Smt.

SITA BHAI & ORS v RAMACHANDRAN

FACTS
1. Plaintiff 1 is the widow of deceased Bhagirath, who was brother of
Dhulichand. After Bhagirath died, the plaintiff Sitabai was living with
Dhulichand as a result of which connection, an illegitimate child defendant
Ramchandra was born in 1935. Dhulichand died on March 13, 1958.
2. Plaintiff 1 adopted plaintiff 2, Suresh Chandra and an adoption deed was
executed on March 4, 1958. After the death of Dhulichand, Ramchandra took
possession of the joint family properties.
3. The plaintiffs therefore brought the present case for removal of the defendant,
the illegitimate son of Dhulichand from the disputed properties. The defendant
contested on the ground that Dhulichand had in his lifetime surrendered the
properties entirely to him.
4. The trial court decided all the issues and stated that Dhulichand was valid so
far as half of his share in the properties was concerned and, therefore,
defendant was entitled to claim half the share of the properties in dispute.
5. The defendant appealed in High court, which states that on the date of
adoption Dhulichand was the sole coparcener and there was nobody else to
take a share of his property and plaintiff 2 had no concern with the
coparcenary property in the hands of Dhulichand. Plaintiffs appealed for the
same in Supreme Court.
ISSUES
Whether the son adopted by the widow becomes the son of the deceased husband and
coparcener of a joint family?

LEGAL PROVISIONS
The apex court took reference of Clause (VI) of Section 11 and Section 12 of Hindu
Adoptions and Maintenance Act, 1956 which states:
Section 11:
“The child to be adopted must be actually given and taken in adoption by the parents
or guardian concerned or under their authority with intent to transfer the child from
the family of its birth to the family of its adoption.
Section 12:
An adopted child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of the adoption and from such date
all the ties of the child in the family of his or her birth shall be deemed to be replaced
by those created by the adoption in the adoptive family;
Provided that, the adopted child shall not divest any person of any estate which vested
in him or her before the adoption.”

Obiter dicta:-
“Section 5(1) of Hindu Adoptions and Maintenance Act, 1956 states:
(1) No adoption shall be made after the commencement of this Act by or to a Hindu
except in accordance with the provisions contained in this chapter.
Section 6 deals with the requisites of a valid adoption and provides:
No adoption shall be valid unless-
(i) The person adopting has the capacity, and also the right, to take in adoption.
(ii) The person giving in adoption has the capacity to do so;
(iii) The person adopted is capable of being taken in adoption; and
(iv)The adoption is made in compliance with the other conditions mentioned in this
Chapter.
Sections 7 and 8 relate to the capacity of a male Hindu and a female Hindu to take
in adoption.
Under Section 7 any male Hindu who is of sound mind and is not a minor has the
capacity to take a son or a daughter in adoption.
If he is married, requires the consent of his wife in connection with the adoption.
A person having more than one wife is required to have the consent of all his wives.
Under Section 8 any female Hindu, who is of sound mind and not a minor is stated to
have capacity to take a son or a daughter in adoption. The language of this section
shows that all females except a wife have capacity to adopt a son or a daughter.
Thus, an unmarried female or a divorcee or a widow has the legal capacity to take a
son or a daughter in adoption.

