Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
BAI TAHIRA A
Vs.
RESPONDENT:
ALI HUSSAIN FISSALLI CHOTHIA AND ANR.
DATE OF JUDGMENT06/10/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
TULZAPURKAR, V.D.
PATHAK, R.S.
CITATION:
1979 AIR 362 1979 SCR (2) 75
1979 SCC (2) 316
CITATOR INFO :
R 1980 SC1730 (1,2,4,7,8,9,11)
F 1985 SC 945 (4,29,30)
ACT:
Code of Criminial Procedure, 1973-S. 127(3) (b)-Scope
of-Wife divorced by the husband and was granted mehar in
1962-Wife claimed maintenance from husband under s. 125,
Cr.P.C. 1973-If could claim-"under any customary or personal
law"-Meaning of.
HEADNOTE:
Explanation (b) to s. 125(1) of the Code of Criminal
Procedure, 1973 provides that "wife" includes a woman who
has been divorced by or has obtained a divorce from her
husband and has not re-married. Section 127(3) (b) provides
that where any order has been made under s. 125 in favour of
a woman who has been divorced by or has obtained a divorce
from her husband, the Magistrate shall if he is satisfied
that the woman has been divorced by her husband and has
received, whether before or after the date of the said
order, the whole of the sum which under any customary or
personal law applicable to the parties, was payable on such
divorce cancel such order in the circumstances stated
therein.
The respondent (husband) married the appellant (wife)
and had a son by her. A few years later the respondent
divorced his wife. By a consent decree, in the suit filed by
the wife, he transferred to her the flat in which she was
living and agreed to pay mehar money. The compromise stated
that the "plaintiff declares that she has now no claim or
right whatsoever against the defendant". For some time
thereafter they lived together but again separated. The wife
moved the magistrate under s. 125 Cr.P. for grant of
maintenance to her and her son. This was granted. On appeal
the Sessions Judge held mat the Court had no jurisdiction
under s. 125. The High Court dismissed the wife’s appeal.
On further appeal to this Court it was contended on
behalf of the respondent that (i) s. 125(4) would apply in
the absence of proof that the wife was not living separately
by mutual consent; (ii) to attract s. 125 there must be
proof of neglect to maintain the wife and (iii) no claim for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
maintenance in this case can survive in the face of the
consent decree whereby mehar money had been paid and all
claims adjusted.
Allowing the appeal the Court, G
^
HELD: Every divorcee, otherwise eligible, is entitled
to the benefit of maintenance allowance and the dissolution
of the marriage makes no difference to this right under the
current Code. [78H]
1. There is no force in the argument that the absence
of mutual consent to live separately must be made out if the
hurdle of s. 125(4) is to be overcome. The compulsive
conclusion from a divorce by a husband and his provision of
a separate residence as evidenced by the consent decree
fills the bill.Divorce plainfully implies that the husband
orders. the wife out of the conjugal home. [80D]
76
2. The husband’s plea is his right to ignore. So the
basic condition of neglect to maintain is satisfied. In this
generous jurisdiction the broader perception and
appreciation of the facts and their bearing must govern the
verdict-not chopping little logic or tinkering with burden
of proof. [80C]
3. (a) The consent decree resolved all disputes and
settled all claims then available. The new statutory right
which could not have been in the contemplation of the
parties when they entered into the consent decree in 1962
had been created by the Code of 1973. No settlement of claim
which does not have the special statutory right of the
divorcee under s. 125 can operate to negate that claim.
[80F]
(b) No husband can claim under s. 127(3)(b) absolution
from his obligation under s. 125 towards a divorced wife
except on proof of payment of a sum stipulated by customary
or personal law whose quantum is more or less sufficient to
do duty for maintenance allowance. [81F]
(c) Section 127 cannot rescue the husband from his
obligation. The scheme of Chapter IX has a social purpose.
