# 7:; BAI TAHIRA v. ALI HUSSAIN FISSALLI CHOTHIA AND ANR . •

- **Citation:** [1979] 2 S.C.R. 75
- **Court:** Supreme Court of India
- **Decided:** 1978-10-06
- **Case number:** Criminal Appeal No. 332 of 1977
- **Bench:** V. R. Krishna Iyer, V. D. Tulzapurkar, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/7-bai-tahira-v-ali-hussain-fissalli-chothia-and-anr-7633
- **Pages:** 7

## Headnote

B
Code of Crin1inal Procedure, 1973-S. 127(3) (b )-Scope of-Wife dh·orced
"lby the husband and was granted mehar in 1962-Wffc claimed 1naintenance f1-01n
husband under s. 125, Cr.P.C. 1973-lf could clafm-"under any customary or
personal law"-Meaning ef.
··-~
Explanation (b) to s. 125(1) of th• Code of Criminal Procedure. 1973
provides tha.t "wife" includes a woman who has been divorced by or has obrained
a divorce from her husband and has not re-married.
Section 127(3) (b) provides that where any order has been made under s. 125 in favour of a \\'Oman
who has been divorced by or has obtained a divorce from her husband, the
~{agistrate sha.11 if he is s·atisfied that the woman has been divorced by her
husband and has received, whether before or after the date of the said order,
the whole of the sum which under any customary or personal law applicable to
1he parties, was payable on such divorce cancel such order in the circumstoo.C'eS
-stated therein.
The respondent (husband) married the appellant (wife) and had a son by
her.
A few years later the respondent divorced his \Vife.
By a consent decree,
in the suit filed by the wife, he transferred to her the fiat in which she was
living and agreed to pay mehar money. The
compromise
stated
that
the
"plaintiff declares that she has now no claim or right whatsoever against the
defendant". For some time thereafter they lived together but again separated.
The wife moved the magistrate under s. 125 Cr.P.C. for grant of maintenance
to her and her son. This was granted.
On appeal the Sessions Judge held
that the C.ourt had no jurisdiction under s. 125.
The High Court dismissed
the wife's appeal.
On further appeal to this Court it was contended on behalf of the respondent
that (i) s. 125(4) would apply in the absence of proof that the wife wa< not
living separately by mutual consent; (ii) to attract s. 125 there must be Proof
of neglect to maintain the wife and (iii) no claim for maintenance in this case
ean survive in the face of the consent decree whereby melzar money had. been
paid and all claims adjusted.
Allowing the appeal the Court,
HELD : Every divorcee, otherwise eligible, is entitled to the benefit of main~
tenance allowance and the dissolution of the maniage makes no difference to
this right under t.he current Code. [78Hl
I. There is no force in the argument that the absence of mutual consent
to Jive separately must be made out if the hurdle of s. 125(4) is to be overcome.
c
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G
The compulsive conclusion from a divorce by a husband and his provision of a
separate :residence as evidenced by the consent decree fills the bi1l.
Divorce
H
p1ainful1y implies that the husband orders the wife out of the conjugal home.
f80Dl
76
SUPREME COURT REPORTS
(1979] 2 S.C.R:.
A
2. The husband's plea is his right to ignore. So the basic condition of neglect
B
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D
to maintain is satisfied. In this generous jurisdiction the broader perception. and
appreciation of the facts and their bearing must govern the verdict-not chopplng
little logic or tinkering with burden of proof. [SOC]
3. (a) The consent decree resolved all disputes and settled all claims then
available. The new statutory right which could not have been in the contempla.-
tion of the parties when they entered into the consent decree in 1962 had been
created by the Code of 1973. No settlement of claim which does not have 1he
special statutory right of the divorcee under s. 125 can operate to negate that
claim. [80F]
(b) No husba.nd can claim under s. 127(3) (b) absolution from his obligation
under s. 125 towards a divorced \Vife except on proof of payment of a ~um
stipulated by customary or personal law whose quantun1 is ;.nore or less sufficient
to do duty for maintenance allowance. [81F]
(c) Section 127 cannot rescue the husband from his obligation.
