Mst. Zohara Khatoon Vs. Mohd. Ibrahim
[1981] INSC 39 (18 February 1981)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
KOSHAL, A.D.
VARADARAJAN, A. (J)
CITATION: 1981 AIR 1243 1981 SCR (2) 910 1981
SCC (2) 509 1981 SCALE (1)370
CITATOR INFO :
F 1966 SC 587 (2,3)
ACT:
Criminal Procedure Code, 1973, Section
125(1), Explanation (b)-Whether Magistrate competent to award maintenance if
under the personal law of the Mohomedans, the wife obtained a valid divorce and
had completed the period of Iddat-"wife" whether includes a woman who
has been divorced by, or has obtained a divorce from her husband and has not
remarried.
HEADNOTE:
The appellant was the legally married wife of
the respondent. As he willfully neglected her, she filed an application before
the Magistrate for maintenance under Section 125 of the Code of Criminal
Procedure 1973. The Magistrate accepted the allegation of the appellant that
she had been neglected by the respondent without reasonable or probable cause
and awarded maintenance at Rs. 100/- per month for the appellant and the minor
child.
The High Court held that clause (b) of the
explanation to Section 125(1) 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 affirmed the order of the Magistrate fixing Rs.
40/- per month as maintenance for her minor son.
In 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 Appeal, (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 127(3)(b)
of the 1973 Code but this case is squarely covered by Clause (b) of the
Explanation to S. 125(i) of that Code as a result of which the appellant in the
eye of law continues to be the wife of the respondent, despite the decree for
dissolution of marriage. [925 H, 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 have been made under the 1973 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] 911 Nanak Chand v. Shri Chandra Kishore
Agarwala & Ors. [1970] 1 SCR 565, Ram Singh v. State & Anr. AIR 1963
All.
355, Nalini Ranjan Chakravarty v. Smt. Kiran
Rani Chakravarty AIR 1965 Pat. 442, Mahabir Agarwalla v. Gita Roy [1962] 2 Cr.
L.J. 528, referred to.
3. The Mohomedan Law on the subject was that
where a woman governed by the Mohomedan Law was awarded maintenance, the same
would cease from the date of divorce given by the husband and the completion of
the period of Iddat. [917 G-H] In re Shekhanmian AIR 1930 Bombay 178, Syed Said
v. Meera Bee 20 M.L.J. 12, Mohamed Rahimullah & Anr. AIR 1947 Madras 416,
Aahimunnissa & Ors. v. Mohd. Ismail AIR 1956 Hyderabad 14, Din Mohmmad's
V.I.L.R. 1883 226, referred to.
4. Although a Mohomedan 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 was 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-B]
5. Clause (b) has made a distinct departure
from the earlier Code in that it has widened the definition of wife and, to
some extent, over-ruled the personal law of the parties so far as proceedings
for maintenance under Section 125 are 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 follows, therefore, that the divorce resulting from
the aforesaid dissolution of the marriage is also a legal divorce under the
Mohomedan Law by virtue of the statute (1939 Act). [920 E-F, 921 B]
6. Under the Mohomedan Law the commonest form
of divorce is a unilateral 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 Mohomedan Law. In no
other law has the husband got a unilateral right to divorce his wife by a
simple declaration because other laws, 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 husband 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 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 looked 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 court without any overt act on the part
of the husband in divorcing her. The High Court also failed to consider the
legal consequences flowing from the 912 decree passed by the Court dissolving
the marriage, viz., a legal divorce 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
from the provisions of Mohomedan law itself. It would appear that under the
Mohomedan law there are three distinct modes in which a Muslim marriage can be
dissolved and the relationship of the husband and wife terminated so as to
result in an irrevocable divorce. [922 F-G]
9. It is, therefore, manifest that clause (b)
of Explanation to S. 125 envisages all the three modes, whether a wife is
divorced 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 Code. In these circumstances the High
Court was not at all justified in taking the two separate clauses 'who has been
divorced' and 'had obtained a divorce from her husband' conjunctively 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. [924
B-D]
10. 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
dissolution of the marriage 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. Koshal, J. concurring)
1. The word 'divorce' is not defined in the
Code of Criminal Procedure and may legitimately be regarded as having been used
in clause (b) of sub-section 1 of Section 125 in the dictionary sense. As
ordinarily 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 two terms
as not be synonymous with each other, unless the legislature makes a direction
to the contrary. [927A, C-D]
2. According to Section 125 of the Code of
Criminal Procedure, a full-fledged wife is entitled to maintenance.
