7:;

BAI TAHIRA A

v.

ALI HUSSAIN FISSALLI CHOTHIA AND ANR .

•

October 6, 1978

[V. R. KRISHNA IYER, V. D. TULZAPURKAR AND R. S. PATHAK, JJ.J B

Code of Crin1inal Procedure, 1973-S. 127(3) (b )-Scope of-Wife dh·orced

"l- by the husband and was granted mehar in 1962-Wffc claimed 1naintenance f1-01n

husband under s. 125, Cr.P.C. 1973-lf could clafm-"under any customary or

personal law"-Meaning ef.

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Explanation (b) to s. 125(1) of th• Code of Criminal Procedure. 1973

provides tha.t "wife" includes a woman who has been divorced by or has obrained

a divorce from her husband and has not re-married. Section 127(3)

(b)

pro­

vides that where any order has been made under s. 125 in favour of a \'Oman

who has been divorced by or has obtained a divorce from her husband, the

~{agistrate sha.11 if he is s·atisfied that the woman has been divorced by her

husband and has received, whether before or after the date of the said order,

the whole of the sum which under any customary or personal law applicable to

1he parties, was payable on such divorce cancel such order in the circumstoo.C'eS

-stated therein.

The respondent (husband) married the appellant (wife) and had a son by

her. A few years later the respondent divorced his \Vife. By a consent decree,

in the suit filed by the wife, he transferred to her the fiat in which she was

living and agreed to pay mehar money. The compromise stated that the

"plaintiff declares that she has now no claim or right whatsoever against the

defendant". For some time thereafter they lived together but again separated.

The wife moved the magistrate under

s. 125

Cr.P.C. for grant of maintenance

to her and her son. This was granted. On appeal the Sessions Judge held

that the C.ourt had no jurisdiction under s. 125. The High Court dismissed

the wife's appeal.

On further

appeal to this Court it was contended on behalf of the respondent

that (i)

s. 125(4) would apply in the absence of proof that the wife

wa< not

living separately

by mutual consent; (ii) to attract s. 125 there must be

Proof

of neglect to maintain the wife and (iii) no claim for maintenance in this case

ean survive in the face of the consent decree whereby melzar money had. been

paid and all claims adjusted.

Allowing the appeal the Court,

HELD : Every divorcee, otherwise eligible, is entitled to the benefit of

main~

tenance allowance and the dissolution of the maniage makes no difference to

this right under t.he current Code. [78Hl

I. There is no force in the argument that the absence of mutual consent

to

Jive separately must be made out if the

hurdle of s. 125(4) is to be overcome.

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The compulsive conclusion from a divorce by a husband and his provision of a

separate :residence

as evidenced by the

consent decree fills the bi1l. Divorce H

p1ainful1y implies that the husband orders the wife out of the conjugal home.

f80Dl

76 SUPREME COURT REPORTS (1979] 2 S.C.R:.

A 2. The husband's plea is his right to ignore. So the basic condition of neglect

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to maintain is satisfied. In this generous jurisdiction the broader perception. and

appreciation of the facts and their bearing must govern the

verdict-not

chopplng

little logic or tinkering with burden of proof. [SOC]

3. (a) The consent decree resolved all disputes and settled all claims then

available. The new statutory right which could not have been in the contempla.­

tion of the parties when they entered into the consent decree in 1962 had been

created by the Code of 1973. No settlement of claim which does not have 1he

special statutory right of the divorcee under s. 125 can operate to negate that

claim. [80F]

(b) No

husba.nd can claim under s. 127(3) (b) absolution from his obligation

under

s. 125 towards a divorced \Vife except on proof of payment of

a ~um

stipulated by customary or personal law whose quantun1 is ;.nore or less sufficient

to do duty for maintenance allowance. [81F]

(c) Section

127 cannot rescue the husband from his obligation. The scheme

of Chapt.er

IX has a social purpose. Ill-used wives and desperate divorcees

shall not be driven to material and moral dereliction

to seek sanctuary in the

streets. Where the husband, by customary payment at the

time of divorce. has

adequately provided

for the divorcee, a subsequent series of recurrent doles

is.

contra-indicated and the husband liberated. The key note thought is adequacy

of payment whlcb will take reasonable care of the wife's maintenance. [80H]