The scheme
of Chapt.er IX has a social purpose.
Ill-used wives and desperate divorcees
shall not be driven to material and moral dereliction to seek sanctuary in the
streets. Where the hus

## Text

7:;
BAI TAHIRA
A
v.
ALI HUSSAIN FISSALLI CHOTHIA AND ANR .
•
October 6, 1978
[V. R. KRISHNA IYER, V. D. TULZAPURKAR AND R. S. PATHAK, JJ.J
B
Code of Crin1inal Procedure, 1973-S. 127(3) (b )-Scope of-Wife dh·orced
"lby the husband and was granted mehar in 1962-Wffc claimed 1naintenance f1-01n
husband under s. 125, Cr.P.C. 1973-lf could clafm-"under any customary or
personal law"-Meaning ef.
··-~
Explanation (b) to s. 125(1) of th• Code of Criminal Procedure. 1973
provides tha.t "wife" includes a woman who has been divorced by or has obrained
a divorce from her husband and has not re-married.
Section 127(3) (b) provides that where any order has been made under s. 125 in favour of a \\'Oman
who has been divorced by or has obtained a divorce from her husband, the
~{agistrate sha.11 if he is s·atisfied that the woman has been divorced by her
husband and has received, whether before or after the date of the said order,
the whole of the sum which under any customary or personal law applicable to
1he parties, was payable on such divorce cancel such order in the circumstoo.C'eS
-stated therein.
The respondent (husband) married the appellant (wife) and had a son by
her.
A few years later the respondent divorced his \Vife.
By a consent decree,
in the suit filed by the wife, he transferred to her the fiat in which she was
living and agreed to pay mehar money. The
compromise
stated
that
the
"plaintiff declares that she has now no claim or right whatsoever against the
defendant". For some time thereafter they lived together but again separated.
The wife moved the magistrate under s. 125 Cr.P.C. for grant of maintenance
to her and her son. This was granted.
On appeal the Sessions Judge held
that the C.ourt had no jurisdiction under s. 125.
The High Court dismissed
the wife's appeal.
On further appeal to this Court it was contended on behalf of the respondent
that (i) s. 125(4) would apply in the absence of proof that the wife wa< not
living separately by mutual consent; (ii) to attract s. 125 there must be Proof
of neglect to maintain the wife and (iii) no claim for maintenance in this case
ean survive in the face of the consent decree whereby melzar money had. been
paid and all claims adjusted.
Allowing the appeal the Court,
HELD : Every divorcee, otherwise eligible, is entitled to the benefit of main~
tenance allowance and the dissolution of the maniage makes no difference to
this right under t.he current Code. [78Hl
I. There is no force in the argument that the absence of mutual consent
to Jive separately must be made out if the hurdle of s. 125(4) is to be overcome.
c
D
E
.F
G
The compulsive conclusion from a divorce by a husband and his provision of a
separate :residence as evidenced by the consent decree fills the bi1l.
Divorce
H
p1ainful1y implies that the husband orders the wife out of the conjugal home.
f80Dl
76
SUPREME COURT REPORTS
(1979] 2 S.C.R:.
A
2. The husband's plea is his right to ignore. So the basic condition of neglect
B
c
D
to maintain is satisfied. In this generous jurisdiction the broader perception. and
appreciation of the facts and their bearing must govern the verdict-not chopplng
little logic or tinkering with burden of proof. [SOC]
3. (a) The consent decree resolved all disputes and settled all claims then
available. The new statutory right which could not have been in the contempla.-
tion of the parties when they entered into the consent decree in 1962 had been
created by the Code of 1973. No settlement of claim which does not have 1he
special statutory right of the divorcee under s. 125 can operate to negate that
claim. [80F]
(b) No husba.nd can claim under s. 127(3) (b) absolution from his obligation
under s. 125 towards a divorced \Vife except on proof of payment of a ~um
stipulated by customary or personal law whose quantun1 is ;.nore or less sufficient
to do duty for maintenance allowance. [81F]
(c) Section 127 cannot rescue the husband from his obligation.