By reason of clause (b) even a divorced wife
has that right provided that she has not re-married. If 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 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. [928 E, F-G]
3. Divorce by the Act of the husband, is not
recognised by any system of law except that applicable to Muslims.
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 913 embrace only cases of divorce brought about by the Act of the husband,
its 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 woman 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.
Appeal 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 Fazal Ali & A.
Vardarajan JJ was delivered by Fazal Ali, J., A. D. Koshal, 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 but 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, was a legally married wife of Mohd. Ibrahim. As Mohd. Ibrahim soon
after the marriage willfully 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 allegation 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.
914 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 willful 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 or s. 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 the 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 her 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 under 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 husband 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, maintained 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
and 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 various provisions of
the 1973 Code, particularly ss. 125 and 127 we are satisfied that the
contentions raised by the counsel for the appellant are well founded and must
prevail.
In order to decide the issue in question it
may be necessary to give a brief survey of the corresponding provisions of the
Code of Criminal Procedure, 1898 (hereinafter 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 915 ss. 125 and 127 of
the 1973 Code minus some important additions that 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 or refusal, order
such person to make a monthly allowance for the maintenance of his wife or such
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 deciding this appeal. It may, however, be noted that a provision
like clause (b) of the Explanation to s. 125(1) of the 1973 Code was
conspicuously absent from s. 488 and has been added by the 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 machinery for determining the
maintenance to be awarded by the Magistrate under the circumstances mentioned
in the section. The provisions may not be inconsistent with other parallel Acts
in so far as maintenance is concerned, but the section undoubtedly excludes to
some extent the application of any other Act. At the same time, it cannot be
said that the personal law of the parties is completely excluded 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 is concerned that would
have to be determined according to the said personal law.
Thus, the exclusion by s. 488 extends only to
the quantum of the maintenance and the circumstances under which it could be
granted. The scope of s. 488 of 1898 Code was considered by this Court in Nanak
Chand v. Shri Chandra Kishore Agarwala & Ors. where the following
observations were made:- "We are unable to see any inconsistency between
the Maintenance Act and s. 488 Cr.P.C..... The law was substantially similar
before and nobody ever suggested that Hindu Law, as in force immediately before
the commencement of this Act, insofar as it dealt with the maintenance of
children, was in any way inconsistent with s. 488 Cr. P.C.
916 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 (AIR 1963 All. 355), before the
Calcutta High Court in Mahabir Agarwalla 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 Agarwalla and Nalini Ranjan mentioned in the
observations extracted above.
In order to understand the proper 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 applicable
to a wife, irrespective of her religion, but the former is applicable to the
case of Hindus only. It could not, therefore, be intended to be a substitute
for s. 488 Cr. P. C." To the same effect is the decision of the Patna High
Court in Nalini Ranjan Chakravarty v. Smt. Kiran Rani Chakravarty 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 917 a
speedy remedy and a summary procedure before a Magistrate 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
Agarwalla v. Gita Roy 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 the husband.
The two remedies were, however, not coextensive." 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
irrespective of 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 important question still remains: Was the Magistrate competent
to award maintenance if under the personal law of the Mahomedans the wife had
been validly divorced and had completed the period of Iddat? 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 that the Magistrate could cancel the maintenance in consequence
of a decision of any competent court:
"(2) Where it appears to the Magistrate
that, in consequence of any decision of a competent Civil Court, any 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, considering the
scheme of ss. 488 and 489 it was generally accepted as good law 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 completion of the period of Iddat. That this is the Mahomedan law on
918 the subject admits of no doubt and has not been controverted before us. We
would however, refer to a few decisions on this point to support our point of
view.
