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Maintenance payable to a divorced Muslim woman CASE NAME

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Maintenance payable to a divorced Muslim woman CASE NAME
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   Maintenance payable to a divorced Muslim woman CASE NAME  Mohd. Ahmed Khan (Appellant) v. Shah Bano Begum (Respondent) CITATION  MANU/SC/019/19!" COURT  #nd$a Level of Court: Sup%eme Cou%t& on appeal Name of judge(s): Y. V. Chandrachud, C.J., D. A. Desa, !. ". Ven#ataramah, $. Chnna%%a &edd' and &anganath sra, JJ. SUMMARY OF FACTS  • he hus*and (a%%ellant) +as marred to the +fe (res%ondent) n -/. 0n -12 the hus*and drove the +fe out of the matrmonal home. #n Ap%$l 19'!& the $e $led a pet$t$on aga$nst the hus*and unde% Se+t$on 1," o the C%$m$nal -%o+edu%e Code 19' (herenafter referred to as the 3Code45 3Cr6C4) n the court of the learned Judcal agstrate (7rst Class), 0ndore. "he as#ed for ma$ntenan+e at the %ate o Rs. "00 pe% month . n Novem*e% & 19'! the hus*and d$vo%+ed $e * an $%%evo+a*le talaq.   2$s deen+e as that she had +eased to *e h$s $e * %eason o the d$vo%+e g%anted * h$m. 8e therefore clamed to *e under no o*lgaton mantenance for her snce he had alread' %ad mantenance to her at the rate of &s. /99 %er month for a*out t+o 'ears and that, he had de%osted a sum of &s. 999 n the court *' +a' of do+er durng the %erod the of iddat  . #n August& 19'9 the lea%ned Mag$st%ate d$%e+ted appellant to pa a p%$n+el sum o Rs. ," pe% month to the %espondent * a o ma$ntenan+e.  0n Jul', -9 n a %ev$s$onal appl$+at$on  fled *' the res%ondent, the 2$gh +ou%t o Madha -%adesh enhan+ed the amount o ma$ntenan+e to Rs. 1'9.,0 pe% month. • he hus*and has fled ths a%%eal *' spe+$al leave *eo%e the Sup%eme Cou%t. LEGAL REASONING  1) 3hethe% the pament o meha% * the hus*and on d$vo%+e $s su$+$ent to a*solve h$m o an dut to pa ma$ntenan+e to the $e. “...there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under Section 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce. (%ara /)he Court reached the a*ove concluson n su%%ort of the rulng n !ai "ahira +here Justce ;rshna 0'er held that <... The payment of illuo!y amount (%ee%%$ng to 4 meha!  5)  "y #ay of $utoma!y o! pe!onal la#  !equi!ement #ill "e $oni%e!e% in the !e%u$tion of maintenan$e !ate "ut $annot annihilate that !ate unle it i a !eaona"le u"titute.& (%./, =a ahra). ,) 3hethe% the%e $s an p%ov$s$on $n the Musl$m -e%sonal 6a unde% h$+h a sum $s paa*le to the $e 7on d$vo%+e7 &eferrng to the ve+s %ut forth *' the learned scholars (ulla, 'a*j and 6aras D+an), the Court concluded that “"hese statements in the te#t boo$ are inade%uate to establish the proposition that the Muslim husband is not under an obli&ation to provide for the maintenance of his divorced wife, who is unable to maintain herself. (%ara >) “"he sum settled by way of Mahr is &enerally e#pected to ta$e care of the ordinary re%uirements of the wife, durin& the marria&e and after. !ut these  provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. 'e consider it not only incorrect but un(ust, to e#tend the scope of the statements e#tracted above to cases in which a divorced wife is unable to maintain herself. 'e are of the opinion that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of va&rancy or destitution arisin& out of the indi&ence of the divorced wife (%ara >) “Since the Muslim Personal Law, which limits the husband)s liability to  provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisa&ed by Section 125, it would be wron& to hold that the Muslim husband, accordin& to his personal law, is not under an obli&ation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. (%ara >)he Court concluded that the l$a*$l$t o the hus*and to pa ma$ntenan+e to the $e e8tends *eond the i%%at   pe%$od $ the $e does not have su$+$ent means to ma$nta$n he%sel.) 3hethe% Se+t$on 1," o the Code appl$es to Musl$ms. &eferrng to "ecton /2 of the Code, the Court sad: “"he reli&ion professed by a spouse or by the spouses has no place in the scheme of these  provisions. 