N Criminal Appeal No 761 of 1980
Appeal by Special Leave from the Judgment and Order dated 20 10 1978 of the Allahabad High Court in Criminal Misc
Case No 822 of 1978
Jagdish Kumar Aggarwal for the Appellant
Nemo for the Respondent
The Judgment of Murtaza Fazal Ali  A Vardarajan JJ was delivered by Fazal Ali J A D Koshal J gave a concurring Opinion
FAZAL ALI J
This appeal by special leave is directed against a judgment dated October 20 1978 of the Allahabad High Court Lucknow Bench by which a revision filed by the respondent for setting aside an order of maintenance passed by the trial Magistrate was accepted and the said order was quashed
The facts of the appeal lie within a narrow compass but the case involves a substantial question of law
Unfortunately as the respondent did not appear despite service we had to rely mainly on the arguments of the learned counsel for the appellant and had also to consider various aspects that could be stressed by the respondent if he had appeared
The appellant Mst
Zohara Khatoon was a legally married wife of Mohd Ibrahim
As Mohd Ibrahim soon after the marriage willfully neglected her she filed an application before the trial Magistrate on September 17 1974 under section 125 of the Code of Criminal Procedure 1973 hereinafter referred to as the 1973 Code  in order to fix maintenance for her and her minor son
The Special Judicial Magistrate Barabanki UP after hearing the parties allowed the application by his order dated December 29 1976 and fixed the maintenance at Rs 100 Rupees one hundred per month both for the wife and the child
The Magistrate also accepted the allegation of the appellant that she had been neglected by the husband without reasonable or probable cause
The order of the Magistrate was upheld by the Sessions Judge in revision
914 Before the Magistrate the respondent husband had taken the defence that as the appellant had brought a suit for dissolution of marriage on the ground of cruelty and willful neglect which was decreed by the civil court on 15 1 1973 and she was living separately she ceased to be the wife of the respondent and was therefor not entitled to maintenance under section 125 or section 127 of the 1973 Code
Ultimately the husband moved the High Court under section 482 of the 1973 Code for quashing the order of the Magistrate as it was vitiated by an error of law
In the High Court the argument of the appellant was that in view of clause b of the Explanation to section 1251 of the 1973 Code she continued to be the wife despite obtaining a decree for dissolution of marriage and thus her right to maintenance would not be affected by the decree passed by the civil court
The High Court after hearing the parties was of the view that clause b of the Explanation referred to above would apply only if the divorce proceeded from the husband that is to say the said clause would not apply unless the divorce was given unilaterally by the husband or was obtained by the wife from the husband
In other words the High Court thought that as in the instant case the dissolution of marriage was brought about by the wife under the hereinafter referred to as the 1939 Act  the decree under the said Act did not amount to a divorce by the husband because the marriage was dissolved by operation of law only
Hence clause b of the Explanation to section 1251 had no application and the appellant was not entitled to any maintenance under section 125 of the 1973 Code so far as she was concerned
The High Court however maintained the order of the Magistrate so far as the minor son was concerned and fixed his maintenance at Rs 40 per month
The learned counsel for the appellant submitted before us that the view taken by the High Court is legally erroneous and is based on a wrong interpretation of clause b of the Explanation to section 1251 of the 1973 Code
After having gone through the various provisions of the 1973 Code particularly sections 125 and 127 we are satisfied that the contentions raised by the counsel for the appellant are well founded and must prevail
In order to decide the issue in question it may be necessary to give a brief survey of the corresponding provisions of the Code of Criminal Procedure 1898 hereinafter referred to as the 1898 Code  to show the nature and ambit of the provisions relating to the award of maintenance
Sections 488 and 489 were the corresponding provisions of the 1898 Code which were couched almost in the same language as 915 sections 125 and 127 of the 1973 Code minus some important additions that have been made under the 1973 Code
The relevant portion of section 488 of the 1898 Code may be extracted thus If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself the District Magistrate a Presidency Magistrate a Sub Divisional Magistrate or 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 or such child at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit and to pay the same to such person as the Magistrate from time to time directs
 It is not necessary to refer to the other provisions of section 488 of the said Code as the same are not germane for the purpose of deciding this appeal
It may however be noted that a provision like clause b of the Explanation to section 1251 of the 1973 Code was conspicuously absent from section 488 and has been added by the 1973 Code
We shall deal with the legal effect of this provision a little later
A perusal of section 488 would clearly reveal that it carves out an independent sphere of its own and is a general law providing a summary machinery for determining the maintenance to be awarded by the Magistrate under the circumstances mentioned in the section
The provisions may not be inconsistent with other parallel Acts in so far as maintenance is concerned but the section undoubtedly excludes to some extent the application of any other Act
