Very Important Point
The provisions of Muslim Woman (Protection of Rights on Divorce) Act, 1986 affecting Shah Bano’s case 1988(5) SCC 556 do not offend Articles 14, 15 and 21 of the Constitution of India.

Headnote:Constitution of India—Articles 32, 14, 15 and 21—Muslim Law—Verses 241 and 242 of Chapter 2 of Holy Quran on Maintenance to Divorced Muslim Woman—Cr.P.C., 1973—Sections 125 and 127(3)(a)—Its applicability—Muslim Women (Protection of Rights on Divorce) Act, 1986—Sections 3 and 4—Constitutional validity of 1986 Act—Shah Bano’s case—Effect of 1986 Act on it—Is it constitutionally valid? (Yes)—Case law discussed on interpretation of Sections 3 and 4 of 1986 Act.
       Held : This Court in Shah Bano’s case held that although Muslim personal law limits the husband’s liability to provide maintenance for his divorced wife to the period of iddat, it does not contemplate a situation envisaged by Section 125 Cr.P.C. of 1973. The Court held that it would not be incorrect or unjustified to extend the above principle of Muslim Law to cases in which a divorced wife is unable to maintain herself and, therefore, the Court came to the conclusion that if the divorced wife is able to maintain herself the husband’s liability ceases with the expiration of the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to recourse to Section 125 Cr.P.C. This decision having imposed obligations as to the liability of Muslim husband to pay maintenance to his divorced wife, Parliament endorsed by the Act the right of a Muslim woman to be paid maintenance at the time of divorce and to protect her rights. (Para 18)
       Regarding Muslim Women (Protection of Rights on Divorce) Act, 1986
       Held : A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim woman divorcee by putting them outside the scope of Section 125 Cr.P.C. as the ‘divorced woman’ has been defined a “Muslim woman who was married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with the Muslim law”. But the Act does not apply to a Muslim woman whose marriage is solemnized either under the Indian Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim wives. The maintenance under the Act is to be paid by the husband for the duration of the iddat period and this obligation does not extend beyond the period of iddat. Once the relationship with the husband has come to an end with the expiry of the iddat period, the responsibility devolves upon the relatives of the divorcee. The Act follows Muslim personal law in determining which relatives are responsible under which circumstances. If there are no relatives, or no relatives are able to support the divorcee, then the Court can order the State Wakf Boards to pay the maintenance. Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband. The judicial enforceability of the Muslim divorced woman’s right to provision and maintenance under Section (3)(1)(a) of the Act has been subjected to the condition of husband having sufficient means which, strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during the iddat period is unconditional and cannot be circumscribed by the financial means of the husband. The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat. A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word ‘provision’ indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her clothes, and other articles. The expression “within” should be read as “during” or “for” and this cannot be done because words cannot be construed contrary to their meaning as the word “within” would mean “on or before”, “not beyond” and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but no where the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time. (Paras 27, 28 & 29)
       Held finally : While upholding the validity of the Act, we may sum up our conclusions:
        (1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.
        (2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.
        (3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
        (4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
       In the result, the writ petition Nos. 868/96, 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86 and 1281/86 challenging the validity of the provisions of the Act are dismissed. All other matters where there are other questions raised, the same shall stand relegated for consideration by appropriate Benches of this Court. (Paras 37, 38 & 39)

Judgment

Rajendra Babu, J.—The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 [hereinafter referred to as ‘the Act’] is in challenge before us in these cases.

2. The facts in Mohd. Ahmed Khan v. Shah Bano Begum & Ors.1, are as follows.

3. The husband appealed against the judgment of the Madhya Pradesh High Court directing him to pay to his divorced wife Rs. 179/- per month, enhancing the paltry sum of Rs. 25 per month originally granted by the Magistrate. The parties had been married for 43 years before the ill and elderly wife had been thrown out of her husband’s residence. For about two years the husband paid maintenance to his wife at the rate of Rs.200/- per month. When these payments ceased she petitioned under Section 125 Cr.P.C. The husband immediately dissolved the marriage by pronouncing a triple talaq. He paid Rs.3000/- as deferred mahr and a further sum to cover arrears of maintenance and maintenance for the iddat period and he sought thereafter to have the petition dismissed on the ground that she had received the amount due to her on divorce under the Muslim law applicable to the parties. The important feature of the case was that the wife had managed the matrimonial home for more than 40 years and had borne and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life - remarriage was an impossibility in that case. The husband, a successful Advocate with an approximate income of Rs. 5,000/- per month provided Rs. 200/- per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

4. Thus, the principle question for consideration before this Court was the interpretation of Section 127(3)(b) Cr.P.C. that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband from his obligation under the provisions of Section 125 Cr.P.C. A Five-Judge Bench of this Court reiterated that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties. If there was a conflict between the terms of the Code and the rights and obligations of the individuals, the former would prevail. This Court pointed out that mahr is more closely connected with marriage than with divorce though mahr or a significant portion of it, is usually payable at the time the marriage is dissolved, whether by death or divorce. This fact is relevant in the context of Section 125 Cr.P.C. even if it is not relevant in the context of Section 127(3)(b) Cr.P.C. Therefore, this Court held that it is a sum payable on divorce, within the meaning of Section 127(3)(b) Cr.P.C. and held that mahr is such a sum which cannot ipso facto absolve the husband’s liability under the Act.

5. It was next considered whether the amount of mahr constitutes a reasonable alternative to the maintenance order. If mahr is not such a sum, it cannot absolve the husband from the rigour of Section 127(3) (b) Cr.P.C. but even in that case, mahr is part of the resources available to the woman and will be taken into account in considering her eligibility for a maintenance order and the quantum of maintenance. Thus this Court concluded that the divorced women were entitled to apply for maintenance orders against their former husbands under Section 125 Cr.P.C. and such applications were not barred under Section 127(3)(b) Cr.P.C.. The husband had based his entire case on the claim to be excluded from the operation of Section 125 Cr.P.C. on the ground that Muslim law exempted from any responsibility for his divorced wife beyond payment of any mahr due to her and an amount to cover maintenance during the iddat period and Section 127(3)(b) Cr.P.C. conferred statutory recognition on this principle. Several Muslim organisations, which intervened in the matter, also addressed arguments. Some of the Muslim socia

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2001 Supreme(SC) 1349

Very Important PointThe provisions of Muslim Woman (Protection of Rights on Divorce) Act, 1986 affecting Shah Bano’s case 1988(5) SCC 556 do not offend Articles 14, 15 and 21 of the Constitution of India.

Cases Referred (8)

Very Important Point
The provisions of Muslim Woman (Protection of Rights on Divorce) Act, 1986 affecting Shah Bano’s case 1988(5) SCC 556 do not offend Articles 14, 15 and 21 of the Constitution of India.