MST. ZOHARA KHATOON

JI.

MOHD. IBRAHIM

February 18, 1981

(S. MURTAZA FAZAL ALI, A. D. KOSHAL AND A. VARADARAJAN, JJ.]

Crifninal Procedure Code, 1973, Section 125 ( 1 ), Explanation (b )-Whether hfa1.dstrate conipetcnt to award nu1intrna11ce if under the personal law of the' Jl.t!ohornedan.5, tlie lrife obtained a valid divorce and had completed the period oj 1ddar-"wife'' whether includ:es a woman who has been divorced by, or has obtained a divorce froni her husband and has not re1narried.

The appellant was the legally married wife of the respondent. As he wil fully neglected her, she filed an application before the Magistrate for mainte nance under Section 125 of the , Code of Criminal Procedure 1973. The Magis trate accepted the a-llegation of the appellant that she had been neglected by the respondent without reasonable or probable cause and awarded maintenance at Rs. 100/- per n1onth for the appellant and the minor child.

The Hi.h Court held that clause (b) of the explanation to Section 125 (I) 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 afirmed the order of the Magistrate fixing Rs. 40/- per month as maintenance for her minor son.

fn 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 125(1) of the Code.

Accepting the. Appeal1,

F (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 I27(3)(b) of the 1973 Ccxle but this case is squarely covered by Clause (b) of the ExplanaHon to S. 125(i) of that Code as a reiult of which the appellant in the eye of law continues to be the wife oi G the respondent, despite the decree for dissolution of marriage. [925 II, 926 A-B]

2. It is clear that the 1898 Code by virtue of S. 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 ss. 125 and 127 of the 1973 Code having some important additions that h<!!ve been made under tbe 1971 Code. A provision like clause (b) of the Explanation to S. 125(1) of the 1973 Code was conspicuously absent in s. 488 of the old Code and has been added by the 1973 Code. [914 H,

915 A, D, 917 C.D]

ZOHRA KHATOON V. MOHD. IBRAHIM 911

Nanak Chand v. Shd Chandra Kishare Agarwala & Ors. [1970] I SCR 565, A Ram Singh v. State & Anr. AIR 1963 All. 355, Nalini Ranjan Chakravarty v.

Smt. Kiran Rani Chakravarty AIR 1965 Pat. 442, Mahabir Agarwal/a v. Gita Roy [1962) 2 Cr. L.J. 528, referred to:

3. The ~Iohomedan Law on the subject was that where a woman governed by the Mohon1cdoo. Law was awarded maintenance, the same would cease from the date of divorce given by the husband and the completion of the period of B Jddat.

[917 G-H]

.,.

In re Shckhannzian AIR 1930 Bombay 178, Syed Said v.

A-feera Bee 20

M.L.J. 12, Mohamed Ra/dmul/ah & Anr. AIR 1947 Madras 416, Aahimunnissa & Ors. v. Mohd. Ismail AIR 1956 Hyderabad 14, Din Mohanunad's V.I.L.R. 1883 226, referred to.

4. Although a l\{ohomedan wife had a right to be awarded maintenance by the Magistrate under s. 488 of the old Code, the said right ceased to exist if she \vas 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-BJ

5. Clause (b) has made a distinct departure from the earlier Code in that D it has widened the definition of wife and, to some extent, overruled the personal law of the parties so far &5 proceedings for maintenance under Section 125 arc 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 foJJows, therefore, that the divorce "resulting from the aforesaid dissolution of the 1narriage is also a legal divorce under the Mohomedan Law by virtue of the E statute (1939 Act). [920 E-F, 921 BJ

6. Under the .l'vfohomedan Law the commonest form of divorce is a unila~ teral pronouncerneut of divorce of the wife by the husband according to the various fonns recogniSed by the Jaw.

A divorce given unilaterally by the hus.-- band 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 Iav.1s, viz., the Hindu Law or the Parsi Marriage and Divorce Act, 1936, 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 husbruid 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 G 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 look ed 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 H court without any overt act on the part of the husband in divorcing her. The High Court also failed to consider the legal consequences ll.owing from the

A decree passed by, the Court dissolving the inarriage, viz., a legal di\'orcc 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 fron1 the provisions of tohn medan la\v itself. 1t would appear that under the Mohomedan la\\I there are three distinct modes in which a 1\luslim marriage can be dissolved and the rela- B tionship of the husband and \Vife terminated so as to result in an irrevocable

divorce. [922 F-GJ

9. It is, therefore, manifest that clause (b) of Explanat:on to

S. 125

enviages all the three modes, whet-her a \Vife is divo:rced 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 S. 125 of the 1973 coJc.