At the same time it cannot be said that the personal law of the parties is completely excluded for all purposes
For instance where the validity of a marriage or mode of divorce or cessation of marriage under the personal law of a party is concerned that would have to be determined according to the said personal law
Thus the exclusion by section 488 extends only to the quantum of the maintenance and the circumstances under which it could be granted
The scope of section 488 of 1898 Code was considered by this Court in Nanak Chand vs Shri Chandra Kishore Agarwala  Ors
where the following observations were made We are unable to see any inconsistency between the Maintenance Act and section 488 Cr
PC 
The law was substantially similar before and nobody ever suggested that Hindu Law as in force immediately before the commencement of this Act insofar as it dealt with the maintenance of children was in any way inconsistent with section 488 Cr
PC 916 The scope of the two laws is different
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties
Recently the question came be fore the Allahabad High Court in Ram Singh vs State AIR 1963 All 355 before the Calcutta High Court in Mahabir Agarwalla vs Gita Roy and before the Patna High Court in Nalini Ranjan vs Kiran Rani AIR 1965 Pat 442
The three High Courts have in our views correctly come to the conclusion that section 4b of the Maintenance Act does not repeal or affect in any manner the provisions contained in section 488 Cr
PC It would be seen that this Court approved of the decisions in the cases of Ram Singh Mahabir Agarwalla and Nalini Ranjan mentioned in the observations extracted above
In order to understand the proper scope of section 488 of the 1898 Code which is almost the same as that of section 125 of the 1973 Code it may be necessary to examine the decisions which were referred to with approval by this Court in Nanak Chand s case supra
In Ram Singh vs State  Anr Kailash Prasad J observed as follows There is nothing in the Hindu Adoptions and Maintenance Act to suggest expressly or by necessary implication that the Act is intended to be a substitute for the provisions of section 488 Cr
In fact the provisions of sec
18 of the Act cannot be a substitute for section 488 Cr
The latter provision is general and is applicable to a wife irrespective of her religion but the former is applicable to the case of Hindus only
It could not therefore be intended to be a substitute for section 488 Cr P C To the same effect is the decision of the Patna High Court in Nalini Ranjan Chakravarty vs Smt
Kiran Rani Chakravarty where the following observations were made Before the enactment of 1956 it was well settled that the right conferred by section 488 Cr
PC was independent of the personal law of the parties
The right of maintenance under section 488 was irrespective of the nationality or creed of the parties the only condition precedent to the possession of that right being in the case of a wife the acceptance of the conjugal relation
Further section 488 provided for only 917 a speedy remedy and a summary procedure before a Magistrate against starvation of a deserted wife or child
This section did not cover the civil liability of a husband or a father under his personal law to maintain his wife and children
 The Calcutta High Court also took the same view in Mahabir Agarwalla vs Gita Roy where the following observations were made An alternative but not inconsistent summary remedy was provided by section 488 of the Code of Criminal Procedure not only to the Hindu wife but generally to wives irrespective of religion for recovery of maintenance from the husband
The two remedies were however not coextensive Thus on a consideration of the authorities mentioned above it is clear that the 1898 Code by virtue of section 488 provided a summary remedy for awarding maintenance to neglected wives irrespective of caste creed community or religion to which they belonged
It was in this context that the Courts referred to above considered the effect of Hindu Adoption and Maintenance Act and other similar Acts
This however does not conclude the controversy
The important question still remains Was the Magistrate competent to award maintenance if under the personal law of the Mahomedans the wife had been validly divorced and had completed the period of Iddat  In fact section 489 of the 1898 Code as amended by the 1955 Amending Act had empowered the Magistrate to make any alteration in the payment of the maintenance on proof of a change in the circumstances
Similarly section 4892 which is extracted below provided that the Magistrate could cancel the maintenance in consequence of a decision of any competent court 2 Where it appears to the Magistrate that in consequence of any decision of a competent Civil Court any order made under Section 488 should be cancelled or varied he shall cancel the order or as the case may be vary the same accordingly Thus considering the scheme of sections 488 and 489 it was generally accepted as good law by all the High Courts that where a woman governed by the Mahomedan law was awarded maintenance the same would cease from the date of divorce given by the husband and the completion of the period of Iddat
That this is the Mahomedan law on 918 the subject admits of no doubt and has not been controverted before us
We would however refer to a few decisions on this point to support our point of view
In re Shekhanmian while defining the consequences of a divorce and its impact on section 488 of the 1898 Code a division Bench of the Bombay High Court observed thus A talak when it becomes irrevocable puts an end to conjugal relationship which had subsisted between the parties and the divorced wife would not be entitled to claim maintenance from her husband beyond the period of iddat from the date of such irrevocable divorce
