AMBITION LAW INSTITUTE
CASE BRIEF
MUSLIM LAW
Case Name : Mohd. Ahmed Khan vs. Shah Bano Begum & Ors.
Equivalent Citation : AIR 1985 SC 945
Court : The Supreme Court of India
Bench : Justice Y.V. Chandrachud, Justice Rangnath Misra, Justice D.A. Desai,
Justice O. Chinnappa Reddy, Justice E.S. Venkataramiah.
Relevant Key Sections : Section 125 of CRPC/Section 144 of BNSS
FACTS:
An application filed by a divorced Muslim woman for maintenance under Section 125 of the CrPC/Section 144 of
BNSS, 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 to 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. In 1975 the husband drove the
respondent out of the matrimonial home, April 1978, the wife filed a petition against the appellant under Section 125
of the CrPC/Section 144 of BNSS 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 wife'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 husband to pay a princely sum of Rs. 25 per month to the wife by way of maintenance.
It may be mentioned that the wife had alleged that the husband earns a professional income of about Rs. 60,000
per year. In July, 1980 in a revisional application filed by the wife, the High court of Madhya Pradesh enhanced the
amount of maintenance to Rs. 179.20 per month. The husband is before the hon’ble Supreme Court (SC) by
special leave.
ISSUES:
The following issues were to be decided by the Supreme Court:
1. Whether the definition of the term ‘wife’ under Section 125(1) of the CrPC/Section 144 (1) of BNSS includes
a divorced Muslim woman?
2. Whether Section 125 of the CrPC/Section 144 of BNSS can override Muslim Personal Law?
3. Whether there is a conflict between the Muslim personal law and Section 125 of the CrPC/Section 144 of
BNSS regarding the obligation of the husband to pay for maintenance even after the divorce?
4. Whether the payment of Mehr or Dower on divorce can excuse the husband from the obligation to pay
maintenance under Section 127(3)(b) of the CrPC/Section 146(3)(b) of BNSS?
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OBSERVATION BY THE COURT:
Section 125 of the CrPC (Section 144 of BNSS) is one of the vital legal provisions in family law, especially since
it is applicable to any religion. In the present case, the Supreme Court noted that the religion of the parties or
spouses involved is irrelevant since the section itself did not mention any as such. It is a secular provision that can
be interpreted alongside any other religion and its personal law.
As per the Court, the rationale for this was that Section 125 was part of the CrPC and not the civil laws itself.
Thus, while civil laws may be governed by the rights and obligations under the personal laws respective to the
religion of the spouses, such is not the case for the CrPC (BNSS). Furthermore, it was also noted that Section 125
was enacted to provide a quick and summary remedy for the petitioners who are not able to financially support of
Cr.P.C. [Section 144 of BNSS] themselves and are dependent on the other party.
The Court referred to the case of Jagir Kaur and Anr vs. Jaswant Singh, AIR 1963 SC 1521 to emphasise how
Section 125 of the CrPC (Section 144 of BNSS) intends to serve a social purpose by protecting the financially
dependent spouse and their children, even if the spouses are not divorced. It is a provision that is applicable to both
divorced and still-married spouses, as was the circumstance in the aforesaid case.
In the context of the overriding effect of Section 125 of the CrPC (Section 144 of BNSS), the Court stated how the
Muslim law infamously allows polygamy by marrying up to four wives. However, the same Islamic principle also
confers the right to refuse upon the wife if she is dissatisfied with her husband’s other marriages, let it be one or
four. Thus, this showed that in case of any conflict, Section 125 was enacted to provide a quick and summary
remedy for the petitioners who are not able to financially support of Cr.P.C. [Section 144 of BNSS] overrides the
personal law.
The Supreme Court also stated that the argument put forth by the petitioner regarding the obligation of the husband
to maintain his divorced wife only till the time of the iddat period is flawed. It should only be as such when the wife
is financially stable or secure enough to support herself. If this is not the case, the divorced wife is entitled to the
remedies under Section 125 of the CrPC (Section 144 of BNSS).
