A

MOHD. AHMED KHAN

v.

B

SHAH BANO BEGUM AND ORS.

April 23, 1985

[Y.V.CHANDRACHUD, C.J., D.A. DESAI, 0. CHINNAPPA REDDY,

C E.S. VENKATARAMIAH AND RANGANATH MISRA, JJ.]

;r-

Mus/im Personal Law-Concept of dfrorce-Whether, oii the pronounce- -...,,

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ments of

"taliq" and on the expiry of the period ofiddat 'fl divorced wife

ceases to be a wife,

Codeo/Crimina!Procedure Code, 1973 (Act ]/Of 1974) Sections 125(1)

(a) and Explanation (b) thereunder, Section 125 (3) and the Explanation, under the

proviso thereto and section

121 (3) (b), scope and interpretation oi-Correctness of

three

Judges.' Bench decision reported in (1979) 2 SCR 75 dnd (/980) 3 SCR

1127 to the effect that section 12.5 of the code applies to Muslims and divorced

Muslim wife is entitled to maintenance-Whether there is any conflict between

the provisions of section 125 and that of the Muslitn Personal Law on the

liability

of the Muslim husband to provide for the maintenance of his divorced wife.

Code of Criminal Procedure, 1973, section 127 (3) (b) tead with .eclion

2 ofrhe Shariat Act XXVI of 1937-Wliether section 127 (3) (b) debars payme •. t

of n1ai11tenance to a divorced wife, once the Mahr or dower is paid-Whether the

liability of the husband to majntain a divroced wife is limited to the period of

"iddat".

Nature of Mahr or dower-WheJher Mehr is maintenance.

Under section 125 (1) (a), if any person, having sufficient means neglects

or refuses to maintain

bis wife, unable to maintain herself, a Magistrate of the

G 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.

Under Explanation {b) thereunder

'·wife" includes a woman who has been divorced by, or has obtained a divorce

from her husband and has not remarried. Under the explan(!.tion below sub·

section 3 of section 125, if a husband has contracted marriage with another

woman

or keeps a mistress it shall be considered to be a just ground for his Ii wifes' refusal to live with him. Keeping this in view, if in the trial arising out of

'

i.ioito. A. ItHAN v. SHAH !11\NO BBGUM 84s

an application made under section 125, and if the husband offers to maintain

his wife on condition

of living with him, the Magistrate may consider any of the

grounds of the wife's refusal to

live with her husband before ordering the mainte­

nance. Under section 127 (3) (b), the Magistrate shall cancel the order passed

by

him under section 125, in favour of a woman who has been divorced by, or

has obtained a divorce from her husband if the woman who has been

di\.·orced

by her husband has recdved, 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.

The appellant, who is an ajvocate by profession was married to the

respondent

in 1932. Three sons and two daughters were born of that marriage

In 1975, the appellant drove the respondent out of the matrimonial home. In

April 1978, the respondent filed a petition against the appellant under section 125 of the Code of Criminal Procedure, irr the Court of the Judicial Magistrate

(First class) Indore, asking for maintenance at the rate

of Rs.

500 per month,

ia view of the professional income of the appellant which wa!I about Rs. 60,000

per annum. On November 6, 1978, the appellant divorced the respondent by an

irrevocable "talaq" and took up the defence that she had ceased to be his wife

by reason of the divorce granted by him ; that he was, therefore, under no obJi.

gation to provide maintenance for her ; that he had already paid maintenance

for her at the rate

of Rs.

200 per mo'nth for about two years, and that, he had

deposited a sum

of Rs.

3,000 in the court by way of "dower or Mahr" during

the period

of

''iddat". In August 1979, the Magistrate directed the appellant

to pay a princely sum

of Rs. 25 per month to the respondent by way of

mainte­

nance. In a revisional application filed by the respondent the High Court of

Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per

month. Hence the appeal

by special leave by the husband. The view taken in

the earlier two three Judges' Benches

of the Supreme Court presided over by

Krishna Iyer, J. and reported in (1979) 2

SCR 75

0 and (1980) 3 SCR 1127, to

the effect that section 125 of the Code applies to Muslims also and that there ..

fore, the divorced muslim wife is entitled to apply for maintenance was doubted,

by the Bench consisting of Fazal Ali and Varadarajan, JJ., sinc.c in their opi ..

nion the said decisions required reconsideration by a larger Bench consisting of

more than three judges as the decisions arc.not only in direct contravention of

the plain and unambiguous language of section 127 (3) (b) of the Code which

far from overriding the Muslim law on the subject protects and applies the same

in case where a wife has been divorced

by the husband and the dower specified

has been paid and the period

of iddat has been observed but also militates

against the fundamental concept

of divorce by the husband and its

consequen~s

under the Mus.Jim law which has been expressly protected by section 2 of the

Muslim Personal Law (Shariat) Application Act, 1937-an Act which was not

noticed

in the said two decisions.

Dismissing the appeals, the Court Held :

(Per Chandrachud, C. J.)

l. The Judgments of the Supreme Court in Bal Tahira (Krishna Iyer, J.t

Tulzapurkar, J. and Pathak, J.) and Faz/unbi (Krishna llyer, J, Chinnappa

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846 SUPREME COURT REPORTS [1985] 3 s.c.R..

Reddy, J. and A.P. Sen, J.) are correct, except to the extent that the statement

at page 80 of the report in Bal Tahira made in the context of sectio.n 127 (3) (b)

namely, ''payment of Mahr money, as a customary discharge is within the

cognizance of that provision". Justice Krishna Iyer who spoke for the Court in

both these cases, relied greatly on the teleological and schematic method of

interpretation so as to advance th.:: purpose of the law. These ~nstructional

techniques have their own importance in the interpretation of statutes meant to

ameliorate the conditions of suffering sections of the. society. A divorced

rnuslim wife is, therefore, entitled to apply for maintenance under SffCtion 125 of

the Code. [86SH, 866A-CJ

2.1 Clause (b) of the Explanation to section 125 (I) of the C::ode, which

defines "wife" as including a divorced wife, contains no words of :limitation to

justify the e~clusion of Muslim women from its scope. Wife, means a wife as

.defined, irrespective

of the religion professed by her or by h:er husband.

Therefore, a divorced muslim woman so long as she has not married,

is a wife

for the purpose of section 125. [8SSA-B; 854B]

2.2 Under section 488 of the Code of 1893, the wife3' right to maintenance

depended upon the continuance

of her married status.

