DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW.

BASICS OF CASE LAW

[FINAL DRAFT]

Mohd. Ahmed Khan

VS.

Shah Bano Begum and Others

Under the guidance of: Submitted by:

Mr. Bhanu Pratap Singh Manish Kumar Pal

(Assistant Professor) 1ST Semester

Department of Law, B.AL.L.B (Hons)

Dr. RML National Law University, Lucknow Roll No.80

Section ‘A’

1|Page
CONTENTS:

 Acknowledgement……………………………………………………..3
 Basic Case Info………………………………………………………...4
 Historical background………………………………………………….6
 The Case Issues………………………………………………………...7
 Appellant’s arguments…………………………………………………9
 Respondent’s arguments……………………………………………...10
 The Judgment……………………………………………………........11
 Reactions to judgment: Muslim Backlash……………………………12
 Politics on the controversy : Dilution of Judgement……………........13
 Bibliography…………………………………………………………..15

2|Page
ACKNOWLEDGEMENT

The whole case analysis in Basics of Case Law has been given shape and
success by the effort of a lot of people who has contributed in it
completion.

I express my humble thanks to Mr. Bhanu Pratap Singh (Assistant

Professor), my subject teacher of Basics of Case Law under whose
supervision the whole project have been made and without whose teachings
and insights this project could not have been fructified.

I extend my heartiest thanks to my seniors for their insights into the

concerned final draft of the project and helping with me with everything I
asked them. The role of the library department is also noteworthy. All the staff
members helped me generously in getting the material and information I
needed to complete this project.

At last I extend my heartiest gratitude to the almighty for giving me the strength to
complete this project.

3|Page
Basic Case Info

Case name

Appellant: Mohd. Ahmed Khan

Vs.

Respondent: Shah Bano Begum and Others.

Citation:

1985 AIR 945 1985 SCR (3) 844

1985 SCC (2) 556 1985 SCALE (1)767

From (Madhya Pradesh)

Case Number:

Criminal Appeal Numbers 103 of 1985

Cases Referred

Bai Tahira Ali Vs. Hussain Fidaalli Chothia

Fuzlunbi vs. K. Khader

Court Name:

Supreme Court of India

Bench:

This case came before the bench comprising of 5 members :-

 Y.V Chandrachud, CJI.
 C.J, D.A Desai,
 O. Chinnappa Reddy,
 E.S Venkataramiah,

4|Page
  Ranganath Misra, J.Jz

Date of Judgment:

The date of judgment of case is: 23 April, 1985

Case Introduction

Shah Bano case is one of its kind. Not only did the Shah Bano case challenge Muslim personal
(Sharia) law, it triggered a debate and paved the way for muslim women’s fight for justice. Shah
Bano, a 62 year old woman from Indore, was divorced by her husband in 1978. Unable to
support herself and her five children, she moved the courts to be granted maintenance from her
ex-husband. Seven years and several judgments later, the Supreme Court ruled in favour of
granting Shah Bano alimony. Largely seen as a threat to Sharia law by some Muslims, what
followed a debate over the constitutionality of including different marriage and personal laws for
different religion, and resulted in the passing of the Muslim Women (Protection of Rights on
Divorce) Act, 1986, by the government.

The case was significant for several reasons. In giving its judgment, the Court ordered
maintenance with an upper limit of Rs. 500 monthly, under Section 125 of the Code of Criminal
Procedure, 1973, which applies to all citizens regardless of caste or religion. Although seen by
many as a secular judgment, it invoked a strong reaction from the Muslim community, which felt
that the judgment was an encroachment on Muslim Sharia law. It led to the formation of the All
India Muslim Personal Law Board in 1973, an organization that sought to preserve and protect
the applicability of the Muslim Personal Law (Shariat) Application Act, 1937.The backlash from
the Muslim community prompted the government to begin parliamentary procedures that, in
essence, overturned the Supreme Court’s decision. The Muslim Women Act (Protection of
Rights on Divorce), 1986, was passed amidst great controversy and debate. Many argued that it
was a way to appease the minority group that was threatening agitation.

Shah Bano’s case brought the need for a secular Uniform Civil Code into the limelight again. To
date, however, individual Personal Laws based on religion are still in effect. The case remains a
ground-breaking one in Indian divorce law and is often used as a benchmark by the courts.