Judgement:
The Supreme Court set aside the decree passed by the High Court and further allowed
the decree of trial court granting the half share of the joint family properties.
Conclusion:
The present case states the dispute regarding the Joint Hindu Family property between
the son born in the family and an adoptive son. The dispute arose between the two
regarding who will get the family properties.
Plaintiff 2 is the adopted son and the widow filed a suit referring Section 11 and 12 of
the Hindu Adoption and Maintenance Act, 1956 whereas the defendant contested that
he should be entitled to get all the property in regard of the will which Dhulichand
created to be executed after his death. The trial court states that defendant was entitled
to claim half the share of properties in dispute.
Further, the defendant made an appeal where the High court ruled in his favour and
dismissed the suit entirely. After this, the plaintiffs appealed before Supreme Court
where the order made by the High Court was set aside and retained the decree passed
by the trial Judge.
GEETHA HARIHARAN v RESERVE BANK OF INDIA
FACTS
 The petitioner and Dr. Mohan Ram tied a nuptial knot in 1982 and from the
wedlock their son (Riahab Bailey) was born in 1984.
 The petitioner by an application requested the Reserve Bank of India for a 9%
relief bond in favor of her son with a proclamation, that being the mother she
would act as a natural guardian and supervise all the investments.
 However, the application was returned, and the Court instructed the petitioner
to present the application signed by the father of the minor son and
additionally furnish the certificate of guardianship by a competent authority in
her favor.
 Second, there was a divorce proceeding pending between the petitioner and
her husband in which the husband prayed for the custody of the child.
 In association with this, he had written many letters to the petitioner asserting
that he is the natural guardian of the minor child and they could take no
decision without his approval, which has resulted in the present case.
ISSUES
Whether the Constitution of India violates section 6 of the Hindu Minority and
Guardianship Act?
CONTENTIONS
 The assertion illustrated by the petitioner was twofold firstly it was contended
that section 6 of the act is discriminatory against women and runs counter to
the equality of parental rights.
 As the literal meaning of section 6 conveys the natural guardian of a boy or
unmarried girl is the father and after him, such right rests with the mother, the
term “after” in a general sense refers to the lifetime of the father providing
secondary status to mothers.
 This contravenes Article 15 of the constitution and constrains the right of
guardianship from the women.
 Second, it was contended that the husband/father is non-existent and
completely apathetic regarding his son.
RATIO DECEDENDI
 The Hindu Minority and Guardianship Act, 1956 was fashioned for the
protection and welfare of the children, therefore, any interpretation of its
provision should be asper the judiciary should reject the intent of the
legislation.
 While the interpretation of statute courts stresses harmonious construction and
retention of the statute, scrapping is considered an end resort when there is a
gross violation.
 The courts while analyzing the welfare of a child should consider the
circumstances of the case, the position of parents, the religion of the child,
etc., therefore, reliance was placed on the case of J.V Gajre V.
Pathankan (1970) 2 SCC 717, where mother and father were separated for a
long time and mother supervised all the affairs of the child and despite father
was alive he was non-existent in management of his child’s life, the mother
was granted the status of a natural guardian by the court.

JUDGEMENT
 Gender equality is a critical element in constitutional law consequently when
the term “after” characterizes as disqualification of the mother as a natural
guardian during the lifetime of the father will be considered a contravention to
constitutional law.
 “father being a dominant personality cannot be given preferential rights over
mother” therefore, the term “after” in section 6 of the act, should not be
interpreted in a narrow sense as “after the lifetime” on the contrary it should
be characterized as “in absence of father” i.e. be it temporary or otherwise or
total apathy by father because of any sickness or otherwise the mother would
be considered as the natural guardian of the child.
Section 6 (a) of the Hindu Minority and Guardianship Act 1956, mentions that the
father and “after” him, the mother are said to be the natural guardian of the son and
unmarried daughter. The mother has the custody of a minor who has not completed
the age of five years.
YOUSUF RAWTHER v SOWRAMMA
ISSUES
1. The plaintiff (defendant) had attained puberty even before the marriage with
the appellant took place.
2. Subsequent to the wedding, the bridal pair moved on to live in the husband’s
house, immediately a day after which, the defendant (appellant) left for
Coimbatore to run his radio dealer’s business.
3. After a month of living in the house of the husband, due to reasons that are
blamed by each on the other, the girl went back to her parents.
4. Such separation lasted for two years, during which the defendant (appellant)
admittedly failed to maintain the wife.
5. The alleged ground sought by the defendant (appellant) was that he was
willing and indeed, anxious to keep her with him but she wrongfully refused
to return to the conjugal home, thanks to the objectional inhibition by the
father of the girl.
6. Finding the wife recalcitrant, the husband moved the mosque committee
through his brother but such effort did not bring any fruit, as a result of which
divorce was the only solution as reported by them.
7. Litigation of dissolution erupted after preliminary skirmishes of lawyer
notices. The suit was dismissed by the Trial Court but a decree for dissolution
of the marriage was granted by the Subordinate Judge’s Court.
8. This is an appeal by the aggrieved husband, challenging the validity of the
lower appellate court.

ISSUES
1. Whether a dissolution of marriage can be claimed by the wife on the grounds
of failure of the husband to maintain the erring wife for 2 years.

RATIO DECEDENDI
1. The reasoning of Tyabji (AIR 1943 Sind 65) accords with the holy Islamic
texts and the ethos of the Muslim community which together serve as a
backdrop for the proper understanding of the provisions of Act 8 of
1939. Further, this pragmatic and secular approach of the Muslim Law of
 divorce harmonizes happily with the contemporary concepts possessed by
advanced countries.
2. The law of the Marumakkathayees provides a large license for divorce but
actual experience allays the alarm. The law has to provide for possibilities;
social opinion regulates the probabilities.
3. A Muslim woman can sue for dissolution, under Section 2 (ii) of the Act, on
the ground that she has not, for a fact, been maintained even if there is good
cause for it–the voice of the law echoing public policy is often that of the
realist, not of the moralist.