The scheme
of Chapt.er IX has a social purpose.
Ill-used wives and desperate divorcees
shall not be driven to material and moral dereliction to seek sanctuary in the
streets. Where the husband, by customary payment at the time of divorce. has
adequately provided for the divorcee, a subsequent series of recurrent doles is.
contra-indicated and the husband liberated. The key note thought is adequacy
of payment whlcb will take reasonable care of the wife's maintenance. [80H]
(d) The payment of illusory amounts by way of customary or personal law
requirement will be considered in the reduction of maintenance rate but cannot
annihilate that rate unless it is a reasonable substitute.
The legal sanclity of
the payment is certified. by the fulfilment of the social obligation, not by a rituar
E
exercise rooted in custom. No construction which leads to frustration ot the
statutory project can secure validation if the Court is to pay true homage ro H1 ·~
Constitution. The only just construction of the section is that Parlian1ent
intended divorcees ~hould not derive a double benefit. If the first payment by
wtty of mehar or ordained by custom has a reasonable relation to the object
and is a capitalised substitute for the order under s. 125 then s. 127 (3) Cb t
subserves the goal and relieves the obliger, not pro tanto but wholly the purpose
}?
of the payment "under any customary or personal la\v" must be to obviate
destitution of the divorcee and to provide her with wherewithal to maintain
herself. There must be a rational relation between the sum so pa'.d and its
G
potential as provision for maintenance. [81B-CJ
4. Welfare laws must be so read as to be '..3ffective delivery systems of the
salutary objects sought to be served by the Legislature and when the beneficiaries
arr the weaker sections, like destitute women, the spirit of Art. 15(3) must
belight the meaning. of the section. The Constitution is a pervasive omnipresence
brooding over the meaning and transforming the values of every measure.
[77D]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 332
of 1977.
H ·
Appeal by Special Leave .from the Judgment and Order dated
20-10-75 of the Bombay High
Court in Criminal Application No.
1379/75.
•
'
•
.BAI TAHIRA v. ALI HUSSAIN (Krishna Iyer, J.)
77
>-
M. C. Bhandare, A. N. Karkhanis, Miss Ma/ini Panduval and Mrs.
A
•
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' ..
S. Bhandare for the Appellant.
G. L. Sanghi and A. K. Verma for Respondent No. 1.
M. 1V. Shroff for Respondent No. 2.
The Judgment of the Court was delivered by
A Prefatory statement
KRISHNA IYER, J .-In this appeal, by special leave, we are called
upon to interpret a benign provision enacted to ameliorate the
economic condition of neglected wives
and discarded divorcees,
namely. s. 125. Cr.P.C.
Welfare laws must be so read as to be effective delivery systems
of the salutary objects sought to be served by the Legislature and when
the beneficiaries are the weaker sections,
like destitute women, the
spirit of Art. 15 (3) of the Constitution must belight the meaning of
the Section.
The Constitution is a pervasive omnipresence brooding
over the meaning and transforming the values of every measure. So,
s. 125 and sister clauses must receive a compassionate expansion of
sense that the words used permit.
The Brief Facts
The respondent (husband) married the appellant
(wife) as a
second wife, way back in 1956, and a few years later had a son by her.
The initial warmth vanished and the jealousies of a triangular 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.
There was a clause in the compromise :
"The plaintiff declares that she has now no claim or
right whatsoever against the defendant or against the estate
and the properties of the defendant."
And another term in the settlement was that the appellant had by
virtue of the compromise become the absolute owner Of the flat and
various deposits in respect of the said flat made with the cooperative
llousing society.
B
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A
B
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D
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78
SUPREME COURT REPORTS
[1979] 2 s.e.R.
For some time there was flickering improvement in the relations.
between the quondum husband and the quondum wife and they lived
together.
Thereafter, again they separated, became cntranged.