There is no conflict between the Muslim personal law and Section 125 was enacted to provide a quick and
summary remedy for the petitioners who are not able to financially support of Cr.P.C. [Section 144 of BNSS]
regarding the obligation of the husband to provide for the maintenance of his divorce period. The Muslim personal
law obligates the husband to provide maintenance for the iddat period while Section 125 of the CrPC (Section 144
of BNSS) mandates it when the wife is unable to maintain herself. Both can be implemented together for better
protection of Muslim women.
On the question of whether the payment or deposition of Mehr is enough to be counted as maintenance to the wife,
the Court emphasised the ruling given in the case of Bai Tahira A. vs. Ali Hussain Fissali Chothia and Anr., AIR
1979 SC 362. In this case, the parties divorced through a consent decree as per which the husband had agreed to
pay Mehr and transfer the flat they and their son have been living in on the condition that no further claim could be
made by the wife. When the wife moved to the Court for the grant of maintenance for her and her son, she was
initially met with dismissal since Muslim law did not have the concept of maintenance after divorce. However, on
further appeal to the Supreme Court, her petition was granted and it was held that every divorcee is entitled to the
right to maintenance unless remarried. The payment of illusory amounts, such as Mehr, can be considered for the
reduction of the sum for maintenance but not complete substitution unless the amount is reasonable enough to be
considered as such.
Furthermore, when analysing the precedent set by Hamira Bibi, Amina Bibi and Ors. vs. Zubaida Bibi and
Ors. (1916), the Court observed that even after the death of the husband, the wife has the right to claim her Mehr
or ‘dower-debt’ from her husband’s property.
This view was iterated in the case of Syed Sabir Husain vs. S. Farzand Hasan (1937), where the Bombay High
Court observed that the Dower or Mehr is an essential part of the status of marriage under Muslim law. It is an
amount agreed upon prior to the marriage and even after the death of the wife, her legal heirs can claim the same
from her husband. It is the obligation of the husband to pay Mehr to the wife, or her heirs in her absence.
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Based on these rationales, the Supreme Court in the present case noted that Mehr is not something that is within
the custom to be paid to the wife during the divorce but rather during the marriage. Thus, it cannot substitute the
maintenance and the divorced wife is entitled to it under Section 125 of the CrPC (Section 144 of BNSS)
The Supreme Court made the observation that Section 125 of the CrPC (Section 144 of BNSS) is secular in nature
and would, thus, be applicable to all spouses regardless of their religion and the personal law they may follow. This
is especially so because the aforesaid section does not mention any religion explicitly and the Code (Sanhita) it
belongs to is under criminal law rather than civil law. As such, it is applicable to all the women living within the
territory of India.
It was agreed that the effect of Section 125 of the CrPC (Section 144 of BNSS) shall also apply to Muslims. The
Court also noted that Section 127(3)(b) of Cr.P.C. [Section 146(3)(b) of BNSS] does not override the Muslim law,
as can be observed under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which states that
all the matters relating to divorce under Muslim law be governed by the aforesaid act. However, the act only
mentions maintenance till the iddat period but does not prohibit the payment of maintenance beyond that period.
Furthermore, the Court also observed that under Section 125(1)(b) of the CrPC (Section 144 (1) (b) of BNSS), the
definition of the term ‘wife’ is not limited since it only explicitly mentions a wife who is unable to support herself.
Therefore, it is and can be interpreted as a divorced wife or ex-wife as well. Furthermore, the term ‘wife’ is used
irrespective of the religion. Thus, it will be applicable to women of any religion until they are remarried.
DECISION BY THE COURT:
The court held that Section 125(3) of CrPC (Section 144(3) of BNSS) solicited to Muslims too, without any sought
of discrimination. The Supreme Court in this case duly held that, since responsibility of Muslim husband towards
her divorced wife is limited to the extent of " Iddat" period, even though this situation does not contemplates the
rule of law that is mentioned in Section 125 of CrPC., 1973 (Section 144 of BNSS, 2023). According to Supreme
Court this rule according to Muslim Law was against humanity or was wrong because here a divorced wife was
not in a condition to maintain herself.Thus at the end, after very long procedure court finally concluded that the
husband is legal liability will come to an end if divorced wife is competent to maintain herself. But this situation will
be reversed in the case when wife is not able in a condition to finance or maintain herself after the Iddat period, she
will be entitle to receive maintenance or alimony under Section 125 of CrPC (Section 144 of BNSS).
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