'hether the spouses are *indus or Muslims, +hristians or Parsis, pa&ans or heathens is wholly irrelevant in the application of these  provision. "he reason for this is a#iomatic, in the sense that Section 125 is a  part of the code of +riminal Procedure, not of the +ivil Laws which define and &overn the ri&ht and obli&ations of the parties belon&in& to particular reli&ions, li$e the *indu doptions and Maintenance ct, the Shariat, or the Parsi Matrimonial ct. (%ara 1) “+lause -b of the /#planation to Section 125-1, which defines )wife) as includin& a divorced wife, contains no words of limitation to (ustify the e#clusion of Muslim women from its scope. (%ara 1) “)  'ife( mean a #ife a %efine%) i!!epe$ti*e of the !eli+ion p!ofee% "y he! o! "y he! hu"an%. The!efo!e) a %i*o!$e% Mulim #oman) o lon+ a he ha not !ema!!ie%) i a (#ife( fo! the pu!poe of Se$tion ,-. The tatuto!y !i+ht a*aila"le to he! un%e! that e$tion i unaffe$te% "y the p!o*iion of the pe!onal la# appli$a"le to he!.   (%ara -) ) 3hethe% Se+t$on 1," ould p%eva$l ove% the pe%sonal la o the pa%t$es& $n +ases he%e the a%e $n +onl$+t. he Court n ans+erng ths ?ueston, gave the e@am%le of the 0slamc La+ regardng %ol'gam': “0t is too well$nown that  Mahomedan may have as many as four wives at the same time but not more. 0f he marries a fifth wife when he has already four, the marria&e is not void, but merely irre&ular.   "he e#planation confers upon the wife the ri&ht to refuse to live with her husband if he contracts another marria&e, leave alone 3 or 4 other marria&es. and held “0t shows, unmista$ably, that Se$tion ,- o*e!!i%e the pe!onal la#) if i any the!e $onfli$t "et#een the t#o.  (%ara ) ") 3hethe% the%e $s an +onl$+t *eteen the p%ov$s$ons o Se+t$on 1," and those o the Musl$m -e%sonal 6a on the l$a*$l$t o the Musl$m hus*and to p%ov$de o% the ma$ntenan+e o h$s d$vo%+ed $e. “"he true position is that, if the divorced wife is able to maintain herself, the husband)s liability to provide maintenance for her ceases with the e#piration of the period of iddat. 0f she is unable to maintain herself, she is entitled to ta$e recourse to Section 125 of the +ode. "he outcome of this discussion is that the!e i no $onfli$t "et#een the p!o*iion of Se$tion ,- an% thoe of the Mulim /e!onal La# on the quetion of the Mulim hu"an%( o"li+ation to p!o*i%e maintenan$e fo! a %i*o!$e% #ife #ho i una"le to maintain he!elf.  (%ara >) CONCLUSION  Dsmssng the a%%eal, the Court held: 1) he pament o meha!   * the hus*and on d$vo%+e $s not su$+$ent to a*solve h$m o the dut to pa ma$ntenan+e to the $e.,) he l$a*$l$t o the hus*and to pa ma$ntenan+e to the $e e8tends *eond the i%%at   pe%$od $ the $e does not have su$+$ent means to ma$nta$n he%sel.) Se+t$on 1," o the Code appl$es to all +$t$:ens $%%espe+t$ve o the$% %el$g$on) Se+t$on 1," ove%%$des the pe%sonal la& $ $s an the%e +onl$+t *eteen the to.") he%e $s no +onl$+t *eteen the p%ov$s$ons o Se+t$on 1," and those o the Musl$m -e%sonal 6a on the ;uest$on o the Musl$m hus*and7s o*l$gat$on to p%ov$de ma$ntenan+e o% a d$vo%+ed $e ho $s una*le to ma$nta$n he%sel. RESOURCES  Ree%en+e to Se+t$ons 1," and 1,' () (*) o the Code he +fe had fled a sut for mantenance under secton /2 of Cr6C. he hus*and *ult hs defence on "ecton /1()(*) of Cr6C. 1 See Mulla's Mahomedan Law, 18th Edition, paragraph 255, page 285, quoting Baillie's Digest of Mahomedan Law and !meer !li's Mahomedan Law, 5th Edition, "ol# $$, page 28%#  #S6AM#C SCR#-UR<S= >e%ses (A$ats) ,1 and ,, o the ?u%an  sho+ that accordng to the 6ro%het, there s an o*lgaton on uslm hus*ands to %rovde for ther dvorced +ves. ("ee Bhe 8ol' uranB *' Yusuf Al, 6age ->). he translaton of A'ats /9 to // n Bhe eanng of the uranB (Vol. 0, %u*lshed *' the =oard of 0slamc 6u*lcatons, Delh) reads thus: A$ats ,0@,1 “"hose of you, who shall die and leave wives behind them, should ma$e a will to the effect that they should be provided with a year)s maintenance and should not be turned out of their homes. !ut if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way  llah is llPowerful, llwise. Li$ewise, the divorced women should also be &iven somethin& in accordance with the $nown fair standard. "his is an obli&ation upon the 6odfearin& people.  