- (1.) 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, 1985 (2) SCC 556. 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 husbands 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 Sec. 125 Cr.P.C. The husband immediately dissolved the marriage by pronouncing a triple talaq. He paid Rs. 3,000/- 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.
(3.) Thus, the principal question for consideration before this Court was the interpretation of Sec. 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 Sec. 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 Sec. 125 Cr.P.C., even if it is not relevant in the context of Sec. 127(3)(b) Cr.P.C. Therefore, this Court held that it is a sum payable on divorce within the meaning of Sec. 127(3)(b) Cr.P.C. and held that mahr is such a sum which cannot ipso facto absolve the husbands liability under the Act.;