Therefore, that right

could

be defeated by the husband by divorcing her unilaterally

a:s under the

Muslim Personal Law, or by obtaining a decree of divorce against her under the

other systems

of law. It was in

ord~r to remove this hardship that the Joint

Committee recommended

that the benefit of the provisions regarding mainte­

nance should

be

el(tended to a divorced wOn1an, so long as she has not re­

married after the divorce.

That is the _genesis of clause (b) of the Explanation

to section

125 (1).

Section 125 of the Code is truly secular ip. character.

Section 125 was enacted in order to provide a quick and summary· remedy to a

class

of persons who are unable to maintain themselves. Whether. the spouses

are Hindus

or Mus!ims, Christians or

Parsis, Pagans or Heathens, is wholly

irrelevant

in the application of these provisions. The

reaso!1 for this is axio·

matic,

in the sense that section 125 is a part of the Code of Criminal Procedure,

not

of the Civil Laws which define and govern the rights and obligations of the

parties belonging to particular relations, like the Hindu Adoptions and

Mainte­

nance Act, The Shariat, or the Parsi Matrimonial Act. It woUld make no

differenre as to what is the religion professed by the neglected Wife, child or

parent. [8340-E: 8SSE·G]

2.3 Neglect by a person of sufficient 1neans to maintain these and the

inability

of these persons to maintain themselves are the objective criteria

which determine the

applicability of section 125. Such . provisions, which are

essentially of a prophylactic nature, cut across the barriers of religion. True,

that they do

not

supplant the personal: law of the parties but, equally, the -reli­

gion professed by the parties or the state of the personal law by which they are

governed, cannot have any repercussiOn on the applicability of such laws un·

less, within the framework of the Constitution, their application is restricted to

a defined category of religious groups or classes. The liability imposed by sec­

tion

125 to maintain

close relatives who are indigent is founded upon the indi·

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•

~IOHD. A. KHAN v. SHAH DANO BEGUM

viduals' obligation-·to the society to prevent vagrancy and destitution. That is

the moral edict of the law and morality cannot be clubbed With relation.

[834G-H]

A

That the right conferred by section 125 can be exercised irrespective of

the personal law of the parties, is fortified, especially in regard to Muslims, by

the provision contained in th-:: Explanation to the second provise to section

125 (3) of the Code. The explanation confers upon the wife the right to refuse

to live with her husbahd if he contracts another marriage leave alone, three or B

four other marriages, which a Mohomedan may have under the Islamic Law.

Further

it shows uninistakably, that section 125 overrides the personal law, if

there is any conflict between the two [836B-C,F-G]

Jagir Kaur v. Jaswant

Singh, (1964) 2 SCR 73,84; Nanak Chand v. Shri

Chandra Kishore Agarwala, [1970] 1 SCR 565 applied.

3.1 The contention that, according lo Muslim Personal Law the husband's

liability to provide for the maintenance

of bis divorced wife is limited to

th:! ·

period of iddat. despite the fact that she is unable to maintain herself cannot be

accepted, since that law does-not contemplate or countenance the situation

envisaged by section 125 of the Code. Wh~ther a husband is liable to maintain

c

his wife, which includes.a dlvorce~ wire, in all circumstances, and at all events D

is· not the subject matter of section 125. Section J 25 deals with cases in which

a person

who

is possessed of sufficient means neglects or refuses to maintain,

amongst others, bis wife who

is unable to maintain

herself. [838H, 851A-B

3.2 One must have regard to the entire conspectus of the Muslim Personal

Law in order to determine the extent,

both in quantu1n and in duration, of the

husband's liability to provide for the maintenance

of an indigent wife who has

been divorced by him. Under that law, the husband is bound

to pay Mahr to

the wife as a mark

of respect to her.

·True, that he may settle any amount he

likes

by way of dower upon his wife, which cannot be less than

10 Dirhams

which

is equivalent to three or four rupees. But one must have regard to

th~

rCalities of life. Mahr is a m1rk of respect to the wife. The sum settled by way

of Mahr is generally expected to take care of the ordinary requirements of the

wife, during the marriage and after. Bui these provisions of the Muslim Perso­

nal Law do not countenance cases in which the wife is unable to maintain her­

self after the divorce. ;:The application of those statements of law to the contrary

in text-books on Muslim Law must be restricted to that class of cases, in which

there ·is no possibility of vagrancy or destitution arising out of the indigence of

the divorced wife. [8580-G]

3.3 The true position is that, if the divorced wife is able to maintain herself,

the husband's liability to provide maintenance for her ceases with the expiration

of the period of iddat. If she is unable to maintain

herself, she is entitled to

take recourse to section 125 of the Code. Thus there is no conflict between the

provisions of section

125 and those of the

Muslim Personal Law on the question

of the Muslim husband's obligation to provide maintenance for a divorced wife

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8411 SUPREME COuRT REPORTS [t9SSJ 3 s.c.a.

who is unable to maintain herself. Aiyat No. 241 and 242 of 'the Hol)' Koran'

fortify that the Holy Koran imposed an obligation on the Muslim husband to

make provision for or to provide maintenance .to the divorced wife. The cont­

rary argument does less than justice to the teachings of Koran.

[859C-D; 862C-D]

3.4 Mahr is not the amount payable by the husband to the wife on divorce

and therefore, does not fall within the meaning

of section 127 (3) {b) of the

Code and the facile answer

of the

All India Muslim Law Boa.rd that the

Personal Law has devised the system of Mahr to meet the requirements of

women and if a woman is indigent, she must look to her relations, including

nephews and cousins, to support her is a most unreasonable view of law as well

as of life. [863E·F, 866E-F]

3.5 It is true under the Muslim Personal Law, the amount of Mahr is

usually split into two parts, one of which is called ''prompt" whicl). is payable

on demand, and the other

is called

"deferred'', which is payabJe on :the disso1u·

tion of the marriage by death or by divorce. But, the fact that defefred Mahr is

payable at

the time of the dissolution of marriage, cannot justify th.at it is pay·

able 'on divorce'. Even assuming that,

in a given case,

the entire amount of

Mahr is of the deferred variety payable on the dissolution of marriage by

divorce, it cannot be said that it is an amount which is payable on divorce.

[8638-Q]

3.6 Divorce may be a convenient or identifiable point of time at which

the deferred amount has to be paid

by the husband to the wife. But, the pay·

ment

of the amount is not occasioned by the divorce, which is what is meant by

the expression 'on divorce', which occurs

•.n section 127 (3) (b) of the Code. If

E Mahr is an amount which the wife is entitled to receive fro1n the husband in

consideration of the marriage, that is the very opposite of the amoua.t being pay­

able in consideration of divorce. Divorce dissolves the marriage.· Therefore.

no amount which

is payable in consideration of the marriage

can· possibly be

described as an amount payable in consideration

of divorce.

