N Criminal Appeal No 332 of 1977
Appeal by Special Leave from the Judgment and order dated 20 10 75 of the Bombay High Court in Criminal Application No 1 37975
77 M C Bhandare A N Karkhanis Miss Malini Panduval and Mrs section Bhandare for the Appellant
G L Sanghi and A K Verma for Respondent No 1
M N 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
PC 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 this spirit of article 153 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 section 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
15 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 this 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 5000 and iddat  money Rs 180  which was also stated to have been adjusted by the compromise terms
There was a clause in the compromise G 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
78 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 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
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 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 misfortune has leu to the appeal by special leave 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 Explanation b to section 1251 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
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 or
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
79 However Shri Sanghi appearing for the respondent sought sustain the order in his favour on three grounds They arc of pubic importance since the affected party in such a fact situation is the neglected divorcee
He first argued that section 1254 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 s125 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 contractual arrangement in the consent decree read with section 1273 b which reads C 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 1273 of the Code
So we must deal 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
Art153 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 153 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 of which is fundamental to the governance of the country Art37
From this coign of vantage we must view the printed text of the particular Code
80 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
The next submission is that the absence of mutual consent to live separately must be made out if the hurdle of section 1254 is to be over come
We see hardly any force in this plea
The compulsive conclusion from a divorce by a husband and his provision of a separate residence as evidenced by the consent decree fills the bill
Do divorcees have to 1 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 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
Nor can s127 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 under stood that the scheme of the complex of provisions in Chapter IX has a social purpose
Ill used wives and desparate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets
This traumatic horror animates the amplitude of s127
Where the husband by customary payment at the time of divorce has adequately provided for the divorce a subsequent series of recurrent does is 81 contra indicated and the husband liberated
This is the teleological A interpretation the sociological decoding of the text of s127
The keynote thought 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 section 125 not mathematically but fairly then section 1273 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 1273 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 he pedantic but purposeful
The proposition therefore is that no husband can claim under section 1273b 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
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
PBR Appeal allowed


Summary:
Explanation b to section 1251 of the Code of Criminal Procedure 1973 provides that wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not re married
Section 1273 b provides that where any order has been made under 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 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 the parties was payable on such divorce cancel such order in the circumstances stated therein
The respondent husband married the appellant wife and had a son by her
A few years later the respondent divorced his wife
By a consent decree in the suit filed by the wife he transferred to her the flat 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 section 125 CrP for grant of maintenance to her and her son
This was granted
On appeal the Sessions Judge held mat the Court had no jurisdiction under section 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 section 1254 would apply in the absence of proof that the wife was not living separately by mutual consent ii to attract section 125 there must be proof of neglect to maintain the wife and iii no claim for maintenance in this case can survive in the face of the consent decree whereby mehar money had been paid and all claims adjusted
Allowing the appeal the Court G  HELD Every divorcee 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
78H 1
There is no force in the argument that the absence of mutual consent to live separately must be made out if the hurdle of section 1254 is to be overcome
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
Divorce plainfully implies that the husband orders
the wife out of the conjugal home
80D 76 2
The husband s plea is his right to ignore
So the basic condition of neglect to maintain is satisfied
In this generous jurisdiction the broader perception and appreciation of the facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof
80C 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 contemplation 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 the special statutory right of the divorcee under section 125 can operate to negate that claim
80F b No husband can claim under section 1273b absolution from his 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
81F c Section 127 cannot rescue the husband from his obligation
The scheme of 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
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 which 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 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 section 125 then section 1273 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 There must be a rational relation between the cum so paid and its potential as provision for maintenance
81B C 4
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 153 must belight the meaning of the section
The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure