that it had remained in ‘dead letter’ and suggested that efforts should be made to achieve the same.
After Shah Bano case
The Judgment of the Shah Bano case begins with the words “this appeal does not involve any question of constitutional importance”. Little did the Supreme Court perhaps realize at that time that the judgment would spark a major controversy in the Constitutional history. After this decision, nationwide discussions, meetings, and agitation were held. The then Rajiv Gandhi led Government overturned the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure. The explanation given for implementing this Act was that the Supreme Court had merely made an observation for enacting the Uniform Civil Code; not binding on the government or the Parliament and that there should be no interference with the personal laws unless the demand comes from within.
After the case of Shah Bano, came the landmark judgment of Danial Latifi and Anr. v. Union of India, which challenged the constitutionality of the Muslim Women (Right to Protection on Divorce) Act, 1986. The Solicitor General supported the Act by saying that personal law was a legitimate basis for discrimination, and that therefore does not offend Article 14 of the Constitution. The All India Muslim Personal Law Board, as an intervener, defended the 1986 Act and stated that Section 4 of the said Act was good enough to take care of avoiding vagrancy of a divorced Muslim woman, and that she need be dependent on her husband (as she can claim maintenance from family, relatives & State Wakf Boards). The National Commission for Woman submitted that the court should adopt a broad interpretation of ‘reasonable and fair maintenance’, failing which Constitutional guarantees maybe violated
The Petitioners contended that Muslim marriage is a contract and an element of consideration is necessary by way of Mahr or dower and absence of consideration will discharge the marriage. On the other hand, Section 125 CrPC has been enacted as a matter of public policy. Section 125 CrPC is part of the Procedural law and not a civil law, which defines and governs rights and obligations of the parties belonging to a particular religion. Thus there is a violation of not only equality before law but also equal protection of laws and inherent infringement of Article 21 as well as basic human values. If the object of Section 125 CrPC is to avoid vagrancy, the remedy thereunder cannot be denied to Muslim women. The Act is un-Islamic, unconstitutional and it has the potential of suffocating the Muslim women and it undermines the secular character, which is the basic feature of the Constitution; that excluding the application of Section 125 CrPC is violative of Articles 14 and 21 of the Constitution.
The court upheld the constitutional validity of the Act and observed that it does not violate the constitutional values since A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well.
The Shah Bano case was heavily criticized by the minorities. But on the whole the judgment stands out as a landmark one and has been cited and analyzed by eminent jurists and critics and is still being acknowledged by the same.
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