The alternative

premise that

Mahr is an obligation imposed upon the husband as a mark of res-

111

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pect for the wife, is wholly detrim,~ntal to the stance that it is an amount payable

to the wife oo divorce. A man may marry a woman for Jove, looks, learning or

nothing at alJ. And, he may settle a sum upon her as a mark of respect for her.

But he does not divorce her as a mark of respect. Therefore, a sum payable to

the

wife out of respect cannot be a sum payable

'on divorce'. lhus, the pay­

ment of Mahr may be deferred to a future date as, for example, death or

divorce. But, that does not mean that the payment of the deferred dower is

occasioned by these events. ]863D·G

Similarly, the provision contained in section 127 (3) (b) may have been

introduced because of the misconception that dower is an amount payable 'on

divorce.' But, that again cannot convert an amount payable as a ma~k of respect

for the wife into an amount payable on divorce. [863HJ

Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294 ; Syed Sabir Hussain

v. Farzand Hasan, 65 Indian Appeal l 19 <:ind 127 referred to,

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l.!oab. A. KHAN v. SHAH BANO BEGUM ( Chandrachud, C.J.) 849

OBSERVATION:

(Article 44 of our Constitution has remained a dead letter. There is no

evidence of any official activity for framing a comrnon civil code for the country.

A common Civil Code will help the cause of national integration by removing

disparate loyalties to

Jaws which have conflicting ideologies. It is the

State

which is charged with the duty of securing a uniform civil code for the citizens

A

of the country and, unqut.sLionably, it bcts the 1egi-;lative competence to do so. B

A beginning bas to be made if the Constitution is to have any meaning. Inevi~

tably, the role of the reformer bas to be assumed by the courts because, it is be.-

yond the endurance of sensitive minds to allow injustice to be suffered when it

is so palpable. But piecemeal attempts of courts to bridge the gap between per-

sonal laws cannot take the place of a common

Civil

Code. Justice to all is a

far more satisfactory way of dispensing_justice than justice from case to case.)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 103 of

1981.

From the Judgment and Order dated I. 7. 1980 of the Madhya

c

Pradesh High Court in Cr!. Revision No. 320 of 1979. o

P. Govindan Nair, Ashok Mahajan, Mrs. Krip/ani, Ms. Sangeeta

and S.K. Gambhir for the Appellant.

Danial Latifi Nafess Ahmad Siddiqui, S.N. Singh and T.N. Singh

for the Respondents. ·

Mohd. Yunus Salim and Shakeel llhmed for Muslim Personal

Law Board.

S.T. Desai and S.A. Syed for the] Intervener Jamat-Ulema­

Hind.

The Judgment of the Court was delivered by

F

CHANDRACHUD,C.J. This appeal does n~t involve any question

of constitutional importance but,

that is not to say that it does not G

involve any question of importance.

Some questions which arise

under the ordinary civil and criminal law are of a far-reaching

significance to large segments

of society which have been traditio-

nally subjected to unjust treatment. Women are one such segment.

' Na stree

swatantramarhati" said Manu, the Law giver : The woman

does not deserve independence. And,

it is alleged that the 'fatal H

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Mo SdPRBMB c01.iRr RE10Rfl [t98SJ 3 s.c.il.

point in Islam is the 'degraJation of woman'('). To the Prophet is

ascribed the statement, hopefully wrongly, that 'Woman was made

from a crooked rib, and

if you try to bend it straight, it will break ;

therefore treat your wives kindly.

This appeal, arising out

of an application

filed by a divorced

Muslim woman for maintenance under section 125 ·Of the Code of

Criminal Procedure, raises a straightforward issue which is of

common interest not only to Muslim women, not only to women

generally but, to all those who, aspiring to create an equal society

of men and women, lure themselves into the belief that mankind

has achieved

a remarkable degree of progress in that direction.

The appellant, who

is an advocate by profession, was married to the

respondent in

1932. Three sons and two daughters

were born of

that marriage. In 1975, the appellant drove the respondent out of

the m~trimonial home. In April 1978, the respondent filed aipetition

against the appellant under section 125 of the Code in ttle court

of the learned Judicial Magistrate (First Class), Indore asking for

maintenance at the rate

of Rs.

500 per month. On November

6,

1978 the appellant divorced the respondent by an irrevocable

talaq.His defence to the respondent's petition for maintenance was

that

she had ceased to be his wife by reason of the divorce granted

by him, to provide that he was therefore nuder no obligation

maintenance for her, that he had already paid maintenance

to her at

the rate of Rs.

200 per month for about two years and that, he had

deposited a sum

of Rs.

3000 in the court by way of dowe,r during

the period the

of iddat. In August, 1979 the learned Magistrate

directed appellant to pay a princely sum of Rs.

25

peti month

to therespondent

by

'.way of maintenance. It may bem antioned

that the respondent had alleged that the appellant earns a

professional income

of about Rs.

60,000 per year. In July, 1980, in

a revisional application filed

by the respondent, the High

Court of

Madhya Pradesh enhanced the amonnt of maintenance to Rs. 179.20

. per month. The husband is before us by special leave.

Does the Muslim Personal Law impose no obligati<;>n upon

the husband to provide for the maintenance

of his. divorced wife?

Undoubtedly, the Muslim husband enjoys the privilege

of being

(1)

'Selections from Kuran'-Edward William Lane 1843. Reprint J982, page xc

1l (Introduction)

,

)

MOHD. A. KHAN v. SHAH DANO BEGUM (Chandrachud, C.J.) 851

able to discard his wife whenever he chooses to do so, for reasons

good, bad or indifferent. Indeed, for no reason

at all. But, is the

only price

of that privilege the dole of a pittance during the period of

iddat? And, is the law so ruthless in its inequality that, no matter

bow much the husband pays for the

maintenanee of his divorced

wife during the period

of iddat, the mere fact that be has paid

something, no matter how little, absolves him for ever from the

duty·

of paying adequately so as to enable her to keep her body and soul

together? Then again, is there any provision in the Muslim Personal

Law under which a sum is payable to the wife 'on divorce'? These

are some

of the important, though agonising, questions which arise

for our decision.