(d) The payment of illusory amounts by way of customary or personal law

requirement will be considered in the reduction of maintenance rate but cannot

annihilate that rate unless it is a reasonable substitute. The legal sanclity of

the payment

is certified. by the fulfilment of the social obligation, not by a rituar E exercise rooted in custom. No construction which leads to frustration ot the

statutory project

can secure validation if the Court is to pay true homage

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Constitution. The only just construction of the section is that Parlian1ent

intended divorcees ~hould not derive a double benefit. If the first payment by

wtty of mehar or ordained by custom has a reasonable relation to the object

and

is a capitalised substitute for the order under s. 125 then s. 127 (3)

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subserves the goal and relieves the obliger, not pro tanto but wholly the purpose

}? of the payment "under any customary or personal la\v" must be to obviate

destitution of the divorcee and to provide her with wherewithal to maintain

herself. There must be a rational relation between the sum so pa'.d and its

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potential as provision for maintenance. [81B-CJ

4. Welfare laws must be so read as to be '..3ffective delivery systems of the

salutary objects sought to be served

by the Legislature and when the beneficiaries arr the weaker sections, like destitute women, the spirit of Art. 15(3) must

belight the meaning. of the section. The Constitution is a pervasive omnipresence

brooding over the meaning and transforming the values of every measure.

[77D]

CRIMINAL APPELLATE

JURISDICTION : Criminal Appeal No. 332

of 1977.

H · Appeal by Special Leave .from the Judgment and Order dated

20-10-75

of the Bombay High Court in Criminal Application No.

1379/75.

•

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•

.BAI TAHIRA v. ALI HUSSAIN (Krishna Iyer, J.) 77

>- M. C. Bhandare, A. N. Karkhanis, Miss Ma/ini Panduval and Mrs. A

•

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S. Bhandare for the Appellant.

G. L. Sanghi and A. K. Verma for Respondent No. 1.

M. 1V. Shroff for Respondent No. 2.

The Judgment of the Court was delivered by

A

Prefatory statement

KRISHNA IYER, J .-In this appeal, by special leave, we are called

upon to interpret a benign provision enacted to ameliorate the

economic condition of neglected

wives and discarded

divorcees,

namely. s. 125. Cr.P.C.

Welfare laws must be so read as to be effective delivery systems

of the salutary objects sought to be served by the Legislature and when

the beneficiaries are the weaker sections, like destitute women, the

spirit of Art. 15 (3) of the Constitution must belight the meaning of

the Section. The Constitution is a pervasive omnipresence brooding

over the meaning and transforming the values of every measure.

So,

s. 125 and sister clauses must receive a compassionate expansion of

sense that the words used permit.

The Brief Facts

The respondent (husband) married the appellant (wife) as a

second wife,

way back in 1956, and a few years later had a son by her.

The initial warmth vanished and the jealousies of a triangular situa­

tion erupted, marring mutual affection. The respondent divorced the

appellant around July 1962. A suit relating to a flat in which

the

husband had housed the wife resulted in a consent decree which

also

settled the marital disputes. For instance, it recited that the respon­

dent had transferred the suit premises, namely, a flat in Bombay,

to the appellant and also the shares of the Cooperative Housing

So­

ciety which built the flat concerned. There was a reference to

mehar

money (Rs. 5,000/-and 'iddat' money. Rs. 180/-) which was also

stated to have been adjusted by the compromise terms.

There

was a clause in the compromise : "The plaintiff declares that she has now no claim or

right whatsoever against the defendant or against the estate

and the properties of the defendant."

And another term in the settlement was that the appellant had by

virtue of the compromise become the absolute owner Of the flat and

various deposits in respect of the said flat made with the cooperative

llousing society.

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78

SUPREME COURT REPORTS [1979] 2 s.e.R.

For some time there was flickering improvement in the relations.

between the quondum husband and the quondum wife and they lived

together. Thereafter, again they separated, became cntranged. The

appellant, finding herself in financial straits and unable to maintain

herself,

moved the magistrate under s. 125 of the Criminal

Proce­

dure Code, 1973, for a monthly allowance for the maintenance of her­

self and her child. She proceeded

on the footing that she was still a

wife while the respondent rejected this status and asserted

that. she

was a divorce and therefore ineligible for maintenance. The Magistrate

who trieJ tile petition for maintenance held that the appellant was a

subsisting

wife and awarded monthly maintenance of Rs.