Ill-used wives and desperate divorcees shall not be driven
to material and moral dereliction to seek sanctuary in the
streets. Where the husband, by customary payment at the time
of divorce, has adequately provided for the divorcee. a
subsequent series of recurrent doles is contra-indicated and
the husband liberated. The key note thought is adequacy of
payment which will take reasonable care of the wife’s
maintenance. [80H]
(d) The payment of illusory amounts by way of customary
or personal law requirement will be considered in the
reduction of maintenance rate but cannot annihilate that
rate unless it is a reasonable substitute The legal sanctity
of the payment is certified by the fulfilment of the social
obligation, not by a ritual exercise rooted in custom. No
construction which leads to frustration of the statutory
project can secure validation if the Court is to pay true
homage to the Constitution. The only just construction of
the section is that Parliament intended divorcees should not
derive a double benefit If the first payment by way of mehar
or ordained by custom has a reasonable relation to the
object and is a capitalised substitute for the order under
s. 125 then s. 127(3) (b) subserves the goal and relieves
the obligor. not pro tanto but wholly the purpose of the
payment "under any customary or personal law" must be to
obviate destitution of the divorcee and to provide her with
wherewithal to maintain herself There must be a rational
relation between the cum so paid and its potential as
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
provision for maintenance. [81B-C]
4. Welfare laws must be so read as to be effective
delivery systems of the salutary objects sought to be served
by the Legislature and when the beneficiaries are the weaker
sections, like destitute women, the spirit of Art. 15(3)
must belight the meaning of the section. The Constitution is
a pervasive omnipresence brooding over the meaning and
transforming the values of every measure. [77D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
332 of 1977.
Appeal by Special Leave from the Judgment and order
dated 20-10-75 of the Bombay High Court in Criminal
Application No. 1 379/75.
77
M. C. Bhandare, A. N. Karkhanis, Miss Malini Panduval
and Mrs. S. Bhandare for the Appellant.
G. L. Sanghi and A. K. Verma for Respondent No. 1.
M. N. Shroff for Respondent No. 2.
The Judgment of the Court was delivered by
A Prefatory statement
KRISHNA IYER, J.-In this appeal, by special leave, we
are called upon to interpret a benign provision enacted to
ameliorate the economic condition of neglected wives and
discarded divorcees, namely. s 125. Cr.P.C.
Welfare laws must be so read as to be effective
delivery systems of the salutary objects sought to be served
by the Legislature and when the beneficiaries are the weaker
sections, like destitute women, this spirit of Art. 15(3) of
the Constitution must belight the meaning of the Section.
The Constitution is a pervasive omnipresence brooding over
the meaning and transforming the values of every measure.
So, s. 125 and sister clauses must receive a compassionate
expansion of sense that the words used permit.
The Brief Facts
The respondent (husband) married the appellant (wife)
as a second wife, way back in 1956, and a few years later
had a son by her. 15 The initial warmth vanished and the
jealousies of a triangular situation erupted, marring mutual
affection. The respondent divorced the appellant around July
1962. A suit relating to a flat in which the husband had
housed the wife resulted in a consent decree which also
settled the marital disputes. For instance, it recited that
this respondent had transferred the suit premises, namely, a
flat in Bombay, to the appellant and also the shares of the
Cooperative Housing Society which built the flat concerned.
There was a reference to mehar money (Rs. 5,000/- and
’iddat’ money, Rs. 180/-) which was also stated to have been
adjusted by the compromise terms.
There was a clause in the compromise: G
"The plaintiff declares that she has now no claim
or right whatsoever against the defendant or against
the estate and the properties of the defendant."
And another term in the settlement was that the appellant
had by virtue of the compromise become the absolute owner of
the flat and various deposits in respect of the said flat
made with the cooperative housing society.