The question as to whether section

125 of the Code applies to

Muslims also

is concluded by two decisions of this Court which are

reported in

Bai

Tanira v. Ali Hi1ssain'Fidaalli Chothia(

1

)

and Fazlunbi

v. K. Khader

Vali.(') Those decisions took the view that the divorced

A

B

c

Muslim wife is entitled to apply for maintenance under section 0

125. But, a Bench consisting of our learned Brethren, Murtaza

Fazal Ali and

A. Varadarajan, JJ. were inclined to the view that

those cases are not correctly decided. Therefore, they referred this

appeal to a larger Bench

by an order dated

Febru1ry 3, 1981, which

reads thus :

"As this case involves substantial question• of law

of far-reaching consequences, we feel that the decisions

of this Court in B.1i Tahira v. Ali Hu,sain Fidaalli Chothia &

A11'. and Fuzlun;; v. K. Khader Vali & Anr. require reconsi­

deration because, in our opinion, they are not only in

direct contravention

of the plain and an unambiguous

language

of s. l 27(3)(b) of the Code of Criminal

Procedure,

1973 which far from overriding the Muslim Law on the

subject protects and applies the same in case where a wife

has been divorced by the husband and the dower specified

has been paid and the period

of iddat has been observed.

The decision also appear to

us to be against the fundamental

concept

of divorce by the husband and its consequences

(l) 1979 (2)

SCR 75

(2) 1980 (J)SCR IJ27

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852 SUPREME COURT REPORTS [1985] 3 S.C.R.

A under the Muslim law which has been' expressly protected

by s. 2

of the Muslim

Personal Law (Shariat) Application

Act, 1937-an Act which was not noticed by the

aforesaid decisions. We, therefore, direct that the matter

may be placed before the Hon'ble Chief Justice for being

heard by a larger Bench consisting

of more than three

B

Judges."

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"

Section 125 of the Code of Crirr.inal Procedure which deals

with the right

of maintenance reads thus :

"Order for maintenance of wi ·es, children and parents

125. (I) If any person having sufficient means neglects

or refuses to maintain-

(a) his wife, unable to maintain herself,

(b) ..... .

(c) ······

(d) ---...

a Magistrate of the first cl~ss may, upon proof of such

neglect or refusal, order such porSJn 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 think fit ......

Explanation-For the purposes of this

Chapte1-,-

(a) ... ,_ ....

(b) "Wife" includes a woman who has been divorced by,

or has obtained a divorce from, her husband has not

remarried.

(2) ..... .

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MOHD. A. KHhN v. SHAN BANO BEGUM ( Chandrachud, C.J.) 853

(3) If any person so ordered fails without sufficient c·ause

to comply with the order, any such Magistrate may, for

every breach

of

the order, issue a warrant for levying

the amount due in the manner provided for levying ·fines,

and may sentence such person, for the whole or any part

of each month's allowance remaining unpaid after the

execution

of the warrant, to imprisonment for a term

which may extend to one month

or until payment if sooner

made:

Provided .........

Provided further that if such person offers to maintain

his wife on condition

of her living with him. and she refuses

to live with him; such Magistrate may consider any

grounds

of refusal stated by her, and may make an order

under this section notwithstanding such offer, if he

is

satisfied that there is just ground for so doing.

Explantion-If a husband has contracted marriage with

another woman

or keeps a mistress, it shall be considered to

be just ground for his wife's refusal to live with

him."

Section 127(3)(b), on which the appellant has built up the

edifice

of his defence reads thus:

"Alteration in allowance

127. (I)

(2)

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(3) Where any order has been made nnder

section

125 in favour of a woman who has been divorced

by,

or has obtained a divorce from her husband, the

Magistrate shall, if he is satisfied that- G

(a)

......

(b) the woman has been divorced by her

husband

and that she has received, whether before or after

the date

o'. the said order, the whole of the sum which, H

854

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SUPREME COURT REPORTS (19S5] 3 'S,C.R.

under any customary or per;onal 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

the period, if any, for which maintenance has been actually

paid

by the husband to the

woman."

Under section 125(J)(a), a person who, having sufficient means,

C neglects or refuses to maintain his wife who is unable to maintain

herself, can be asked

by the court to pay a monthly

mai(ltenance to

her at a rate not exceeding Five Hundred rupees.

By

clause (b) of

the Explanation to section 125(1), 'wife' includes a divorced woman

who has not remarried. These provisions are loo clear and precise to

D admit of any doubt or refinement. The religion prof6ssed by a

spouse or by the spouses has

no place in the scheme of these

provi­

sions. Whether the spouses are Hindus or Muslims, Christians or

Parsis, pagans or heathens. is wholly irrelevant in the application

of these provisions. The reason for this is axiomatic, in the sense that

section 125 is a part of the Code of Criminal Procedure, not of the

E Civil Laws which define and govern the rights and obligations of the

parties belonging to particular religions, like the Hindu Adoptions

and Maintenance Act, the Shariat, or the Parsi Matrimonial Act,

Section

125 was enacted in order to provide a quick

and summary

remedy to a class

of persons who are unable to m

iintain themselves.

What difference would it then make

as to what is the religion profes-

F sed by the neglected wife, child

or parent? Neglect by a person of

sufficient means to maintain these and the inability of these persons

to maintain themselves are the objective criteria which determine the

applicability

of section 125.

Such provisions, which are essentially

of a prophylactic nature, cut across the barriers of religion. True,

that they do not supplant the personal law of the parties but, equally

G the religiod professed

by the parties or the state of the personal law

by which they are governed, cannot have any repercussion on the

applicability

of such Jaws unless, within the framework of the

Constitution, their application is restricted to a defined category

of religious groups or classes. The liability imposed by section 125

to maintain close relatives who are indigent is founded upon the

ff individual's obligation to the society to prevent vagrancy and

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•

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MOHD. A. KHAN v. SHAN DANO BEGUM (Chandrachud, C.J.) 855

destitution. That is the moral edict of the ·law and morality cannot A·

be clubbed with religion. Clause (b) of the Explanation to section

12S(i), which defines 'wife' as including a divorced wife, contains no

words ·of limitation to justify the exclusion of' Muslim women from

its scope. Section 125 is truly secular in character.

Sir James FitzJames Stephen who piloted the Code of Criminal

Procedure, 1872 as a Legal Member of the Viceroy's Council,

desc.ribed the precursor

of Chapter IX of the Code in which section

125 occurs, as 'a mode of preventing vagrancy or at least of

preventing its consequences.

In Jagir kaur v. Jaswant Singh,(') Subba

Rao, J. speaking for the Court said that Chapter XXXVI of the

Code

of 1898 which contained section 488, c0rresponding to section

liS,

"intends to serve a social purpose". In Nanak Chand v. Shri

Chan.dra Kishore Agarwa/a.(

2

)

Sikri,

J., while pointing out that the

scope

of the Hindu Adoptions and Maintenance Act

•. 1956 and that

of section 488 was different, said that section 488 was "applicable to

all persons belonging to all religions and has no relationship with

tlie personal law

of the

parties".

