DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY LUCKNOW

Final Draft
Subject: - Basics of Case Law Project on: - Mohd. Ahmed Khan V Shah Bano Begum

SUBMITTED TO: Shashank Shekhar Asst. Professor Department of Legal Studies R.M.L.N.L.U.

SUBMITTED BY:
Srijita Kundan Roll No. 133 Semester 1st (Section-B) B.A. LL.B (Hons.)

TABLE OF CONTENTS

1) Acknowledgment 2) Introduction History of the case Basic facts of the case Names of Judges 3) Law involved 4) Judgment 5) Authorities and Cases Referred by the Court 6) The Muslim Marriage (Protection of Rights on Divorce) Act, 1986 and its criticism 7) Conclusion 8) Bibliography

ACKNOWLEDGMENT
First of all I would like to thank my teacher Shashank Shekhar for giving me such a golden opportunity to show my skills through this project and enhance my knowledge on this topic. The project is a result of an extensive research study, hard work and labour, that is put into to make it worth reading and this was possible only with the heartous support of my subject teacher. I wish to acknowledge that in completing this project I had full support of my library staff . This project would not have been completed without the help of my universitys library Dr. Madhu Limaye library which had various quality books on the chosen topic and the universitys internet facility that helped me in making my research a success.

INTRODUCTION
PRIOR HISTORY OF THE CASE The case came to the Supreme Court from the judgment and order dated July 1, 1980 of the Madhya Pradesh High Court in Criminal Revision No. 320 of 1979. The Madhya Pradesh High Court had given its judgment in favor of the plaintiff. The constitutional bench in the Supreme Court delivered its judgment on the case on April 23, 1985. FACTS OF THE CASE The appeal arose out of an application filed by a divorced Muslim woman for maintenance under Section 125 of the CrPC.1 The parties had been married for 43 years before the wife was thrown out of the husbands house and paid Rs. 200/- per month. When these payments ceased the wife petitioned under Section 125 CrPC. The husband immediately dissolved the marriage and paid Rs. 3000/- as deferred mahr and a further sum to cover arrears of maintenance. And sought thereafter to have the petition dismissed under the Muslim Law applicable to both parties. Mohd. Ahmed Khan appealed against the judgment of the Madhya Pradesh High Court directing him to pay Rs. 179 per month to his divorced wife. The appellant in this case before the Supreme Court, is an advocate by profession, and was married to the respondent in 1932. Three sons and two daughters wire 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 defence 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 appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. In July, 1980 in a
1

Mohd Ahmed Khan V Shah Bano Begum 1985 AIR SC 945

revisional application filed by the respondent, the High court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. The husband appeared before the Supreme Court by special leave.2 NAMES OF JUDGES Y.V. Chandrachud, C.J., D. A. Desai, E. S. Venkataramiah, O. Chinnappa Reddy and Ranganath Mishra, JJ.

1985 AIR SC 945

LAW INVOLVED
Hindu Adoptions and Maintenance Act, 1956 This act was enacted in 1956 as part of the Hindu Code Bills.3 The act was put forth under the leadership of Jawaharlal Nehru, and was meant to codify and standardize the current Hindu legal tradition. The Adoptions and Maintenance Act of 1956 dealt specifically with the legal process of adopting children by a Hindu adult, as well as the legal obligations of a Hindu to provide "maintenance" to various family members including, but not limited to, their wife or wives, parents, and in-laws. Code of Criminal Procedure 1. Section 125 (1) If any person leaving sufficient means neglects or refuses to maintain(a) His wife, unable to maintain herself, or (b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) His father or mother, unable to maintain himself or 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 or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.4 2. Section 125 (3)

3 4

http://www.law.yale.edu/rcw/rcw/jurisdictions/assc/india/india_hindu_adopt.pdf http://www.vakilno1.com/bareacts/crpc/s125.htm