section 488 Criminal PC has in no manner abrogated this part of the personal law of the parties
The existence of conjugal relations in the case of Mahomedans has to be determined by reference to the provisions of the Mahomedan Law and not by considerations of equity and good conscience as understood in any other system of law
 To the same effect is the decision of the Madras High Court in Syed Said vs Meeram Bee 2 where in division Bench observed thus A Magistrate however exercising summary powers conferred on him by section 488 Code of Criminal Procedure can make or enforce an order to that effect only if the relationship of husband and wife exists between the two but in order to determine this and only to that extent we must ascertain the effect in Mahomedan law of an irreversible divorce on conjugal relations
 It was further held in that case that a divorce becomes irrevocable after the wife has observed the period of iddat which is usually three months or if she was pregnant the date of delivery so that she may be free to marry again
This view was reiterated by the Madras High Court in a later decision in In re Mohamed Rahimullah  Anr
3 where Yahya Ali J Observed thus The foundation upon which Ss 488  489 Criminal PC rest so far as granting of maintenance by the husband to the wife is concerned is that the relationship of husband and wife subsists between them
When that relationship is lawfully dissolved and there is no marital tie either in reason or upon any canon of justice or even upon the language of 919 Ss 488 and 489 how the husband can be directed to continue to maintain his divorced wife
 The Hyderabad High Court also took the same view in Rahimunissea  Ors
vs Mohd Ismail and after considering the entire law on the subject Bilgrami J Observed thus All these grounds can be sufficient or valid for refusal of maintenance to a wife with whom the tie of marriage subsists but when this tie is dissolved all these defences cannot be set up and the right of the wife to maintenance during the iddat period is absolute under the Mahomedan law the only obligation which binds a wife during this period is that she should not remarry
 In a very early case of the Allahabad High Court Din Mahommad s case 2 Mahmood J pointed out that while the enactment regarding maintenance was of a general nature being applicable to Mahomedans as also to Hindus Buddhists and other communities yet the legislature never intended to restrict the Mahomedan law of Divorce
The Judge further held that the right to maintenance came to an end when the conjugal relationship between the husband and the wife ceased to exist
In this connection Mahmood J Observed as follows The enactment under which that order was made does not relate more especially to Muhammadans than to Hindus Buddhists Indo Britons Europeans or any other branch of the general community and the Legislature could never have intended by it to interfere with or restrict the Muhammadan law of divorce
The whole of Chapter XLI Criminal Procedure Code so far as it relates to the maintenance of wives contemplates the existence of the conjugal relation as a condition precedent to an order of maintenance and on general principles it follows that as soon as the conjugal relation ceases the order of maintenance must also cease to have any enforceable effect
When and in what manner a cessation of the conjugal relation takes place is a question which ex necessitate rei must be determined according to the personal law to which the parties concerned are subject
The right to maintenance conferred by section 536 of the Criminal Procedure Code is a statutory right which the Legislature has framed irrespective of the nationality or creed of the parties the only condition precedent to the possession 920 of that right in the case of a wife being the existence of the conjugal relation
 Thus a review of the decisions referred to above clearly reveals that although a Mahomedan wife had a right to be awarded maintenance by the Magistrate under section 488 of the Code the said right ceased to exist if she was divorced by her husband and had observed the period of iddat
This was the undoubted position of law under the 1898 Code as amended by the 1955 Amending Act
The serious question to be determined in this appeal is as to how far the 1973 Code has made a distinct departure from the previous Code and changed the legal position of a woman after divorce
Section 125 of the 1973 Code is couched almost in the same language as section 488 of the earlier Code with the important exception that an Explanation has been added after sub clause 1 of section 125 which runs thus Explanation For the purposes of this Chapter a minor means a person who under the provisions of the is deemed not to have attained his majority b wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried Emphasis supplied We are however not concerned with clause a of the Explanation
Clause b has made a distinct departure from the earlier Code in that it has widened the definition of wife and to some extent overruled the personal law of the parties so far as the proceedings for maintenance under section 125 are concerned
Under clause b the wife continues to be a wife within the meaning of the provisions of the Code even though she has been divorced by her husband or has otherwise obtained a divorce and has not remarried
The decision in this case turns upon the interpretation of clause b
The High Court has construed the words who has been divorced or has obtained a divorce from her husband  as signifying that in both cases the divorce must proceed from the husband and should be the act of the husband and not that of the wife