Under secton 488 of the Code of 1898, the wife's right to

maintenance depended upon the continuance

of her married status.

Therefore, that right could be defeated

by the husband by divorcing

her unilaterally as under the Muslim Personal Law, or

by obtaining

a decree of divorce a_gainst her under the other systems of law. It

was in order to remove this hardship that the Joint Committee

recommended that the benefit

of the provisions regarding mainte-.

nance should be extended to a divorced woman, so long

as she has

not remarried after the divorce. That

is the genesis of clause (b) of

the Explanation to section 125(1), which provides that 'wife'

inclu­

des a woman who has been divorced by, or has obtained a divorce

froi'n' her husband and has not remarried. Even in the absence of

this· provision, the courts had held under the Code of 1898 that the

provisions regarding m 1intenance were independant

of the personal

law governing the parties. The induction

of the definition of 'wife,

so'as to include a divorced woman lends even greater weight to that

(I) 1964 (2) SCR 73, 84.

(2) 1970 (1) SCR 565.

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856 SUPREME COURT REPORTS (1985] 3 S.C.R.

A conclusion. 'Wife' means a wife as defined, irrespective of the

religion professed by her or

by her husband. Therfore,

a divorced

Muslim woman,

so Jong as she has not remarried, is a 'wife' for the

purpose

of section

'125. The statutory right available to her under

that s~ction is unaffected by the provisions of the personal Jaw

B applicable to her.

c

D

E

F

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The condusion that the right conferred by section 125 can be

exercised irrespective of the personal

law of the parties is fortified,

especially in regard to Muslims,

by the provision

contaiped in the

Explanation to the second proviso to section

125(3) of .the Code.

That proviso says that

if the. husband offers to maintain his wife

on condition that she should live with him, and she refuses to live

with him, the Magistrate may consider any grounds

of refusal

stated by her, and may make

an order of maintenance

notwith·

standing the offer of the husband, if he is satisfied that there is a

just ground for passing such an order. According to the Explanation

to the proviso :

"If a husband has contracted marriage with ;mother

woman or keeps a mistress, it shall be considered to be just

ground for his wife's refusal to live with him."

It is too well-known that "A Mahomedan may have as many

as four

wives at the same time but not more. If he marries a fifth

wife when he has already four, the

marriage is not void, but merely

irregular". (See Malia's Mahomedan Law,18th Edition, paragraph

255, page

285, quoting Baillie's Digest or Moohummudati Law; and

Ameer Ali's Mahomedan Law, 5th Edition,

Vol. II, page 280).

The explanation confers upon the wife the right to refuse to live

with her husband

if he contracts another marriage, leave alone 3

or 4 other marriages.

It shows, unmistakably,. that section 125

overrides the personal law, if is any there contlict between

the two.

The whole

of this discussion as to whether the righl conferred

by section 125 prevails over the personal law of the parties, has

proceeded on the assumption that there

is a conllict between the

provisions

of that section and those of the Muslim Personal Law.

The argument that

by reason of section 2 of the Shariat Act,

.4

•

•

p.,!Jf!I). A. l((JA'I v. Sf!A'I BANO BEGUM (Chan1rachud, C.J.) 857

XXVl of 1937, the rule of decision in matters relating, inter a/ia,

to maintenance "shatl be the Muslim Personal Law" also proceeds

upon a similar assumption.

We embarked upon the decision of the

question

of priority between the Code and the Muslim Personal

Law on the assumption that there

was a conflict between the two

because, in so far as it lies in our power, we wanted to set at rest,

once for all, the question whether section

125 would prevail over

the personal law of the parties,

in cases where

they are in conflict.

The next logical step to take

is to examine the question, on

which considerable argument bas been advanced before us, whether

A

B,

•"-there is any conflict between the provisions.of section 125 and those c

/ , of the Muslim Personal Law on the liability of the Muslim husband

•

to provide for the maintenance of his divorced wife.

The contention of the husband and of the interveners who

support him is that, under the Muslim Personal Law, the liability

of tlie husband to maintain a divorced wife is limited to the period

of iddot.jln support of this proposition, they rely upon the statement

of law on the point contained in certain text books. In Mulla's

Mahomedan Law (18th Edition, ·para 279, page 301), there is a

statement to the effect that, "After divorce, the wife is entitled to

maintenance during the period

of

iddat". At page 302, the learned

author

.says :

"Where an order is made for the maintenance of a

wife under section 488 of the Criminal Procedure Code

and the

wife is afterwards divorced, the order ceases to

operate on the expiration

of the period of iddat. The result

is that a Mahomedan may defeat an order made against

him under secton

488 by divorcing his wife immediately

after the order

is made. His obligation to maintain his

wife will cease in that case on the completion of her

iddat,''

Tyabji's Muslim law (4th Edition, para

304, pages 268-269).

contains the statement that :

"On the expiration of the iddat after talaq, the wife's

D

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ri•ht to maintenance ceases, whether based on the Muslim H

~ I .

858 SUPREME COURT REPORTS [198513 s.c.R.

A Law, or on an order under the Criminal Procedure Code·"

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ff

According to Dr Paras Diwan :

"'When a marriage is dissolved by divorce the wife is

entitled to maintenance during the period of iddat. ..• On

the expiration of the period of iddat, the wife is not entitled

to any maintenance under any circumstances. Muslim Law

does not recognise any obligation on the

part of a man to

maintain a wife whom he had

divorced."

(Muslim Law in Modern India, 1982 Edition, page 130)

These statements in the text book are inadequate to establish

the proposition that

the Muslim husband is not under an obligation

to provide for the maintenance

of his divorced wife, who is unable

to maintain

herself. One must have regard to the entire conspectus

of the Muslim P~rsonal Law in order to determine the extent both,

in quantum and in duration,

of the husband's liability to provide

for the maintenance

of an indigent wife who has been divorced by

him. Under that law, the husband is bound to pay Mahr to the wife

as a mark of respect to her. True, that he may settle any amount he

likes by

way of dower upon his wife, which cannot be less than

10 Dir­

hams, which is equivalent to three or four rupees (Mulla's Mahome·

dan Law, 18th Edition, para 286, page 308).But, one must have regard

to the realities of life Mahr is a mark of respect to the wife. The

sum settled

by way of Mahr is generally expected to take care of the ordinary· requirements of the wife, during the marriage and after.