In these circumstances the High Court was not at all justified ir. t<1h.ing the two scpar<1.te clauses 'who has been divorced' and 'had obtained a divorce front her husbund' coniunctively so as to indicate <1 divorce proceeding from the. husba.nd anrt 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 beteen dissolution of n1arriage hrought about by 1he husband in exercising: his unilateral right to divorce and the act of .the \Vife in obtaining a decree for dissolution of the marriag:e from a civil court under the Act of 1939. [925 E-F]

11. The two limbs of clause (b) of the Explanation to S. 125(1) have separate and different legal incidents-one is reflected in clause (b) of sub~ Section (3) of S. 127 and the. other in clause (c) of sub-section (3) of S. 127.

[925 G-H]

(Per A. D. Koslial, J. concurrinR)

1. The \.Vord 'divorce' is not defined in the Code of Criminal Procedure and may legitirn.<itely be regarded <is having been used in clause (b) of sub-section 1 of Section 125 in the dictiona•ry sense.

As ordin'.1rily 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 v.to terms as not be synonyn1ous v; ith each other, unless the legjslature makes a direction to the contrary. [927A, C-Dl

2. According to Section 125 of the Code of Criminal Proccd11re. a fullfledged wife is entitled to maintenance.

By reason of clause (b) even a divo:ced wife ha<; th<it right provided that she has not re-married.

If that clause envisaged only divorce by voluntary nction of the husband, the second limb of the clause \vhich makes the definition of 'wife' inclusive of a woman \vho has 'obtained a divorce from the husband' would be rendcr.ed otiose.

The word obtained may well be u:oied in the sense of 'procured with effort' :1nd would ccrtainiy describ~ correctly a situation where son1ething is ac, hieved by a person. through his exertion in spite of opposition from others.

[928 E, F-(}]

3. Divorce by the Act of the husband, is not recognised by any system of Jaw except that applicable to Muslims. Members of the other main comrnunities inhabiting India, i.e. Hindus, Sikhs, Buddhists, Jains, Christians, etc. have perforce to go to courts in order to Obtain divorce. If clause (b) was intended to

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ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal AU,!.) 913

rn!:lracc only cases of divorce brought about by the Act of the husband, its A 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 \voman 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 v. Deacock [1958] 2 All E.R. 633 referred to .

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 761 of 1980.

Apperu 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 Pazal Ali & A. Varda.rajan JJ was delivered by Fazal Ali, J., A. D. Kasha!, 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 hut 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, wa, s a legally

~-~ married wife of Mohd. Ibrahim.

As Mohd. Ibrahim oon after the marriage wilfully neglected her she filed an application before the trial Magistrate on September 17, 1974 under s. 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 (U.P.), 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 a!Jega>- tion 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 .

11 -!14 SCI/81

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 wilful 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, therefore, not entitled to maintenance under s. 125 ors. 127 of the 1973 Code. Ultimately, the husband moved the High Court under s. 482 of the 1973 Code for quashing the order of the Magistrate as it was vitiated by an error of law.

In t~ High Court, the argument of the appellant was that in view of clause (b) of the Explanation to s. 125 (1) of the 1973 Code, she continued to be the wife despite obtaining a decree for dissolution of marriage and thus )ler 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 uuder the Dissolution of Muslim Marriages Act, 1939 (hereinafter referred to as the '1939 Act') the decree under the said Act did not amount to a divorce by the husb'and because the marriage was dissolved by operation of law only.

Hence clause (b) of the Explanation to s. 125(1) had no application and the appellant was not entitled to any maintenance under s. 125 of the 1973 Code, so far as she was concerned.

The High Court, however, ma'ntained 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 nnd is based on a wrong interpretation of clause (b) of the Explanation to s. 125(1) of the 1973 Code.