78
For some time there was flickering improvement in the
relations between the quondum husband and the quondum wife
and they lived together. Thereafter, again they separated,
became entranged. The appellant, finding herself in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
financial straits and unable to maintain herself, moved the
magistrate under s. 125 of the Criminal Procedure Code,
1973, for a monthly allowance for the maintenance of herself
and her child. She proceeded on the footing that she was
still a wife while the respondent rejected this status and
asserted that she was a divorce and therefore ineligible for
maintenance. The Magistrate who tried the petition for
maintenance held that the appellant was a subsisting wife
and awarded monthly maintenance of Rs. 300/- for the son and
Rs. 400/- for the mother for their subsistence, taking due
note of the fact that the cost of living in Bombay, where
the parties lived, was high, and that the respondent had
provided residential accommodation to the appellant.
This order was challenged before the sessions Judge by
the aggrieved husband, who on a strange view of the law that
the court, under s. 125, had no jurisdication to consider
whether the applicant was a wife, dismissed the petition in
allowance of the appeal. The High Court deigned to bestow
little attention on the matter and summarily dismissed a
revision petition. This protracted and fluctuating
litigation misfortune has leu to the appeal, by special
leave, before this Court.
The Questions Mooted
Shri Bhandare appearing for the appellant contended
that the Courts below had surprisingly forgotten the plain
provision in the Explanation (b) to s. 125(1) of the Code,
which reads:
"wife’ includes a woman who has been divorced by.
or has obtained a divorce from, her husband and has not
remarried.
On this foundation, he urged that accepting the
contention of the respondent that the appellant was a
divorcee? his client was still entitled to an allowance.
This is obviously beyond dispute or. a simple reading of the
sub-section and it is curious how this innovative and
sensitive provision with a benignant disposition towards
destitute divorcees has been overlooked by all the courts
below. We hold that every divorce otherwise eligible, is
entitled to the benefit of maintenance allowance and the
dissolution of the marriage makes no difference to this
right under the current Code. In the normal course, an order
for maintenance must follow, the quantum having been
determined by the learned Magistrate at the trial level.
79
However, Shri Sanghi, appearing for the respondent,
sought sustain the order in his favour on three grounds They
arc of pubic importance since the affected party in such a
fact-situation is the neglected divorcee. He first argued
that s. 125(4) would apply in the absence of proof that the
lady was not living separately by mutual consent. His next
plea was that there must be proof of neglect to maintain to
attract s.125 and his third contention was that there was a
settlement by consent decree in 1962 whereby the mehar money
had been paid and all claims adjusted, and so no claim for
maintenance could survive. The third contention is
apparently based upon contractual arrangement in the consent
decree read with s. 127(3) (b) which reads: C
"(b) the woman has been divorced by her husband
and that she has received, whether before or after the
date of the said order, the whole of the sum which,
under any customary or personal law applicable to the
parties, was payable on such divorce cancel such
order,-
(i) in the case where such sum was paid before
such order, from the date on which such order
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
was made.
(ii) in any other case, from the date of expiry of
the period, if any, for which maintenance has
been actually paid by the husband to the
woman;
We must state, however, that there was no specific plea,
based upon the latter provision, set up anywhere in the
courts below or urged before us. But if one were to locate a
legal ground to raise The contention That the liability to
pay maintenance had ceased on account of the payment of
mehar, it is s. 127(3) of the Code. So we must deal with the
dual sub-heads of the third ground.
The meaning of meanings is! derived from values in a
given society and its legal system. Art.15(3) has
compelling, compassionate relevance in the context of s. 125
and the benefit of doubt. If any in statutory interpretation
belongs to the ill-used wife and the derelict divorcee. This
social perspective granted, the resolution of all the
disputes projected is easy. Surely, Parliament, in keeping
with Art. 15(3) and deliberate by design, made a special
provision to help women in distress cast away by divorce.
Protection against moral and material abandonment manifest
in Art. 39 is part of social and economic justice,
specificated in Art. 38, fulfilment of which is fundamental
to the governance of the country (Art.37). From this coign
of vantage we must view the printed text of the particular
Code.