But these provisions

of the Muslim Personal Law do not

counte­

nance cases in which the wife is unable to maintain herself after

the divorce. We consider

it not only incorrect but unjust, to extend

the scope

of

tho statements extracted above to. cases in which a

divorced

wife is unable to maintain herself. We are of the

opinion

tliat the application of those statements of law must be restricted to

that class

of cases, in which there is no possibility of vagrancy or

destitution arising out of the indigence of the divorced wife. We are

not concerned here with the broad and general question whether a

husband

is liable to maintain his wife, which includes a divorced

wife, in all circumstances and

at all events. That is not the subject

matter

of section 125. That section deals with cases in which, a

person who

is possessed of sufficient means neglects or refuses to

maintain,

amongst others, his wife who is unable to maintain

•

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MOHD. A. KHAN v. SHAN BANO BEGUM (Chandrachud, C.J.) 859

h~rself. Since the Mnslim Personal Law, which limits the husband's

liability to provide for the maintenance

of the divorced wife to the

period of iddat, does not contemplate or countenance the situation

envisaged

by section 125, it would be wrong to hold that the

Muslim husband, according to his personal law,

is not under an

obligation

to provide maintenance, beyond the period of iddat, to

his divorced wife who

is unable to maintain herself. The argument

of the appellant that, according to the Muslim

Personal Law, his

liability to provide for the maintenance

of his divorced wife is

limited to the period of iddat, despite the fact she is unable to

ma!n·

tain herself, has therefore to be rejected. Th'e true position is that, if

the divorced wife

is able to maintain herself, the husband's liability to · provide maintenance for her ceases with the expiration of the period

of iddat.

If she is unable to maintain herself, she is entitled to

tak.e

recourse to section 125 of the Code, The outcome of this discussion

is that there is no co~flict between the provisions of section 125 and

those

of the Muslim

Personal Law on the question of the Muslim

A

B

c

husband's obligation to provide maintenance for a divorced wife D

who

is unable to maintain herself.

There can be no greater authority on this question than the

Holy Quran,

"The Quran, the Sacred Book of Islam, comprises

in its 114 Suras or chapters, the total of revelations believed to

have been communicated to Prophet Muhammed, as a final expres· E

sion

of God's will''. (The Quran-Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 of the Quran show that according to

the Prophet, there is an obligation on Muslim husbands to provide

for their divorced wives. The Arabic version

of those Aiyats and

their English translation are reproduced below :

Arabic version

Ayal No. 241

WA LIL

MOTALLAQATAY

MATA UN

BILMAAROOFAY

HAQQAN

ALAL MUTTAQEENA

Ayat No. 242

English version

For divorced women

Maintenance (should be Provided)

On a reasonable (Scale)

This is a duty

On .the righteous.

KAZALEKA YUBAIYY ANULLAHO Thus doth God

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860 SUPREME COURT REPORTS ti 98SJ 3 s.c.il..

LAKUM AYATEHEE LA ALLAKUM

TAQELOON

Mab clear His Signs

To you : in order that

ye may undcntand.

(See 'The Holy Quran' by Yusuf Ali, Page 96).

Tbe correctness of the translation of these Aiyats is not in

dispute except that, the contention

of the appellant is that the word

'Mata' in Aiyat No. 241 means 'provision' and not 'maintenance'.

That

is a distinction without a difference. Nor are we impressed by

the sbufiling plea of the All India Muslim

Personal Law Board that,

in Aiyat 241, the exhortation is to the

'Mutta Queena', that is, to

the more pious and the more God-fearing, not to the general run of

the Muslims, the 'Muslminin'. In Aiyat 242, the Quran says:

"It is

expected that you will use your commonsense".

The English version of the two Aiyats in Muhammad Zafrul­

lah Khan's 'The Quran' (page 38) reads thus:

"For divorced women also there shall be prov1s1on

according to what is fair. This is an obligation binding on

the righteous. Thus does Allah make His commandments

clear to you that you may understand."

The translation

of Aiyats

240 to 242 in 'The Meaning of the

Quran' (Vol. I, published by the Board

of Islamic Publications,

Delhi) reads thus ;

"240-241.

Those of you, who shall die and leave wives behind

them, should make a

will to the effect that they should be

provided with a year's maintenance and should not be

turned out

of their homes. But if they leave their homes of

their own accord, you shall not be answerable for whatever

they choose for themselves in a fair

way ; Allah is

All­

Powerful, All-wise. Likewise, the divorced women should

also be given something in accordance with the known

fair standard. This is an obligation upon the God-fearing

people.

;

•

Mollo. A. KHAN v. SHAN DANO BEGUM (Chandrachud,)J.J.) 861

242.

Thus Allah makes clear His commandments for you :

It is expected that you will use your commonsense."

In "The. Running Commentary of The Holy Quran" (1964

Edition) by Dr. Allamah Khadim Rahmani Nuri, Aiyat No. 241 is

translated thus :

"241

And for the divorced woman (also) a provision (should

be made) with fairness (in addition to her dower) ; (This is)

a duty (incumbent) on the reverent."

In "The Meaning of the Glorious Quran, Text and Explana-

A

B

c

tory Translation", by Marmaduke Pickthall, (Taj Company Ltd., o

karachi), Aiyat 241 is translated thus :

"241.

For divorced women a provision in kindness : A

duty for those

who ward off

(evil)." E

Finally, in "The Quran Interpreted" by Arthur J. Arberry.

Aiyat

i41 is translated thus :

"241. F

There shall

be for divorced women provision

honour­

able-an obligation on the godfearing."

So God makes clear His signs for you : Happily you

will understand."

Dr. K.R. Nuri in his book quoted above : 'The Running

Commentary of the Holy Quran", says in the preface :

"Belief in Islam does not mean mere confession of the

G

existence of something. It really means the translation of H

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862 SUPREME COURT REPORTS t19ssj 3 S.C.R.

the faith into action. Words without deeds carry no

meaning in Islam. Therefore the term "believe and do

good" has been nsed like a phrase all over the Quran.

Belief in something means that man should inculcate the

qualities or carry out the promptings or guidance

of that

thing in his action. Belief in Allah means that besides

acknowledging the existence

of the Author of the

Universe,

we are to show obedience to His commandments ... "

These Aiyats leave no doubt that the Quran imposes. an obliga­

tion on the Muslim husband to make provision for or to provide

maintenance

to the divorced wife. The contrary argument does less

than justice to the teaching

of the Quran. As observed by Mr. M.

Hidayatullah in his introduction to Mulla's Mahomedan Law, the

Quran

is

Al·furqan' that is one showing truth from falsehood and

right from wrong.

