By HARPREET KAUR, ADVOCATE
CASE TITLE: Mohd. Ahmed Khan vs Shah Bano Begum And Ors
DATE OF JUDGMENT: 23 April, 1985
CITATION: 1985 AIR 945, 1985 SCR (3) 844
BENCH: Chandrachud, Y.V. (CJ), Desai, D.A (J), Reddy, O. Chinnappa (J), Venkataramiah, E.S. (J), Misra Rangnath (J)
The appellant, who was an advocate by profession, was married to the respondent in 1932. Three sons and two daughters were born of that marriage, however, in 1975 the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore asking for maintenance at the rate of Rs 500 per month.
On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq. His defence to the respondent’s petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to provide that he was therefore under no obligation maintenance for her, that he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat. In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. It may be mentioned that the respondent had alleged that the appellant earns a professional income of about Rs. 60,000 per year. In July, 1980, in a revisional application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. Hence husband went to Supreme Court by special leave.
- Whether section 125 of the Code applies to Muslims also as has been concluded by two decisions of this Court which are reported in Bai Tahira v. Ali Hussain Fidalli Chothia and Fazlunbi v. K. Khader Vali?
- Whether Mahr is an amount payable by the husband to the wife on divorce?
Supreme Court observed that under section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1), ‘wife’ includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular, religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act.
Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent. Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion.
The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion. Clause (b) of the Explanation to section 125(1), which defines “wife” as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character.
Supreme Court further observed that Sir James FitzJames Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal Member of the Viceroy’s Council, described the precursor of Chapter IX of the Code in which section 125 occurs, as ‘a mode of preventing vagrancy or at least of preventing its consequences. In Nanak Chand v. Shri Chandra Kishore Agarwala.(2) Sikri, J., while pointing out that the scope of the Hindu Adoptions and Maintenance Act, 1956 and that of section 488 was different, said that section 488 was “applicable to all persons belonging to all religions and has no relationship with the personal law of the parties”.
Under section 488 of the Code of 1898, the wife’s right to maintenance depended upon the continuance of her married status. Therefore, that. right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be, extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of clause (b) of the Explanation to section 125(1), which provides that ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Even in the absence of this provision, the courts had held under the Code of 1&98 that the provisions regarding maintenance were independent of the personal law governing the parties. The induction of the definition of ‘wife, so as to include a divorced woman lends even greater weight to that conclusion. ‘Wife’ means a wife as defined, irrespective of the religion professed by her or by her husband. Therefor, a divorced Muslim woman, so long as she has not remarried, is a ‘wife’ for the purpose of section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.
The conclusion that the right conferred by section 125 can be exercised irrespective of the personal law of the parties is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125(3) of the Code. That proviso says that if the husband offers to maintain his wife on condition that she should live with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her, and may make an order of maintenance notwithstanding the offer of the husband, if he is satisfied that there is a just ground for passing such an order. According to the Explanation to the proviso: “If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”
It is too well-known that “A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular”. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section 125 overrides the personal law, if is any there conflict between the two.
Supreme Court observed that the contention of the husband and of the interveners who support him is that, under the Muslim Personal Law, the liability of the husband to maintain a divorced wife is limited to the period of iddat. In support of this proposition, they rely upon the statement of law on the point contained in certain text books. In Mulla’s Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the effect that, “After divorce, the wife is entitled to maintenance during the period of iddat”. According to Dr Paras Diwan: “When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat…. On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognise any obligation on the part of a man to maintain a wife whom he had divorced.” (Muslim Law in Modern India, 1982 Edition, page 130).
However, Court further observed that these statements in the text book are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself. One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent both, in quantum and in duration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dir hams, which is equivalent to three or four rupees (Mulla’s Mahomedan Law, 18th Edition, para 286, page 308). But, one must have regard to the realities of life Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce.
Supreme Court observed that “We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We are of the opinion that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject matter of section 125. That section deals with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain herself.”
“Since the Muslim Personal Law, which limits the husband’s liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under all obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. The argument of the appellant that, according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact she is unable to maintain herself, has therefore to be rejected. The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.
Court observed that the second plank of the appellant’s argument is that the respondent’s application under section 125 is liable to be dismissed because of the provision contained in section 127(3)(b). That section provides, to the extent material, that the Magistrate shall cancel the order of maintenance, if the wife is divorced by the husband and, she has received “the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce”. That raises the question as to whether, under the Muslim Personal law, any sum is payable to the wife ‘on divorce’. The only argument advanced on behalf of the appellant and by the interveners supporting him, was that Mahr is the amount payable by the husband to the wife on divorce. Supreme Court observed that “We find it impossible to accept this argument.”
In Mulla’s principles of Mahomedan Law (18th Edition, page 308), Mahr or Dower is defined in paragraph 285 as “a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage.” Dr. Paras Diwan in his book, “Muslim Law in Modern India” (1982 Edition, page 60), criticises this definition on the ground that Mahr is not payable “in consideration of marriage” but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the fact that non-specification of Mahr at the time of marriage does not affect the validity of the marriage.
Some confusion is caused by the fact that, under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called “prompt”, which is payable on demand, and the other is called “deferred “, which is payable on the dissolution of the marriage by death or by divorce. But, the tact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable ‘on divorce’. Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife.
But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which occurs in section 127(3)(b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband as consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the Marriage. Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce. A man may marry a woman for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable ‘on divorce’.
In an appeal from a Full Bench decision of the Allahabad High Court, the Privy Council in Hamira Bibi v. Zubaide Bibi summed up the nature and character of Mahr in these words:
“Dower is an essential incident under the Muslim Law to the status of marriage; to such an extent that is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called “prompt” payable before the wife can be called upon to enter the conjugal domicil; the other ” deferred”, payable on the dissolution of the contract by the death of either of the parties or by divorce.” (p. 300-301)
DECISION OF SUPREME COURT
Supreme Court held that
- Section 125 is secular in nature and would prevail over the personal law of the parties, in cases where they are in conflict.
- There is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.
- Judgments of Supreme Court in Bai Tahira (Krishna Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (Krishna Iyer, J.,) one of us, Chinnappa Reddy J. and A. P. Sen J.) are correct. Though Bai Tahira was correctly decided, we would like, respectfully, to draw attention to an error which has crept in the judgement There is a statement at page 80 of the report, in the context of section 127 (3) (b), that “payment of Mahr money, as a customary discharge, is within the cognizance of that provision”. We have taken the view that Mahr, not being payable on divorce, does not fall within the meaning of that provision.
Supreme Court further held that “for these reasons, we dismiss the appeal and confirm the judgment of the High Court. The appellant will pay the costs of the appeal to respondent, which we quantify at rupees ten thousand. It is needless to add that it would be open to the respondent to make an application under section 127(1) of the Code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section.”