After having gone through the var<ous rrovisions of the 1973 Code, particularly ss. 125 and 127 we are mtisfied that the contentions raised by the counsel for the appellant are well founded and must prevail.

ln order to decide the issue in question it may be necessary to give a hricf survey of the corresponding provisions of the Code of Crimin~!

Proce, lurc, 1898 (h<:rcinafter 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

• •

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ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, !.) 915

ss. 125 and 127 of the 1973 Code minus s.ome important addition§ that A have been made under the 1973 Code.

The relevant portion of s. 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 Dr refusal, order such person to make a monthly <illowance for the maintenance of his wife or snch 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 s. 488 of the said Code as the same are not germane for the purpose of ckdding this appeal. It may, however, be noted that a provision 'ike clause

{b) of the Explanation to s. 125{1) of the 1973 Code was conspi- I) cuously absent from s. 488 and has been added by :he 1973 Code.

We shall deal with the legal effect of this provision a little later.

A perusal of s. 488 would clearly reveal that it carves out an independent sphere of its own and is a general law providing a summary machinory for determining the maintenance to be awarded by the \1agistrate under the circumstances mentioned in the section. rrh~ provisions E may not be inconsistent with other parallel Acts in so far as '1:laintcnance is concerned, but the section undoubtedly excludes to some extent the application of any other Act.

At the same t.ime, it cannot be said that the personal law of the parties is completely exclt!ded 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 F is concerned that would have to be determined according to the said personal law.

Thus, the exclusion by s. 488 extends only to the '4.' !juantum of the maintenance and the circumstances acder which it

, could be granted.

The scope of s. 488 of 1898 Code was w"sidercd by this Court in Nanak Chand v. Shri Chandra Kisho.'e Auw; vala Ill.

Ors.(') where the following observations were made:--· c;

"We are unable to see any inconsistency bet\v•2en i_he Maintenance Act and s. 488 Cr.P.C ....... The hw ··:' substantially similar before and nobody c 0cr sugre , tcd 'k; t Hindu Law, as in force immediately hfrre the "''''Jiw ":ement of this Act, insofar as it dealt with the mahilemr.ce.

of children, was in any way inconsistent withs. 488 Cr. P, C .

(1) [1970] 1 S.C.R. 565.

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 before the Allahabad High Court in Ram Singh v. State (AlR 1963 All. 355), before the Calcutta High Court in Mahabir Agarwal/a v. Gita Roy [1962] 2 Cr. L.J. 528 and before the Patna High Court in Nalini Ranjan v. Kiran Rani (AIR 1965 Pat. 442). The three High Courts have, in our views, correctly come to the conclusion that s. 4(b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in s. 488, Cr.P.C."

It would be seen that this Court approved of the decisions in the cases of Ram Singh, Mahabir Agarwal/a and Nalini Ranjan mentioned in the observations extracted above.

In order to undrstand the prqper scope of s. 488 of the 1898 Code which is almost the same as that of s. 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 v. 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 s. 488 Cr. P.C. In fact the provisions of sec. 18 of the Act cannot be a substitute for s. 488 Cr.P.C. The latter provision is general and is 31>plicable to a wife, irrespective of her religion, but the former is applicable to the case of Hindus only. It could not, therefore, be intendd to be a substitute for s. 48 8 Cr. P. C."

To the same effect is the decision of the Patna High Court in Nalini 1,..

Ro•zfan Clwkravarty v. Smt. Kiran Rani Ch"kravarty(2) where the

following observations were made :-

"Before the enactment of 1956, it was well settled that the right conferred by section 488 Cr.P.C. 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, s. 488 provided for only

(!) AIR 1963 All. 355.

(2) AIR 1965 Pat. 442

• •

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ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, J.) 917

a speedy remedy and a summary procedure before a Magis- A trate 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 8 Agarwalla v. Gita Roy CJ 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 !lie C husband.

The two remedies were, however, not co-extensive."

