Mohd. Ahmed Khan v. Shah Bano Begum (1985)

The personal-law head of this unit asks what a wife takes on dissolution of the marriage, and whether the secular law reaches her when her personal law stops. Shah Bano is the decision that answered it for a Muslim divorced wife, and it is the reason the Muslim Women (Protection of Rights on Divorce) Act 1986 exists. Nothing else in this paper shows so clearly what is at stake in the relationship between a general beneficial statute and a personal law.

Two propositions come out of it. The general maintenance provision is a secular remedy against destitution which overrides the personal law of the parties where the two conflict. And the payment of mahr on divorce does not, by itself, absolve the husband of that liability.

The husband appealed against a judgment of the Madhya Pradesh High Court directing him to pay 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 was thrown out of her husband's residence. For about two years the husband paid maintenance at Rs 200 per month; when those payments ceased, she petitioned under the general maintenance provision.

The husband immediately dissolved the marriage by pronouncing a triple talaq. He paid Rs 3,000 as deferred mahr and a further sum covering arrears and maintenance for the iddat period, and then asked for the petition to be dismissed on the ground that she had received all that was due to her on divorce under the Muslim law applicable to the parties.

The feature the Court fixed on was her position. She had managed the matrimonial home for more than forty years, had borne and reared five children, and was incapable of taking up any career or independently supporting herself at that stage of her life; remarriage was an impossibility. The husband was a successful advocate with an approximate income of Rs 5,000 per month.

1. The Code controls, and overrides the personal law. The Court reiterated that the criminal procedure code controls proceedings of this kind and overrides the personal law of the parties; where there is a conflict between the terms of the Code and the rights and obligations of individuals, the former prevails.

1. Mahr does not extinguish the liability. Mahr is more closely connected with marriage than with divorce, though it, or a significant part of it, is usually payable when the marriage is dissolved by death or divorce. It is a sum payable on divorce within the meaning of the provision relied on by the husband, but it cannot ipso facto absolve the husband's liability. If it is not a reasonable alternative to a maintenance order it cannot absolve him; even then it is part of the resources available to the woman and is taken into account in considering her eligibility and the quantum.

1. Divorced women may therefore apply. Divorced women are entitled to apply for maintenance orders against their former husbands under the general maintenance provision, and such applications are not barred by the provision about sums payable on divorce.

1. The personal law itself was read as supporting this. The rule that the divorced wife's right to maintenance ceases on the expiry of iddat states a general proposition which does not deal with the special situation of a divorced wife unable to maintain herself; its application must be restricted to cases where no possibility of vagrancy or destitution arises from her indigence. The Court concluded that the Quranic verses relied on leave no doubt that an obligation is imposed on the Muslim husband to make provision for, or to provide maintenance to, the divorced wife.

The steps are worth copying whenever a personal law is said to oust a general statute.

1. Characterise the general provision by its purpose. It is a measure against vagrancy and destitution, summary and secular, available irrespective of religion.
2. Ask whether the personal law actually says what is claimed for it. Here the textbook proposition about iddat was addressed to the ordinary case and not to the indigent divorcee.
3. Treat what has been paid as a resource, not as a discharge. Mahr and iddat maintenance go into the calculation; they do not end the inquiry.
4. Apply the overriding effect only where there is a real conflict. The Court's conclusion was that, properly understood, there was none.

It opens the maintenance head of the personal-law question, and it is the necessary first half of any answer on the rights of a divorced Muslim woman; the second half is the 1986 Act and Danial Latifi. Use it also in the Uniform Civil Code discussion, where the observations made in this case were relied on when the Court later asked the Government to look afresh at Art. 44.

It disposes of the argument that payment of mahr and iddat maintenance is a complete answer to a claim by a destitute divorced wife.

It does not decide the position under the 1986 Act, which was enacted afterwards — the Statement of Objects and Reasons recites this judgment — and which was itself later upheld, but read so as to preserve the substance of the relief. Nor does it decide the maintenance of children, which was never in issue here. On citation, note that the Code it was decided under has been replaced by the Bharatiya Nagarik Suraksha Sanhita 2023, whose s. 144 now carries the summary remedy, with the Explanation extending wife to a divorced woman who has not remarried.