N Criminal Appeal No 103 of 1981
From the Judgment and Order dated 1
1980 of the Madhya Pradesh High Court in Crl
Revision No 320 of 1979
P Govindan Nair Ashok Mahajan Mrs Kriplani Ms Sangeeta and SK Gambhir for the Appellant
Danial Latifi Nafess Ahmad Siddiqui SN Singh and TNSingh for the Respondents
Mohd Yunus Salim and Shakeel Ahmed for Muslim Personal Law Board
ST Desai and SA Syed for the Intervener Jamat UlemaHind
The Judgment of the Court was delivered by CHANDRACHUDCJ
This appeal does not involve any question of constitutional importance but that is not to say that it does not 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  Nastree swatantramarhati said Manu the Law giver The woman does not deserve independence
And it is alleged that the fatal 850 point in Islam is the degradation of woman l
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 appellation 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 matrimonial home
In April 1978 the respondent filed a petition against the appellant under section 125 of the Code in the 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 under 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 dower during the period the of iddat
In August 1979 the learned Magistrate directed appellant to pay a princely sum of Rs 25 per month to the respondent by way of maintenance
It may be mentioned that the respondent had alleged that the appellant earns a professional income of about Rs 60000 per year
In July 1980 in a revisional application filed by the respondent the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs 17920 per month
The husband is before us by special leave
Does the Muslim Personal Law impose no obligation 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 1982 page xc Introduction 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 how much the husband pays for the maintenance of his divorced wife during the period of iddat the mere fact that he 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 Tahira vs Ali Hussain Fidalli Chothia1 and Fazlunbi vs K Khader Vali2 These decisions took the view that the divorced Muslim wife is entitled to apply for maintenance under section 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 February 3 1981 which reads thus As this case involves substantial questions of law of far reaching consequences we feel that the decisions of this Court in Bai Tahira vs Ali Hussain Fidaalli Chothia  Anr and Fuzlunbi vs K Khader Vnli  Anr
require reconsideration because in our opinion they are not only in direct contravention of the plain and an unambiguous language of section 1273b 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 1  2 1980 3SCR 1127 852 under the Muslim law which has been expressly protected by section 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 Honorable Chief Justice for being heard by a larger Bench consisting of more than three Judges
 Section 125 of the Code of Criminal Procedure which deals with the right of maintenance reads thus Order for maintenance of wives children and parents 125
1 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 class may upon proof of such neglecter 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 as such Magistrate think fit Explanation For the purposes of this Chapter a b Wife includes a woman who has been divorced by or has obtained a divorce from her husband has not remarried
853 3 If any person so ordered fails without sufficient cause 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
Explanation 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 1273b on which the appellant has built up the edifice of his defence reads thus Alteration in allowance 127
1  2 3 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 a  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 854 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
 Under section 1251a a person who having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees
By clause b of the Explanation to section 1251 wife  includes a divorced woman who has not remarried
These provisions are too clear and precise to admit of any doubt or refinement
The religion professed 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 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 maintain themselves
What difference would it then make as to what is the religion professed 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 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 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 individual s obligation to the society to prevent vagrancy and 855 destitution
That is the moral edict of the law and morality cannot be clubbed with religion
Clause b of the Explanation to section 1251 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 described 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 vs Jaswont Singh1 Subba Rao J speaking for the Court said that Chapter XXXVI of the Code of 1898 which contained section 488 corresponding to section 125 intends to serve a social purpose
In Nanak Chand vs Shri Chandra Kishore Agarwala2 Sikri J while pointing out that the scope of the 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 the personal law of the parties
Under section 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 against 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 maintenance 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 1251 which provides that wife  includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried
Even in the absence of this provision the courts had held under the Code of 198 that the provisions regarding maintenance were independent 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 1   84
2 1970 l S CR 565
856 conclusion
Wife  means a wife as defined irrespective of the religion professed by her or by her husband
Therefor a divorced Muslim woman so long as she has not remarried is a wife  for the purpose of section 125
The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her
The conclusion 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 the Explanation to the second proviso to section 1253 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 not with 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 another 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 Mulla s Mahomedan Law18th Edition paragraph 25S page 285 quoting Baillie s Digest of Moohummudan 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 conflict between the two