JUDGEMENT
1. The appeal fails and is dismissed but without costs at any tier.
The case put forward a seminal issue regarding the right of the wife to claim for the
dissolution of marriage on the grounds of not receiving maintenance for two years. An
examination of the relevant provisions and a number of relevant judgements helped
the Bench in coming to a just conclusion, ultimately dismissing the appeal.
MOHD. AHMED KHAN v SHAH BANO BEGUM
FACTS
Mohd Ahmed Khan, a lawyer, married Shah Bano Begum in 1932 and they had three
sons and two daughters. In 1975, when Shah Bano was 62 years old, her husband
disowned her and ejected her from their marital home, along with their children. In
1978, she filed an appeal before the Judicial Magistrate of Indore because she had
been left without the monthly maintenance of Rs. 200 that her husband was supposed
to provide. She requested an increased maintenance of Rs. 500 per month.
Later, her husband pronounced irrevocable triple talaq on November 6th, 1978, using
it as a defence to avoid paying maintenance. In August 1979, the magistrate ordered
the husband to pay a total of Rs. 25 per month as maintenance. In July 1980, Shah
Bano appealed to the High Court of Madhya Pradesh to increase the maintenance to
Rs. 179 per month and the high court granted her request.
The husband challenged the High Court’s decision in the Supreme Court through a
special leave petition.

ISSUES
 Whether the “WIFE” definition include a divorced Muslim woman?
 Whether it override personal law?
 Whether a Muslim husband’s obligation to provide maintenance for a divorced
wife is in or not in the conflict between section 125 and Muslim Personal
Law?
 What is the sum payable on divorce? The meaning of Mehar or dower is not
summed payable on divorce?

PETITIONER ARGUMENTS
 Maintenance under the Muslim Personal Law Board: The petitioner in
Shah Bano case argued that the responsibility for providing maintenance to
Muslim women rested with the Muslim Personal Law Board and civil courts
lacked the authority to grant maintenance to Muslim women under Muslim
Personal Law.
 Shariah Law: The petitioner contended that according to the principles of
Shariah Law, as interpreted by the Muslim Personal Law Board, a Muslim
 husband was not obligated to provide maintenance to his divorced wife
beyond the iddat period, which is three months after the divorce.
 Interpretation of the Quran: The petitioner in Shah Bano case argued that
the Quran did not mandate Muslim husbands to offer maintenance to their
divorced wives beyond the iddat period.
 Constitutional Validity of Section 125 of the Criminal Procedure Code: The
petitioner claimed that Section 125 of the Criminal Procedure Code, which
addresses maintenance for wives, children and parents, was unconstitutional
because it contradicted personal law principles.
 Discrimination against Muslim husbands: The petitioner in Shah Bano case
maintained that requiring Muslim husbands to provide post-iddat maintenance
constituted discrimination against them, as this requirement did not apply to
husbands of other religions.

RESPONDENT ARGUMENTS
 The Muslim Women (Protection of Rights on Divorce) Act, 1986: The
respondent in Shah Bano case argued that this act, which aimed to overturn the
Supreme Court’s decision, was constitutional and essential for safeguarding
the rights of Muslim women.
 Interpretation of Quranic Injunctions: The respondent contended that the
Quranic guidelines on maintenance and divorce should be interpreted in a
manner consistent with contemporary principles of justice and equity. They
believed that the Act aligned with Quranic injunctions and aimed to prevent
Muslim women from being left destitute after divorce.
 Secularism: The respondent claimed that the Act did not infringe upon the
principles of secularism in the Indian Constitution, as its intent was to protect
the fundamental rights of Muslim women. They also argued that the Act did
not discriminate against Muslim men since they were still required to provide
maintenance to their divorced wives in accordance with Quranic principles.

JUDGEMENT
The verdict of Shah Bano case was delivered by Chief Justice Y.C. Chandrachud and
it resulted in the dismissal of Mohd. Ahmed Khan’s appeal. The Supreme Court ruled
that Section 125 of the Code of Criminal Procedure applied to all citizens, irrespective
of their religion, without discrimination. The court clarified that Section 125(3) of the
Code of Criminal Procedure was applicable to Muslims as well. It was emphasised
that in case of any conflict between Section 125 and Muslim Personal Law, Section
125 prevailed.
The Supreme Court in Shah Bano case concluded that a Muslim husband’s obligation
to provide maintenance to a divorced wife who was unable to support herself
extended beyond the iddat period, as specified in the Muslim Personal Law. The court
expressed that this rule in Muslim Law was inhumane or incorrect because it left a
divorced wife in a situation where she couldn’t support herself.
The court also stated that the payment of Mehar (a sum paid by the husband on
divorce) was not sufficient to absolve him of the responsibility to provide
maintenance to his wife.
After a thorough legal process, the Supreme Court ultimately ruled in Shah Bano case
that a husband’s legal obligation would cease if the divorced wife could support
herself. However, this obligation would be reinstated if the wife remained unable to
support herself after the iddat period and she would be entitled to receive maintenance
or alimony under Section 125 of the Code of Criminal Procedure.