In taking this view the High Court obviously seems to have been guided by the consideration that a dissolution of marriage brought about at the instance of the wife under the 1939 Act does not amount to a divorce by the husband under the Mahomedan law and hence the second limb of clause b also does not apply
Although there may be some substance in the view taken by the High Court yet what it 921 overlooked was whereas a dissolution of marriage under the Hindu Marriage Act may not necessarily end in a divorce but other consequences such as declaration that the marriage was a nullity a decree for judicial separation etc
but under the 1939 Act when the marriage is dissolved by the Court at the instance of the wife the only result that follows is that the wife stands divorced from the husband by operation of law and no other relief can be granted by the court under the 1939 Act after a decree for dissolution is passed
It follows therefore that the divorce resulting from the aforesaid dissolution of the marriage is also a legal divorce under the Mahomedan law by virtue of the statute1939 Act
That this is so would be manifest from the circumstances which we shall mention hereafter
There can be no doubt that under the Mahomedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognised by the law
A divorce given unilaterally by the husband is especially peculiar to Mahomedan law
In no other law has the husband got a unilateral right to divorce his wife by a simple declaration because other laws viz the Hindu law or the  contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a Court of law
Before the enactment of the Act of 1939 a woman under pure Mahomedan law had no right to get a decree for divorce from the husband if he refused to divorce her
This was unboubtedly the fundamental concept of divorce as laid down by the Mahomedan law
As however some of the Muslim Jurists and Theologists were of the view that where a husband becomes important or disappears for a large number of years or treats his wife with great cruelty the wife should have some right to approach the Qazi for dissolving the marriage
Relying on these authorities the legislature intervened and passed the under which the wife was conferred a legal right to move the civil court for a decree for dissolution of marriage on the grounds specified in section 2 of the Act of 1939
This is spelt out from the statement of Objects and Reasons of the Act of 1939 the relevant portion of which may be extracted thus There is no proviso in the Hanafi Code of Muslim Law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her makes her life miserable by deserting or persistently maltreating her or absconds leaving her unprovided for and under certain other circumstances
The absence of such a provision has entailed unspeakable misery to innumer 922 able Muslim women in British India
The Hanafi Jurists
however have clearly laid down that in cases in which the application of Hanafi Law causes hardship it is permissible to apply the provisions of the Maliki Shafii or Hambali Law
Acting on this principle the Ulemas have issued fatwas to the effect that in cases enumerated in clause 3 Part A of this Bill now see section 2 of the Act a married Muslim woman may obtain a decree dissolving her marriage 
As the Courts are sure to hesitate to apply the Maliki Law to the case of a Muslim woman legislation recognizing and enforcing the above mentioned principle is called for in order to relieve the sufferings of countless Muslim women
 One of the grounds was that a suit could be brought if the husband had neglected or failed to provide maintenance for the wife for a period of two years
After the Act of 1939 a wife thus had a statutory right to obtain divorce from the husband through the Court on proof of the grounds mentioned in the Act
The Act provided for the wife an independent remedy which could be resorted to by her without being subjected to a pronouncement of divorce by the husband
It is therefore in the background of this Act that the words has obtained a divorce from her husband  in clause b of the Explanation have to be constructed
Thus the High Court in considering the effect of these words seems to have overlooked the dominant object of the statutory remedy that was made available to the wife under the Act of 1939 by which the wife could get a decree for dissolution of marriage on the grounds mentioned in the 1939 Act by petitioning the civil court without any overt act on the part of the husband in divorcing her
The High Court also failed to consider the legal consequences flowing from The decree passed by the court dissolving the marriage viz a legal divorce under the Mahomedan law
In these circumstances we are therefore satisfied that the interpretation put by the High Court on the second limb of clause b is not correct
This seems to be borne out from the provisions of Mahomedan law itself
It would appear that under the Mahomedan law there are three distinct modes in which a muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce
1 Where the husband unilaterally gives a divorce according to any of the forms approved by the Mahomedan law viz Talaq ahsan which consiss of a single pronounce 923 ment of divorce during tuhar Period between menstruations followed by abstinence from sexual intercourse for the period of iddat or Talak hasan which consists of three pronouncement made during the successive tuhrs no intercourse taking place between three tuhrs and lastly Talak ul bidaat or talalk i badai which consists of three pronouncements made during a single tuhr either in one sentence or in three sentences signifying a clear intention to divorce the wife for instance the husband saying I divorce thee irrevocably  or I divorce thee I divorce thee I divorce thee 
