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PETITIONER: BAI TAHIRA A

       Vs.

RESPONDENT: ALI HUSSAIN FISSALLI CHOTHIA AND ANR.

DATE OF JUDGMENT06/10/1978

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. TULZAPURKAR, V.D. PATHAK, R.S.

CITATION:  1979 AIR  362            1979 SCR  (2)  75  1979 SCC  (2) 316  CITATOR INFO :  R          1980 SC1730  (1,2,4,7,8,9,11)  F          1985 SC 945  (4,29,30)

ACT:      Code of  Criminial Procedure,  1973-S. 127(3) (b)-Scope of-Wife divorced  by the  husband and  was granted  mehar in 1962-Wife claimed  maintenance from  husband under  s.  125, Cr.P.C. 1973-If could claim-"under any customary or personal law"-Meaning of.

HEADNOTE:      Explanation (b)  to s.  125(1) of  the Code of Criminal Procedure, 1973  provides that  "wife" includes  a woman who has been  divorced by  or has  obtained a  divorce from  her husband and  has not re-married. Section 127(3) (b) provides that where any order has been made under s. 125 in favour of a woman  who has  been divorced by or has obtained a divorce from her  husband, the  Magistrate shall  if he is satisfied that the  woman has  been divorced  by her  husband and  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 payable on such divorce  cancel  such  order  in  the  circumstances  stated therein.      The respondent  (husband) married  the appellant (wife) and had  a son  by her.  A few  years later  the  respondent divorced his wife. By a consent decree, in the suit filed by the wife,  he transferred  to her  the flat in which she was living and  agreed to pay mehar money. The compromise stated that the  "plaintiff declares  that she  has now no claim or right whatsoever  against  the  defendant".  For  some  time thereafter they lived together but again separated. The wife moved the  magistrate  under  s.  125  Cr.P.  for  grant  of maintenance to  her and her son. This was granted. On appeal the Sessions  Judge held  mat the  Court had no jurisdiction under s. 125. The High Court dismissed the wife’s appeal.      On further  appeal to  this Court  it was  contended on behalf of  the respondent  that (i) s. 125(4) would apply in the absence of proof that the wife was not living separately by mutual  consent; (ii)  to attract  s. 125  there must  be proof of neglect to maintain the wife and (iii) no claim for

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maintenance in  this case  can survive  in the  face of  the consent decree  whereby mehar  money had  been paid  and all claims adjusted.      Allowing the appeal the Court, G ^      HELD: Every  divorcee, otherwise  eligible, is entitled to the  benefit of maintenance allowance and the dissolution of the  marriage makes no difference to this right under the current Code. [78H]      1. There  is no  force in the argument that the absence of mutual consent to live separately must be made out if the hurdle of  s. 125(4)  is  to  be  overcome.  The  compulsive conclusion from  a divorce by a husband and his provision of a separate  residence as  evidenced by  the  consent  decree fills the  bill.Divorce plainfully  implies that the husband orders. the wife out of the conjugal home. [80D] 76      2. The  husband’s plea  is his  right to ignore. So the basic condition of neglect to maintain is satisfied. In this generous   jurisdiction    the   broader    perception   and appreciation of  the facts and their bearing must govern the verdict-not chopping  little logic  or tinkering with burden of proof. [80C]      3. (a)  The consent  decree resolved  all disputes  and settled all  claims then  available. The new statutory right which could  not have  been  in  the  contemplation  of  the parties when  they entered  into the  consent decree in 1962 had been created by the Code of 1973. No settlement of claim which does  not have  the special  statutory  right  of  the divorcee under  s. 125  can operate  to negate  that  claim. [80F]      (b) No  husband can claim under s. 127(3)(b) absolution from his  obligation under  s. 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. [81F]      (c) Section  127 cannot  rescue the  husband  from  his obligation. The  scheme of  Chapter IX has a social purpose. Ill-used wives  and desperate  divorcees shall not be driven to material  and moral  dereliction to seek sanctuary in the streets. Where the husband, by customary payment at the time of divorce,  has adequately  provided for  the  divorcee.  a subsequent series of recurrent doles is contra-indicated and the husband  liberated. The  key note thought is adequacy of payment which  will  take  reasonable  care  of  the  wife’s maintenance. [80H]      (d) 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  that rate unless it is a reasonable substitute The legal sanctity of the  payment is certified by the fulfilment 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  if the  Court is to pay true homage to  the Constitution.  The only  just construction of the section is that Parliament intended divorcees should not derive a double benefit If the first payment by way of mehar or ordained  by custom  has a  reasonable  relation  to  the object and  is a  capitalised substitute for the order under s. 125  then s.  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 divorcee and to provide her with wherewithal to  maintain herself  There must  be a  rational relation between  the cum  so  paid  and  its  potential  as