In re Shekhanmian while defining the
consequences of a divorce and its impact on s. 488 of the 1898 Code a division
Bench of the Bombay High Court observed thus:- "A talak when it becomes
irrevocable puts an end to conjugal relationship which had subsisted between
the parties, and the divorced wife would not be entitled to claim maintenance
from her husband beyond the period of iddat from the date of such irrevocable
divorce. S. 488 Criminal P.C., has in no manner abrogated this part of the
personal law of the parties.
The existence of conjugal relations in the
case of Mahomedans has to be determined by reference to the provisions of the
Mahomedan Law and not by considerations of equity and good conscience as
understood in any other system of law." To the same effect is the decision
of the Madras High Court in Syed Said v. Meeram Bee (2) where in division Bench
observed thus:
"A Magistrate, however, exercising
summary powers conferred on him by 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 determine this, and only to that
extent, we must ascertain the effect in Mahomedan law of an 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 reiterated by the Madras High
Court in a later decision in In re Mohamed Rahimullah & Anr. (3) 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 919 Ss. 488 and 489 how the husband can be directed
to continue to maintain his divorced wife." The Hyderabad High Court also
took the same view in Rahimunissea & Ors. v. Mohd. Ismail and after
considering the entire law on the subject Bilgrami, J. Observed thus:- All
these grounds can be sufficient 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
obligation which binds a wife during this period is that she should not
remarry." In a very early case of the Allahabad High Court-Din Mahommad's
case (2)- 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 yet the legislature never intended to
restrict the Mahomedan law of Divorce. The Judge, further held that the right
to maintenance came to an end when the conjugal relationship between the
husband and the wife ceased to exist. In this connection, Mahmood, J. Observed
as follows:
"The enactment under which that order
was made does not relate more especially to Muhammadans than to Hindus,
Buddhists, Indo-Britons, Europeans, or any other branch of the general
community, and the Legislature could never have intended by it to interfere
with or restrict the Muhammadan law of divorce...The whole of Chapter XLI,
Criminal Procedure Code, so far as it relates to the maintenance of wives,
contemplates the existence of the conjugal relation as a condition precedent to
an order of maintenance and, on general principles, it follows that as soon as
the conjugal relation ceases, the order of maintenance must also 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 to which the parties concerned are
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 or creed of the parties, the only condition
precedent to the possession 920 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 the
period of iddat. This was the undoubted position of law under the 1898 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. Section
125 of the 1973 Code is couched almost in the same language as s. 488 of the
earlier Code with the important exception that an Explanation 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 of the
Indian Majority Act, 1875 is deemed not to have attained his majority;
(b) "wife includes a woman who has been
divorced by or has obtained a divorce from, her husband and has not remarried."
(Emphasis supplied) We are however not concerned with clause (a) of the
Explanation. 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
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
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. The decision
in this case turns upon the interpretation of clause (b). The High Court has
construed the words 'who has been divorced or has obtained a divorce from her
husband' as signifying that in both cases the divorce must proceed from the
husband and should be the act of the husband and not that of the wife. In
taking this view, the High Court obviously seems to have been guided by the
consideration that a dissolution of marriage brought about at the instance of
the wife under the 1939 Act does not amount to a divorce by the husband under
the Mahomedan law and hence 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
what it 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 the 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 would 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 divorce his wife by a simple declaration because other
laws, 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.
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 unboubtedly the fundamental
concept of divorce as laid down by the Mahomedan law. As, however, some of the
Muslim Jurists and Theologists were of the view that where a husband becomes
important 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 authorities the legislature intervened
and passed 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 the 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 leaving
her unprovided for and under certain other circumstances. The absence of such a
provision has entailed unspeakable misery to innumerable Muslim women in
British India. The Hanafi Jurists.
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 2 of the Act), a
married Muslim woman may obtain a decree dissolving her marriage ...... As the
Courts are sure to hesitate to apply the Maliki Law to the case of a Muslim
woman, legislation recognizing and enforcing the above mentioned principle is
called for in order to relieve the sufferings of countless Muslim women."
One of the grounds was that a suit could be brought if the husband had
neglected or failed to provide maintenance for the wife for a period of two
years.