The third form referred to above is however not recognised by the Shiah law
In the instant case we are concerned with the appellant who appears to be a Sunni and governed by the Hanafi law vide Mulla s Principles of Mahomedan Law Sec 311 p 297
A divorce or talaq may be given orally or in writing and it becomes irrevocable if the period of iddat is observed though it is not necessary that the woman divorced should come to know of the fact that she has been divorced by her husband
2 By an agreement between the husband and the wife whereby a wife obtains divorce by relinquishing either her entire or part of the dower
This mode of divorce is called khula  or Mubarat
This form of divorce is initiated by the wife and comes into existence if the husband gives consent to the agreement and releases her from the marriage tie
Where however both parties agree and desire a separation resulting in a divorce it is called mubarat
The gist of these mode is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced
A divorce may also come into existence by virtue of an agreement either before or after the marriage by which it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature and which again are agreed to be the husband
In such a case the wife can repudiate herself in the exercise of the power and the divorce would be deemed to have been pronounced by the husband
This mode of divorce is called Tawfeez  vide Mulla s Mohmedan Law Sec 314
p 300
3 By obtaining a decree from a civil court for dissolution of marriage under section 2 of the Act of 1979 which also 924 amounts to a divorce under the law obtained by the wife
For the purpose of maintenance this mode is governed not by clause b but by clause c of sub section 3 of section 127 of the 1973 Code whereas the divorce given under modes 1 and 2 would be covered by clause b of sub section 3 of section 127
These are the three distinct modes in which a dissolution of marriage can be brought about
It is therefore manifest that clause b Explanation to section 125 envisages all the three modes whether a wife is divorced unilaterally by the husband or where she obtains divorce S under mode numbers 2 and 3 she continues to be a wife for the purpose of getting maintenance under section 125 of the 1973 Code
In these circumstance the High Court was not at all justified in taking the two separate clauses who has been divorced  and has obtained a divorce from her husband  conjunctively so as to indicate a divorce proceeding from the husband and the husband alone and in not treating a dissolution of marriage under the 1939 Act as a legal divorce
We might like to mention here that the 1973 Code has by extending the definition of wife not excluded the various modes of divorce but has merely abrogated that part of the Mahomedan law under which the wife ceased to get maintenance if the conjugal relationship of the husband and wife came to an end
Nevertheless the personal law is applied fully and kept alive by clause b of sub section 3 of section 127 which may be extracted thus 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 pay able 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
 This clause refers to Mode No 1 that is to say where the husband unilaterally divorces his wife
For the application of clause b two conditions are necessary 1 that an application for cancellation of the maintenance is made by the husband under section 1272 and 925 2 that after the wife has been divorced by the husband she has received the whole of the sum which under any customary or personal law applicable to the parties was payable on divorce
In other words under the Mahomedan Law the husband could still get the maintenance cancelled after divorcing his wife according to personal law if he paid the entire dower specified at the time of marriage
We would however Like to point out one peculiar aspect of the provisions of section 127
While clause b of sub section 3 of section 127 does provide for cancellation of the maintenance on payment of dower if a woman has been divorced the said clause does not contemplate cancellation of maintenance where a woman obtains divorce from her husband through a civil court under the provisions of the Act of 1939
In this connection clause c of sub section 3 of section 127 which is extracted below clearly provides that where a woman obtains a divorce from her husband the amount of maintenance cannot be cancelled until she voluntarily relinquishes or surrenders her rights to the same the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce cancel the order from the date thereof Thus a clear distinction has been made between dissolution of marriage brought about by the husband in exercising his unilateral right to divorce and the act of the wife in obtaining a decree for the dissolution of marriage from a civil court under the Act of 1939
We might further add that our conclusion that the second limb of clause b of the Explanation to section 125 applies also to a situation where a dissolution of marriage resulting in a decree for divorce brought about by the Act and at the instance of the wife is fortified and reinforced by the language of clause c of sub section 3 of section 127 under which maintenance cannot be cancelled on the application of the husband unless the wife voluntarily surrenders her rights to maintenance or relinquishes the same and not otherwise
Thus tho two limbs of clause b of the Explanation to section 1251 have separate and different legal incidents one is reflected in clause b of subsection 3 of section 127 and the other in clause c of sub section 3 of section 127
