Author: Bhavya Sangri & Manika
Innumerable years of shadows, but no longer, the 1985 judgment delineated by the honorable Supreme Court of India lighted up the darkness.
The blest Quran perspicuously voices that it is the kosher entitlement of every wife to be catered with maintenance by her husband encompassing nourishment, garments, hade, and other necessities of life 1 not merely while the nuptial is persisting but also in the wake of the cessation of wedlock. 2 Clasping the Quran under scrutiny and glancing forward to virtuous details, this trailblazer verdict pronounced by the honorable Court of law in Mohd. Ahmed Khan v. Shah Bano Begum is a milestone lawsuit that ushered the vanguard, the plight encountered by Muslim women not only n terms of justice but also in humanity and empowerment.
Shah Bano became the lawful wife of Mohd. Ahmed Khan in 1932 and had five children from their wedlock.
After fourteen years of marriage, Mohd. Ahmed Khan had his second
In 1975, Shah Bano at 62 years of age was quenched of her conjugal property.
Driven out along with her children, Shah Bano lodged a suit under Section 125ofhe Code of Criminal Procedure, 1973 before the First Class JudicialMagistrate in Indore to acquire maintenance of Rs 500 per month as she was devoid of any means to provide for herself and her children. Her husband had failed to pay Rs 200 monthly, which he had guaranteed to deliver.
Consequently, on November 6, 1978, Ahmed Khan gave Shah Bano
irrevocable talaq employing ‘Triple Talaq’.
Ahmed Khan argued that according to Muslim Personal Law he had already outlaid Rs 200 as maintenance to her for two long years and also a sum of Rs3000 was deposited to his divorced wife in the course of Iddat. 3
In August 1979, the lower Court administered Ahmed Khan to pay Rs 25
monthly as maintenance. Shah Bano further pleaded to the Madhya Pradesh
High Court which raised the quantum of maintenance to be given to Rs 179.20monthly.
Mohd. Ahmed Khan challenged this order in the Apex Court as a special
petition for leave to the High Court’s decision.
Section 125 of The Code of Criminal Procedure, 1973: “Order for
maintenance of wives, children, and parents”.
This section promulgates that if the husband does not maintain his wife and
children, the bench has the volition to order the husband to allocate monthly maintenance and can ordain for the incarceration of the husband for one month or until remittance is embodied.
Section 127(3) (b) of The Code of Criminal procedure, 1973: “Alteration in
allowance”.This section in isolation communicates that when an order has been given under Section 125 in the benevolence of a woman if the magistrate discernsIddat is the duration during which the woman describes after the death of her husband or divorce. In his period, she may not remarry. hat upon the severance if any volume has been forked out under any personal law applies to the parties, it may retract such commandment.
Article 44 of the Indian Constitution: “Uniform Civil Code for the citizens”.
This section emphasizes the importance of securing a uniform civil code
appertaining to all the citizens notwithstanding of their theological belief to
deal with a plethora of contentious exclusive affairs efficaciously.
Three significant questions arose in this case:
- Whether Section 125 of the Code of Criminal Procedure is felicitous to
Muslims or not.
- Whether the trifling liquidation of Mehr 4 by the husband at the time of
separation is sufficient to excuse him to provide maintenance to his wife.
- Whether the Uniform Civil Code is applicable to all faiths or not.
The dubiety, in this case, was whether the Muslim edicts ought to be favored over the Indian law or vice versa. Ahmed Khan predominately propounded that after the divorce Shah Bano had ceased to be his wife and had no motivation to provide maintenance other than the amount he had already allocated.
Shah Bano on the other hand enthralled on the plight of women who had no lucrative status and were driven out of their matrimonial homes, contended that the code of civil procedure must be followed based on which she should be provided with maintenance rights by the Court.
On February 3 1981, the Apex Court proffered a unanimous pronouncement and endorsed the verdict enunciated by the Madhya Pradesh High Court.
The Court alluded to the theological neutrality of CrPC’s Section 125 and stated that this section is “truly secular in nature” and Section 125 protects divorced wives from vagrancy and destitution. Such provisions, it mentions, are “prophylactic in nature and cut across all barriers of religion”. Thus, the Court founded no rationale to ostracizeMehr is the money or possessions given by the husband to the wife during wedlock. Muslims from this ambit and ordained that Shah Bano shall be entitled to the maintenance.
The Judicature found no antagonism between the Muslim Personal Law and the provisions of Section 125 on whether the husband must provide maintenance to his spouse who is impotent in sustaining herself. The Court in this question calls attention o the Holy Quran and reiterated the Muslim husband’s devoir to proffer to his divorced spouse. The bench in its verdict renounced the argument that the husband is culpable to bear alimentation solely throughout Iddat. If she can’t maintain herself, then recourse is at her disposal under Section 125. The Court cited the precedents set that foregrounded on the privilege of the Muslim women to be imparted maintenance under Section 125.
The Court in pursuit to look into the definition and gleaned that Mehr isn’t a
remittance that the husband is accountable to endow to a Muslim woman at the time of a divorce but was rather a quantum that a wife was accredited to in veneration of contemplation of wedlock. 7 Respecting the provision accommodated in Section 127 3) (b) the bench promulgated that it might have been set in motion ascribed to the illusion that dower is an aggregate owed ‘on divorce’ but it can’t be metamorphosed from a quantum payable as a stamp of courtesy for the wife into an amount owed at the time of divorce.
