LexMOHD. AHMED KHAN versus SHAH BANO BEGUM AND ORS.
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A
MOHD. AHMED KHAN
v.
B
SHAH BANO BEGUM AND ORS.
April 23, 1985
[Y.V.CHANDRACHUD, C.J., D.A. DESAI, 0. CHINNAPPA REDDY,
C
E.S. VENKATARAMIAH AND RANGANATH MISRA, JJ.]
;r-
Mus/im Personal Law-Concept of dfrorce-Whether, oii the pronounce-
-...,,
D
E
F
ments of "taliq" and on the expiry of the period ofiddat 'fl divorced wife
ceases to be a wife,
Codeo/Crimina!Procedure Code, 1973 (Act ]/Of 1974) Sections 125(1)
(a) and Explanation (b) thereunder, Section 125 (3) and the Explanation, under the
proviso thereto and section 121 (3) (b), scope and interpretation oi-Correctness of
three Judges.' Bench decision reported in (1979) 2 SCR 75 dnd (/980) 3 SCR
1127 to the effect that section 12.5 of the code applies to Muslims and divorced
Muslim wife is entitled to maintenance-Whether there is any conflict between
the provisions of section 125 and that of the Muslitn Personal Law on the
liability of the Muslim husband to provide for the maintenance of his divorced
wife.
Code of Criminal Procedure, 1973, section 127 (3) (b) tead with .eclion
2 ofrhe Shariat Act XXVI of 1937-Wliether section 127 (3) (b) debars payme •. t
of n1ai11tenance to a divorced wife, once the Mahr or dower is paid-Whether the
liability of the husband to majntain a divroced wife is limited to the period of
"iddat".
Nature of Mahr or dower-WheJher Mehr is maintenance.
Under section 125 (1) (a), if any person, having sufficient means neglects
or refuses to maintain bis wife, unable to maintain herself, a Magistrate of the
G
First class may, upon proof of such neglect or refusal order such person to make
a monthly allowance for the maintenance of his wife at such monthly rate not
exceeding five hundred rupees in the whole. Under Explanation {b) thereunder
'·wife" includes a woman who has been divorced by, or has obtained a divorce
from her husband and has not remarried. Under the explan(!.tion below sub·
section 3 of section 125, if a husband has contracted marriage with another
woman or keeps a mistress it shall be considered to be a just ground for his
Ii
wifes' refusal to live with him. Keeping this in view, if in the trial arising out of
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i.ioito. A. ItHAN v. SHAH !11\NO BBGUM
84s
an application made under section 125, and if the husband offers to maintain
his wife on condition of living with him, the Magistrate may consider any of the
grounds of the wife's refusal to live with her husband before ordering the mainte-
nance. Under section 127 (3) (b), the Magistrate shall cancel the order passed
by him under section 125, in favour of a woman who has been divorced by, or
has obtained a divorce from her husband if the woman who has been di\.·orced
by her husband has recdved, whether before or after the date of the said order,
the whole of the sum, which, under any customary or personal law applicable to
the parties was payable on such divorce.
The appellant, who is an ajvocate by profession was married to the
respondent in 1932. Three sons and two daughters were born of that marriage
In 1975, the appellant drove the respondent out of the matrimonial home. In
April 1978, the respondent filed a petition against the appellant under section
125 of the Code of Criminal Procedure, irr the Court of the Judicial Magistrate
(First class) Indore, asking for maintenance at the rate of Rs. 500 per month,
ia view of the professional income of the appellant which wa!I about Rs. 60,000
per annum. On November 6, 1978, the appellant divorced the respondent by an
irrevocable "talaq" and took up the defence that she had ceased to be his wife
by reason of the divorce granted by him ; that he was, therefore, under no obJi.
gation to provide maintenance for her ; that he had already paid maintenance
for her at the rate of Rs. 200 per mo'nth for about two years, and that, he had
deposited a sum of Rs. 3,000 in the court by way of "dower or Mahr" during
the period of ''iddat". In August 1979, the Magistrate directed the appellant
to pay a princely sum of Rs. 25 per month to the respondent by way of mainte-
nance. In a revisional application filed by the respondent the High Court of
Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per
month. Hence the appeal by special leave by the husband. The view taken in
the earlier two three Judges' Benches of the Supreme Court presided over by
Krishna Iyer, J. and reported in (1979) 2 SCR 750 and (1980) 3 SCR 1127, to
the effect that section 125 of the Code aExcerpt shown. Read the full judgment & AI analysis in Lexace.