MANU/SC/0402/1978

Equivalent Citation: AIR1979SC 362, 1979C riLJ151, 1979MhLJ95, 1979MPLJ132, (1979)81PLR218, (1979)2SC C 316, (1979)SC C (C ri)473,
[1979]2SC R75, 1979(11)UJ150

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 332 of 1977
Decided On: 06.10.1978
Appellants:Bai Tahira
Vs.
Respondent:Ali Hussain Fidaalli Chothia and Ors.
Hon'ble Judges/Coram:
R.S. Pathak, V.D. Tulzapurkar and V.R. Krishna Iyer, JJ.
Case Note:
Criminal - Maintenance - Section 125 of Criminal Procedure Code, 1973 -
Appellant was second wife of respondent - Due to marital discord
respondent divorced appellant - Under consent decree respondent
transferred suit premises and shares of society - Under consent decree
appellant barred from claiming any right against defendant against estate
and properties of defendant - Subsequently relationship between appellant
and respondent improved but later it again became estranged - Appellant
filed suit under Section 125 for maintenance of herself and child -
Magistrate awarded maintenance to appellant and her child - Order of
Magistrate set aside by Session Judge - On appeal High Court summarily
dismissed the appeal - Hence, present appeal - Respondent contended that
appellant was a divorcee and therefore ineligible for maintenance - Further
contended that Section 125 (4) applicable in absence of proof that the lady
was not living separately by mutual consent - Further contended that no
claim for maintenance could survive as all mehar money had been paid and
all claims adjusted as per settlement by consent decree - Divorcee is
entitled to benefit of maintenance allowance and dissolution of marriage
makes no difference to this right - Section 125 (4) not applicable as divorce
painfully implies that husband orders her out of the conjugal home and
thus mutual consent to live separately was not required to be proved - No
settlement claims which does not have special statutory right of divorcee
under section 125 can operate to negate the claim - 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 - No husband can claim under
Section 127(3)(b) absolution from this obligation under Section 125
towards 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 - Held, appellant entitled to maintenance
allowance - Appeal allowed.
JUDGMENT
V.R. Krishna Iyer, J.
1. In this appeal, by special leave, we are called upon to interpret a benign provision

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enacted to ameliorate the economic condition of neglected wives and discarded
divorcees, namely, Section 125, Cr.P.C.
2 . 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 Article 15(3) of the Constitution
must be light the meaning of the Section. The Constitution is a pervasive
omnipresence brooding over the meaning and transforming the values of every
measure. So, Section 125 and sister clauses must receive a compassionate expansion
of sense that the words used permit.
The Brief Facts
3 . 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 situation 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 respondent had transferred the suit
premises, namely, a flat in Bombay, to the appellant and also the shares of the
Cooperative Housing Society 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.
4. 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 housing society.
5 . For some time there was flickering improvement in the relations between the
quondam husband and the quondam wife and they lived together. Thereafter, again
they separated, became entranged. The appellant, finding herself in financial straits
and unable to maintain herself, moved the magistrate under Section 125 of the
Criminal Procedure Code, 1973, for a monthly allowance for the maintenance of
herself 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 tried the 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 lived, was high, and
that the respondent had provided residential accommodation to the appellant.
6 . This order was challenged before the sessions Judge by the aggrieved husband,
who on a strange view of the law that the court, under Section 125, had no
jurisdiction 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 dismissed a revision petition. This protracted and fluctuating
litigation misfortune has led to the appeal, by special leave, before this Court.
The Questions Mooted

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7 . Shri Bhandare appearing for the appellant contended that the Courts below had
surprisingly forgotten the plain provision in the Explanation (b) to Section 125(1) of
the Code, which reads :
"wife" includes a woman who has been divorced by, or has obtained a
divorce from, her husband and has not remarried.
8. 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 provision 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 Code.
In the normal course, an order for maintenance must follow, the quantum having
been determined by the learned Magistrate at the trial level.
9 . However, Shri Sanghi, appearing for the respondent, sought to sustain the order
in his favour on three grounds. They are of public importance since the affected party
in such a fact-situation is the neglected divorcee. He first argued that Section 125(4)
would apply in 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
Section 125 and his third contention was that there was a settlement by consent
decree in 1962 whereby the mehar money had been paid and all claims adjusted, and
so no claim for maintenance could survive. The third contention is apparently based
upon a contractual arrangement in the consent decree read with Section 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 the period, if any,
for which maintenance has been actually paid by the husband to the
woman;
We must state, however, that there was no specific plea, based upon the latter
provision, set up anywhere in the courts below or urged before us. But if one were to
locate a legal ground to raise the contention that the liability to pay maintenance had
ceased on account of the payment of mehar, it is Section 127(3) of the Code. So we
must deal with the dual sub-heads of the third ground.
10. The meaning of meanings is derived from values in a given society and its legal
system. Article 15(3) has compelling, compassionate relevance in the context of
Section 125 and the benefit of doubt, if any in statutory interpretation belongs to the
ill-used wife and the derelict divorcee. This social perspective granted, the resolution
of all the disputes projected is easy. Surely, Parliament, in keeping with Article 15(3)
and deliberate by design, made a special provision to help women in distress cast
away by divorce. Protection against moral and material abandonment manifest in
Article 39 is part of social and economic justice, specificated in Article 38, fulfilment

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of which is fundamental to the governance of the country (Article 37). From this
coign of vantage we must view the printed text of the particular Code.
11. Section 125 requires, as a sine qua non for its application, neglect 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 neglect to
maintain is satisfied. In this generous jurisdiction, 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.
12. The next submission is that the absence of mutual consent to live separately
must be made out if the hurdle of Section 125(4) is to be overcome. 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.
13. The last defence, based on mehar payment, merits more serious attention. The
contractual limb of the contention must easily fail. The consent decree of 1962
resolved all disputes and settled all claims 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 entered 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 Section 125 can operate to
negate that claim.
1 4 . Nor can Section 127 rescue the respondent from his obligation. Payment of
mehar money, as a customary discharge, is within 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 for a day, even in that city where 40% of the
population are reported to live on pavements, unless she was ready to sell her body
and give up her soul? The point must be clearly understood that the scheme of the
complex of provisions in Chapter 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. This traumatic horror animates the amplitude of Section 127.
Where the husband, by customary payment at the time of divorce, has adequately
provided for the divorce, a subsequent series of recurrent doles is contra-indicated
and the husband liberated. This is the teleological interpretation, the sociological
decoding of the text of Section 127. The keynote thought is adequacy of payment
which will take reasonable care of her maintenance.
1 5 . 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

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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 Section 125 not mathematically but fairly-then Section 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. The whole scheme
of Section 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 provision for maintenance. To interpret otherwise is to
stultify the project. Law is dynamic and its meaning cannot be pedantic but
purposeful. The proposition, therefore, is that no husband can claim under Section
127(3)(b) absolution from this obligation under Section 125 towards 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.
16. 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.

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