After the Act of 1939, a wife thus had a
statutory 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
independent 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 husband' 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
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 court without
any overt act on the part of the husband in divorcing her. The High Court also
failed to consider the legal consequences flowing from the decree passed by the
court dissolving the marriage, viz., a legal divorce under the Mahomedan 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 of
Mahomedan law itself. It would appear that under the Mahomedan law there are
three distinct modes in which a muslim marriage can be dissolved and the
relationship of the husband and the wife terminated so as to result in an
irrevocable divorce.
(1) Where the husband unilaterally gives a
divorce according to any of the forms approved by the Mahomedan law, viz, Talaq
ahsan which consise of a single pronouncement of divorce during tuhar (Period
between menstruations) followed by abstinence from sexual intercourse for the
period of iddat; or Talak hasan which consists of three pronouncement made
during the successive tuhrs, no intercourse taking place between three tuhrs;
and lastly Talak-ul-bidaat or talalk-i- badai which consists 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 'I divorce thee, I 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 appellant 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 becomes irrevocable if the period of iddat is observed though it
is not necessary that the woman divorced should come to know of the fact that
she has been divorced by her husband.
(2) By an agreement between the husband and
the wife whereby 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 consent 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 mode is that it comes into existence with
the consent of both the parties particularly the husband because without 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 be 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
been pronounced by the husband. This mode of divorce is called 'Tawfeez' (vide
Mulla's Mohmedan Law, Sec. 314. p. 300.
(3) By obtaining a decree from a civil court
for dissolution of marriage under s. 2 of the Act of 1979 which also 924
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 S under
mode numbers 2 and 3, she continues to be a wife for the purpose of getting
maintenance under s. 125 of the 1973 Code. In these circumstance 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' conjunctively 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 Mahomedan 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 pay able 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. 1, that is to say, where the
husband unilaterally divorces his wife. For the application of clause (b) two
conditions are necessary- (1) that an application for cancellation of the
maintenance is made by the husband under s.
127(2), and 925 (2) that after the wife has
been divorced by the husband 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 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 sub-section (3) of s. 127, which is extracted below,
clearly provides that where a woman obtains a divorce from her husband 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 under
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 clause
(b) of subsection (3) of s. 127 and the other in clause (c) of sub-section (3)
of s. 127.
In view of the reasons given and the
circumstances discussed by us, it is manifest that in the instant case s. 127
does not at all 926 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 Explanation 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 decree for dissolution
of marriage. The Magistrate was, therefore, fully justified in granting
maintenance to the appellant. The High Court, therefore, erred in quashing the
order of the Magistrate, we, therefore, allow this appeal, set aside the order
of the High Court and restore that of the Magistrate granting maintenance of a
consolidated 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 maintenance, 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 particular aspect of the matter, I am appending a short note of my
own.
2. Sub-section (1) of section 125 of the Code
of Criminal Procedure (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 that 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 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.
3. The word 'divorce' is not defined in the
Code and may legitimately be regarded as having been used in clause (b) above
extracted in the dictionary sense. Webster's Third New International Dictionary
states it to mean, amongst other things,- "(a) legal dissolution in whole
or in part of marriage relation usually by a court or other body having
competent authority;
"(b) an absolute dissolution in 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, unless
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
called upon to interpret sections 16(1) and 19(3) of the Matrimonial Causes
Act, 1950 which posed a similar problem. The relevant portions 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
mentioned in section 19(3) and that, therefore, there was no jurisdiction in
the Court to direct the husband to any the wife any maintenance 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 811 in the
case of presumption of death......In my view the word "dissolution relates
to the marriage bond itself, whereas the word "divorce" relates to
the parties to tile 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 this 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 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 has been granted a decree of dissolution of marriage by a Civil
Court but has not been divorced by a voluntary 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. If that clause envisaged only decree 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 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:
"(a) to gain or attain possession or
disposal of, usually by some planned action or method, "(b) to bring about
or call into being, etc." 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
described 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 applicable 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, only 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 a wife who has been granted a decree of dissolution of marriage by
the Court. That such 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 the learned Magistrate granting an amount 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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