The whole of this discussion as to whether the right conferred by section 125 prevails over the personal law of the parties has proceeded on the assumption that there is a conflict 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 857 XXVI of 1937 the rule of decision in matters relating inter alia to maintenance shall 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 has been advanced before us whether there is any conflict between the provisions of section 125 and those 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 the husband to maintain a divorced wife is limited to the period of iddat
In 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 section 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 right to maintenance ceases whether based on the Muslim 858 Law or on an order under the Criminal Procedure Code  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 Personal Law in order to determine the extent both in quantum and induration of the husband s liability to provide for the maintenance of an indigent wife who has been divorced by him
Under that law the husband is bound to pay Mahr to the wife as a mark of respect to her
True that he may settle any amount he likes by way of dower upon his wife which cannot be less than 10 Dir hams which is equivalent to three or four rupees Mulla s Mahomedan 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 the statements extracted above to cases in which a divorced wife is unable to maintain herself
We are of the opinton that 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 859 herself
Since the Muslim 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 all 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 maintain herself has therefore to be rejected
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
The outcome of this discussion is that 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 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 expression 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 English version Ayat No 241 For divorced women WA LIL MOTALLAQATAY Maintenance should be MATA UN Provided BIL MAAROOFAY On a reasonable Scale HAQQAN This is a duty ALAL MUTTAQEENA On the righteous
Ayat No 242 KAZALEKA YUBAIYYANULLAHO Thus doth God 860 LAKUM AYATEHEE LA ALLAKUM Make clear His Signs TAQELOON To you in order that ye may understand
See The Holy Quran  by Yusuf Ali Page 96
The 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 shuffling 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 provision according to what is fair
This is an obligation binding on the righteous
Thus does Allah make His commandments clear to you that you may understand
 The translation of Aiyats 240 to 242 in The Meaning of the Quran  Vol
I published by the Board of Islamic Publications Delhi reads thus 
240 241
Those of you who shall die and leave wives behind them should make a will to the effect that they should be provided with a year s maintenance and should not be turned out of their homes
But if they leave their homes of their own accord you shall not be answerable for whatever they choose for themselves in a fair way Allah is All Powerful All wise
Likewise the divorced women should also be given something in accordance with the known fair standard
This is an obligation upon the God fearing people
861 242
A Thus Allah makes clear His commandments for you It is expected that you will use your commonsense
 In The Running Commentary of The Holy Quran 1964 Edition by Dr Allamah Khadim Rahmani Nuri Aiyat No 241 is translated thus 241 And for the divorced woman also a provision should be made with fairness in addition to her dower This is a duty incumbent on the reverent In The Meaning of the Glorious Quran Text and Explanatory Translation by Marmaduke Pickthall Taj Company Ltd
karachi Aiyat 241 is translated thus  241
For divorced women a provision in kindness A duty for those who ward off evil
 Finally in The Quran Interpreted by Arthur J Arberry
Aiyat 241 is translated thus 241
There shall be for divorced women provision honourable an obligation on the god fearing
 So God makes clear His signs for you Happily you will understand
 Dr KR Nuri in his book quoted above The Running Commentary of the Holy Quran says in the preface Belief in Islam does not mean mere confession of the existence of something
It really means the translation of 862 the faith into action
Words without deeds carry no meaning in Islam
Therefore the term believe and do good has been used like a phrase all over the Quran
Belief in something means that man should inculcate the qualities or carry out the promptings or guidance of that thing in his action
Belief in Allah means that besides acknowledging the existence of the Author of the Universe we are to show obedience to His commandments  These Aiyats leave no doubt that the Quran imposes an 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 teaching of the Quran
As observed by Mr M Hidayatullah in his introduction to Mulla s Mahomedan Law the Quran is Al furqan  that is one showing truth from falsehood and right from wrong
The second plank of the appellant s argument is that the respondent s application under section 125 is liable to be dismissed be cause of the provision contained in section 127 3 b
That section provides to the extent material that the Magistrate shall cancel the order of maintenance if the wife is divorced by the husband and she has received the whole of the sum which under any customary or personal law applicable to the parties was payable on such divorce
That raises the question as to whether under the Muslim Personal law any sum is payable to the wife on divorce 
We do not have to grope in the dark and speculate as to which kind of a sum this can be because the only argument advanced before us on behalf of the appellant and by the interveners supporting him is that Mahr is the amount payable by the husband to the wife on divorce
We find it impossible to accept this argument