DANIEL LATIFF v UOI

ISSUES
Section 125 of the Criminal Procedure Code, 1973 (hereinafter, CrPC) is one of the
most discussed sections of the CrPC. It provides that a person having sufficient means
cannot deny maintenance of wife, children, and parents who are unable to maintain
themselves. For the purpose of this Section, “wife includes a woman who has been
divorced by, or has obtained a divorce from, her husband and has not re-married”. A
magistrate can order a husband to provide a monthly allowance as maintenance to his
wife.
The principal object of Section 125 is to achieve social welfare and prevent vagrancy
and destitution of the wife. In Mohd Ahmed Khan v Shah Bano Begum (hereinafter,
Shah Bano), the Supreme Court held that Section 125 of the CrPC is a secular
provision and applies to Muslim women also. It held that a Muslim husband is liable
to maintain her wife if she is unable to maintain herself even after the iddat period is
over. The same judgment was nullified by Section 3 of the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (hereinafter, the Act). However, this
section was subsequently upheld by the Supreme Court in Danial Latifi v Union of
India. (hereinafter, Danial Latifi)
In this article, the author critically analyses the judgment of Danial Latifi. He argues
how the judgment was inconsistent with the ‘Secular’ reasoning provided in Shah
Bano. Further, he analyses the problem of maintenance in the Act and the prevailing
circumstances in which the Act was passed. However, before analyzing it, it is
necessary to understand the position before Shah Bano, the judgment of Shah Bano
and its aftermath effects.

ISSUES

1.Constitutional validity of Muslim Women Protection Act, 1986 was challenged.

2. Does the husband only maintain her wife only during the iddat period.

CONTENTIONS
The petitioner claimed that the Muslim women are also entitled to take maintenance
under section 125 of Criminal procedure code 1973, if they do not receive a minimum
satisfactory amount of maintenance during the period iddat.
The petitioner claimed that section 125 of crpc was made to provide the benefit to the
divorce wife, considering article 21 of the Indian constitution which talks about
protecting life and personal liberty.
It also finds that not providing maintenance to Muslim women under section 125 of
Crpc would result in the discrimination between Muslim religion women and other
religion women because they are entitled to take advantage under this section.
The remedies provided under section 125 will violate article 14,15 and 21 of the
constitution if it would apply to the muslim women case.
According to the solicitor general it was stated that whatever challenge was made
under this law was outside personal law.

The Argument for the Respondent

It was stated discrimination and no equal treatment for Muslim women. Personal laws
in our country are different for each religion and become the basis for discrimination.
It has been accepted by the constitution and is not violative of Article 14. If Section
125 of the Criminal Procedure Code applies to the Muslims also, then the legislation
has to state it and make other provisions for that.
The parliament in the Muslim woman’s protection Act 1986 under Section 3 has
mentioned reasonable and fair provision and maintenance to be provided by the
husband to the wife within the iddat period. Then why does the question of lifetime
maintenance or only within the iddat period arises?
Shah Bano’s Judgment was denied only because it did not make justice to the Muslim
personnel law. It was also stated that there was no discrimination in the Judgment
rather the decision made did not justify or was in correlation with personnel law.
Following what the personal law prescribes and been accepted by the constitution
cannot be stated as discriminatory. Personal laws are implemented such that the
particular community can follow it and has no idea for discrimination. The Act
implemented by the parliament was to safeguard the personnel law and prevent any
interruption by other laws. The Act aims not to bring any peculiarity or difference in
the prescribed personnel law.
It is to be noted that the Muslim personal law has sufficient provisions to protect
Muslim women, and it is not necessary that only by extending Section 125 the
Muslim women are protected. Muslim law never intends to make the women suffer,
and it is to be noted that Muslim law is made focusing on women’s protection.
Therefore, the Act prescribed cannot be stated invalid or unconstitutional.

