Mohd. Ahmed Khan v. Shah Bano Begum
AIR 1985 SC 945: 1985 Cr LJ 875: (1985) 2 SCC 556: (1985) 3 SCR 844: 1985 (1) SCALE 767
Judges: Y.V. Chandrachud, C.J. and D.A. Desai,
E.S. Venkataramiah, O. Chinnappa Reddy and Ranganath Mishra, JJ.
Date of Decision: 23-4-1985
This appeal, arose out of an application filed by a divorced Muslim woman against her husband for maintenance under section 125 of the Code of Criminal Procedure. Mohd. Ahmed Khan, husband (appellant), who was an advocate, married Shah Bano Begum in 1932. Five children were born from the wedlock. In 1975, the husband drove the wife out of the matrimonial home. In April 1978 the wife filed an application against the appellant under section 125 of Cr. PC. In Nov. 1978, the appellant divorced the respondent by an irrevocable talaq. His defence to respondent’s application for maintenance was that she had ceased to be his wife and therefore he was under no obligation to provide maintenance for her and that he had already paid maintenance to her at the rate of Rs. 200 p.m. for about two years. The appellant also deposited Rs. 3000 in the court by dower during the period of iddat. In August, 1979, the learned Magistrate directed the appellant to pay a paltry sum of Rs. 28 per month to the respondent by way of maintenance. In July, 1980 in a revisional application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. Finding the amount excessive, the husband filed an appeal in the Supreme Court by special leave.
(1) Whether section 125 of the Cr. P.C. which provides maintenance to wives (expression includes a divorced wife who has not re-married) applies to Muslim?
(2) Under section 127 of the Cr. P.C. if a divorced woman has received the whole amount payable to her on divorce (under any customary or personal law), the maintenance order may be cancelled by the court. Now, can it be said 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.?
This appeal involves a question of importance which arise under the ordinary civil and criminal law are of a far reaching significance to large segments of society which have been traditionally subjected to unjust treatment. The matter came before the five members’ bench of the Supreme Court consisting of Chief Justice Chandrachud, Justice Desai, Justice Chinnappa Reddy, Justice Venkataramiah and Justice Mishra. The Court held that sections 125 and 127(3)(b) on which the appellant has built up the edifice of his defence are “too clear and precise to admit of any doubt or refinement”. The Court observed that under section 125 of Cr. P.C., a wife who is not maintained by the husband is entitled to approach the court for maintenance. It is also clarified that the term “wife” includes a divorced woman who has not remarried. The religion professed by a spouse is not at all relevant for this purpose. The reason for this is axiomatic, in the sense that section 125 is part of the Code of Criminal Procedure and not of the civil laws which define and govern the rights and obligations of the parties belonging to particular religion, like the Hindu Adoptions and Maintenance Act, etc. The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality can’t be clubbed with religion. Clause (b) of the Explanation to section 125(1) which defines ‘wife’ as including a divorced wife, contains no words and limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. Answering the second issue the Court found itself unable to come to a conclusion that under Mohammedan law, Mahr (dower) is a sum of money payable by the husband to the wife “on divorce” under the Muslim Personal law. The amount of Mahr is usually split into two parts, one is “prompt” which is payable on demand and the other is called “deferred” which is payable on dissolution of marriage by death or divorce. But just because deferred dower is payable when the marriage is dissolved cannot justify the conclusion that it is, therefore, payable “on divorce”. Divorce may be a convenient or identifiable time for its payment, but such is not occasioned by the divorce. As it is laid down in the Muslim texts that mahr is an amount given to the wife in consideration of the marriage it would be absurd to say that this amount is payable in consideration of divorce. The alternative premise that mahr is an obligation imposed upon the husband as a mark of respect for the wife, but he doesn’t divorce her as a mark of respect as divorce dissolves the marriage. The Court also referred to earlier decisions of the Privy Council which also support the above conclusion. These decisions also show that the payment of dower may be deferred to a future date, as for instance, death or divorce. But that doesn’t mean that deferred dower is occasioned by these events. Therefore, it can’t be said that deferred dower is an amount payable “on divorce” within the meaning of section 127 of Cr. P.C. The Court further observed that the arguments advanced before it on the question whether the right conferred by section 125, Cr. P.C. prevails over the personal law of the parties, proceeds on an assumption that there is a conflict between section 125, Cr. P.C. and the Muslim law. However, the Court found no such conflict as the various authorities as well as the Koran imposes an obligation on a Muslim husband to maintain his divorced wives who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means and are unable of sustaining themselves and their children. For these reasons, the Court dismissed the appeal and confirmed the judgment of the High Court.
Section 125 of the Code of Criminal Procedure applies to a divorced Muslim wife who has not re-married. Mahr (or dower) does not absolve a Muslim husband from payment of maintenance under section 127, Cr. P.C.