In view of the reasons given and the circumstances discussed by us it is manifest that in the instant case section 127 does not at all 926 because the husband has not given any application for cancellation of the maintenance on the grounds enshrined in section 1273b of the 1973 Code but this case is squarely covered by clause b of the Explanation to section 1251 of the 1973 Code as a result of which the appellant in the eye of law continues to be the wife of the respondent despite the decree for dissolution of marriage
The Magistrate was therefore fully justified in granting maintenance to the appellant
The High Court therefore erred in quashing the order of the Magistrate we therefore allow this appeal set aside the order of the High Court and restore that of the Magistrate granting maintenance of a consolidated amount of Rs 100 per month for the appellant and her minor child
It would be open to the appellant to apply to the Magistrate for a warrant to realise the arrears of maintenance if any KOSHAL J I have had the advantage of perusing the judgment prepared by my learned brother Fazal Ali J with whom I find myself in general agreement
However as I would like to highlight a particular aspect of the matter I am appending a short note of my own
Sub section 1 of section 125 of the Code of Criminal Procedure hereinafter referred to as the Code confers on a Magistrate of the First Class the jurisdiction inter alia to order maintenance to be paid by a husband to his wife or his minor or destitute children
The case propounded by the wife in the present proceedings is that in spite of the decree of dissolution of marriage passed in her favour by a Civil Court on the 15th January 1973 she continues to be the wife of the respondent for the purposes of the said sub section 1 by reason of the definition of the term wife contained in clause b of the Explanation appended to that sub section
That clause runs thus 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 and has not re married
 The claim of the wife has been turned down by the High Court on the ground that this clause is inapplicable to her case inasmuch as i the appellant has obtained only a decree of dissolution of marriage and not a divorce and ii the expression from the husband as used in the clause extracted above envisages divorce by voluntary action of the husband which is missing in this case the dissolution of marriage having been obtained from the court and therefore not from the husband
927 3
The word divorce  is not defined in the Code and may legitimately be regarded as having been used in clause b above extracted in the dictionary sense
Webster s Third New International Dictionary states it to mean amongst other things a legal dissolution in whole or in part of marriage relation usually by a court or other body having competent authority b an absolute dissolution in a valid marriage made by decree of court for lawful cause arising after the marriage distinguished from annulment c a formal separation of man and wife by the act of one party or by consent according to established custom
 As ordinarily understood therefore divorce is nothing more nor less than another name for dissolution of marriage whether the same results from act of parties or is a consequence of proceedings at law and it would in our opinion be wrong to regard the two terms as not being synonymous with each other unless the legislature makes a direction to the contrary
We need hardly point out that section 125 of the Code contains no such direction
Deacock vs Deacock supports the view just expressed
In that case the English Court of Appeal was called upon to interpret sections 161 and 193 of the Matrimonial Causes Act 1950 which posed a similar problem
The relevant portions of those provisions are reproduced below 161 Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved and the court if satisfied that such reasonable grounds exist may make a decree of presumption of death and of dissolution of the marriage
193 On any decree for divorce or nullity of marriage the court may if it thinks fit by order direct the husband to pay to the wife during their joint lives such monthly or weekly sum for the maintenance and support of the wife as the court may think reasonable  An argument was raised that a decree for dissolution of marriage as envisaged in section 161 does not amount to a decree for divorce mentioned in section 193 and that therefore there was no jurisdiction in the Court to direct the husband to any the wife any main 928 tenance in pursuance of the latter section
Hodson LJ with whom Morris LJ and Vaisey J fully agreed repelled the argument thus It is said and I confess that this argument does not produce very much impact on my mind that there is a distinction between the words dissolution of marriage and divorce and that as section 19 contains the word divorce and section 16 does not there is no statutory power to apply for maintenance at 811 in the case of presumption of death
In my view the word dissolution relates to the marriage bond itself whereas the word divorce relates to the parties to tile marriage bond and it is apt to refer to divorce when speaking of parties and dissolution when speaking of the bond As the decree in this case shows what has been done or what has been purported to be done by the court was to dissolve the marriage and the word dissolved is used in this and in all other decrees as it has been used for years the word divorce is not used
Thus according to the Court of Appeal the expressions divorce and dissolution were really two facets of the same situation
The matter may be looked upon from another angle in so far as section 125 of the Code is concerned
According to its provisions a full fledged wife is obviously entitled to maintenance
