# [1985] 3 S.C.R. 844

- **Citation:** [1985] 3 S.C.R. 844
- **Court:** Supreme Court of India
- **Decided:** 1985-04-23
- **Case number:** Criminal Appeal No. 103 of 1981
- **Bench:** Y.V.Chandrachud, D.A. Desai, 0. Chinnappa Reddy, C E.S. Venkataramiah, Ranganath Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1985-3-s-c-r-844-9041
- **Pages:** 25

## Headnote

;rMus/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
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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
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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 maintenance. 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 maintenance. 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

## Text

_Characters 0–39,987 of 57,730. This is a partial read: ask again with offset=39987 for what follows._

A
MOHD. AHMED KHAN
v.
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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.]
;rMus/im Personal Law-Concept of dfrorce-Whether, oii the pronounce-
-...,,
D
E
F
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 maintenance. 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 maintenance. 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 750 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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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 maintenance should be el(tended to a divorced wOn1an, so long as she has not remarried 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 Maintenance 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 -religion 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 section 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
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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
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his wife, which includes.a dlvorce~ wire, in all circumstances, and at all events
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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 Personal Law do not countenance cases in which the wife is unable to maintain herself 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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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 contrary 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
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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 payable 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 res111
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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 payment 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
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of the country and, unqut.sLionably, it bcts the 1egi-;lative competence to do so.
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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 personal 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
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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-UlemaHind.
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 traditionally 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
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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)
,
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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
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Muslim wife is entitled to apply for maintenance under section
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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 reconsideration 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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SUPREME COURT REPORTS
[1985] 3 S.C.R.
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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
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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 thatG
(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,
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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 provisions. 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 profesF 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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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' includes 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
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applicable to her.
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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 \
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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
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there is any conflict between the provisions.of section 125 and those
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, 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
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ri•ht to maintenance ceases, whether based on the Muslim
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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 Dirhams, 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 countenance 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
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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 Zafrullah 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.