The second plank

of the appellant's argument is that the

res­

pondent's application under section 125 is liable to be dismissed be­

cause of the provision contained in section 127 (3) (b). That section

provides, to the extent material, that the Magistrate shall cancel the

order

of maintenance, if the wife is divorced by the husband and,

she has received

"the whole of the sum which, under any custom~ry

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

divorce". That raises the question as to whether, under the Muslim

Personal Law, any sum

is payable to the wife 'on divorce' .. We do

not have to grope in the dark and speculate as to which. kind

of a

sum this can be because, the only argument advanced before us on

behalf

of the

appellant and by the interveners supporting him, is that

Mahr

is the amount payable by the husband to the wife on divorce.

We find it impossible to accept this argument.

In Mulla's principles ofMahomedan Law (18th Edition, page 308 Mahr or Dower is defined· in paragraph 285 as "a sum of

money or other property which the wife is entitled to receive from

the husband in consideration

of the

marriage." Dr. Paras Diwan in

his book, "Muslim Law in Modern India" (1982 Edition, page 60),

criticises this definition on the ground that Mahr h not payable "in

consideration of marriage" bnt is an obligation imposed by law on

the husband as a mark

of respect for the wife, as is evident from the

•

.•

MORD. A. KHAN v. ~HAR BA.NO BEG'JVl (Cha•1drachud, C.J.) 863

fact that non-specification of Mahr at the time of marriage does not

affect the validity

of the marriage. We need not enter into this

controversy and indeed, Mulla's book itself contains the further

statement at page

3J8 that the word 'consideration' is not used in •

the sense in which it is used in the Contract Act and that under the

Mohammedan Law, Dower

is an obligation imposed upon the

hus­

tand as a mark of respect for the wife. We are concerned to find

whether Mahr

is an amount payable by the husband to the wife on

divorce.

Some confusion is caused by the fact that, under the

Muslim Personal Law, the amount of Mahr is usually split into two

parts, one

of which is called

"prompt", which is payable on de­

m1nd, and the other is called "deferred", which is payable on the

dissolution

of the marriage. by death or by divorce. But, the fact

' .

that deferred Mahr is payable at the time of the dissolution of .marriage, cannot justify the conclusion that it is payable 'on di­

vorce'. Even assuming that, in a given case, the entire amount of

Mahr is of the deferred variety payable on the dissolution of mar­

riage by divorce, it cannot be said that it is an amount which is

payable on divorce. Divorce may be a convenient or identifiable

point

of

time at which the deferred amount has to be paid by the

husband to the wife. Bµt, the payment of the am.aunt is not occa·

sioned by the divorce, which is what is meant by the expression 'on

divorce', which occurs in cection 127 (3) (b) of the Cocle. If Mahr

is an amount which the wife is entitled to receive from the husband

in consideration

of the marriage, that is the very opposite of the

.amount being payable in consideration

of divorce. Divorce

·dissolves the Marriage. Therefore no amount which is payable in con­

·sideration of the marriage can possibly be described as an amount

payable in consideration

of divorce. The alternative premise that .Mahr is an obligation imposed upon the husband as a mark of

respect for the wife, is wholly detrimental to the stance that it is an

amount payabie to the·wife on divorce. A man may marry a woman

for love, looks, learning

or nothing at all. And. he may settle a sum

upon her as a mark

of respect for her. But he does not divorce her

as a

·mark of respect. Therefore, a sum payable to the wife out of

respect cannot be a sum payable 'on divorce'.

In an appeal from a Full Bench decision of the Allahabad

A igh Court, the Privy Council in Hamira Bibi v. Zubaide Bibi(') sum-

(I) 43 I. A. 294.

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SUPREME COURT REPOR'fS [!9S5] 3 s.c.k

med up the nature and character of Mahr in these words :

"Dower is an essential incident under the Muslim

Law to the status

of marriage; to such an extent that is so

that when it

is unspecified at the time the marriage is

cont­

ract~d, the law declares that it must be adjudged on definite

principles. Regarded

as a consideration for

tile marriage,

it is, in theory, payable before consummation; but the law

allows its division into two parts, one

of which is called

"prompt" payable before the wife can be called upon to

enter the conjugal domicil; the other "deferred", payable

on the dissolution

of the contract by the death of either of

the parties or by

divorce." (p. 300-301)

This statement of law was adopted in another decision of the

Privy Council in Syed Sabir Husain v. Farzand Hasan.(

1

)

It is not

quite appropriate and. seems invidious

to describe any particular

Bench

of a court as

"strong" but, we cannot resist the temptation of

mentioning that Mr. Syed Ameer Ali was a party to the decision in

Hamlra Bihi while Sir Shadi Lal was a party to the decision in Syed

Sabir Husain. These decisions show that the payment of dower may

be deferred to a future date as, for example, death

or divorce. But,

that does not mean that the payment

of the deferred dower is

occa­

sioned by these events.

It is contended on behalf of the ~ppellant that the proceedings

of the Rajya Sabha dated December 18, 1973 (volume 86, column

186), when the bill which led to the Code of 1973 was on the anvil;

would show that the intention

of the

Parliament was to leave the

provisions

of the Muslim

Personal Law untouched. In this behalf,

reliance

is placed on the following statement made by

Sbri Ram

Niwas Mirdha, the then Minister

of

State, Home Aftiiirs :

"Dr. Vyas very learnedly made certain observations

that a divorced

wife under the Muslim law deserves to be

treated justly and she should get what

is her. equitable or

legal due. Well, I will not go into this, but say that we

would not like to interfere with the customary law of the

Muslims through the Criminal

Procedure Code. If there is

8 (I) 6S I. A. 119, 127

>

,

MORD. A. KRAN v. SRAH BANO BEGUM (Chandrachud , C.J.) S6S

a demand for change in the Muslim Personal Law,it should

actually come from

the Muslim Community itself and we

should wait for the Muslim public opinion on these matters

to crystalise before we try to change this customary right

or make changes in

their personal law. Above all, this is

hardly, the place where

we could do so. But as I tried to

explain, the provision in the Bill

is an advance over the

previous situation. Div0rced women have been included

and brought within the

ad.nit of clause US, but a limi­

tation is boing imposed by this amendment to clause 127,

namely,

that the maintenance orders would ceases to

oper­

ate after the amounts due to her under the personal law

are paid

to her. This is a· healthy compromise between

what

has been termed a conservative interpretation of law

or a concession to conservative public opinion and liberal

approach to the problem. We have made au advance

and

not tried to transgress what are the personal rights of

Muslim women.

So this, I think, should satisfy Hon.

Members that whatever advance

we have made is in the

right direction

and it should be

welcomed."

