MST. ZOHARA KHATOON v. MOHD. IBRAHIM

Citation: [1981] 2 S.C.R. 910

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A.D. KOSHAL, A. VARADARAJAN

Case summary

The facts of the appeal lie within a narrow compass hut the case involves a substantial question of law. ~h Court held that clause (b) of the explanation to Section 125(I) of the Code had no application to the facts of the case and that so far as the appellant was concerned,...

Judgment text

MST. ZOHARA KHATOON JI. MOHD. IBRAHIM February 18, 1981 (S. MURTAZA FAZAL ALI, A. D. KOSHAL AND A. VARADARAJAN, JJ. ] Crifninal Procedure Code, 1973, Section 125 ( 1), Explanation (b)-Whether • hfa1. dstrate conipetcnt to award nu1intrna11ce if under the personal law of the' Jl. t! ohornedan. 5, tlie lrife obtained a valid divorce and had completed the period oj 1ddar-"wife'' whether includ:es a woman who has been divorced by, or has obtained a divorce froni her husband and has not re1narried. The appellant was the legally married wife of the respondent. As he wil· fully neglected her, she filed an application before the Magistrate for mainte· nance under Section 125 of the ,Code of Criminal Procedure 1973. The Magis· trate accepted the a-llegation of the appellant that she had been neglected by the respondent without reasonable or probable cause and awarded maintenance at Rs. 100/- per n1onth for the appellant and the minor child. The Hi.

~h Court held that clause (b) of the explanation to Section 125(I) 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 afirmed the order of the Magistrate fixing Rs. 40/- per month as maintenance for her minor son. fn the appeal, it was contended that the view taken by the High Court is legally erroneous a·nd is based on wrong interpretation of clause (b) of the explanation to Section 125(1) of the Code. Accepting the. Appeal1, (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 I27(3)(b) of the 1973 Ccxle but this case is squarely covered by Clause (b) of the ExplanaHon to S.

125(i) of that Code as a reiult of which the appellant in the eye of law continues to be the wife oi the respondent, despite the decree for dissolution of marriage. [925 II, 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 h tion of the appellant that she had been neglected by the husband with- Fl out reasonable or probable cause. The order of the Magistrate was • • upheld by the Sessions Judge in revision. 11 -!

14 SCI/81 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 wilful 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 ors. 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 t~ 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 )ler 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 uuder 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 husb'and 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, ma'ntained 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 nnd 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 var plicable to a wife, irrespective of her religion, but the former is applicable to the case of Hindus only. It could not, therefore, be intend~d to be a substitute for s. 488 Cr. P. C. " To the same effect is the decision of the Patna High Court in Nalini 1,.. Ro•zfan Clwkravarty v. Smt. Kiran Rani Ch"kravarty(2) 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 posses- • • sion of that right being in the case of a wife the acceptance II of the conjugal relation. Further, s. 488 provided for only (! ) AIR 1963 All. 355. • • (2) AIR 1965 Pat. 442 ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, J. ) 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 8 Agarwalla v. Gita Roy CJ 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 ! lie husband.

The two remedies were, however, not co-extensive. " 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 irres,pective 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 miportant questiQn still remains : Was the Magistrate competent to a. ward maintenance if urider the personal law of the Mahomedans the "life had been validly divorced and had completed the period of ldd;it? 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 t111t the Magistrate could cancel the maintenance in consequence of a decision ~· .. of any competent court : "(2) Where it awears to the Magistrate that.. in consequence of any decision of a competent Civil Court, 3. iy 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, consiJoring the scheme of ss. 488 and 489 it was generally 11ccep- 1ed as geod bw 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 com- • pletion of the period of Iddat. That this is the Mahomedan law on (I I 11962] 2 Cr. L. J. 528. the subject admits of no doubt and bas not been controverted before us. We would however, refer to a few decisions on this point to support our point of view.

In Jn re Shekhanmian(') while defining the consequences of a divorce and its impact on s. 488 of the 1898 Cede 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 :he parties, and the divorced wife would not be entitled to claim maintenance from her husband beyond the period of iJdat from the date of such irrevocable divorce. S. 488 Criminal P. C. , has in no manner abrogated this part of the per'C111al law of the parties. The existence o! conjugal relations in the case of Mahomcdans has to be determined by reference to the provisions of the Mahomedan Law and not by considerations of equity and good conscience as ucde1'tood in any other system of law. " To the same effect is the decision of the Madras High Court in Syed Sold v. Mccram Bee (2) where in division Bench observed thus : "A ~1agistrat1.. :, ho\vcver, exercising summary powers conR fcrrcd on him hy 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 deteymine this, and only to that extent, we must ascertain the effect in Mahomedan law of au 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 reiteraled by the Madras High Court in a later decision in In re Mohamed Rahimullah & Anr. (") where Yahya Ali, J. observed thus :- "The foundation upon which Ss. 488 & 489, Crimina·l 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 (I) AIR 1930 Bombay 178. • • (2) 20 M. L. J. 12 (3) AIR 1947 Madras 461. ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, !. ) 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 v;ew in Rahimunnissa & Ors. v. Mohd. Ismail(') and after con,idering the entire law on the subject Bilgrami, J. observed thus :- '"All these grounds can be sullicicnt 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 Pbligation which binds a wife during this period is that she . ;liould not remarry.

" In a very early case of the AJlahalYad High Court-Di11 lYi ection 125 of the 1973 Code is couched almost in the same language ass. 488 1 of the earlier Code with the important exception that an :xplanation 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 ot the Indian Majority Act, 1875 is deemed not to have attained his majority; (b) "wife includes a woman whn has been divorced by or • has obtained a divorce from, her husband and bis not remarried. " (Emphasis supplied) We are however not concerned with clause (a) of ihe E"planation. 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 mea0ning of the provisions of the Code even though she has been divorced by her husband or has otherwise ohtained a divorce and has not remarried. The decision in this case turns upon the interpretation of clause (h). The High Court has construec the words 'who has been divorced or has obtained a divorce from her hus.. band' as signifying that in both cases the divorce must proceed from the husband and should be the act of the husband and not ! l,at of the wife. In taking this view, the High Court obviously seem' to have • been guided by the consideration that a dissolution of marri2ge 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 henct1 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 whst it WHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, J.

) 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 t,he 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 wou. \d 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 divcrce his wife by a simple dedaration because other laws, viz. , the Hindu law or the Pmsi 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 undouhtdly the fundamental concept of divorce as laid duwn by the Mahomctian law.

As, however, some of the Muslim Jurists and Theologists were of the view that where a husband becomes importent or disappears for 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 anthorities the legislature intervenerl and p>assed 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 tl1e 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 leavin~ her unprovid·· ed for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumer- able Muslim women in British India. The Hanafi Ju;·i "(b) to bring about or call into hein. g, etc. " • ZOHRA KHATUN v. MOHD. IBRAHIM (Koshal, J.

) 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 <lescribed 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 state- ' ment. 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 applicabie 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, ofrly 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 snch 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 tl1e learned Magistrate granting an amonnt of Rs. 100/- per month as maintenance to the appellant and her minor child is restored. . & N. K. A. Appeal allowed. • ' , " ... 12-214 SCI/81