From Shah Bano to Shabana Bano: Divorced Muslim Women And Right To Claim Maintenance Under Section 125 CrPC

In 2009, the Supreme Court categorically held that, even if a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Criminal Procedure Code after the expiry of period of iddat also, as long as she does not remarry. Even a decade after the law was so settled by the Supreme Court, many courts are still confused  about the maintainability of applications filed by divorced Muslim women under Section 125 of the Code.

Recently, the Patna High Court set aside an order of a lower court which dismissed a maintenance application filed by a Muslim woman. It seems that the court accepted the contention of the husband that since the wife had accepted divorce, she would be guided by the provisions of Muslim Women (Protection of Rights on Divorce) Act, and petition under Section 125 of the Code is not maintainable.

While considering the revision petition filed against this order, Justice Ahsanuddin Amanullah observed:

The petitioner has the option either to seek maintenance under the Act or the Code. She having chosen to move under the Code cannot be said to be debarred under law on the ground that she is a divorced Muslim lady. This is in the teeth of and contrary to the law laid down by the Hon'ble Supreme Court in a catena of decisions, including that of Shabana Bano (supra), in which also there is reference to earlier decisions as well as the Constitutional Bench decision in Danial Latifi v. Union of India

Three tears ago, the Bombay High Court also encountered such an order of a lower court, which it set aside. The High Court held that that even if the parties are governed by Mohammedan Law and provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986 are applicable, still the maintenance is not required to be confined only to iddat period but till the said lady gets remarried.

Ignorance of the law laid down by the Apex Court of the country is not an excuse especially when it results in injustice to a woman, merely because she belongs to a particular religion. This article is intended to dispel all confusions and misinformation about the scope of Section 125 CrPC vis-a-vis divorced Muslim women. 

Section 125 CrPC

Section 125 CrPC provides that, if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the 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, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct. Explanation to this section makes it clear that "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

So plain reading of this provision makes it unambiguous  that a divorced woman, irrespective of her religion, if she is unable to maintain herself, can claim maintenance under this provision.

Shah Bano Judgment

So what is the scope of exclusion of Muslim women from claiming maintenance under Section 125 CrPC? The answer to this question lies in the facts and contentions taken in famous case titled as Mohd. Ahmed Khan vs Shah Bano Begum.

In this case, a man who was a lawyer, challenged an order passed under Section 125 CrPC directing him to pay maintenance to his divorced wife. His contention was that the Muslim Personal Law impose no obligation upon him to provide for the maintenance of his divorced wife.

The two judge bench, which heard his case, doubted the correctness of two earlier judgments viz. Bai Tahira v. Ali Hussain Fidalli Chothia(1) and Fazlunbi v. K. Khader Vali.(2) These judgments had held that the divorced Muslim wife is entitled to apply for maintenance under section 125. Thus the matter was referred to larger bench of five judges presided by Justice YV Chandrachud. 

Referring to various authorities, the Constitution bench finally held:

We have attempted to show that taking the language of the statute as one finds it, 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.

Muslim Women (Protection of Rights on Divorce) Act, 1986.

A huge uproar followed the Shah Bano judgment which made the Government in power introduce and later enact a new law, Muslim Women (Protection of Rights on Divorce) Act. 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.

Danial Latifi vs. Union of India

This law enacted by the parliament was later challenged before the Supreme court by Danial Latifi, who was the lawyer for Shah Bano. Though it dismissed the challenge, the constitution bench made the following important observations:

• 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.

• 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.

• 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.

• The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

While upholding the Act, the bench made the following significant observation:

In Shah Banos case this Court has clearly explained as to the rationale behind Section 125 CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman. The contention put forth on behalf of the Muslims organisations who are interveners before us is that under the Act vagrancy or destitution is sought to be avoided but not by punishing the erring husband, if at all, but by providing for maintenance through others. If for any reason the interpretation placed by us on the language of Sections 3(1)(a) and 4 of the Act is not acceptable, we will have to examine the effect of the provisions as they stand, that is, a Muslim woman will not be entitled to maintenance from her husband after the period of iddat once the Talaq is pronounced and, if at all, thereafter maintenance could only be recovered from the various persons mentioned in Section 4 or from the Wakf Board. This Court in Olga Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545, and Maneka Gandhi v. Union of India, 1978 (1) SCC 248, held that the concept of right to life and personal liberty guaranteed under Article 21 of the Constitution would include the right to live with dignity. Before the Act, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Section 125 CrPC until she may re-marry and such a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act depriving the divorced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC. Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. It is well settled that on a rule of construction a given statute will become ultra vires or unconstitutional and, therefore, void, whereas another construction which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that Legislature does not intend to enact unconstitutional laws. We think, the latter interpretation should be accepted and, therefore, the interpretation placed by us results in upholding the validity of the Act. It is well settled that when by appropriate reading of an enactment the validity of the Act can be upheld, such interpretation is accepted by courts and not the other way.

Interpreting Section 3 of the Act, the bench had further observed:

"The wordings of Section 3 of the Act appear to indicate that the husband has two separate and distinct obligations : (1) to make a reasonable and fair provision for his divorced wife; and (2) to provide maintenance for her. The emphasis of this section is not on the nature or duration of any such provision or maintenance, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, within the iddat period. If the provisions are so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligations of both reasonable and fair provision and maintenance by paying these amounts in a lump sum to his wife, in addition to having paid his wifes mahr and restored her dowry as per Section 3(1)(c) and 3(1)(d) of the Act."

Shabana Bano v. Imran Khan

Finally, the issue again popped up In Shabana Bano v. Imran Khan, wherein it was held that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. It was further held that a petition under Section 125 Cr.P.C. would be maintainable before the Family Court as long as the woman does not remarry. The amount of maintenance to be awarded under Section 125 of the Cr.P.C. cannot be restricted for the iddat period only, it was held. It said:

"Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi (supra) and Iqbal Bano (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women. "

From Shah Bano to Shabana Bano

1. Bai Tahira v. Ali Hussain Fidalli Chothia
2. Fazlunbi v. K. Khader Vali. 
3. Mohd. Ahmed Khan vs Shah Bano Begum.
4. Muslim Women (Protection of Rights on Divorce) Act, 1986.
5. Danial Latifi vs. Union of India
   
6. Shabana Bano v. Imran Khan