In Mulla s principles of Mahomedan Law 18th Edition page 308 Mahr or Dower is defined in paragraph 285 as a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage Dr Paras Diwan in his book Muslim Law in Modern India 1982 Edition page 60 criticises this definition on the ground that Mahr is not payable in consideration of marriage but is an obligation imposed by law on the husband as a mark of respect for the wife as is evident from the 863 fact that non specification of Mahr at the time of marriage does not affect the validity of the marriage
We need not enter into this controversy and indeed Mullas book itself contains the further statement at page 308 that the word consideration  is not used in the sense in which it is used in the Contract Act and that under the Mohammedan Law Dower is an obligation imposed upon the husband as a mark of respect for the wife
We are concerned to find is whether Mahr is an amount payable by the husband to the wife on divorce
Some confusion is caused by the fact that under the Muslim Personal Law the amount of Mahr is usually split into two parts one of which is called prompt which is payable on demand and the other is called deferred  which is payable on the dissolution of the marriage by death or by divorce
But the tact that deferred Mahr is payable at the time of the dissolution of marriage cannot justify the conclusion that it is payable 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
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 payment of the amount is not occasioned by the divorce which is what is meant by the expression on divorce  which occurs in section 127 3 b of the Code
If Mahr is an amount which the wife is entitled to receive from the husband hl consideration of the marriage that is the very opposite of the amount being payable in consideration of divorce
Divorce dissolves the Marriage
Therefore no amount which is payable in 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 respect for the wife is wholly detrimental to the stance that it is an amount payable to the wife on divorce
A man may marry a woman for love looks learning or nothing at all
he may settle a sum upon her as a mark of respect for her
But he does not divorce her as a mark of respect
Therefore a sum payable to the wife out of respect cannot be a sum payable on divorce 
In an appeal from a Full Bench decision of the Allahabad High Court the Privy Council in Hamira Bibi vs Zubaide Bibi1 sum 1 43 1
A 294
864 med up the nature and character of Mahr in these words Dower is an essential incident under the Muslim Law to the status of marriage to such an extent that is so that when it is unspecified at the time the marriage is contracted the law declares that it must be adjudged on definite principles
Regarded as a consideration for the marriage it is in theory payable before consummation but the law allows its division into two parts one of which is called prompt payable before the wife can be called upon to enter the conjugal domicil the other  deferred payable on the dissolution of the contract by the death of either of the parties or by divorce p 300 301 This statement of law was adopted in another decision of the Privy Council in Syed Sabir Husain vs Farzand Hasan1 It is not quite appropriate and seems invidious to describe any particular Bench of a court as strong but we cannot resist the temptation of mentioning that Mr Syed Ameer Ali was a party to the decision in Hamira Bibi while Sir Shadi Lal was a party to the decision in Syed Sabir Husain
These decisions show that the payment of dower may be deferred to a future date as for example death or divorce
But that does not mean that the payment of the deferred dower is occasioned by these events
It is contended on behalf of the appellant that the proceedings of the Rajya Sabha dated December 18 1973 volume 86 column 186 when the bill which led to the Code of 1973 was on the anvil would show that the intention of the Parliament was to leave the provisions of the Muslim Personal Law untouched
In this behalf reliance is placed on the following statement made by Shri Ram Niwas Mirdha the then Minister of State Home Affairs Dr Vyas very learnedly made certain observations that a divorced wife under the Muslim law deserves to be treated justly and she should get what is her equitable or legal due
Well I will not go into this but say that we would not like to interfere with the customary law of the Muslims through the Criminal Procedure Code
If there is 1 65 IA 119 127 865 a demand for change in the Muslim Personal Law it should actually come from the Muslim Community itself and we should wait for the Muslim public opinion on these matters to crystalise before we try to change this customary right or make changes in their personal law
Above all this is hardly the place where we could do so
But as I tried to explain the provision in the Bill is an advance over the previous situation
Divorced women have been included and brought within the admit of clause 125 but a limitation is being imposed by this amendment to clause 127 namely that the maintenance orders would ceases to operate after the amounts due to her under the personal law are paid to her
This is a healthy compromise between wh lt has been termed a conservative interpretation of law or a concession to conservative public opinion and liberal approach to the problem
We have made an advance and not tried to transgress what are the personal rights of Muslim women
So this I think should satisfy Hon
Members that whatever advance we have made is in the right direction and it should be welcomed
 lt does appear from this speech that the Government did not desire to interfere with the personal law of the Muslim through the Criminal Procedure Code
It wanted the Muslim community to take the lead and the Muslim public opinion to crystalise on the reforms in their personal law
However we do not concerned with the question whether the Government did not desire to bring about changes in the Muslim Personal Law by enacting sections 125 and 127 of the Code
As we have said earlier and as admitted by the Minister the Government did introduce such a change by defining the expression wife  to include a divorced wife
It also introduced another significant change by providing that the fact that the husband has contracted marriage with another woman is a just ground for the wife s refusal to live with him
