CASE COMMENTARY

Ahmed Khan v. Shah Bano Begum (1985)

Introduction

A landmark judgement that deals with the concept and issue of “Triple Talaq Verdict”. In a
normal course of action, this case is referred to as the “Shah Bano Case”. It not only raised
problems and conflicts over the idea of the concept in India, but it has also proved to be an
achievement in the conflicting interests of rights and freedom for the Muslim women.

Shah Bano courageously struggles to fight against the system of Triple Talaq. She chose to
face the embarrassment of the community along with her husband, instead of living like the
rest of the women of the community and supressing the story of a struggling woman. Even
though she was going through a miserable situation in her life, she still managed to fight
through the society and her husband. When the world was in the favour of her husband, she
valiantly fought against the male-dominated society. She criticized the system of Triple Talaq,
and after tons of efforts, she managed to set an example eternally for the society and her
efforts did not go in vain.

Facts of the Case

Mohd Ahmed Khan (appellant), a lawyer by profession, married Shah Bano Begum
(respondent) in 1932, and had three sons and two daughters from that marriage. In 1975,
when Shah Bano was 62 years old, her husband left her, and she and her children were
thrown out of the marital home. In 1978, she filed a complaint before the magistrate at Indore
because she did not get a maintenance of Rs. 200 per month which her husband had
guaranteed. She demanded Rs. 500 per month for maintenance. Later, her husband gave her
an irrevocable triple talaq on 6th November, 1978, and used it as a defence for non-payment
of maintenance. In August 1979, the judge ordered the husband to pay a total of Rs. 25 a
month in maintenance. In July 1908, Shah Bano filed a petition in the M.P High Court to
modify the amount of maintenance to Rs. 179 per month, and the High Court increased the
maintenance to the said amount i.e., Rs. 179 per month. The husband contested the same in
the Supreme Court as an application for special leave petition to the decision of the High
Court.

Issues

1. Whether Section 125 of the Code of Criminal Procedure, 1973, includes divorced
Muslim women?
2. Whether the fact that a Muslim husband is obligated to provide maintenance to his
divorced wife creates conflict between Section 125 of the Code of Criminal
Procedure, 1974, and Muslim Personal Law?
3. Whether Mehar/Dower assumed as sum payable on divorce?

Judgement

Mohd Ahmed Khan’s appeal was dismissed, and C. J., Y. C. Chandrachud gave the verdict.

The Supreme Court made it clear that the Section of the Code applies to every citizen,
regardless of his/her religion. Hence, Section 125(3) of the Criminal Procedure Code applies
to Muslims too, without any discrimination. Furthermore, the Court stated that in case of a
conflict between Section 125 and Muslim Personal Law, the Section prevails every time. So,
it is clear that there exists no clash between the two when it comes to the obligation on a
Muslim husband to pay maintenance to his divorced wife who cannot maintain herself.

In this case, the Supreme Court held that since a Muslim husband is obligated to provide for
his divorced wife until the ‘iddat’ period is over, this fact does not consider the rule of law
mentioned in Section 125 of the Code; it can be said that the obligation of the husband
towards his divorced wife can be extended beyond the ‘iddat’ period, in the case where the
wife is unable to maintain herself. Hence, it was also said that this rule of Muslim law was
against the nature of humanity or wrong, as the woman does not have the sufficient means to
maintain herself.
Mehar/Dower is considered to be an obligation on the husband as it is a sign of respect for
one’s wife. However, divorce cannot be called a sign of respect and hence, seeing
Mehar/Dower as “sum payable on divorce” is totally heartbreaking and wrong.

Finally, after a long process of the Court, it was concluded that the legal liability of a Muslim
husband comes to an end when the wife becomes competent to maintain herself. However,
the situation will be reversed if the wife does not have enough means to support herself. In
that case, the wife will be entitled to alimony and maintenance even after the ‘iddat’, under
the provisions of Section 125 of the Code of Criminal Procedure, 1973.

Critical Analysis

In the case of Mohd. Ahmad Khan v. Shah Bano Begum, the Supreme Court specifically
emphasized that Triple Talaq cannot take away the right of maintenance of divorced Muslim
women who are unable to support themselves or their children after their husband has left
them or divorced them. At the time when Supreme Court pronounced its judgment in the
Shah Bano case, it received a lot of criticism. At that time, Muslim women, married or
unmarried, were not given freedom. In fact, they were deprived of basic freedom, which is
anti-human and basically violates fundamental or basic human rights.

Muslim women were in a backward situation compared to other women in the world. They
were not educated and independent as compared to other women. They encountered serious
problems and issues that caused a decline in their faith and knowledge in various sectors.
Along with these issues, they were not allowed to study or exercise, and they were also
forbidden to work. Since they faced all this since their childhood, it was very natural that they
would not be able to support themselves during hard times, so, they needed a livelihood. The
case of Shah Bano was an ordinary case like other maintenance cases that happened and the
judgment given by the Supreme Court was similar to previous trials, but two bare truths
observed in this case made it a landmark. The case and the two bare truths were:

1. The spirituality of religious personal laws. It was questioned whether the Criminal
Procedure Code applies to all religions and their followers;
2. Secondly, whether the Code applies to personal religious laws.
Conclusion

Although, it took a long time in court, the decision to dismiss the appeal is very historic
because it preserves the truth and faith of individuals in the judicial system. This judgement
showed the importance of alimony that should be given to divorced Muslim women who are
unable to earn or support themselves. The Shah Bano judgement created a lot of opposition
from authoritative bodies who opposed the decision because it was against the provisions of
Islamic law, but the Supreme Court gave an impartial decision and ultimately, it maintained
the trust and confidence of citizens in the judiciary. This led to the passing of the Muslim
Women (Protection of Rights on Divorce) Act, 1986, which allowed Muslim women to
receive a huge lump sum payment from their husbands during the ‘iddat’ period instead of a
monthly payment of up to Rs. 500 – the upper limit, which was later removed.