Mohd. Ahmed Khan Vs. Shah Bano Begum and Ors.

Judges: Y.V. Chandrachud, C.J., D.A. Desai, E.S. Venkataramiah, O. Chinnappa Reddy and Ranganath Misra, JJ.

Facts:

The appellant-husband was married to the respondent in 1932 and three sons and two daughters have been born of that marriage. 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 of Criminal Procedure, 1973 (Cr.PC) asking for maintenance at the rate of Rs. 500 per month. On November 6, 1978 ,the appellant divorced the respondent by an irrevocable talaq. In his defence to the respondent's petition for maintenance, the appellant contended that as respondent had ceased to be his wife by reason of the divorce granted by him, he is under no obligation to give further maintenance for her. Also, 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 Rs. 25 per month to the respondent by way of maintenance. 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, the appellant has approached the Apex Court by special leave.

Issues:

(i) Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife?

(ii) Whether Section 125 of Cr.PC applies to Muslims?

(iii) Whether Section 125 would prevail over the personal law of the parties, in cases where they are in conflict?

Law:

Code of Criminal Procedure, 1973 - Section 125 (1)(a) - If any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife ..., at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate think fit....

Code of Criminal Procedure, 1973 - Explanation to Section 125 (1) - For the purposes of this Chapter, "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her not remarried.

Code of Criminal Procedure, 1973 - Section 125 (3) - If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the older, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made : 

Provided......Provided further that if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation - 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.

Code of Criminal Procedure, 1973 - Section 127(3)(b) - 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.

Contentions

Appellant:

Under the Muslim Personal Law, the liability of the husband to maintain a divorced wife is limited to the period of iddat.

The respondent's application under Section 125 of Cr.PC is liable to be dismissed because of the provision contained in Section 127(3)(b) of Cr.PC.

Analysis

Applicability of Section 125 of Cr.PC

(i) The provisions of Section 125 of Cr.PC 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

(ii) Section 125 is a part of Cr.PC, not of the Civil Laws which define and govern the right 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 of Cr.PC 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 are the objective criteria which determine the applicability of Section 125 of Cr.PC.

(iii) Further, the conclusion that the right conferred by Section 125 of Cr.PC 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 Cr.PC. 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.

Conflict between Personal Law and Section 125 of Cr.PC and obligation of Muslim Husband to pay maintenance under Cr.PC:

(i) As 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 of Cr.PC, it would be wrong to hold that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself.

(ii) 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 Cr.PC. Thus, there is no conflict between the provisions of Section 125 of Cr.PC 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.

Non-payment of maintenance because of provision contained in Section 127(3)(b) of Cr.PC.

(i) 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 fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable 'on divorce'.

(ii) Divorce maybe 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 in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves 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.

Conclusion:

The appeal was dismissed and the judgment of the High Court was confirmed. The appellant was directed to pay the costs of the appeal to respondent 1.

Important Precedents:

(i) Bai Tahira Ali Hussain Fidaalli Chothia MANU/SC/0402/1978

(ii) Fuzlunbi v. K. Khader Vali MANU/SC/0508/1980