PROVISIONS
Section 125 of the Criminal Procedure Code- states to provide maintenance to the
wife irrespective of religion
Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 –
states to provide maintenance to the wife till the iddat period.
Article 14, 15, 21- states for Right to Equality, Right to not get discriminated based
on Religion, Race, caste, sex or Place of Birth, and Right to life.

JUDGEMENT
The Supreme Court held that section 3(1) (a) under which the husband can make
arrangements for maintenance within the Iddat period, to enable the wife to get
maintenance till she remarries. The term used “within the Period” stands for that the
husband shall make the arrangements for the maintenance of her wife and it must be
enough to maintain her whole life otherwise if he fails to so, her wife will claim
maintenance under section 125 of criminal procedure code, 1973.

SHAYARA BANO v U.O.I

Facts of the Case:

  Shayara Bano's marriage with Rizwan Ahmed was for 15 years. She was one
of those women who were survivors of domestic violence and dowry
harassment.
 In 2016, she had been unilaterally divorced through instantaneous triple talaq.
 A writ petition was then filed by her before the Supreme Court.
 The petition stated a declaration that "the practices of Instant Triple Talaq,
polygamy and Nikah Halala in Muslim personal law were illegal,
unconstitutional, and in violation of several fundamental rights i.e., Articles 14
(equality before law), 15 (non-discrimination), 21 (right to life with dignity)
and 25 (right to freedom of conscience and religion) of the Indian
Constitution."
 The Union of India as well as the women's rights organizations like the
Bebaak Collective and the Bhartiya Muslim Mahila Andolan (BMMA) also
supported Ms. Bano's plea that these practices should be held unconstitutional.
They even urged the court to declare that personal law was subject to the
Fundamental Rights.
 The All-India Muslim Personal Law Board (AIMPLB) has argued that
uncodified Muslim personal law is not subject to constitutional judicial review
and that the Court did not have jurisdiction to entertain a constitutional
challenge to Muslim personal law as these are essential practices of the
Islamic religion and are protected under Article 25 of the Constitution.
 On 16th February 2017, Shayara Bano, the Union of India, various women's
rights bodies, and the All-India Muslim Personal Law Board (AIMPLB) were
asked by the court to introduce written submissions on the problems and issues
of talaq-e- bidat, nikah-halala, and polygamy.

Issues in the Case:

 Whether the practice of talaq-e-bidat, an essential practice of Islam?
 And whether this practice of Triple Talaq violates fundamental rights i.e.,
Articles 14,15,21, and 25 of the Indian constitution?

Arguments in the Case:

Petitioner's Argument:
 1. Shayara Bano's advocate Mr. Amith Chadha began by arguing that triple talaq
is not a form of divorce recognized by The Muslim Personal Law (Shariat)
Application Act, 1937. He also pointed out that several High Courts and
Supreme Court have restricted this unilateral power of Muslim men to be able
to divorce Muslim women and even criticized the practice of triple talaq as it
does not have any Quranic sanction.
2. He urged the court to "strike down the practice of triple talaq as it allows an
un-codified power to Muslim men to divorce, violating Articles 14 and 15 of
the Constitution."
3. Next, Mr. Amith Chadha argued that "the practices challenged in this case are
not essential practices of Islam as it is evident from legislations in other
Islamic countries, that have prohibited such practices."
4. Mr. Anand Grover, representing the Bharatiya Muslim Mahila Andolan
(BMMA) also clarified that "Talaq itself is of three types: talaq ahsan and
talaq hasan, both of which are approved and recognized by the Quran and
Hadith while the third type that is talaq-e-bidat, is neither recognized nor
approved by the Quran nor the Hadith.
5. Ms. Indira Jaising, Sr. Adv. who was representing the Intervenors, argued that
"personal laws - whether codified or un-codified - regardless of the
community, are subject to Article 13 of the Indian Constitution and therefore
void to the extent that they violate fundamental rights."
6. She also concluded by advancing the general proposition that "any divorce
which is unilateral and without judicial oversight violates Articles 14, 15 and
21 of the Indian Constitution. Also, the general Islamic concept of marriage
among Muslims is admittedly a contract it cannot be dissolved unilaterally."
7. Mr. Anand Grover, Sr. Adv, started by pointing out that "the AIMPLB is a
private body that isn't representative of the views of all Hanafi Muslims. He
asserted that there are differences in the Hadith texts and read an interpretation
of Hadith which prescribed that triple talaq should be staggered."