It does appear from this speech that the Government did not

desire to interfere with the personal law of the Muslim through the

Criminal Procedure Code. It wanted the Muslim community to take

the lead

and the Muslim public opinion to crystalise on the reforms

in their personal law. However,

we do not concerned with the

ques­

tion whether the Government did or~did not desire to bring about

changes in the Muslim Personal. Law by enacting sections

125 and

127 of the Code. As we have said earlier and, as admitted by the

Minister, the Government did introduce such a change by defining

the expression 'wife' to include a divorced wife.

It also introduced

another significant change by providing that the fact

that the

hus­

band bas contracted marriage with another woman is a just ground

for the wife's refusal to live with him. The provision contained in

section 127 (3)

(b) may have been introduces because of the

miscon­

ception that dower is an amount payable "on divorce". But, that

.cannot convert an amount payable as a mark of respect for the wife

into an amount payable

on divorce.

It must follow from this discussion, unavoidably a little too

long, that the judgments of this Court in Bai Tahlra (Krishna

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866 SUPREME Comn REPORTS l1985] 3 s.c.ii.

A Iyer J., Tulzapurkar J. and Pathak J.) and Faz/unbi (Krishna Iyer,

J.,) one of us, Chinnappa Reddy J. and A. P. Sen J.) are correct.

Justice Krishna Iyer who spoke for the Court in both these cases,

relied greatly on the teleological and schematic method

of

interpre­

tation so as to advance the purpose of the law. These constructional

B techniques have their own importance in the interpretation of sta­

tutes meant to ameliorate the conditions of suffering sections of the

society. 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

C Muslim Personal Law,

is payable on divorce.

D

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Though Bai Tahira

was correctly decided, we would like, res­

pectfully, to draw attention to an error which has crept in the judg­

ment. There is a statement at page 80 of the report, in the context

of section 127 (3) (b), that "payment of Mahr money, as a custo­

mary discharge, ia within the cognizance of that provision". We have

taken the view that Mahr, not being payable on divorce, does not

fall within the meaning of that provision.

It is a matter of deep regret that some of the interveners who

supported the appellant, took up an extreme position by displaying

an

unwarranted zeal to defeat the right to

maintenance of women

who

are unable to maintain themselves. The written submissions of

the All India

Muslim Personal Law Board have gone to the length

of asserting that it is irrek vant to inquire as to how a Muslim

divorce should maintain herself. The facile answer of the Board is

(that the Personal Law has devised the system of Mahr to meet the

requirements

of women and if a woman is indigent, she must look

to her relations, including nephew and cousins, to support her.

This is a most unreasonable view of law as well as life. We

appre­

ciate that Begum Temur Jehan, a social worker who has been work­

ing in association with the Delhi City Women's Association for the

uplift

of Muslim women, intervened to support Mr. Daniel Latifi

who appeared

on behalf of the wife.

It is also a matter of regret that Article 44 of our Constitution

has remained a dead letter.

It provides that

"The State shall endea­

vour to secure for the citizens a uniform civil code throughout the

territory

of

India". There is no evidence of any official activity for

•

l.!mio. A. KHAN v. SHAH BANO BEGUM (Chandrachud, C.J.) 867

framing a

common.

dvil code for the country. A belief seems to

have gained ground

that it is for the Muslim community to

t~ke a

lead in the matter of reforms ol their personal law. A common

Civil Code will help the cause of national integration by removing

disparate loyalties to laws which have conflicting ideologies.

No

A'

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community is likely to bell the cat by making gratuitous concess10ns

8

.in this issue. It is the State which is charged with the duty of secur-

ing a uniform civil code for the citizens of the country and, unques-·

tionably, it has the legislative competence to do so. A counsel in

the case whispered, somewhat audibly, that legislative competence is

one thing; (he political courage to use that competence is quite

another. We understand

the difficulties involved in bringing persons

of different faiths and persuasions on a common platform. But, a

beginning

has to be made if the Constitution is to have any meaning.

Inevitably,

the role of the reformer has to be assumed by the courts

because, it is beyond

the endurance of sensitive minds to aHow

in­

justice to be suffered when it is so palpable. But piecemeal attempts

of courts to bridge the gap between personal laws cannot take the

place

of a common Civil Code. Justice to a

II is a far more satis­

factory way of dispensing justice than justice from case to case.

Dr. Tahir Mahmood in his book 'Muslim Personal Law' (1977

Edition, pages 200-202), 1,as made a powerful plea for framing a

uniform Civil Code for all citizens of India. He says : "In pursuance

of the goal of secu

1

arism, the State must stop administering religion­

based personal laws". He wants the lead to come from th' majority

community

but, we should have thought that, lead or no

lead, the

State must act. It would be useful to quote the appeal made by the

author to the Muslim community :

"Instead of wasting their energies in exerting theologi­

cal and political pressure in order to secure an "immun­

ity" for their traditional personal law from the state's legis­

lative jurisdiction, the Muslim will do well to begin explor­

ing and demonstrating how the true Islamic laws, purged

of their time-worn and anachronistic inte~pretations, can

enrich the common civil code of India."

At a Seminar held on October 18, 1980 under the auspices of

the Department of Islamic and Comparative Law, Indian Institute

of Islamic Studies, New Delhi, lie also made an appeal to the

c

D

E

F

G

ff

A

B

c

D

E

F

G

868

SUPREMS COURT RSPORTS (1985) 3 S.C.R.

Mu11im community to display by their conduct a correct understand­

ing of Islamic concepts on marriage and divorce (See Islam and

Comparative Law Quarterly, April-June,

1981, page 146).

Before we conclude, we would like to draw attention to the

Report

of the Commission on marriage and Family Laws, which

was appointed

by the Government of

Pakistan by a Resolution dated

August

4, 1955. The answer of the CJ

nmiS>ion to Question No.5

(page

1215 of the Report) is that

"a large number of middle-aged women who are being

divorced without rhyme or reason should not

be thrown' on

the streets without a

roof over their heads and without any

means of sustaining themselves and their children."

The Report concludes thus :

"In the words of Allama Iqbal, "the question which is

likely to confront Muslim countries in the 'near future, is

whether the law of Islam is capable of evolution-a ques­

tion which will require great intellectual effort, and is sure

to be answered in the affirmative."

For these reasons, we dismiss the appeal and confirm the judg­

ment of the High Court. The appellant will pay the costs of the

appeal to respondent I, which we quantify at rupees ten thousand.

It is needless to add that it would be open to the respondent to make

an application under section

127 (l) of the Code for increasing the

allowance

of maintenance granted to her on

proof of a change in the

circumstan~es as envisaged by that section.

S.R.

.Appeal dismissed

'