By reason of clause b above extracted even a divorced wife has that right provided that she has not re married
Could then it be argued with any plausibility that a wife who has been granted a decree of dissolution of marriage by a Civil Court but has not been divorced by a voluntary act of her husband was intended by the legislature not to be entitled to the benefit of clause b The answer must be an emphatic no and this answer follows from the terms of clause b itself
If that clause envisaged only decree by voluntary action of the husband the second limb of the clause which makes the definition of wife inclusive of a woman who has obtained a divorce from the husband  would be rendered otiose
The word obtained  may well be used in the sense of procured with effort  and would certainly describe correctly a situation where something is achieved by a person through his exertion in spite of opposition from others
According to Webster again the word obtain  signifies a to gain or attain possession or disposal of usually by some planned action or method b to bring about or call into being etc
 929 If a person sues another person for the recovery of property and the suit is resisted but ultimately decreed and the plaintiff recovers possession of the property from the defendant he may properly be described as having obtained the property from the defendant although this result has come about not because the defendant obliged the plaintiff but because of the coercive process of the court
Similarly information contained In a statement brought about by coercive methods used against a helpless person would still be information obtained from him even though he is not a willing party to the statement
There is another good reason why the narrow interpretation placed by the High Court on clause b above extracted cannot be accepted
Divorce by the act of the husband is broadly speaking not recognised by any system of law except that applicable to Muslims barring variations of personal law by custom
Members of the other main communities inhabiting India ie Hindus Sikhs Buddhists Jains Christians etc have perforce to go to courts in order to obtain divorce
If clause b was intended to embrace only cases of divorce brought about by the act of the husband its applicability would be limited by and large only to Muslims which per se appears to us to be an absurd proposition
For the reasons stated I would interpret the expression a woman who has obtained a divorce from her husband as including a wife who has been granted a decree of dissolution of marriage by the Court
That such is the case here is admitted on all hands
In the result therefore the appeal is accepted the Judgment of the High Court is set aside and the order of the learned Magistrate granting an amount of Rs 100 per month as maintenance to the appellant and her minor child is restored
NKA Appeal allowed


Summary:
The appellant was the legally married wife of the respondent
As he willfully neglected her she filed an application before the Magistrate for maintenance under Section 125 of the Code of Criminal Procedure 1973
The Magistrate accepted the allegation of the appellant that she had been neglected by the respondent without reasonable or probable cause and awarded maintenance at Rs 100 per month for the appellant and the minor child
The High Court held that clause b of the explanation to Section 1251 of the Code had no application to the facts of the case and that so far as the appellant was concerned she was not entitled to any maintenance
It however affirmed the order of the Magistrate fixing Rs 40 per month as maintenance for her minor son
In the appeal it was contended that the view taken by the High Court is legally erroneous and is based on wrong interpretation of clause b of the explanation to Section 1251 of the Code
Accepting the Appeal Per Fazal Ali  Vardarajan JJ  HELD 1
In the instant case Section 127 does not apply at all because the respondent has not filed any application for cancellation of the maintenance on the grounds mentioned in Section 1273b of the 1973 Code but this case is squarely covered by Clause b of the Explanation to section 125i of that Code as a result of which the appellant in the eye of law continues to be the wife of the respondent despite the decree for dissolution of marriage
925 H 926 A B 2
It is clear that the 1898 Code by virtue of section 488 provided a summary remedy for awarding maintenance to neglected wives irrespective of the caste creed community or religion to which they belonged
Sections 488 and 489 were the corresponding provisions of the 1898 Code which were couched almost in the same language as sections 125 and 127 of the 1973 Code having some important additions that have been made under the 1973 Code
A provision like clause b of the Explanation to section 1251 of the 1973 Code was conspicuously absent in section 488 of the old Code and has been added by the 1973 Code
914 H 915 A D 917 C D 911 Nanak Chand vs Shri Chandra Kishore Agarwala  Ors   Ram Singh vs State  Anr
AIR 1963 All
355 Nalini Ranjan Chakravarty vs Smt
Kiran Rani Chakravarty AIR 1965 Pat
442 Mahabir Agarwalla vs Gita Roy  referred to
The Mohomedan Law on the subject was that where a woman governed by the Mohomedan Law was awarded maintenance the same would cease from the date of divorce given by the husband and the completion of the period of Iddat
917 G H In re Shekhanmian AIR 1930 Bombay 178 Syed Said vs Meera Bee  Mohamed Rahimullah  Anr
AIR 1947 Madras 416 Aahimunnissa  Ors
vs Mohd Ismail AIR  Din Mohmmad s VILR 1883 226 referred to
Although a Mohomedan wife had a right to be awarded maintenance by the Magistrate under section 488 of the old Code the said right ceased to exist if she was divorced by her husband and had observed the period of Iddat
