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SECTION 125 OF THE CRIMINAL PROCEDURE CODE IS SECULAR: SC

Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April 1985,1985 AIR 945, 1985 SCR (3) 844.

The bench comprising of Justice Chandrachud Y.V., Justice Desai D.A., Justice Rangnath Misra, Justice O. Chinnapa Reddy, Justice E.S. Venkataramiah issued the order for the case Mohd. Ahmed Khan vs Shah Bano Begum And Ors. The bench had dismissed the appeal made by the appellant and upheld the decision of the High Court

The wife has claimed for the maintenance from her husband in consequence of that he had declared irrevocable talaq. The High court asked the appellant to give maintenance to his wife. Now the appeal is in front of the Supreme Court.

The question of law is whether Section 125 of the Criminal Procedure Code is maintainable in Muslim law?

Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife? whether the mere payment of Mehr by the husband on divorce is sufficient enough to rid him of any duty to pay maintenance to the wife thereafter?.

Section 125 of the Code of Criminal Procedure which deals with the right of maintenance reads thus: “Order for maintenance of wives, children, and parents. This Section secular. Any divorced women who can not take care of herself are capable of claiming the maintenance from her husband. Only civil laws gain differences in the aspect of religion. Section 125 of the Criminal Procedure Code contains the word wife which includes divorced wife as well but it does not exclude the Muslim divorced wife.

There will be a conflict between Section 125 and the Muslim Personal Law, which should be followed to determine the liability of the husband.

The contention made by the appellant side and the interveners who support him is in Mulla’s Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the effect that, “After divorce, the wife is entitled to maintenance during the period of iddat. Tyabji’s Muslim law and Dr. Paras Diwan are against the concept of giving maintenance to the divorced wife after the period of Iddat.

The appellant made a contention that the Holy Quran is the greater authority in the Book of Muslims. Verses (Aiyats) 241 and 242 of the Quran show that according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives. “241 – And for the divorced woman (also) a provision (should be made) with fairness (in addition to her dower); (This is) a duty (incumbent) on the reverent. 242 -A Thus Allah makes clear His commandments for you: It is expected that you will use your commonsense.” The above aid explanation the Aiyats was made by Dr. Allamah Khadim Rahmani Nuri, in “The Running Commentary of The Holy Quran”

The Holy Quran insitis the Muslim husband to provide maintenance to his divorced wife even after the iddat period and such maintenance should be the addition made to her dower.

The second contention made by the appellant is that the respondent’s argument based on Section 152 is likely to be dismissed. According to  Section 127 of the Criminal Procedure Code, if the divorced wife has received any sum of amount from her husband which was payable on divorce under any personal law or customary law the maintenance need not be provided to her under Section 125 of the Criminal Procedure Code.

The court held that this cannot be taken as a valid argument as the appellant has aid that the husband ha paid Mahr to his divorced wife out of divorce. But the court says that Mahr is the amount paid to the wife out respect but a man cannot divorce his wife out respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable ‘on divorce’.

The interveners who support the appellant made a contention to an extreme point, the right to maintenance is to the women who are not capable of taking care of themselves and if the divorced women is needy she should be taken care by her relatives or she can make use of the money which was paid as Mahr.

The speech made by Shri Ram Niwas Mirdha, the then Minister of State, Home Affair, the government does not like to interfere in the Muslim personal law through the Criminal Procedural Code.

The insincere answer of the All India Muslim Personal Board

“We appreciate that Begum Temur Jehan, a social worker who has been working in association with the Delhi City Women’s Association for the uplift of Muslim women”

It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. Providing Justice to all equally will be more satisfying than providing justice differently in different cases.

A Seminar held on October 18, 1980, under the auspices of the Department of Islamic and Comparative Law, Indian Institute of Islamic Studies New Delhi, an appeal was made to the Muslim community to display by their conduct a correct understanding of Islamic concepts on marriage and divorce.

The Report of the Commission on Marriage and Family Laws, which was appointed by the Government of Pakistan by a Resolution dated August 4, 1955. The answer of the Commission to Question No.5 (page 1215 of the Report) is that “a large number of middle-aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children.”

For these reasons the SC held that the appeal was dismissed and the appellant should pay the maintenance to his divorced wife which is rupees thousand “It is needless to add that it would be open to the respondent to make an application under section 127 (1) of the code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section.” View/ Download of Judgment: Mohd. Ahmed Khan vs Shah Bano Begum And Ors – Manusri Ramakrishna

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