300/-for the

son and Rs. 400/-for the mother for their subsistence, taking due

note of the fact that the cost of

living in Bombay, where

the· parties

Jived, was high, and that the respondent had provided residential

accommodation to the appellant.

This order

was challenged before the sessions Judge by the aggriev­

ed husband, who

on a strange view of the law that the court, under s.

125, had no jurisdication to consider whether the applicant was a wife,

dismissed the petition in allowance of the appeal. The High Court

deigned to bestow little attention

on the matter and summarily dismiss­

ed a revision petition. This protracted and fluctuating litigation mis­

fm tone has led to the appeal, by special leaYe, before this Court.

The Questions Mooted

Shri Bhandare appearing for the appellant contended that the

•

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Courts below had surprisingly forgotten the plain provision in the· -t·

Explanation (b) to s. 125 ( 1) of the Code, which reads :

"wife" includes a woman who has beerr divorced b)',

or has obtained a divorce from. her husbano and has net

remarried.

On this foundation, he urged that accepting the contention of the

respondent that the appellant

was a divorcee, his client was still entitled

to an allowance. This

is obviously beyond dispute

on a simple reading

of the sub-section and it is curious how this innovative and sensitive

proYision with a benignant disposition towards destitute divorcees has

been overlooked

by all the courts below. We hold that every divorce

otherwise eligible,

is entitled to the benefit of maintenance

allowance"

and the dissolution of the marriage makes no difference to this right'

under the current Cede. In the uormal course, an order for mainte­

nance must

follow, the quantum having been

determined by the learned:

Magistrate at the trial level.

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BAI TAHIRA v. ALI HUSSAIN (Krishna Iyer, J.) 7 9

However, Shri Sanghi, appearing for the respondent, sought to A

sustain the order in his favour on three grounds. They arc of pubiic

importance since the affected party in such a fact-situation is the neg­

lected divorcee.

He first argued that s. 125 ( 4) would upply

;n the

absence of proof that the lady was not living separately by mutual

consent. His next plea was that there must be proof of neglect

to

·

maintain to attract s.125 and his third contention was that there was a B

settlement by consent decree in 1962 whereby the mehar money had

been paid and all claims adjusted, and so no claim for maintecance

could surYive. The third contention is apparently based upon a con­

tractual arrangement in the consent decree read with s. 127 (3) (b)

which reads :

"(b) the woman has been divorced by her husband and

that she has received, whether before or after the date of the

said order, the whole of the sum which, under any customary

or personal law applicable to the parties, was payable on such

divorce, cancel such order, -

(

i) in the case where such sum was paid before such

order, from the date

on which such order was made.

(ii)

in any other case, from the date of expiry of

th·e

period, if any, for which maintenance has been

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actually paid by the husband to the woman; E

We must state, however, that there was no specific plea, based "pon

the latter provisien, set up anywhere in the courts below or ucgcd

before us. But if one were to locate a legal ground to raise the con­

tention that the liability to pay maintenance bad ,.eased on account ot

the payment of mehar, it is s. 127(3) of the Code. So we must deal F

with the dual sub-heads of the third ground.

The meaning of meanings is derived from values in a given society

and its legal system. Art.15 (

3) has compelling, compassionate relevance in the context of s. 125 and the benefit of doubt. ;:· any, in

statutory interpretation belongs to the ill·used wife and the derelict G

diYorcee. This social perspective granted, the resolution of all the

disputes projected

is easy. Surely,

Parliament, in keeping with Art.

l 5 ( 3) and deliberate by design, made a special provisioc to help

women in distress cast away by divorce. Protection against moral

and material abandonment manifest in Art. 39

is part of social and

economic justice, specificated in Art. 38, fulfilment of which is funda-H

mental to the governance of the country (Art.37). From this coign

of vantage

we must view the printed text of the particular Code.

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80 SUPREME COURT REPORTS [1979] 2 S.C.R.

