Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Mohd. Ahmed Khan Vs. Shah Bano Begum and Ors.
AIR 1985 SC 945, 1985 CriLJ 875, 1985 (1) Crimes 975(SC), 1985 (1) SCALE 767, (1985) 2 SCC 556, [1985] 3 SCR 844
Hon’ble Judges/Coram: Y.V. Chandrachud, C.J., D.A. Desai, E.S. Venkataramiah, O. Chinnappa Reddy and Ranganath Misra, JJ.
Date of Decision: 23.04.1985
FACTS: –
The appellant, who is an advocate by profession, was married to the respondent. Three sons and two daughters were born of that marriage. In 1975 the appellant drove the respondent out of the matrimonial home, ln 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.
ISSUES: –
- Whether Muslim Woman can claim maintenance under section 125 of the Criminal Procedure Code?
- Whether Mahr can be considered as a sum payable on Divorce as provided under section 127 of the Criminal Procedure Code so as to disentitle wife from claiming maintenance?
JUDGMENT:-
Under Section 125(1)(a), 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 Section 125(1), ‘wife’ includes a divorced woman who has not remarried.
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 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 of Criminal 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.
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 are the objective criteria which determine the applicability of Section 125. Such provisions, which are essentially of a prophylactic nature, across the barriers of religion. True that they do not supplant the personal law of the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes.
The liability imposed by Section 125 to maintain close relatives who are indigent is founded upon individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion. 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. Section 125 is truly secular in character.
‘Wife’ means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a ‘wife’ for the purpose of Section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.
Statements in the scholarly 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. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dir-hams, which is equivalent to three or four rupees (Mulla’s Mahomedan Law, 18th Edition, para 286, page 308). But, one must have regard to the realities of life Mahr is a mark of respect to the wife. The sum settled by way of Mahr 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.
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 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.
Section 127 (3) (b) provides, to the extent material, that the Magistrate shall cancel the order of maintenance, if the wife is divorced by the 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’. Whether Mahr is an amount payable by the husband to the wife on divorce? Some confusion is 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 fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable ‘on divorce’. 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. If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the Marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce.
HELD: –
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
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