MOHD AHAMAD KHAN VS SHAH BANO : CASE SUMMARY

The Supreme Court in Mohd Ahmad Khan Vs Shah Bano (1985) 3 SCR 844 emphasized the need of enactment of Uniform Civil Code under Article 44 of the Constitution.

FACTS OF THE CASE

The appeal involved an application filed by divorced muslim woman for maintenance under Section 125 of the Code of Criminal Procedure, 1973 (Cr.PC). The appellant, an advocate, was married to Shah Bano in 1932. They had three sons and two daughters. The Appellant drove Shah Bano from matrimonial home in 1975. The Respondent filed application for maintenance under Section 125 Cr.P.C. The appellant divorced Shah Bano on November 6, 1978 by irrevocable talaq. His defense was that he was not liable to pay maintenance as he had divorced his wife. The Magistrate ordered for payment of  maintenance of Rs. 25 per month which was enhanced by the High Court to Rs. 179.20 per month. The Appellant filed Special Leave Petition before the Supreme Court.

FINDINGS OF THE SUPREME COURT

The Supreme Court observed that under Section 125 (1) (a), a person who has sufficient means neglects or refuses to maintain his wife, who is unable to maintain herself, can be asked by Court to pay a monthly maintenance. Section 125 (1) (b) provides that “wife” includes a divorced woman who had not married again. The religion practiced by spouse or spouses has no place in scheme of Section 125. Whether spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens is wholly irrelevant in the application of these provisions. The reason being that Section 125 is part of criminal procedure and not civil laws.  The liability imposed by Section 125 to maintain close relatives who are indigent is found upon the individual’s obligation to the society to prevent vagrancy and destitution.

A divorced muslim woman, as long as she has not remarried, is a “wife” for the purposes of Section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.

The Supreme Court  observed that  it would be wrong to hold that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond the period of iddat to his divorced wife who is unable to maintain herself.  There is no conflict between the provisions of Section 125 and those of 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. The Supreme Court noted that several aiyats in Quran imposes obligation on Muslim husband to make provision for or to provide maintenance to the divorced wife.

NEED FOR UNIFORM CIVIL CODE

The Supreme Court emphasized need of Uniform Civil Code.  The Supreme Court observed that a common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell that cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably, it has the legislative competence to do so.  Piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.

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