The
appellant, finding herself in financial straits and unable to maintain
herself, moved the magistrate under s. 125 of the Criminal 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 trieJ tile petition for maintenance held that the appellant was a
subsisting wife and awarded monthly maintenance of Rs. 300/- for the
son and Rs. 400/- for the mother for their subsistence, taking due
note of the fact that the cost of living in Bombay, where the· parties
Jived, was
high, and that the respondent had provided residential
accommodation to the appellant.
This order was challenged before the sessions Judge by the aggrieved husband, who on a strange view of the law that the court, under s.
125, had no jurisdication to consider whether the applicant was a wife,
dismissed the petition in allowance of the appeal. The High Court
deigned to bestow little attention on the matter and summarily dismissed a revision petition.
This protracted and fluctuating litigation misfm tone has led to the appeal, by special leaYe, before this Court.
The Questions Mooted
Shri Bhandare appearing for the appellant contended that the
•
(
Courts below had surprisingly forgotten the plain provision in the·
-t·
Explanation (b) to s. 125 ( 1) of the Code, which reads :
"wife" includes a woman who has beerr divorced b)',
or has obtained a divorce from. her husbano and has net
remarried.
On this foundation, he urged that accepting the contention of the
respondent that the appellant was a divorcee, his client was still entitled
to an allowance. This is obviously beyond dispute on a simple reading
of the sub-section and it is curious how this innovative and sensitive
proYision with a benignant disposition towards destitute divorcees has
been overlooked by all the courts below. We hold that every divorce
otherwise eligible, is entitled to the benefit of maintenance allowance"
and the dissolution of the marriage makes no difference to this right'
under the current Cede.
In the uormal course, an order for maintenance must follow, the quantum having been determined by the learned:
Magistrate at the trial level.
•
·~·
• •
BAI TAHIRA v. ALI HUSSAIN (Krishna Iyer, J.)
7 9
However, Shri Sanghi, appearing for the respondent, sought to
A
sustain the order in his favour on three grounds.
They arc of pubiic
importance since the affected party in such a fact-situation is the neglected divorcee.
He first argued that s. 125 ( 4) would upply ;n the
absence of proof that the lady was not living separately by mutual
consent.
His next plea was that there must be proof of neglect to ·
maintain to attract s.125 and his third contention was that there was a
B
settlement by consent decree in 1962 whereby the mehar money had
been paid and all claims adjusted, and so no claim for maintecance
could surYive. The third contention is apparently based upon a contractual arrangement in the consent decree read with s. 127 (3) (b)
which reads :
"(b) the woman has been divorced by her husband and
that she has received, whether before or after the date of the
said order, the whole of the sum which, under any customary
or personal law applicable to the parties, was payable on such
divorce, cancel such order, -
( i) in the case
where such sum was paid before such
order, from the date on which such order was made.
(ii) in any other case, from the date of expiry
of
th·e
period, if any,
for which
maintenance has been
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actually paid by the husband to the woman;
E
We must state, however, that there was no specific plea, based "pon
the latter provisien, set up anywhere in the courts below or ucgcd
before us.
But if one were to locate a legal ground to raise the contention that the liability to pay maintenance bad ,.eased on account ot
the payment of mehar, it is s. 127(3) of the Code.
So we must deal
F
with the dual sub-heads of the third ground.
The meaning of meanings is derived from values in a given society
and its
legal
system.
Art.15 ( 3)
has compelling,
compassionate
relevance in the context of s. 125 and the benefit of doubt. ;:· any, in
statutory interpretation belongs to the ill·used wife and the derelict
G
diYorcee.
This social perspective granted, the resolution of all the
disputes projected is easy.
Surely, Parliament, in keeping with Art.
l 5 ( 3) and deliberate by design, made a special
provisioc
to help
women in distress cast away by divorce.
Protection against moral
and material abandonment manifest in Art. 39 is part of social and
economic justice, specificated in Art. 38, fulfilment of which is fundaH
mental to the governance of the country (Art.37). From this coign
of vantage we must view the printed text of the particular Code.