Thus, on a consideration of the authorities mentioned above, it is clear that the 1898 Code by virtue of s. 488 provided a summary remedy for awarding maintenance to neglected wives irres, pective of D 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 miportant questiQn still remains : Was the Magistrate competent to a.ward maintenance if urider the personal law of the Mahomedans the "life had been validly divorced and had completed the period of ldd; it? In fact, s. 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, s. 489(2), which is extracted below, provided t111t the Magistrate could cancel the maintenance in consequence of a decision

~· .. of any competent court :

"(2) Where it awears to the Magistrate that .. in consequence of any decision of a competent Civil Court, 3 .iy 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, consiJoring the scheme of ss. 488 and 489 it was generally 11ccep- 1ed as geod bw 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 com- H pletion of the period of Iddat. That this is the Mahomedan law on

(I I 11962] 2 Cr. L.J. 528.

A the subject admits of no doubt and bas not been controverted before us.

We would however, refer to a few decisions on this point to support our point of view.

In Jn re Shekhanmian(') while defining the consequences of a divorce and its impact on s. 488 of the 1898 Cede a division Bench of B the Bombay High Court observed thus :-

"A talak when it becomes irrevocable puts an end to conjugal relationship which had subsisted between :he parties, and the divorced wife would not be entitled to claim maintenance from her husband beyond the period of iJdat from the date of such irrevocable divorce. S. 488 Criminal P.C., has in no manner abrogated this part of the per'C111al law of the parties.

The existence o! conjugal relations in the case of Mahomcdans has to be determined by reference to the provisions of the Mahomedan Law and not by considerations of equity and good conscience as ucde1'tood in any other system of law."

To the same effect is the decision of the Madras High Court in Syed Sold v. Mccram Bee (2) where in division Bench observed thus :

"A ~1agistrat1..:, ho\vcver, exercising summary powers conR fcrrcd on him hy s. 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 deteymine this, and only to that extent, we must ascertain the effect in Mahomedan law of au 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 reiteraled by the Madras High Court in

a later decision in In re Mohamed Rahimullah & Anr. (") where Yahya Ali, J. observed thus :-

"The foundation upon which Ss. 488 & 489, Criminal P .C. 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

(I) AIR 1930 Bombay 178.

(2) 20 M.L.J. 12

(3) AIR 1947 Madras 461.

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ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, !.) 919

Ss. 488 and 489 how the husband can be directed to continue A to maintain his divorced wife."

The Hyderabad High Court also took the same v; ew in Rahimunnissa & Ors. v. Mohd. Ismail(') and after con, idering the entire law on the subject Bilgrami, J. observed thus :-

'"All these grounds can be sullicicnt 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 Pbligation which binds a wife during this period is that she .; liould not remarry."

In a very early case of the AJlahalYad High Court-Di11 lYi<ilwmmad's cwe(')-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 vet the legislature never intended to restrict the Mahomcdan law of Divorce.

The Judge, further held that the right to maintenance came to a'1 end when the conjugal relationship between the husband and the wife ceased to exist.

In this connection, Mahmood, J. observed as fillows :

"The enactment under which that order was made does

not relate more especiaJly to Muha=adans than to Hindus, E Buddhists, Indo-Britons, Europeans, or any other branch of the general community, and the Legislature could never hayc irtcnded by it to interfere with or restrict the Muhammadan law of divorce ...... The whole of Chapter XLl, Crimi11:1l Procedure Code. so far as it relates to the maintenance of wives, contemplates the existence of the wuiupl relation as a condition precedent to an order of maintenance and, on general principles, it foJlows that as soon "' the conjugal relation ceases, the order of maintenance must aho 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 fo which the parties concerned arc subject ...... The right to maintenance conferred by s. 536 of the Criminal Procedure Code is a statutory right, which the Legislature has framed irrespective of the nationality er creed of the parties, the only condition precedent to the possession

(l) AIR 1956 Hydrabad 14

(2) V. l.L.R. (1813) 226

A 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 s. 488 of the Code, the said right ceased to exist if she was divorced by her husband and had observed : he period of iddat. This was the undoubted position of law under the 1298 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. f>ection

125 of the 1973 Code is couched almost in the same language ass. 488 of the earlier Code with the important exception that an 1:xplanation has been added after sub-clause (1) of s. 125 which runs thus :

"Explanation-For the purposes of this Chapter.-

( a) "minor" means a person who, under the provisions ot the Indian Majority Act, 1875 is deemed not to have attained his majority;

(b) "wife includes a woman whn has been divorced by or has obtained a divorce from, her husband and bis not remarried."

