Support for this view is drawn from the observations of the Minister of State for Home Affairs made in Parliament, on Part IX of the Criminal Procedure Code. Two decisions of the Supreme Court also lay down that these words in Section 127(3) (b) refer to dower.
The provisions of Criminal Procedure Code including those of Section 125 are applicable to all persons belonging to any caste, religion, community or nationality, and once it is shown that a person having sufficient means has neglected or refused to maintain his wife, who is unable to maintain herself, can be ordered by the Magistrate to pay a monthly maintenance to her at a rate not exceeding Rs. 500.
In other words, neglect or refusal to maintain by a person of sufficient means to maintain her or him is the two objective criteria which determine the application of the section. It is immaterial as to whether the claimant or non-claimant is Hindu, Muslim, Christian, Parsi or Pagan.
It is also not necessary that both should belong to the same religion or community. It is clear that if personal law of any person is in conflict with the provisions of Section 125, it is the latter which will have overriding effect. Thus, the narrow question to be considered is:
Whether Section 127(3)(b) saves the Muslim law provision of payment of dower so as to defeat all claims of maintenance of a divorced wife who has been paid mehr money?
When a Member of Parliament drew the attention of the Government that Section 125 should be applicable to Muslim wives also, Shri Ram Niwas Mirdha, the then Minister of State for Home Affairs, remarked: Well; I will not go into this, but say that we would not like to interfere with the customary law of Muslims through the Criminal Procedure Code.
If there is a demand for change in the Muslim Personal Law, it should actually come from the Muslim community itself and we should wait for the Muslim public opinion on these matters to crystalize before we try to change this customary right or make changes in their personal law. Above all, this is hardly the place where we could do so.
The question came for consideration before the Supreme Court in Bai Tahira v. Ali Hussain Chothia, where parties were married in 1956 and were blessed with a son. But in 1962 marriage broke down and the husband pronounced talak on the wife. Immediately thereafter litigation ensued between the parties relating to a flat in which the husband had housed the wife, resulting in a compromise in which wife got the flat.
In the compromise, it was also stated that the husband had paid an amount of Rs. 5,000, the mehr money, to the wife. One of the clauses of the compromise stated, “The plaintiff (wife) declared that she has now no claim or right whatsoever against the defendant or against the estate and the properties of the defendant”.
Sometime later on the relationship between the two improved but it did not last long, and when the wife found herself in financial straits and unable to maintain herself, moved the Magistrate under Section 125, Criminal Procedure Code, for the monthly allowance for maintenance of herself and the minor son.
In her petition, the wife proceeded on the assumption that she was still the wife, but her husband contended that she being a divorcee was not entitled to maintenance under Section 125. The wife succeeded in the Magistrate’s Court but the husband succeeded in the first appellate court, as well as in the revision petition before the High Court filed by the wife.
When the case came to the Supreme Court, Krishna Iyer, J., observed that it was obvious that a divorced wife was entitled to maintenance under Section 125. The two main contentions before the Supreme Court were: (a) since parties were living separately by mutual consent, sub-section (4) of Section 125 applied and, therefore, she was not entitled to any maintenance, and (b) since there was a compromise in 1962 under which mehr money was paid to the wife and all claims adjusted, no claim of maintenance, in view of Section 127(3) (b), could survive. Taking recourse to teleological and schematic method of interpretation, Krishna Iyer, J. observed that meaning of any provision of law should be discerned keeping in view the values of society and legal system.
Article 15(3) of the Constitution has compelling, compassionate relevance in the context of Section 125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-used wife and the derelict divorce.
Parliament, in keeping with Article 15(3) and with deliberate design, made a special provision to help women in distress, cast away by divorce or neglect. Protection against moral and material abandonment manifest in Article 39 is part of social and economic justice specified in Article 38. The learned Judge then observed:
Nor can Section 127 rescue the respondent from his obligation. Payment of mehr money as a customary discharge is within the cognizance of that provision. But what was the amount of mehr? Rs. 5,000 interest from which could not keep the woman’s body and soul together for a day, even in that city where 40 per cent of the population are reported to live on payments, unless she was ready to sell her body and give up her soul.
The point must be clearly understood that the scheme of the complex of provisions of Chapter IX has a social purpose; ill-used and despearate divorces shall not be driven to material and moral dereliction to seek sanctuary in the streets.