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80
SUPREME COURT REPORTS
[1979] 2 S.C.R.
S. 125 requires, as a sine qua non for its application, :leglcct by
husband or father.
The magistrate's order proceeds on neglect to
maintain ; the sessions judge has spoken nothing to the contrary ; and
the High Court has not spoken at all.
Moreover, the husband has
not examined himself to prove that he has been giving allowances to
the divorced wife.
His case, on the contrary, is that she has forfeited
her claim because of divorce and the consent decree.
Obviously, he
has no case of non-neglect.
His plea is his right to ignore.
So the
basic condition of μeg!ect to maintain is satisfied.
In this generous
iurisdictill!l, a broader perception and appreciation of the facts and their
bearing must govern the verdict not chopping little logic or tinkering
with burden of proof.
The next submission is that the absence of mutual consent to live
separately must be made out if the hurdle of s. 125 ( 4) is to be 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.
The last defence, based on mehar payment, merits more serious
attention.
The contractual limb of the contention must easily fail. The
E
consent decree of 1962 resolved all disputes and settled all claim; then
available. But here is a new statutory right created as a projection of
public policy by the Code of 1973, which could not have been in the
contemplation of the parties when in 1962, they enter~d into a contract
to adjust their then mutual rights. No settlement of claims which does
not have the special statutory right of the divorcee under s. 125 can
F
operate to negate that claim.
Nor can s.127 rescue the respondent from his obligation.
Payment
of melwr money, as a customary discharge, is wi~hin the cognisance
of that provision. But what was the amount of mehar? Rs. 5000/-,
interest from which could not keep the woman's body and soul together
G
for a day, even in that city where 40% of the population are reported
to
Jiye
on
pavements,
unless
she
'Vas
ready
to
sell
her
body and give up her soul ? The point must be clearly understood that the scheme of the complex of provisions in Chapter IX has
a ,ocia] ('Urpose. Ill-used wives and desparate divorcees shall nN be
driven to material and moral dereliction to seek sanctuary in the streets.
H
This traumatic horror animates the amplitude of s.127. Where the
husband, by customary payment at the time of divorce, has adeqno'.ely
provided for the divorce, a subsequent series of recurrent doles is
.....
f
BAI TAHIRA v. ALI HUSSAIN (Krishna Iyer, J.)
81
).
contra-indicated and the husband liberated.
This is the teleological
A
interpretation, the sociological decoding of the text of s.127. The keynote thoughtj is adequacy of payment which will take reasonable
•
care of her maintenance.
•
--'
The payment of illusory amounts by way of customary or personal
law requirement will be considered in the reduction of maintenance rate
but cannot annihilate that rate unless it is a reasonable substitute.
The
legal sanctity of the payment is certified by the fulfilment of the social
obligation, not by a ritual exercise rooted in custom. No construction
which leads to frustration of the statutory project can secure validation
if the court is to pay true homage to the Constitution. The only just
construction of the section is that Parliament intended divorcees should
not derive a double benefit. If the first payment by way of mehar or
ordained by custom has a reasonable relation to the object and is a
capitalised substitute for the order under s. 125-not mathematically
but fairly-then s. 127(3) (b) subserves the goal and relieves the
obligor, not pro tanto but wholly. The purpose of the payment 'under
any customary or personal law' must be to obviate destitution of the
divorcee and to provide her with wherewithal to maintain herself. Tl1e
whole scheme of s. 127 (3) (b) is manifestly to recognise the substitute
maintenance arrangement by lump sum payment organised by the
custom of the community or the personal law of the parties. There
must be a rational relation between the sum so paid and its potential as
provisioo for maintenance.
To interpret otherwise is to ,11,Jtify the
project.
Law is dynamic and its meaning cannot be pedantic but
purposeful.
The proposition, therefore, is that no husband can claim
under s. 127(3) (b) absolution from this vbligation under s. !25 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.
The conclusion that we therefore reach is that the appeal should be
allowed and it is hereby allowed, and the order of the trial court
restored.
P_B.R.
Appeal allowed.
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