The provision contained in section 127 3 b may have been introduces because of the misconception that dower is an amount payable on divorce
But that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce
It must follow from this discussion unavoidably a little too long that the judgments of this Court in Bai Tahira Krishna 866 Iyer J Tulzapurkar J and Pathak J and Fazlunbi Krishna Iyer J one of us Chinnappa Reddy J and A P Sen J are correct
Justice Krishna Iyer who spoke for the Court in both these cases relied greatly on the teleological and schematic method of interpretation so as to advance the purpose of the law
These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society
We have attempted to show that taking the language of the statute as one finds it there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under section 125 and that Mahr is not a sum which under the Muslim Personal Law is payable on divorce
Though Bai Tahira was correctly decided we would like respectfully to draw attention to an error which has crept in the judgement There is a statement at page 80 of the report in the context of section 127 3 b that payment of Mahr money as a customary discharge is within the cognizance of that provision
We have taken the view that Mahr not being payable on divorce does not fall within the meaning of that provision
It is a matter of deep regret that some of the interveners who supported the appellant took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women who are unable to maintain themselves
The written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how a Muslim divorce should maintain herself
The facile answer of the Board is that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent she must look to her relations including nephew and cousins to support her
This is a most unreasonable view of law as well as life
We appreciate that Begum Temur Jehan a social worker who has been working in association with the Delhi City Women s Association for the uplift of Muslim women intervened to support Mr Daniel Latifi who appeared on behalf of the wife It is also a matter of regret that Article 44 of our Constitution has remained a dead letter
It provides that The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India
There is no evidence of any official activity for 867 framing a common civil code for the country
A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law
A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies
No community is likely to bell the cat by making gratuitous concessions on this issue
It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably it has the legislative competence to do so
A counsel in the case whispered somewhat audibly that legislative competence is one thing the political courage to use that competence is quite another
We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform But a beginning has to be made if the Constitution is to have any meaning
Inevitably the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to 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
Dr Tahir Mahmood in his book Muslim Personal Law  1977 Edition pages 200 202 has made a powerful plea for framing a uniform Civil Code for all citizens of India
He says In pursuance of the goal of secularism the State must stop administering religion based personal laws
He wants the lead to come from the majority community but we should have thought that lead or no lead the State must act
It would be useful to quote the appeal made by the author to the Muslim community Instead of wasting their energies in exerting theological and political pressure in order to secure an immunity for their traditional personal law from the state legislative jurisdiction the Muslim will do well to begin exploring and demonstrating how the true Islamic laws purged of their time worn and anachronistic interpretations can enrich the common civil code of India
 At a Seminar held on October 18 1980 under the auspices of the Department of Islamic and Comparative Law Indian Institute of Islamic Studies New Delhi he also made an appeal to the 868 Muslim community to display by their conduct a correct understanding of Islamic concepts on marriage and divorce See Islam and Comparative Law Quarterly April June 1981 page 146
Before we conclude we would like to draw attention to the Report of the Commission on marriage and Family Laws which was appointed by the Government of Pakistan by a Resolution dated August 4 1955
The answer of the Commission to Question No5 page 1215 of the Report is that a large number of middle aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children The Report concludes thus In the words of Allama Iqbal the question which is likely to confront Muslim countries in the near future is whether the law of Islam is capable of evolution a question which will require great intellectual effort and is sure to he answered in the affirmative  For these reasons we dismiss the appeal and confirm the judgment of the High Court
The appellant will pay the costs of the appeal to respondent 1 which we quantify at rupees ten thousand
It is needless to add that it would be open to the respondent to make an application under section 127 1 of the Code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section


Summary:
Under section 125 1 a if any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself a Magistrate of the 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 explanation 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 wife s refusal to live with him
Keeping this in view if in the trial arising out of 845 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 divorced by her husband 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
The appellant
who is an advocate by profession was married to the respondent in 1932