This trumatic horror animates the amplitude of Section 127, where the husband, by customary payment at the time of divorce, has adequately provided for the divorce, a subsequent series of recurrent doles is contra-indicated and the husband liberated.
It would appear that in this case, the Supreme Court accepted that Section 127(3) (b) relates to payment of dower under Muslim law. This becomes obvious from the following observation of Krishna Iyer, J:
The payment of illusory amount 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 sanction of the payment is certified by the fulfillment of the social obligation, not by a ritual exercise rooted in custom.
If the first payment by way of mehr or ordained by custom has a reasonable relation to the object and is capitalized substitute for the order under Section 125 note mathematically but fairly, then Section 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 divorce and to provide her with wherewithal to maintain herself. There must be a rational relation between the sum so paid and its potential as provision for maintenance.
The Supreme Court laid down the proposition thus:
No husband can claim under Section 127(3) (b) absolution from his obligation under Section 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.
In short, the purpose of Section 127(3)(b) is simply this that a wife cannot be allowed double benefit, one of the customary or personal law payment and the other of the payment under Section 125. But if the former is inadequate, the Court has power to award maintenance under Section 125.
Tahirabi decision was castigated by the fundamentalist as interference in the Muslim personal law, and even a mild-mannered progressive professor of law, Tahir Mahmood thinks that nexus between dower and clause (b) of Section 127 should be retained, though he calls Tahirabi a liberal ruling conforming to the spirit of Islamic law.
Tahir Mahmood says that ‘Parliament had added Section 127(3) (b) to Section 125 in order to protect Muslim law relating to divorced wife’s right of maintenance” and is critical of the observation of Khalid, J. who holds that section 127(3) (b) does not protect the rule of Muslim law and that a Muslim husband cannot avail it for the cancellation of the maintenance order passed against him.
Tahir Mahmood considers these decisions as erroneous. Tahirabi in our submission lays down this that if the amount of dower paid to the wife is sufficient to provide her maintenance, then she cannot claim for maintenance under Section 125, but if it is insufficient, she can still claim maintenance.
The amount of dower money paid to the wife could be considered in the reduction of the amount of maintenance but could not annihilate that rate unless it was a reasonable substitute.
Reiterating Bai Tahirabi in Fuzlunbi v. K. Khader Vali and another, Krishna Iyer, J. said whatever be the facts of a particular case, the Code by enacting Sections 125 to 127 charges the Court with humane obligation of enforcing maintenance or its just equivalent to ill-used wives and cast away ex -wives only if the woman has received voluntarily a sum, at the time of divorce, sufficient to keep her going according to the circumstances of the parties.
The learned Judge added, “Neither personal law nor other salvationaiy plea will hold against the policy of public law pervading Section 127(3)(b) as much as it does Section 125. So a farthing is no substitute for a fortune nor naive consent equivalent to intelligent acceptance.
Both the Supreme Court decisions do seem to lay down that “dower” is included in Section 125(3)(b) and is a sum payable on divorce under any customary or personal law, if dower amount is sufficient to enable her to maintain herself, no order of maintenance can be made.
If, on the other hand, it is not sufficient, the Court has power to fix the amount of maintenance as if considers just and proper, though the fixing of the quantum of maintenance, it will take into consideration the amount of mehr paid to her, it will be considered for the reduction of the amount of maintenance.
Both these decisions do not lay down that on payment of dower, howsoever negligible it may be, the husband is absolved totally of his obligation to pay maintenance under Section 125. This precisely was the view taken by a Bench of Bombay High Court and approved and followed by a Full Bench of the Kerala High Court.
The Bombay High Court held that while there were no words restricting the right to entertain an application for maintenance in Section 127 itself, the rule of harmonious construction required that Section 125(3) (b) must be read and understood as a proviso to Section 125. So understood, the Bombay High Court added.
Section 127(3)(b) would restrict the power of the Magistrate to entertain an application for maintenance at the instance of the divorced wife, and a divorced wife, who had been paid mehr amount and maintenance during idda, could not claim maintenance under Section 125. It was of no consequence as to what was the quantum of dower.