Respondent's Arguments
Mr. Kapil Sibal, Sr. Advocate, representing the All India Muslim Personal Law Board
(AIMPL) began by emphasizing that the core underlying issue before the court is that
of patriarchy which pervades every religion and not the issue of triple talaq
Mr. Sibal referred to the Constituent Assembly Debates to argue that the definition of
law under Article 13 does not include personal laws. He suggested that the explicit
mention of personal laws in the Concurrent List (List III of the Seventh Schedule) and
its absence in Article 13 demonstrates the Constitution makers' intention to exclude
personal laws.
Mr. Sibal then sought to place this case in a historical and social context. He noted
that it is important to protect minority rights in a Hindu majority state. Most
jurisdictions that passed legislation abolishing triple talaq have Muslim majorities.
Hence, India must be sensitive to the Muslim community's minority status before
legislation is proposed.
Mr. Sibal responded that while the Quran is silent on triple talaq, there is nothing in it
that prohibits triple talaq. Moreover, petitioners' view that the Quran alone is the
source for understanding talaq is incorrect as the Sharia is based on the Quran, Hadith,
and interpretations of scholars.
Mr. Sibal concluded arguments by claiming that Muslim women are not discriminated
against by the triple talaq rule and may even benefit from immediate relief from bad
marriages. He proposed four options for a Muslim woman to protect herself from a
discriminatory use of the triple talaq: first, she may register the marriage under the
Special Marriage Act, 1954; second, she can insert conditions into the Nikahnama to
prohibit her husband from exercising a triple talaq; thirdly, she delegates the right to
talaq to herself and finally, insist on the payment of a high Mehr amount to deter the
exercise of triple talaq.
He concluded arguments by emphasizing that the Hanafi school is a religious
denomination and that every denomination's right to practice religion is protected
under Article 26 of the Constitution.
Mr. Goel argued that the question of assessing the constitutional validity of triple
talaq does not arise as the divorce is between two private individuals and there is no
state action involved.
Moreover, since marriage is a private contract under Islamic Law, no State legislation
can change it.
Mr. Giri, Sr. Advocate, cited verses from the Quran to argue that marriage and
divorce have sources in religious scriptures and thus are essential matters of religion
protected under Articles 25 and 26 of the Constitution.

Judgment by Court:
The Supreme Court laid down its judgment on August 22, 2017 in a 3:2 majority,
holding the practice of Triple Talaq unconstitutional. The 5-judge bench that heard
the controversial triple talaq case in 2017 was made up of different faith members.
The five judges were from five different communities i.e., Chief Justice JS Khehar (a
Sikh), Justices Kurian Joseph (a Christian), RF Nariman (a Parsi), UU Lalit (a Hindu),
and Abdul Nazeer (a Muslim).

Justice Rohinton Nariman and Uday Lalit held that talaq-e-bidat is regulated by the
Muslim personal law (Shariat) application 8, 1937. They held the practice is
unconstitutional because it is arbitrary. Justice Kurian Joseph, on the other hand,
noted that triple talaq is against the Quran, hence it lacks legal sanction. He wrote,
"what is held to be bad in the Holy Quran cannot be good in Shariat and, what is bad
in theology is bad in law as well". They held that this practice of Instantaneous Triple
Talaq is against both theologies as well as law and just because it is followed by a
large number of people, it cannot be validated.

Notably, the dissenting minority opinion of chief justice Khehar and Justice Abdul
Nazeer held that such a practice is an essential religious element of Islam. They
justified this stance on the basis that this practice of talaq-e-biddat is followed around
by a large number of people. So, since this practice has the sanction of religious
denominations and is also followed by an overwhelming majority of the Muslim
population, it is to be declared constitutional as well as an essential religious practice.

It is mentioned under Article 25 of the Constitution that the state cannot take away
any essential religious practice of a person. Hence, if a practice is arbitrary and not an
essential religious practice, it will be categorized under the exception laid down under
Article 25. On that account, the whole issue was whether or not the practice of Talaq-
e-biddat, is an essential religious practice of Islam.
Justice Khehar believed that as far as the exceptions that are mentioned in Article
25(1) of the Constitution, this practice was not violative of any of these exceptions as
Shariat or Muslim Personal law is not based on any state legislative action.

Conclusion:
In the above case that is Shayara Bano v. Union of India, the Apex Court has held the
practice of triple talaq (talaq-e-biddat), unconstitutional by a 3:2 majority.
SHABANA BANO v IMRAN KHAN
FACTS
Appellant Shabana Bano was married to the respondent Imran Khan according to
Muslim rites at Gwalior on 26.11.2001. According to the appellant, at the time of
marriage, necessary household goods to be used by the couple were given. However,
despite this, the respondent-husband and his family members treated the appellant
with cruelty and continued to demand more dowry. After some time, the appellant
became pregnant and was taken to her parents' house by the respondent. The
respondent threatened the appellant that in case his demand of dowry is not met by the
appellant's parents, then she would not be taken back to her matrimonial home even
after delivery.
Appellant delivered a child in her parental home. Since even after delivery,
respondent did not think it proper to discharge his responsibility by taking her back,
she was constrained to file a petition under Section 125 of the Code of Criminal
Procedure (for short, 'Cr.P.C.') against the respondent in the Court of Family Judge,
Gwalior. It was averred by the appellant that respondent has been earning a sum of
Rs. 12,000/- per month by doing some private work and she had no money to
maintain herself and her new-born child. Thus, she claimed a sum of Rs.3000/- per
month from the respondent towards maintenance. denied all the contents of the
petition filed by the appellant under Section 125 of the Cr.P.C. except admitting his
marriage with the appellant.
Preliminary objections were raised by the respondent that appellant has already been
divorced on 20.8.2004 in accordance with Muslim Law. Thus, under the provisions of
Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to
as `Muslim Act'), appellant is not entitled to any maintenance after the divorce and
after the expiry of the iddat period. It was also contended by him that appellant herself
is earning Rs.6,000/- per month by giving private tuitions and is not dependent on the
income of the respondent, thus, she is not entitled to any maintenance. It was also
contended by respondent that appellant had gone to her parental home on her own
free-will and accord, after taking all the jewellery and a sum of Rs.1000/- and despite
notice being sent, she has not returned to her matrimonial home.
ISSUES

Whether a Muslim divorced wife is entitled to support from her divorced husband
under Section 125 of the Cr.P.C., and if so, through which forum?

Whether Muslim divorced women are entitled to support after the 'iddat period' and
whether they can make a claim

LAWS APPLICABLE:

Section 125 of Code of Criminal Procedure, 1973(CrPC):

“Order for maintenance of wives, children and parents. In case his wife is unable to
maintain herself, “wife” includes a woman who has been divorced by, or has obtained
a divorce from, her husband and has not remarried.”

Section 20 of the family Act:

“Which makes the situation crystal clear that the provisions of the Act shall have an
overriding effect on all other enactments in force dealing with the issue of
maintenance”

ARGUMENTS

1] In November of 2001, Shabana Bano (appellant) married Imran Khan (respondent)

in Gwalior, India, according to Muslim rituals.

2] The appellant stated that her spouse and his family were cruel to her because they
demanded more dowry from her.

3] When the appellant became pregnant, the respondent took her to her parents'
residence, where she gave birth to the child.

4] She was told to come when the dowry demands were met.
5] The appellant was then forced to file a suit against the respondent in the Court of
the Family Judge, Gwalior, under Section 125 of the Cr.P.C., requesting a monthly
support of Rs. 3000 because he was not accepting any responsibility even after the
divorce.

6] The respondent argued that the appellant was divorced in accordance with Muslim
law on August 20, 2004. As a result of the Muslim Women (Protection of Rights on
Divorce) Act, 1986, the appellant is ineligible for alimony after the divorce and the
iddat time has expired.

PROSECUTION:

1] The petitioner claimed that, despite paying a dowry at the time of marriage, her
husband and his family continued to demand more money and treated her cruelly.
Then she was transported to her parents' house, where she gave birth to her child and
sought her husband for maintenance, which he refused.

2] According to the Petitioner, the respondent received a monthly salary of Rs.

12,000, from which he should pay her Rs. 3000 in maintenance on a monthly basis.

3] The maintenance claim was filed under Section 125 of the 1973 Code of Criminal
Procedure.

DEFENCE

1] Respondent's attorney contended in court that there is no explicit statute stating that
a Muslim husband is obligated to pay maintenance to his divorced wife even after the
'iddat' time has expired.

2] Aside from that, the respondent claimed that the appellant was earning Rs. 6000
per month from private tutoring and hence didn't require the support.
3] The respondent also claimed that the Muslim Women (Protection of Rights on
Divorce) Act, 1986, did not include any provisions for maintenance.

JUDGEMENT

1] The Court noted that Section 5 of the Muslim Women Act addresses the potential
of being controlled by Sections 125-128 of the Cr.P.C.

2] Family Courts have the authority to try suits or procedures for maintenance under
Section 7(1)(f) of the Family Courts Act, 1984.

3] The Family Act, under Section 20, has the effect of replacing all other enactments
in force dealing with this subject.

As a result, a Family Court established under the Family Act has exclusive authority
to arbitrate claims brought under Section 125 of the Cr.P.C.