Three ions 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 in the Court of the Judicial Magistrate First class Indore asking for maintenance at the rate of Rs 500 per month in view of the professional income of the appellant which was about Rs 60000 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 obligation to provide maintenance for her that he had already paid maintenance for 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 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 Sled by the respondent the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs 17920 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   and   to the effect that section 125 of the Code applies to Muslims also and that therefore the divorced Muslim wife is entitled to apply for maintenance was doubted by the Bench consisting of Fazal Ali and Varadarajan JJ since in their opinion the said decisions required reconsideration by a larger Bench consisting of more than three judges as the decisions are 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 consequences under the Muslim 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 1
The Judgments of the Supreme Court in Bai Tahira Krishna lyer J Tulzapurkar J and Pathak J and Fazlunbi Krishna pyer J Chinnappa 846 Reddy J and AP 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 section 127 3 b namely payment of Mahr money as a customary discharge is within the cognizance of that provision
Justice Krishna Lyre who spoke for the Court in both these cases relied greatly on the teleological and schematic method of interpretation 90 as to advance the purpose of the law
These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society
A divorced Muslim wife is therefore entitled to apply for maintenance under section 125 of the Code
865H 866A C 21 Clause b of the Explanation to section 125 1 of the Code which defines wife as including a divorced wife contains no words of limitation to justify the exclusion of Muslim women from its scope
Wife means a wife as defined irrespective of the religion professed by her or by her husband
Therefore a divorced Muslim woman so long as she has not married is a wife for the purpose of section 125
855A B 854B 22 Under section 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 against 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 maintenance should be extended to a divorced woman so long as she has not re married after the divorce
That is the genesis of clause b of the Explanation to section 125 I
Section 125 of the Code is truly secular in 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 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 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 difference as to what ii the religion professed by the neglected wife child or parent
834D E 855E G 23 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 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 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 indi 847 viduals  obligation to the society t a prevent vagrancy and destitution
That is the moral edict of the law and morality cannot be clubbed With relation
834G Hl 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 the Explanation to the second proviso to section 125 3 of the Code
The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage leave alone three or four other marriages which a Mohammedan may have under the Islamic law
Further it shows unmistakably that section 125 overrides the personal law if there is any conflict between the two 836B CF G Jagir Kaur vs Jaswant Singh  84 Nanak Chand vs Shri Chandra Kishore Agarwala 11970 I SCR 56C applied
31 The contention that according to Muslim Personal Law the husband s liability to provide for the maintenance of his divorced wife is limited to the 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
Whether a husband is liable to maintain his wife which includes a divorced wife in all circumstances and at all events is not the subject matter of section 125
Section 125 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 herself
838H 851A B 32 One must have regard to the entire conspectus of the Muslim Personal 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
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
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
858D G 33 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 848 who is unable to maintain herself
Aiyat No 241 and 242 of the Holy 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 34 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 Board 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 35 It is true under the Muslim Personal Law the amount of Mahr is usually split into two parts one of which is called prompt which is payable on demand and the other is called deferred which is payable on the dissolution of the marriage by death or by divorce
But the fact that deferred Mahr is payable at the time of the dissolution of marriage cannot justify that it is payable 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
863B D 36 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 payment of the amount is not occasioned by the divorce which is what is meant by the expression on divorce  which occurs in section 127 3 b of the Code
If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage that is the very opposite of the amount being payable in consideration of divorce
Divorce dissolves the marriage
Therefore
no amount which is payable in 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 respect for the wife is wholly detrimental to the stance that it is an amount payable to the wife on divorce
A man may marry a woman for love looks learning or nothing at all
And he may settle a sum upon her as a mark of respect for her
But he does not divorce her as a mark of respect
Therefore a sum payable to the wife out of respect cannot be a sum payable on divorce 
Thus 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 mark of respect for the wife into an amount payable on divorce
863H Hamira Bibi vs Zubaida Bibi 43 Indian Appeal 294 Syed Sabir Hussain vs Farzand Hasan 65 Indian Appeal 119 and 127 referred to
849 OBSERVATION Article 44 of our Constitution has remained a dead letter
There is no evidence of any official activity for framing a common civil code for the country
A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies
It is the State which incharged with the duty of securing a uniform civil code for the citizens of the country and unquestionably it has the legislative competence to do so
A beginning has to be made if the Constitution is to have any meaning
Inevitably the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to 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