This view was approved by a Full Bench of Kerala High Court which also overruled a different view taken by a Bench of the Kerala High Court. Khalid, J. in a Division Bench case observed:
This section [section 127) provides that the Magistrate shall cancel the order for maintenance if any sum under any customary or personal law applicable to the parties is paid on divorce. This section may be pressed into service by some ingenious husband to defeat the provisions contained in Section 125.
We would like to make it clear that Section 127(3) (b) refers not to maintenance during the period of idda of payment of dower. It is therefore not a sum of money which under the personal law is payable on divorce as expressed in Section 127(3) (b).
Confronted with the question as to what is included in Section 125(3) (b), the learned Judge said:
What is impliedly covered by this clause is such some of money as alimony or compensation made payable on dissolution of marriage under customary or personal law, codified or uncodified, or such amount agreed upon at the time of marriage to be paid at the time of divorce, the wife agreeing not to claim maintenance or any other amount. (Emphasis authors).
The learned Judge did err in reading the words “The wife agreeing not to claim maintenance or any other amount” in this section. This seems to have occurred on account of his quest to find out the meaning of the clause.
Krishna Iyer, J. rightly observed that Khalid, J. fell short of going full extent as his exposition of law would excuse the husband if he pays a sum which the ignorant wife at the time of marriage has agreed upon to relinquish maintenance after divorce.
In view of the construction placed by him on the clause, Krishna Iyer, J. felt that the Kerala Full Bench decision also fell short as it did not insist on an adequate sum which would yield a recurring income to maintain the divorce in future and therefore it laid down a bad law.
Khalid, J’s view that clause (b) of Section 127(3) does not include dower within its compass, has found a clear and unequivocal support from unanimous Bench of five Judges of the Supreme Court (Y.V. Chandrachud, C.J., D.A., Desai, O. Chinnappa Reddy, E.S. Venkataramiah and Ranganath Misra, J.J.) Chandrachud C.J. who delivered the judgment of the Bench, though agreed with the basic reasoning of Krishna Iyer, J. in Bai Tahira and Fazunbi, disagreed and overruled the formulation, “payment of mehr money, as a customary discharge, is within the cognizance of section 127(3)(b)”.
The unfortunate story of Shah Bano Begum, married to an advocate, one Moh. Ahmed Khan, way back in 1932, gave birth to three sons and two daughters, is that in 1975, she was driven out of the matrimonial home by her husband. Lacking means of subsistence she knocked the gates of Magistrate’s Court in 1978 claiming maintenance from her husband at the rate of Rs. 500 per month.
On November 6, 1978, he pronounced talak on her in talak-a-bidaun form (irrevocable divorce) and pleaded before the Magistrate’s Court that since he had divorced his wife, he was under no obligation to provide maintenance for her. He also averred that he had paid maintenance to her at the rate of Rs. 200/- per month by way of mehr money.
The Magistrate directed the husband to pay a “princely sum” of Rs. 25/- per month. On appeal the High Court enhanced it to Rs. 179.20 per month. (The wife had averred that her husband’s annual professional income was Rs. 60,000). Against this order, the husband landed in the Supreme Court.
The following were the three questions for consideration before the Supreme Court:
A. Admittedly, the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reasons good, bad, indifferent or for no reason at all, but does it mean that Muslim Law does not impose any obligation on him to maintain his wife?
B. The husband’s obligation to maintain his wife during idda is recognized, but does it mean that mere fact that he had paid something by way of maintenance to his wife during idda, absolve him forever from the duty of maintaining his divorced wife thereafter?
C. Is dower a sum payable under Muslim personal law as a sum “payable on divorce” within the meaning of Section 127(3) (b)?
The interesting aspect of the judgment of Chandrachud, C.J. is that after holding categorically that in case there is any conflict between the personal law (any personal law, Hindu, Muslim, Parsi and others) and Section 125, Criminal Procedure Code, the latter would prevail, he proceeds to find out whether in fact there is any conflict and comes to the conclusion that there is none.
After quoting from certain textbooks to the effect that on expiration of the period of idda, husband’s obligation to maintain the wife ceases, the learned Judge said that these statements in the textbooks are inadequate to establish the proposition that Muslim husband is not under an obligation to provide maintenance to his divorced wife who is unable to maintain herself.
The learned Judge added, “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”.
In our submission, the question of maintenance of a divorced wife arises only when she is indigent, and this is so under practically all personal laws as well as under Section 125, Criminal Procedure Code.
If the wife (divorced or undivorced) has ample or adequate independent means of maintenance, the question of maintenance, or alimony and maintenance (in ancillary proceedings under the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, the Parsi Marriage and Divorce Act, 1936 and the Indian Divorce Act 1867) does not arise.
The question arises only when she has no adequate means to maintain herself. .Otherwise, the question hardly arises (particularly, after divorce), though in some systems of law, including Hindu and Muslim, it is the personal obligation of a husband to maintain his wife (undivorced wife) irrespective of the fact whether she has or has not sufficient independent means to maintain herself.
After quoting certain verses from Koran’ to the effect that Muslim husband has an obligation to maintain his indigent divorced wife, his Lordship said that the argument of the husband that according to the Muslim personal law his liability to provide for her maintenance was limited to the period of idda despite the fact that she was unable to maintain herself, was to be rejected. His Lordship then observed:
The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance of her ceases with the expiration of the period of idda. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of the Code.
And thus, no conflict between the Muslim personal law and Section 125, Criminal Procedure Code, was found.
On the question whether mehr money was a sum payable to the wife under Muslim personal law within the meaning of Section 125(3) (b) Criminal Procedure Code, Chandrachud, C.J. observed that mehr was not a consideration for marriage but an obligation imposed upon the husband as a mark of respect for his wife, and was therefore not a sum payable on divorce. In the words of his Lordship:
“…….But, the fact that deferred mehr 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 mehr 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 mehr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is, the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage.
Therefore, no amount, which is payable in consideration of the marriage, can possibly be described as an amount payable in consideration of divorce. The alternative premise, that mehr 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 many 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.
No one would disagree with the above observations. But in our submission the following two propositions of Muslim Law have been well settled either on account of opinions expressed by textbook writers or on account of stare decisis:
(a) Muslim husband has no obligation to maintain his divorced wife after the termination of the period of idda, and
(b) Dower deferred dower, to be more precise has been considered to be a sum payable on divorce.
In our submission, under the Muslim personal law, a divorced wife cannot claim maintenance or alimony (to use the expression of English matrimonial law), though a Christian, Parsi, Hindu wife, or a woman married under the Special Marriage Act can do so by filing a petition in the Matrimonial Court.
However, she can claim maintenance under Section 125, Criminal Procedure Code. In view of this, we should accept that Muslim personal law to that extent has been abrogated by Section 125, Criminal Procedure Code.
Secondly, suppose the entire sum of mehr money has been paid soon after the marriage, and ultimately and unfortunately there is divorce between the parties, there remains no sum of Dower to be paid to her on divorce and thus Section 127(3) (b) cannot be attracted.
Now, suppose the entire dower is deferred and it consists of substantial sum of money say Rs. 50,000 or Rs. 80,000 and is paid soon after divorce. Chandrachud, C. J., says that even in such a case it cannot be said that this is an amount “payable on divorce”.
Whether or not it is regarded as a sum payable on divorce, since it has been in fact paid on divorce, will the Magistrate not take this sum into consideration while fixing the quantum of maintenance under Section 125?
Can he brush aside the payment of this amount by saying that since dower money is not payable on divorce”, even if it is paid on divorce or after divorce, it cannot be taken into consideration?
In our submission the Magistrate will have to take this sum into consideration while fixing the amount of maintenance and if he comes to the conclusion that this amount is sufficient to maintain her, he will have to give a finding that she is not unable to maintain herself and therefore, no maintenance amount need be given to her.
At the same time it would be wrong to say that any insignificant amount of maintenance such as 10 Dirhams would be an amount “payable on divorce” under personal law and in terms of Section 127(3) (b) the husband will stand absolved of his responsibilities and the Magistrate is bound to cancel the maintenance order, if already passed by him under Section 125?
It would thus equally be incorrect to say, as Bombay High Court said, that Section 127(3) (b) is a sort of exception to Section 125. In our submission the more socially just and palatable to the average Muslim would be the view as propounded by Krishna Iyer, J. in his words:
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 the rate unless it is a reasonable substitute.
The legal sanctity of the payment is certified by the fulfillment 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.