4] As long as the appellant does not remarry, the appellant's petition under Section
125 Cr.P.C. will be sustained in the Family Court. The amount of maintenance due
under Section 125 Cr.P.C. cannot be confined to the iddat period.

As a result, the case was remanded to the Family Court in Gwalior, where it would be
decided on the merits in accordance with the law. Even if a Muslim woman has been
divorced, she is still entitled to support from her husband under Section 125 of the
Cr.P.C. once the term of iddat has expired.
NOOR KHATOON v MOHD. KHASIM
FACTS
Noor Saba Khatoon married Mohammed Qasim on 27th October 1980 as per Muslim
tradition. 3 children were born to them out of the said wedlock (i.e., 2 daughters and a
son) One fine day due to some matrimonial discord, Mohd. Qasim threw the appellant
and their 3 kids out from the matrimonial home and thereby refused to maintain them.
He later had a 2nd marriage with one Shahnawaz Begum. At that time his 3 children
were aged 6 years, 3 years and an infant girl just aged 1 ½ year respectively.
Noor Saba Khatoon filed a petition on 13th February 1992 for maintenance for
herself and on behalf of her children in the court of Judicial Magistrate 1st Class,
Gopalganj. The respondent, Mohammed Qasim went on to divorce his 1st wife Noor
Saba Khatoon just to modify the maintenance amount ordered by the trial court.
Appellant’s Contentions The appellant in her petition filed before the trial court
pleaded for maintenance amount for herself and her 3 minor kids.
She petitioned that each child should receive a monthly amount of Rupees 300 and
also a monthly allowance of Rupees 400 for herself. She stated in her petition that her
husband is a well-off person who has farmland and also owns a business of electrical
appliances. Whereas she has no means to maintain herself and their children and has
no source of income.

ISSUES
Whether Muslim children are entitled to maintenance under section 125 of Cr.P.C?

JUDGEMENT
Trial Court Verdict: The Trial Court observed that the respondent neglected his duty
to maintain his children and wife. Thus, on 19thJanuary 1993, The Judicial Magistrate
ordered the maintenance amount to be paid to the wife at the rate of Rupees 200/- per
month and to each of their children Rupees 150/- per month. But after this order,
Mohammed Qasim divorced his wife and asked the court to make changes in the
maintenance amount as per section 3(1)(b) of the Muslim Women (Protection of
Rights on Divorce) Act, 1986.
The Judicial Magistrate modified the order and held that the wife will get
maintenance only up to the period of iddat and whereas with regards to the children
the maintenance amount ordered under section 125 of Cr.P.C shall not be affected In
any manner by the 1986 Act.
Revision Court Verdict: The respondent still was not satisfied by the order passed by
the trial court and thus applied for revision but his application got dismissed by the
2nd additional judge.
High Court Verdict: The respondent then went on to appeal in the High Court. The
single-judge bench of the High Court held that under section 3(1)(b) of the Muslim
Women (Protection of Rights on Divorce) Act, 1986a woman can seek maintenance
for her children for 2 years from the date of birth. Accordingly, the High Court
ordered that only the infant girl aged 1 ½ year was eligible to get maintenance until
she attains the age of 2 years and hence, the other 2 children were held ineligible to
receive any maintenance. Furthermore, the Court said that the children cannot claim
maintenance under section 125 of Cr.PC.
Supreme Court Verdict: The appellant-mother filed an appeal in the Supreme Court
of India against the impugned order by way of a special leave petition. The Supreme
Court found an error in the judgement passed by the High Court and remarked that the
order passed by the concerned High Court was misleading and improper. Thus, the
order of the High Court was set aside and held the judgement passed by the trial judge
and revision court judge to be correct. The apex court observed that the provision
under section 3(1)(b) of the 1986 Act allows additional maintenance to a mother to
maintain the child for the fosterage period of 2 years from the date of birth of the
infant. This section shall not override the provisions of section 125 of the Cr.PC that
allows minor children to claim maintenance. The rights of minor children unable to
maintain themselves shall not be affected by section 3(1)(b) of the Act. Every Muslim
child who is below the age of 18 years can obtain maintenance by invoking section
125 of the code in cases where the parents neglect or refuse to maintain. The Court
held that section 125 of the Criminal Procedure Codeputsan obligation upon the father
to maintain their children. Thus, the father was held liable to pay the maintenance
amount to his children. The apex court ordered Mohammed Qasim to pay the arrears
of maintenance within 1 year from the date of this judgement in 4 equal quarterly
instalments to the mother of his 3 children who had filed a petition on their behalf.
Lastly, the Court said that the maintenance has to be paid till the children attain
majority (i.e. 18 years of age) and in the case of daughters until they are married.