(Emphasis supplied)

We are however not concerned with clause (a) of ihe E"planation.

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 F personal law of the parties so far as the proceedings for maintenance under s. 125 are concerned. Under clause (b), the wife continues to be a wife within the mea0ning of the provisions of the Code even though she has been divorced by her husband or has otherwise ohtained a divorce and has not remarried. The decision in this case turns upon the interpretation of clause (h). The High Court has construec the G words 'who has been divorced or has obtained a divorce from her hus .. band' as signifying that in both cases the divorce must proceed from the husband and should be the act of the husband and not !l , at of the wife.

In taking this view, the High Court obviously seem' to have been guided by the consideration that a dissolution of marri2ge brought about at the instance of the wife under the 1939 Act does not amount H to a divorce by the husband under the Mahomedan law and henct1 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 whst it

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WHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, J.) 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 t, he 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 statute (1939 Act).

That this is so wou.\d 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 divcrce his wife by a simple dedaration because other laws, viz., the Hindu law or the Pmsi Marriage and Divorce Act, 1936, 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 undouhtdly the fundamental concept of divorce as laid duwn by the Mahomctian law.

As, however, some of the Muslim Jurists and Theologists were of the view that where a husband becomes importent 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 anthorities the legislature intervenerl and p>assed the Dissolution of Muslim Marriages Act, 1939 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 s. 2 of the Act of

1939. This is spelt out from the statement of Objects and Reasons of tl1e 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 leavin~ her unprovid· ed for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumer-

A able Muslim women in British India.

The Hanafi Ju; i<; ts. 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 ?. of the Act), a married Muslim woman may obtain a decree dissolving her marriage ... As the Courts are "'T to he<itate to apply the Maliki Law to the case cf a :rv1tFlirn. "'on1an, legislation recognizing and enforcing the abovcmcntioncd principle is called for in order to relieve thr suff,?r'.n~; s cf cGunt'lcss Muslim women."

One of the grounds ·.vas that a st1it could be brought if the husband had neglected or failed to provide 111<•1ten1nce for the wife for a period of two years.

After the Act of 1939, a wif: thus had a statntorv 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 i'ldependent 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 liusband' 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 ob.iect of the statutory remedy that was made available t0 the wife under the Act of 1939 11y • .. , hich the wife could get a dr-rrcc f('r di'-solution of marriage en the ground~ mentioned in the 1939 Act bv petiti0ning the civil court with0ut any overt act on the part of the husband in divorcing her.

The Hih Court also failed to consider the Ieeal consequences flowing from 11-:e decree passed by the court discolvinf! the marriage. viz., a legal div0rce under

the Maho.medan 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 ., f Mahomedan law itself.

It wonlr1 arpear that under the Mahorneclan law there are three d:stinct moies in which a muslim marriage can he dissolved and the relations hi!' of the husband and the wife terminated so as to result in an irrevocable divorce.

( 1) Where the hmband unihtcrallv gives a divorce according to any of the forms approved by the Mahomedan law, viz .. Talaq ahsan, which consisss of a single pronounce-

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WHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, /,) 923

ment of divorce during tuhr (Period between menstruations)

followed by abst:nence from sexual intercourse for the period

t1i i<ldat; 01 Talak hasan which consāsts of three prcnounce-

111cn1s 111:!.de during lhc successive tuhrs, no intercourse

taking place between three tuhrs: and lastly Talak-ul-bidaat

er ta/ai:-i-badai which consi<ts 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 'l divorce thee, f 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 appel'ant 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 hecomes irrevocable if the period of iddat is observed

though it is not necessary that the woman divorced should D

come to know of the fact that she has been divorced by her

husband.

(2) By an agreement between the husband and tl:ie wife

wherel'ly 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 con

sent 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 modes is that it comes into existence with the consent

of both the parties particularly the husband because with

out 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 by 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 lleeii pronounced by the husband, This mode of

divorce is called 'Tawfeez' (vide Mulla's Mohmedan Law,

Sec. 3f4, p. 300).

(31 By obtaining a decree from a civil court for disso

Iutinn of marriage under s, 2 of the Act of 1939 which also

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 s. 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 s. 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 s. 125 envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce under mode numbers 2 and 3, she continues to be a wife for the purpose of getting maintenance under s. 125 of the 1973 O<k In these Circumstances 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' conjunclively 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 Mahome.dan 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 s. 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 .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."