S. 125 requires, as a sine qua non for its application, :leglcct by

husband or father. The magistrate's order proceeds on neglect to

maintain ; the sessions judge has spoken nothing to the contrary ; and

the High Court has not spoken at

all. Moreover, the husband has

not examined himself

to prove that he has been giving allowances to

the divorced

wife. His case, on the contrary, is that she has forfeited

her claim because of divorce and the consent decree. Obviously, he

has no case of non-neglect. His plea

is his right to ignore. So the

basic condition of µeg!ect to maintain is satisfied. In this generous

iurisdictill!l, a broader perception and appreciation of the facts and their

bearing must govern the verdict not chopping little logic

or tinkering

with burden of proof.

The next

submission is that the absence of mutual consent to live

separately must be made out

if the hurdle of s. 125 ( 4) is to be over­

come.

We

see hardly any force in this plea. The compulsive conclusion

from a divorce by a husband and his provision of a separate residence as

evidenced by the consent decree fills the bill. Do divorcees have to

prove mutual consent

to live apart? Divorce painfully implies that the

husband orders her out

of the conjugal home. If law has nexus with

life this argument is still-born.

The last defence, based on

mehar payment, merits more serious

attention. The contractual limb

of the contention must easily fail. The

E consent decree

of 1962 resolved all disputes and settled all

claim; then

available. But here

is a new statutory right created as a projection of

public policy by the Code of 1973, which could not have been in the

contemplation

of the parties when in 1962, they

enter~d into a contract

to adjust their then mutual rights. No settlement of claims which does

not have the special statutory right of the divorcee under s. 125 can

F operate to negate that claim.

Nor can s.127 rescue the respondent from his obligation. Payment

of melwr money, as a customary discharge, is wi~hin the cognisance

of that provision. But what was the amount of mehar? Rs. 5000/-,

interest from which could not keep the woman's body and soul together

G for a

day, even in that city where

40% of the population are reported

to Jiye on pavements, unless she 'Vas ready to sell her

body and

give up her soul ? The point must be clearly under­

stood that the scheme

of the complex of provisions in Chapter IX has

a

,ocia] ('Urpose. Ill-used wives and desparate divorcees shall nN be

driven to material and moral dereliction to seek sanctuary in the streets.

H This traumatic horror animates the amplitude

of s.127. Where the

husband,

by customary payment at the time of divorce, has

adeqno'.ely

provided for the divorce, a subsequent series of recurrent doles is

.....

f

BAI TAHIRA v. ALI HUSSAIN (Krishna Iyer, J.) 81

). contra-indicated and the husband liberated. This is the teleological A

interpretation, the sociological decoding of the text of s.127.

The key-

note

thoughtj is adequacy of payment which will take reasonable

• care of her maintenance.

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The payment of illusory amounts by way of customary or personal

law requirement

will be considered in the reduction of maintenance rate

but cannot annihilate that rate unless it

is a reasonable substitute. The

legal sanctity of the payment

is certified by the fulfilment of the social

obligation, not by a ritual exercise rooted in custom. No construction

which leads to frustration of the statutory project can secure validation

if the court is to pay true homage to the Constitution. The only just

construction of the section

is that

Parliament intended divorcees should

not derive a double benefit.

If the first payment by way of mehar or

ordained by custom has a reasonable relation to the object and is a

capitalised substitute for the order under

s. 125-not mathematically

but

fairly-then s. 127(3) (b) subserves the goal and relieves the

obligor, not

pro tanto but wholly. The purpose of the payment 'under

any customary

or personal law' must be to obviate destitution of the

divorcee and

to provide her with wherewithal to maintain herself. Tl1e

whole scheme of s. 127 (3) (b) is manifestly to recognise the substitute

maintenance arrangement by lump sum payment organised by the

custom of the community

or the personal law of the parties. There

must be a rational relation between the sum so paid and its potential as

provisioo for maintenance. To interpret otherwise is to ,11,Jtify the

project. Law

is dynamic and its meaning cannot be pedantic but

purposeful. The proposition, therefore,

is that no husband

can claim

under s. 127(3) (b) absolution from this vbligation under s. !25 to­

wards a divorced wife except on proof of payment of a sum stipulated by

customary or personal law whose quantum is more or less sufficient to

do duty for maintenance allowance.

The conclusion that we therefore reach

is that the appeal should be

allowed and it

is hereby allowed, and the order of the trial court

restored.

P_B.R. Appeal allowed.

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