If any Person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, 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 for the maintenance or the interim maintenance and expenses of proceeding, as the case be, 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. 3. Section 127 (3) Where any order has been made under section 125 in favor 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) The woman has, after the date of such divorce, remarried; cancel such order as from the date of her remarriage; (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; (c) The woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance or interim maintenance, as the case may be after her divorce, cancel the order from the date thereof5

http://www.vakilno1.com/bareacts/crpc/s127.htm

JUDGMENT
This appeal does not involve any question of constitutional importance but, that is not to say that it does not involve any question of importance. Some questions which arise under the ordinary civil and criminal law are of a farreaching significance to large segments of society which have been traditionally subjected to unjust treatment. This appeal, arising out of an application filed by a divorced Muslim woman for maintenance under Section 125 of the CrPC, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring lo create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable decree of progress in that direction.6 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. 7 The above two paragraphs are direct paragraphs from the judgment of the case. The Supreme Court gave its final judgment on April 23, 1985. The final judgment of the Supreme Court was in the favor of the Respondent stating that Section 125 of Code of Criminal Procedure applies to everyone regardless of caste, creed, or religion. This judgment was met with a lot of controversy with the Muslim minorities demanding that their personal law is supreme to them and that is the one that should be followed. The parliament passed The Muslim Marriage (Protection of rights on Divorce) Act 1986 nullifying the judgment soon after to pacify the Muslim minorities.

6 7

1985 AIR SC 945 http://www.manupatrafast.in/pers/Personalized.aspx

AUTHORITIES AND CASES REFERRED BY THE COURT

The authorities and cases referred to by the judges are mainly Kuran' Edward William Lane 1843, Reprint 1982; Mulla's Mahomedan Law, 18th Edition. Baillie's Digest of Moohummudan Law Ameer Ali's Mahomedan Law, 5th Edition, Vol. II Tyabji's Muslim law 4th Edition Mulla's Mahomedan Law, 18th Edition The Quran Interpreted by Arthur J. Arberry 'The Holy Quran' by Yusuf Ali Muhammad Zafrullah Khan's 'The Quran' "The Running Commentary of The Holy Quran" (1964 Edition) by Dr. Allamah Khadim Rahmani Nuri "The Meaning of the Glorious Quran, Text and Explanatory Translation", by Marmaduke Pickthall Mulla's principles of Mahomedan Law 18th Edition Dr. Paras Diwan in "Muslim Law in Modern India" 1982 Edition Dr. Tahir Mahmood in 'Muslim Personal Law' 1977 Edition Bai Tahira V Ali Hussain Fidaalli Chothia 1979 AIR 362 Fuzlunbi v. K. Khader Vali AIR 1980 SC 1730 Jagir kaur v jaswant singh AIR 1963 SC 1521

 Nanak Chand v. Shri Chandra Kishore Agarwala AIR 1969 Delhi 235

THE MUSLIM MARRIAGE (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 AND ITS CRITICISM
The Muslim Marriage (Protection of Rights on Divorce) Act, 1986 passed with a 2/3rds majority by the parliament in which there was a majority of the Congress headed by Rajiv Gandhi at the time nullified the Supreme Courts judgment on this case. The stated objective of this act is to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith. The act stated that when a Muslim divorced woman is unable to support herself after the period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, 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 when a divorced woman has no such relatives, and does not have 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. 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 in accordance with the provisions of this Act."8 The Act came under extreme criticism as a majority of non-Muslims perceived it as a clear symbol of political appeasement at the time of elections. Critics have upheld that this act had been passed to ensure a vote bank from the Muslim Minorities. It has been argued that politics has interfered with justice. Feminists argued that minorities can exert influence over the government and the act was just another example of political interest taking priority to placate the minorities to ensure votes

http://themmindset.wordpress.com/2011/02/14/shah-bano-case/

CONCLUSION
The main aim of this project has been to throw light on the case of Mohd Ahmed Khan V Shah Bano Begum. This case is a landmark case as it brought into forefront the Muslim Law and the plight of Muslim women and because there was a bold ruling by the Supreme Court since Typically, Muslim personal laws are interpreted by considering it in light of the principles of Islamic law. The case threw open wider issues pertaining to a Muslim womans security and dignity in a marriage. This case triggered a lot of controversy, debate and discussion throughout the country especially with the enactment of The Muslim Women (Protection of Rights on Divorce) Act 1986. The act came under a lot of criticism as discussed above as well as the mixing of political interests with justice. Through this project I would like to state the interest of justice, there should be a system where political interests should not be allowed to rule in on cases as political interests may over rule wellbeing of the people involved.

BIBLIOGRAPHY
PRIMARY SOURCES 1. All India Reporter SECONDARY SOURCES 1. 2. 3. 4. www.manupatra.com http://www.cscsarchive.org/ http://indiankanoon.org/ http://www.law.yale.edu/rcw/rcw/jurisdictions/assc/india/india_hindu_ad opt.pdf 5. http://www.vakilno1.com/bareacts/crpc/s125.htm 6. http://themmindset.wordpress.com/2011/02/14/shah-bano-case/