This clause refers to Mode No. I, that is to say, where the husband unilaterally divorces his wife. For the application of clause (b), two conditions are necessary-

( I) that an application for cancellation of the maintenance is made by the husband under s. 127(2), and

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lUHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, I.) 925

(2) that after the wife has been divorced by the husband A 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 B 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 s. 127. While clause (b) of sub-section (3) of s. 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 subsection (3) of s. 127, which is extracted below, clearly provides that where a woman obtains a divorce from her hnsband 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 unger the Act of 1939.

We might further add that our conclusion that the second limb of clause (b) of the Explanation to s. 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 s. 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, the two limbs of clause (b) of the Explanation to s. 125(1) have separate and different legal incidents--one is reflected in clanse (b) of subsection (3) of s. 127 and the other in clause (c) of sub-section (3) of s. 127.

In view o1' the reasons given and the circumstances discu8sed by us, it is manifest that in the instant case s. 127 does not apply at all

because the husband has not given any application for cancellation of the maintenance on the grounds enshrined in s. 127 (3) (b) of the 1973 Code but this case is squarely covered by clause (b) of the Ex planation to s. 125(1) 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 tkcrce lo,. dissclufon of marr:age.

The Magistrate was, thcre[ore, fully justified in granting maintenance to the appellant. The High Court, therefore, erred in quashing the order ol the Magistrate, we, therefore, allow this appčal, set aside the order of the High Court and restore that of the Magistrate granting maintenance of a consoli dated 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 1naintcnance, 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 parti cular aspect of the matter, I am appendiag a short note of my own.

2. Sub-section ( I ) of section 125 of the Code of Criminal Pro cedure (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 Crnt 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 H 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.

ZOHRA KHATOON v. MOHD. IBRAHIM (Koshal, J.) 92 7

3. The word 'divorce' is not defined in the Code and may legi- A

timateiy be regarded as having been used in clause (b) above extracted in the dictionary sense.

Webster's Third New International Dic

tionary states it to mean, amongst other things,.-

" (a) legal dissolution in whole or in part of a marriage relation usually by a court or other body having competent B authority;

" (b) an absolute dissolution of 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, unle'8 the legislature makes a direction to the contrary.

We need hardly point out that section 125

of the Code contains no such direction.

4. Deacock v. Deacock, [1958] 2 All. E.R. 633 supports the view just expressed.

In that case the English Court of Appeal was

cBJled upon to interpret sections 16 ( 1) and 19 ( 3) of the Matrimonial E Causes Act, 1950 which posed a similar problem.

The relevant por

tions of those provisions are reproduced below:

"16(1) 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.

"19(3) 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 16(1) does not amount to a decree for divorce R mentioned in section 19(3) and that, therefore, there was no juris diction in the Court to direct the husband to pay the wife any main-

SUPREME COURT REPO!~TS


tenance in pursuance of the latter section.

Hodson, L.J., with whom Morris, L.J., 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 all in the case of presnpmption of death .......... In my view the word "dis- solution relates to the marriage bond itself, whereas the word "divorce" relates to the parties to the 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 thls 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.

5. The matter may be looked upon from another angle in so far E 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 h_as been granted a decree of dissolution of marriage by a Civil Court but has not been divorced by a voluntary F 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. It 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 G 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:

H "(a) to gain or attain possession or disposal of, usually by some planned action or method, "(b) to bring about or call into hein.g, etc."

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ZOHRA KHATUN v. MOHD. IBRAHIM (Koshal, J.) 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 <lescribed 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.

6. 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 applicabie to Muslims (barring variations of personal law by custom).

Members of the other main communities inhabiting India, i.e., 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, ofrly to Muslims, which per se appears to us to be an absurd proposition.

7. For the reasons stated I would interpret the expression "a woman who has obtained a divorce from her husband" as including E a wife who has been granted a decree of dissolution of marriage by the Court. That snch 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 tl1e learned Magistrate granting an amonnt of Rs. 100/- per month as maintenance to the appellant and her minor child is restored.

N.K.A.

Appeal allowed .

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12-214 SCI/81