Mohd. Ahmed Khan v. Shah Bano Begum and Ors.

Mohd Ahmed Khan, an advocate by profession, married Shah Bano Begum in 1932. Three sons and two daughters were born of the marriage. In 1975, Khan drove Shah Bano out of the matrimonial home. In April 1978, she filed a petition before the Judicial Magistrate (First Class), Indore, under Section 125 of the Code of Criminal Procedure, asking for Rs. 500 a month in maintenance pointing to Khan's professional income, which she put at roughly Rs. 60,000 a year.

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While Shah Bano's maintenance petition was pending before the Magistrate, Khan divorced her by an irrevocable talaq on 6 November 1978. His defence shifted accordingly: the divorce, he argued, ended any obligation to maintain her; he had already paid Rs. 200 a month for about two years, and he had deposited Rs. 3,000 in court as dower (Mahr) for her iddat period. In August 1979, the Magistrate ordered him to pay just Rs. 25 a month. Shah Bano moved the Madhya Pradesh High Court in revision which, in July 1980, raised the amount to Rs. 179.20 a month. Khan appealed to the Supreme Court by special leave.

Two earlier three-judge decisions of the Supreme Court - Bai Tahira v. Ali Hussain Fidalli Chothia and Fazlunbi v. K. Khader Vali had already held that Section 125 applied to Muslims, and that a divorced Muslim wife could claim maintenance under it. But when Khan's appeal reached a Bench of Justices Murtaza Fazal Ali and A. Varadarajan, they doubted those rulings, holding that they might conflict with Section 127(3)(b) of the Code and with Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. On 3 February 1981, they referred the matter to a larger Bench of more than three judges.†

Khan's argument: Under Muslim personal law, a husband's liability to maintain his divorced wife ends with the iddat period regardless of whether she can support herself afterward. Section 127(3)(b) required the maintenance order to be cancelled once the wife had received "the whole of the sum... payable on such divorce" under her personal law and Mahr, Khan argued, was exactly that sum. Shah Bano's argument: Section 125 is a secular provision of the criminal code, not a codification of any single religion's law, and covers any wife "unable to maintain herself," regardless of faith. Mahr is not a sum payable "on divorce" at all it is payable in consideration of the marriage itself, merely falling due, in its deferred form, on the marriage's dissolution.

The Bench worked through the question methodically. It first tested whether a real conflict existed at all between Section 125 and Muslim personal law rather than assuming one and picking a winner. It examined the textbook authorities Khan relied on (Mulla, Tyabji, Paras Diwan), each stating that a divorced wife's maintenance right ends at iddat, and found them inadequate to answer the specific situation of a wife left unable to maintain herself at all. It then turned to Aiyats 241 and 242 of the Quran, in several published translations, and read them as themselves imposing an obligation on a Muslim husband to provide for a divorced wife. It rejected the All India Muslim Personal Law Board's submission - that an indigent divorced woman should look to relatives, "including nephews and cousins," for support - as "a most unreasonable view of law as well as of life."¶8

Section 125 CrPC is a provision of general, secular application that does not yield to personal law. A divorced Muslim wife unable to maintain herself is entitled to maintenance under it, even beyond the iddat period because Mahr is not a sum "payable on divorce" within Section 127(3)(b), and because Muslim personal law, on the Court's reading, does not contemplate leaving an indigent divorced wife without support at all. The Court also placed on record a separate observation not part of its operative holding regretting that Article 44 of the Constitution, the directive to secure a Uniform Civil Code, remained unimplemented, and urging the State to act on it.¶12