This was the undoubted position of law under the 1898 Code as amended by the 1955 Amending Act
920 A B 5
Clause b has made a distinct departure from the earlier Code in that it has widened the definition of wife and to some extent over ruled the personal law of the parties so far as proceedings for maintenance under Section 125 are concerned
Under Clause b the wife continued to be a wife within the meaning of the provisions of the Code even though she has been divorced by her husband or has otherwise obtained a divorce and has not remarried
It follows therefore that the divorce resulting from the aforesaid dissolution of the marriage is also a legal divorce under the Mohomedan Law by virtue of the statute 1939 Act
920 E F 921 B 6
Under the Mohomedan Law the commonest form of divorce is a unilateral pronouncement of divorce of the wife by the husband according to the various forms recognised by the law
A divorce given unilaterally by the husband is especially peculiar to Mohomedan Law
In no other law has the husband got a unilateral right to divorce his wife by a simple declaration because other laws viz the Hindu Law or the  contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a court of law
921 C D 7
A wife thus had a statutory right to obtain divorce from the husband through the court on proof of the grounds mentioned in the Act
The Act provided for the wife an independent remedy which could be resorted to by her without being subjected to a pronouncement of divorce by the husband
It is therefore in the background of this Act that the words has obtained a divorce from her husband  in clause b of the Explanation have to be construed
Thus the High Court in considering the effect of these words seems to have over looked the dominant object of the statutory remedy that was made available to the wife under the Act of 1939 by which the wife could get a decree for dissolution of marriage on the grounds mentioned in the 1939 Act by petitioning the civil court without any overt act on the part of the husband in divorcing her
The High Court also failed to consider the legal consequences flowing from the 912 decree passed by the Court dissolving the marriage viz a legal divorce under the Mohomedan law
922 D F 8
The interpretation put by the High Court on the second limb of clause b is not correct
This seems to be borne out from the provisions of Mohomedan law itself
It would appear that under the Mohomedan law there are three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and wife terminated so as to result in an irrevocable divorce
922 F G 9
It is therefore manifest that clause b of Explanation to section 125 envisages all the three modes whether a wife is divorced unilaterally by the husband or whether she obtains divorce under the mode numbers 2 and 3 she continues to be a wife for the purpose of getting maintenance under section 125 of the 1973 Code
In these circumstances the High Court was not at all justified in taking the two separate clauses who has been divorced  and had obtained a divorce from her husband  conjunctively so as to indicate a divorce proceeding from the husband and the husband alone and in not treating a dissolution of marriage under the 1939 Act as a legal divorce
924 B D 10
A clear distinction has been made between dissolution of marriage brought about by the husband in exercising his unilateral right to divorce and the act of the wife in obtaining a decree for dissolution of the marriage from a civil court under the Act of 1939
925 E F 11
The two limbs of clause b of the Explanation to section 1251 have separate and different legal incidents one is reflected in clause b of sub Section 3 of section 127 and the other in clause c of sub section 3 of section 127
925 G H Per A D Koshal J concurring 1
The word divorce  is not defined in the Code of Criminal Procedure and may legitimately be regarded as having been used in clause b of sub section 1 of Section 125 in the dictionary sense
As ordinarily understood divorce  is nothing more nor less than another name for dissolution of marriage whether the same result from the act of parties or is a consequence of proceedings at law
It would be wrong to regard the two terms as not be synonymous with each other unless the legislature makes a direction to the contrary
927A C D 2
According to Section 125 of the Code of Criminal Procedure a full fledged wife is entitled to maintenance
By reason of clause b even a divorced wife has that right provided that she has not re married
If that clause envisaged only divorce by voluntary action of the husband the second limb of the clause which makes the definition of wife  inclusive of a woman who has obtained a divorce from the husband  would be rendered otiose
The word obtained may well be used in the sense of procured with effort  and would certainly describe correctly a situation where something is achieved by a person through his exertion in spite of opposition from others
928 E F G 3
Divorce by the Act of the husband is not recognised by any system of law except that applicable to Muslims
Members of the other main communities inhabiting India ie Hindus Sikhs Buddhists Jains Christians etc
have perforce to go to courts in order to obtain divorce
If clause b was intended to 913 embrace only cases of divorce brought about by the Act of the husband its applicability would be limited by and large only to Muslims which per se appears to be an absurd proposition
929 C D 4
The expression a woman who has obtained a divorce from her husband  has therefore to be interpreted as including a wife who has been granted a decree of dissolution of marriage by the Court
929 E Deacock vs Deacock referred to