5|Page
Historical Background

The appellant(Mohd Ahmed Khan) in this case was an advocate by profession and married the
respondent in 1932. They had three sons and two daughters. In 1975, the respondent was thrown
out of the matrimonial home by the appellant. The respondent then filed a petition against the
appellant in April 1978, under section 125 of the Code of Criminal Procedure, in the Court of the
Judicial Magistrate Indore, for maintenance at the rate of Rs. 500 per month, According to the
respondent, the professional income of the appellant was about Rs. 60,000 per annum. The
appellant divorced the respondent by an irrevocable “talaq” on 6th November, 1978, and took up
the defence that the respondent is no more his wife because of the divorce granted by him, and
therefore he has no obligation to provide maintenance to her. The appellant further argued that
that he had already paid maintenance at the rate of Rs. 200 per month to her for about two years,
and also deposited a sum of Rs. 3,000 in the court as “dower or Mahr” during the period of
“iddat”. The Magistrate then ordered the appellant to pay a sum of Rs. 25 per month to the
respondent as maintenance. The respondent then filed a revision petition in the Madhya Pradesh
High Court to enhance the amount of maintenance to Rs. 179.20 per month. The M.P High Court
accordingly enhanced the amount to Rs 179.20 per month. Hence the husband appealed before
the Supreme Court by special leave. The matter came before a five judge bench of the Supreme
Court, consisting of the then Chief Justice Chandrachud.

6|Page
 The Case Issues

 Whether the payment of mehr by the husband on divorce is sufficient to absolve him of
anyduty to pay maintenance to the wife.
T.M. Abdullah, Advocate, Tellicherry, Kerala in his article in Kerala law times writes
“Dower meaning ‘Mahr’ is promptly payable on marriage or may be deferred depending
upon the will of the wife. If the whole mahr has been promptly paid immediately on
marriage or at any time during coverture, no portion of it will remain to be paid on
divorce. Verses 236 and 237 of chapter 2 envisage paid mahr. Mahr will not necessarily
remain to be paid on divorce; it arises not by divorce.
Maintenance for the iddah period does not arise by reason of divorce. It is an extension of
the obligation subsisting during coverture to maintain the wife upto the period of 3
monthly courses just to see if there is any sign of pregnancy in the woman by the
divorcing husband. If there is, then the waiting period is extended until delivery
and the maintenance also is extended until then. It is therefore a price for waiting and not
a compensation for snapping the tie of marriage. Their incidence is not at the time of
divorce. So, the dower and the iddah maintenance are out of account for relief under
S.127 of Cr.P.C. What remains is the command for making a reasonable or honorable
provision for the divorced wife contained in chapter 2 verse 241 of the Holy Quran as
cited by the learned author of the article. The verse 241 occurs disjointedly away from the
verses dealing with dower and iddah and can be reasonably construed to refer to contexts
other than dower and iddah.”

 Whether sec 127(3)(b) provides exemption to Section 125,which absolves muslim

husband from giving maintenance to his wife.
Speaking in Urdu, Latifi(counsel for appellant) forcefully supported the decision of the
Supreme Court of India in Bai Tahira v. Ali Hussain,where Krishna Iyer, J., had
interpreted section 127(3)(b) of the 1973 Code of Criminal Procedure in a very special
manner saying that the sum paid to the divorced wife under personal law referred to in
the said provision of the code should be “more or less sufficient to do duty for
maintenance allowance,” otherwise it could be considered for the reduction of the

7|Page
 maintenance rate but could not “annihilate” it.Latifi based his arguments on the verse of
the Quran saying:
. . . . [Arabic omitted.]
(And for divorced women let there be a fair provision. This is an obligation of those who
are mindful of God.).He had said in an earlier work that the judgment in Bai Tahira
was“entirely consistent with the verse of the Holy Quran” and that since it “restored to
the Muslim woman her Quranic right as set forth in this verse . . . . Everyone who is a
votary of the Holy Quran shall applaud it.” The judgment was also, in his view, “in
conformity with the opinion of Imam Shafi, Said bin Jubayr and other Elders.” In support
of this assertion he had referred to the commentaries on the Quran by Ibn Kathir and
Allama Baydawi.
At the seminar Latifi maintained his viewpoint and further developed his aforesaid
arguments.

 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.
On this issue court said “Section 125 was enacted in order to provide a quick and
summary remedy to a class of persons who are unable to maintain themselves. What
difference would it then make as to what is the religion professed by the neglected wife,
child or parent? Neglect by a person of sufficient means to maintain these and the
inability of these persons to maintain themselves are the objective criteria which
determine the applicability of section 125. Such provisions, which are essentially of a
prophylactic nature, cut across the barriers of religion.”
Hence, clearing the contention that section 125 will prevail over any personal law as it
was not enacted on any religious lines,it is secular in nature.

8|Page
Appellant’sArguments

(1) Whether Section 125 of the Code apply on Muslims.

Referring to Section 125 of the Code, the Court said: “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
provision. The reason for this is axiomatic, in the sense that Section 125 is a part of the code
ofCriminal Procedure, not of the Civil Laws which define and govern the right and obligations of
the parties belonging to particular religions, like the Hindu Adoptions and Maintenance Act, the
Shariat, or the Parsi Matrimonial Act.” (para 7).

(2) Respondent’s application under section 125 is to be dismissed because of the provisions
contained in section 127(3)(b)

Section 127(3)(b) is as follows:

"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 by the woman”

Now the appellant pleaded that, under Mohammedan Law, Mahr (or dower) is an amount
payable “on divorce”, which would, therefore, absolve a Muslim husband from payment of
maintenance under section 127 of the Cr.P.C.