80
S. 125 requires, as a sine qua non for its application,
neglect by husband or father. The magistrate’s order
proceeds on neglect to maintain; the sessions judge has
spoken nothing to the contrary; and The High Court has not
spoken at all. Moreover, the husband has not examined
himself to prove that he has been giving allowances to the
divorced wife. His case, on the contrary, is that she has
forfeited her claim because of divorce and the consent
decree. Obviously, he has no case of non-neglect. His plea
is his right to ignore. So the basic condition of neglect to
maintain is satisfied. In this generous jurisdiction, a
broader perception and appreciation of the facts and their
bearing must govern the verdict not chopping little logic or
tinkering with burden of proof.
The next submission is that the absence of mutual
consent to live separately must be made out if the hurdle of
s. 125(4) is to be over come. We see hardly any force in
this plea. The compulsive conclusion from a divorce by a
husband and his provision of a separate residence as
evidenced by the consent decree fills the bill. Do divorcees
have to 1) prove mutual consent to live apart? Divorce
painfully implies that the husband orders her out of the
conjugal home. If law has nexus with life this argument is
still-born.
The last defence, based on mehar payment, merits more
serious attention. The contractual limb of the contention
must easily fail. The consent decree of 1962 resolved all
disputes and settled all claims then available But here is a
new statutory right created as a projection of public policy
by the Code of 1973, which could not have been in the
contemplation of the parties when in 1962, they entered into
a contract to adjust their then mutual rights. No settlement
of claims which does not have the special statutory right of
the divorcee under s. 125 can operate to negate that claim.
Nor can s.127 rescue the respondent from his
obligation. Payment of mehar money, as a customary
discharge, is within the cognisance of that provision. But
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
what was the amount of mehar ? Rs. 5000/-, interest from
which could not keep the woman’s body and soul together for
a day, even in that city where 40% of the population are
reported to live on pavements, unless she was ready to sell
her body and give up her soul ? The point must be clearly
under stood that the scheme of the complex of provisions in
Chapter IX has a social purpose. Ill-used wives and
desparate divorcees shall not be driven to material and
moral dereliction to seek sanctuary in the streets. This
traumatic horror animates the amplitude of s.127. Where the
husband, by customary payment at the time of divorce, has
adequately provided for the divorce, a subsequent series of
recurrent does is
81
contra-indicated and the husband liberated. This is the
teleological A interpretation, the sociological decoding of
the text of s.127. The keynote thought is adequacy of
payment which will take reasonable care of her maintenance.
The payment of illusory amounts by way of customary or
personal law requirement will be considered in the reduction
of maintenance rate but cannot annihilate that rate unless
it is a reasonable substitute. The legal sanctity of the
payment is certified by the fulfilment of the social
obligation, not by a ritual exercise rooted in custom. No
construction which leads to frustration of the statutory
project can secure validation if the court is to pay true
homage to the Constitution. The only just construction of
the section is that Parliament intended divorcees should not
derive a double benefit. If the first payment by way of
mehar or ordained by custom has a reasonable relation to the
object and is a capitalised substitute for the order under
s. 125-not mathematically but fairly-then s. 127(3) (b)
subserves the goal and relieves; the obligor, not pro tanto
but wholly. The purpose of the payment ’under any customary
or personal law’ must be to obviate destitution of the
divorcee and to provide her with wherewithal to maintain
herself. The whole scheme of s. 127(3) (b) is manifestly to
recognise the substitute maintenance arrangement by lump sum
payment organised by the custom of the community or the
personal law of the parties. There must be a rational
relation between the sum so paid and its potential as
provision for maintenance. To interpret otherwise is to
stultify the project. Law is dynamic and its meaning cannot
he pedantic but purposeful. The proposition, therefore, is
that no husband can claim under s. 127(3)(b) absolution from
this obligation under s. 125 towards a divorced wife except
on proof of payment of a sum stipulated by customary or
personal law whose quantum is more or less sufficient to do
duty for maintenance allowance.
The conclusion that we therefore reach is that the
appeal should be allowed and it is hereby allowed, and the
order of the trial court restored.
P.B.R. Appeal allowed.
82