A$at ,, “"hus llah ma$es clear *is commandments for you 70t is e#pected that you will use your common sense.  he 8on4*le Court after stud'ng the "cr%tures +as of the o%non: “"hese iyats leave no doubt that the 8uran imposes an obli&ation on the Muslim husband to ma$e provision for or to provide maintenance to the divorced wife. (%ara /2) LAN0MAR1 /RECE0ENTS  n hethe% Se+t$on 1," o C%-C appl$es to Musl$ms ● !ai "ahira v. li *ussain 9idaalli +hothia /   and 9u:lunbi v. ;. ;hader <ali   hose decsons too# the ve+ that the dvorced uslm +fe s enttled to a%%l' for mantenance under "ecton /2.he "u%reme Court n the %resent case ?uoted +th a%%roval the a*ove decsons and clarf'ng an error n the rulng of !ai "ahira  added that “Mahr, not bein& payable on divorce, does not fall within the meanin& of that  provision -Section 12=-3-b of +rP+ (%ara ). he Court +as of the ve+ that the pament o meha!   does not a*solve the hus*and5s dut to pa ma$ntenan+e to h$s $e unde% Se+t$on 1,'()(*) o the Code. n hethe% Se+t$on 1," o the Code $s appl$+a*le to Musl$m omen E >ana$ +hand v. Shri +handra ;ishore &arwala  " $ri, ?. (n >aya$ +hand  ) , while pointin& out that the scope of the *indu  doptions and Maintenance ct. 1@5A and that of Section 4BB was different, said that Section 4BB (of Cr6C -)  was applicable to all persons belon&in& to all reli&ions and has no relationship with the personal law of the  parties  . (%ara ) Affrmng >aya$ +hand  , the Court n the %resent case u%held that Se+t$on !! o the C%-C 1!9!  (+hch s re%lcated n su*stance as "ecton /2 of 2M!&(S)(%*%2(1+8-M!&(S)(%5%8(1+8%*1+%)riL.522  Cr6C -1) $s appl$+a*le to all the +$t$:ens $%%espe+t$ve o the$% %el$g$on& the%e* +on+lud$ng that Se+t$on 1," o the Code $s appl$+a*le to Musl$m omen. 7urther %recedents had *een dscussed n the %resent caseF ho+ever, the' are not drectl' n %ont +th the legal ?uestons at hand. ISLAMIC E2/ERTS3  AUT4ORS CITE0 n the $e5s +la$m o% ma$ntenan+e ate% d$vo%+e E Mulla7s Mahomedan 6a  (th !dton, %ara /1-, %age 9/) : At %age 9/, the learned author notes: “'here an order is made for the maintenance of a wife under Section 4BB of the +riminal Procedure +ode ("ecton  of Cr6C - +hch s re%lcated su*stantall' as "ecton /2 of Cr6C -1)  and the wife is afterwards divorced, the order ceases to operate on the e#piration of the period of iddat. "he result is that a Mahomedan may defeat an order made a&ainst him under Section 4BB by divorcin& his wife immediately after the order is made. *is obli&ation to maintain his wife will cease in that case on the completion of her iddat.  E a*$7s Musl$m la  (th !dton, %ara 9, %ages />/>-) contans the statement that : Cn the e#piration of the iddat after tala%, the wife)s ri&ht to maintenance ceases, whether based on the Muslim Law, or on an order under the +riminal Procedure +ode. E -a%as $an5s  (uslm La+ n odern 0nda, -/ !dton, %age 9): 'hen a marria&e is dissolved by divorce the wife is entitled to maintenance durin& the period of iddat.... Cn the e#piration of the  period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not reco&nise any obli&ation on the  part of a man to maintain a wife whom he had divorced. All the autho%s a%e o the v$e that the pos$t$on $n #slam$+ 6a $s that 4the d$vo%+ed $e $s ent$tled to ma$ntenan+e %om the hus*and onl upto the i%%at   pe%$od.5   he lea%ned udges $n the p%esent +ase e%e o the op$n$on=  Thee tatement in the te5t "oo6 a!e ina%equate to eta"lih the p!opoition that the Mulim hu"an% i not un%e! an o"li+ation to p!o*i%e fo! the maintenan$e of hi %i*o!$e% #ife) #ho i una"le to maintain he!elf.&    (%ara >) 7'e $oni%e! it not only in$o!!e$t "ut un8ut) to e5ten% the $ope of the tatement e5t!a$te% a"o*e to $ae in #hi$h a %i*o!$e% #ife i una"le to maintain he!elf9 -para 1A. n the mean$ng o 7meha!9  • Mulla7s p%$n+$ples o Mahomedan 6a  (th !dton, %age 9) vde %ara /2 defnes DmeharE  : a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marria&e.  • Dr. 6aras D+an n hs *oo#, G Musl$m 6a $n Mode%n #nd$a G (-/ !dton, %age >9) crtcsed the defnton gven *' ulla on the ground that:
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