9|Page
 Respondent’s Arguments

1. Verses 241 and 242 of Quran(from “The Holy Quran” by Yusuf Ali).
The appellant pleaded that in verses 241 and 242 the holy quran makes it obligatory for
husband to provide maintenance to his wife after divorce.
The extracts from book are as follows:

2. The appellant also took help of precedents Bai Tahira Ali vs. Hussain Fissalli
Chothia1and Fuzlunbi vs. K. Khader Vali2 to prove that Muslim woman is entitled to
apply for maintenance under section 125 of Code of Criminal Procedure.

1
Bai Tahira Ali v Hussain Fissalli Chothia, 1979 SCR (2) 75.
2
Fuzlunbi v K. Khader Vali,AIR 1980 SC 1730.
10 | P a g e
 The Judgment

Following points were included in judgement:

1) The payment of mehar by the husband on divorce is not sufficient to absolve him of the duty
to pay maintenance to the wife.

2) The liability of the husband to pay maintenance to the wife extends beyond the iddat period if
the wife does not have sufficient means to maintain herself.

3) Section 125 of the Code applies to all citizens irrespective of their religion

4) Section 125 overrides the personal law, if is any there conflict between the two. 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.

11 | P a g e
 Reaction to Judgment: Muslim Backlash

Supreme Court created an uproar among Muslims by ruling that Shah Bano had a right to
financial support after her husband of 43 years divorced and exiled her from their home when he
took a second wife. The decision did quote verses from the Koran (Aiyat 241: "For divorced
women/Maintenance should be provided. On a reasonable (scale). This is a duty of the righteous
. . . "). As it rested on India's criminal code’s article 125, which includes a law requiring
husbands to pay "maintenance" to their wives, including their ex-wives, until their wives remarry
or die.

By citing India's criminal code, which applies to all Indians, the Shah Bano decision superseded
Muslim law and sparked widespread protests, including a rally by 300,000 Muslims in Bombay.

12 | P a g e
 Politics on Judgment: Dilution of Judgement

In 1986, the Congress (I) party, which had an absolute majority in Parliament at the time, passed
an act that nullified the Supreme Court's judgment in the Shah Bano case. This act upheld the
Muslim Personal Law and writ as excerpted below:

"Every application by a divorced woman under section 125… of the Code of Criminal
Procedure, 1973, pending before a magistrate on the commencement of this Act shall,
notwithstanding anything contained in that code… be disposed of by such magistrate an
accordance with the provisions of this Act."

The Government with its absolute majority passed the Muslim Women (Protection of Rights on
Divorce) Act, 1986 to dilute the secular judgment of the Supreme Court. The Statement of
Objects and Reasons of this Act (i.e. the objective of the Act) needs a mention. According to the
stated objects of the Act, where a Muslim divorced woman is unable to maintain herself after the
period of iddat, the Magistrate is empowered to make an order for the payment of maintenance
by her relatives who would be entitled to inherit her property on her death according to Muslim
Law.But where a divorced woman has no relatives or such relatives has not enough means to pay
the maintenance the magistrate would order the State Waqf Board to pay the maintenance. The
'liability' of husband to pay the maintenance was thus restricted to the period of the iddat only.
'Read about 'The iddat of divorce'

Critics strongly contend that this Act was passed in order to appease minorities and safeguard the
Muslim vote bank.

Consequences

The Shah Bano case generated tremendous heat in India. It proved that fundamentalist minorities
can exert pressure on government and judicial decisions. The mainstream media disapproved of
the decision. The opposition reacted strongly against the Congress party's policies (which,
according to BJP, reflect "Pseudo-secularism".)

13 | P a g e
The case has led to Muslim women receiving a large, one-time payment from their husbands
during the period of iddat, instead of a maximum monthly payment of 500 Rs (around 10 US
Dollar per month) - an upper limit which has since been removed. Cases of women getting lump
sum payments for lifetime maintenance are becoming common.

Critics of the Shah Bano case point out that while divorce is within the purview of personal laws,
maintenance is not, and thus it is discriminatory to exclude Muslim women from a civil law.
Exclusion of non-Muslim men from a law that appears inherently beneficial to men is also
pointed out by the Indian orthodoxy.

The Shah Bano case once again spurred the debate on the Uniform Civil Code in India.
Ironically, the Hindu Right led by parties like the Jan Sangh which had strongly opposed reform
of Hindu law in the 50's, in its metamorphosis as the Bharatiya Janata Party became an advocate
for secular laws across the board. The sabre-rattling by Islamic fundmentalists caused women's
organisations and secularists to cave in.

14 | P a g e
 Bibliography

1. Kerala Law Times,1977

2. www.manupatra.com
3. www.legalserviceindia.com
4. Tahir Mahmood, The Muslim Law of India, Third edn, LexisNexis (A divison of Reed
Elsevier India Pvt Ltd), New Delhi, p.120.
5. Ed. Lucy Carroll,Shah Banoand the Muslim Women Act:a Decade On,pg.65-68

15 | P a g e