Site hosted by Build your free website today!

THE HISTORIC SHAH BANO CASE.....notes from the book written by Asgar Ali Engineer

The Supreme Court passed Historic Judgement on 23rd April 1985 in Mohammed Ahmed Khan v/s Shah Bano case which made waves all over the country. The Judgement was passed under section 125 of Criminal Procedure Code,1973 that the destitute divorced wife is entitled for maintenence after divorce, would be applicable to Indian Muslim. The said judgement was passed by Justice of India Shri Chandrachud, Justice D.A. DESAI and others.

Shah bano begam was married to Ahmed Khan in 1932, three sons and two daughters were born out of the marriage . In 1975 Ahmed Khan drove her out of the matrimonial home and in April 1978 she filed a petition against Ahmed Khan for maintenence against 125 of Criminal Procedure Code,1973. On Nov 6 1978 Ahmed Khan divorced his wife Shah Bano by a irrevocable Talaq. Ahmed Khan was a advocate and was having a flourishing practice. He got married to another woman and had and two children from second wife too.
Ahemd khan had a defence to the Shah Bano petition that she is a divorced wife and therefore he was under no obligation to maintain her under muslim laws as he had paid a dower of Rs 3000/- during Iddat period. The Magistrate court directed to pay a amout of 25/- per manth ot the Shah Ban. In the revisional application the High Court of M p, it enhanced the amount to 179.20/- Permonth.

Ahmed khan however approached against the judgement to the Supreme Court and the matter was before the then Cheif Justice of India His Lordship Chandrachud.

In his judgement C.J Chandrachud referred to many verses from the Holy Quran AIYAT 241 AND 242(THE HOLY QURAN BY YUSUF ALI).According to the said Aiyat 241 and 242 PROPHET MOHAMMED, there is a obligation on Muslim Husband to provide for the divorced wife THE english version of the two aiyats in Mohd Zafauallah Khan The QURAN PAGE 38 reads as ;

for divorced women also there shall be provision according to what is fair this is a obligation binding on the righteous Thus Allah make his commandment clear to you that you may understand".

Aiyat 241 of SURA II of the Holy Quran

And for the divorced women let there be a fair provision . This is a obligation on those who are mindful to god" (trans Dr Syed Abdul Latif,1969)

Under Section 125 of CRPC, A wife who is without any income and has no source of income and is neglected by her husband is entitle to maintenence, which incluedes divorced wife who is not remarried.

If a divorced wife is unable to maintain herself the husband liability to provide maintenence does not cease with the expiration of period of iddat and she can take the recourse of section 125 of the CRPC. The outcome is that there is no conflict between the provision of section 125 and those of Muslim personal laws on the question of Muslim husband obligation to provide maintenence for a divorced wife who is unable to maintain herself

Ahmed Khan's advocate emphasised that as he has already paid the whole of amount which any customary orpersonal law applies to the parties at the time of divorce, so the petition under section 125 is liable to be dismissed because of the provision contained in section 127(3)(b).

According to Justice Chandrachud "mehr" is a amount paid to the wife a mark of respect and in consideration of marriage at the time of marriage so such sum payable to the wife out of respcet if paid at the time of divorce cannnot be a mehr or dower.

His Lordship gave a detailed judgement and the appeal was dismissed and the JUDGEMENT OF HIGH COURT WAS CONFIRMED which was passed in favour of SHAH BANO BEGUM.
After the judgment there was lot of dissatisfaction and a pressure was build up the goverment which let to the framing of MUSLIM WOMEN(PROTECTION OF RIGHTS ON DIVORCE) Bill in 1986 by the then Prime Minister Shri Rajiv Gandhi, to diffuse the judgement which was passed in favour of Shah Bano.


Section 125 of Criminal Procedure Code 1973
Maintenence and Alimony
Women Helpline