The Judicature also manifested its anguish vis-à-vis effectuation of the Indian constitution’s Article 44 which “remains a dead letter”. A standard civil edict will facilitate the inducement of national amalgamation by annihilating disparate loyalties
to laws that have antagonistic ideologies. he Court accentuated on the gravity of standard civil code in bridging the difference between family edicts over the fragmentary attempts of courts to achieve the same.
5 (1979) 2 SCC 316. In this case, the husband divorces the wife after his second marriage. A suit was iled relating to a flat that was given to the wife. The husband had to pay maintenance apart from theMehr given at the time of marriage. 6 (1980) 4 SCC 125. In this case, the wife was neglected by her husband to such an extent that she was driven out of their matrimonial home. She asked for maintenance for her and her child. It was held in this case that Mehr couldn’t be considered as a replacement as maintenance.
Ensuing the adjudication pronounced by the Supreme Court, tensions arose amongst multiple fragments of the nation. The orthodox Muslims lambasted the decree as an intercession in their Muslim Family Law and with the provisions of the blest Quran.
In the wake of these criticisms, the Indian Parliament (under the Rajiv Gandhi government) passed the Muslim Women (Protection of Rights On Divorce) Act, 1986 that countermanded the Apex Court’s pronouncement.
According to this Act, divorced Muslim women would be entitled to a just quantum of maintenance only till the Iddat period or till 90 days after the divorce. This was inimical to Section 125 of CrPC which was vindicated in the indictment.
The Act received severe criticism from many women’s organizations and intellectuals. The Opposition party called this Act to be discriminatory and espied it as a “violation of the sanctity of the country’s highest court”. The plausibility of this Act was probed in the case of Daniel Latifi v. Union of India which stationed down that viable and even-handed provisions for the divorced wife include maintenance which is not constricted to the period of Iddat only.
The issue anent the Muslim literature and classic interpretations of Islamic law, the Court culminates the inadequacy of the text as to whether the cessation of the Iddat period waves away the liability of the husband to maintain his wife. The indentures also stressed the Court to ponder over whether the Muslim law has any provisions for the women impotent of sustaining themselves. Referring to the Quran, precisely Aiyat 240-242 the Court concludes, “These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide
maintenance to the divorced wife”. On the other side, focusing on Section 125, it communicates about a wife who has no provenance of income and is neglected by her husband is entitled to maintenance, which comprehends a divorced wife who is not remarried.
Looking into the matter, the Court brings forth a remarkable difference between the criminal and civil law. Criminal procedure is felicitous to all persons affiliated to Narayan Madhavan, Shah Bano’s Ghost Over the Rubble, the Indian Express, July 18, 2006. (2001) 7 SCC 740. Danial Latifi was the lawyer of Shah Bano. He challenged the Act to be violative of Article 14, 15, and 21. The Judgment of this case remains the final case law in this regard all faiths and has no alliance with the family law and rights of the parties as in the civil law. The Judicature in this particular issue resorted to the theological impartiality of Section 125 and announced in situations of the collision between the national edicts and family laws; the prior would prevail.
Appellant’s wrangle of paying Mehr according to the Muslim personal laws and for two more years while she was away made the Court revisit the definition of Mehr where it conjectured the provisions of the holy text that a true blue Muslim will maintain his better-half with dignity. The Court reiterated section 127(3)(b) and found the amount remitted by the appellant was complete Mehr which was left to be paid during wedlock. Considering Mehr as the wife’s entitlement for the consideration of marriage, the Court also opines Mehr as not an amount payable for dissolution.
The pronouncement vocalizes the discontent over the legislature’s miscarriage to institute a UCC for the citizens. Witnessing the naked truth of the UCC the Court advocated that UCC must be pertinent to all faiths and followers. Citing in Sarla
Mudgal v. Union of India, Justice Kuldip Singh opined that UCC should be
retrieved from the cold storage as it has been resting there since the constitution was completed. Being a code that isn’t a fundamental entitlement or a constitutional assurance is a de-riguer push in the direction of liberty and egalitarianism. It will safeguard national identities and guarantee better utilization of human resources.
Innumerable complications can be put to end with UCC in existence.
A feeling of pride and comfort brims by a recent pronouncement where under section 125 of CrPC, a husband was commanded to serve a prison term for 44 months since he defaulted in 44 months of remittance. 11 Not just this, the nation is silently modernizing theological edicts without the uniform civil code as it recently blazoned talaq-e-biddat conventionally known as triple talaq unconstitutional.
Given a time where Muslim women were debarred from fundamental liberty, their status being rearward juxtaposing to all other women. They were illiterate and not self-reliant, and the bar for self-esteem was incredibly low, noticing all that, it can be opined the Court progresses to vocalize nimbleness of the national modus operandi for progressively updating personal laws even in the face of bitter conservatism. the judgment, in this case, was hailed as a precedent for the Uniform Civil Code and cited various cases where the personal laws of different religions came in conflict.
The adjudication specified in this case has evinced in the vanguard of its time. It aspired to cushion the rights of women and uplift them economically and socially. It verbalized its anguish over the country’s legislature for being impuissant to institute a standard civil law that attests to be the need of the hour. Arraying an etching of vote bank politics, Congress passed the Muslim Women (Protection of Rights in Divorce) Act, 1986 knocked on the Shah Bano verdict unconscious.
Although the MWA was successful in nullifying the judgment, the court in its future endeavors to secure women’s rights gave an option to the divorced Muslim wives who could either claim flat-rate alimony under the MWA or could seek maintenance under Section 125. Thus, the apex Court maintained its role as a non-partisan authoritarian and didn’t make the citizens lose their credence in the juridical apparatus.