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provision for maintenance. [81B-C]      4. Welfare  laws must  be so  read as  to be  effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like  destitute women,  the spirit  of Art.  15(3) must belight the meaning of the section. The Constitution is a pervasive  omnipresence  brooding  over  the  meaning  and transforming the values of every measure. [77D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 332 of 1977.      Appeal by  Special Leave  from the  Judgment and  order dated  20-10-75   of  the  Bombay  High  Court  in  Criminal Application No. 1 379/75. 77      M. C.  Bhandare, A.  N. Karkhanis, Miss Malini Panduval and Mrs. S. Bhandare for the Appellant.      G. L. Sanghi and A. K. Verma for Respondent No. 1.      M. N. Shroff for Respondent No. 2.      The Judgment of the Court was delivered by                    A Prefatory statement      KRISHNA IYER,  J.-In this  appeal, by special leave, we are called  upon to  interpret a benign provision enacted to ameliorate the  economic condition  of neglected  wives  and discarded divorcees, namely. s 125. Cr.P.C.      Welfare laws  must  be  so  read  as  to  be  effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, this spirit of Art. 15(3) of the Constitution  must belight  the meaning  of the Section. The Constitution  is a  pervasive omnipresence brooding over the meaning  and transforming  the values  of every measure. So, s.  125 and  sister clauses must receive a compassionate expansion of sense that the words used permit.                       The Brief Facts      The respondent  (husband) married  the appellant (wife) as a  second wife,  way back  in 1956, and a few years later had a  son by  her. 15  The initial  warmth vanished and the jealousies of a triangular situation erupted, marring mutual affection. The respondent divorced the appellant around July 1962. A  suit relating  to a  flat in  which the husband had housed the  wife resulted  in a  consent decree  which  also settled the  marital disputes. For instance, it recited that this respondent had transferred the suit premises, namely, a flat in  Bombay, to the appellant and also the shares of the Cooperative Housing  Society which built the flat concerned. There was  a reference  to  mehar  money  (Rs.  5,000/-  and ’iddat’ money, Rs. 180/-) which was also stated to have been adjusted by the compromise terms.      There was a clause in the compromise: G           "The plaintiff  declares that she has now no claim      or right  whatsoever against  the defendant  or against      the estate and the properties of the defendant." And another  term in  the settlement  was that the appellant had by virtue of the compromise become the absolute owner of the flat  and various  deposits in  respect of the said flat made with the cooperative housing society. 78      For some  time there  was flickering improvement in the relations between  the quondum  husband and the quondum wife and they  lived together.  Thereafter, again they separated, became  entranged.   The  appellant,   finding  herself   in

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financial straits  and unable to maintain herself, moved the magistrate under  s. 125  of the  Criminal  Procedure  Code, 1973, for a monthly allowance for the maintenance of herself and her  child. She  proceeded on  the footing  that she was still a  wife while  the respondent rejected this status and asserted that she was a divorce and therefore ineligible for maintenance. The  Magistrate  who  tried  the  petition  for maintenance held  that the  appellant was  a subsisting wife and awarded monthly maintenance of Rs. 300/- for the son and Rs. 400/-  for the  mother for their subsistence, taking due note of  the fact  that the  cost of living in Bombay, where the parties  lived, was  high, and  that the  respondent had provided residential accommodation to the appellant.      This order  was challenged before the sessions Judge by the aggrieved husband, who on a strange view of the law that the court,  under s.  125, had  no jurisdication to consider whether the  applicant was a wife, dismissed the petition in allowance of  the appeal.  The High  Court deigned to bestow little attention  on the  matter and  summarily dismissed  a revision   petition.   This   protracted   and   fluctuating litigation misfortune  has leu  to the  appeal,  by  special leave, before this Court.                     The Questions Mooted      Shri Bhandare  appearing for  the  appellant  contended that the  Courts below  had surprisingly forgotten the plain provision in  the Explanation  (b) to s. 125(1) of the Code, which reads:           "wife’ includes  a woman who has been divorced by.      or has obtained a divorce from, her husband and has not      remarried.      On  this   foundation,  he  urged  that  accepting  the contention of  the  respondent  that  the  appellant  was  a divorcee? his  client was  still entitled  to an  allowance. This is obviously beyond dispute or. a simple reading of the sub-section and  it  is  curious  how  this  innovative  and sensitive provision  with a  benignant  disposition  towards destitute divorcees  has been  overlooked by  all the courts below. We  hold that  every divorce  otherwise eligible,  is entitled to  the benefit  of maintenance  allowance and  the dissolution of  the marriage  makes no  difference  to  this right under the current Code. In the normal course, an order for  maintenance   must  follow,  the  quantum  having  been determined by the learned Magistrate at the trial level. 79      However, Shri  Sanghi, appearing  for  the  respondent, sought sustain the order in his favour on three grounds They arc of  pubic importance  since the affected party in such a fact-situation is  the neglected  divorcee. He  first argued that s.  125(4) would apply in the absence of proof that the lady was  not living  separately by mutual consent. His next plea was  that there must be proof of neglect to maintain to attract s.125  and his third contention was that there was a settlement by consent decree in 1962 whereby the mehar money had been  paid and  all claims adjusted, and so no claim for maintenance  could   survive.  The   third   contention   is apparently based upon contractual arrangement in the consent decree read with s. 127(3) (b) which reads: C           "(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  payable  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

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              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; We must  state, however,  that there  was no  specific plea, based upon  the latter  provision, set  up anywhere  in  the courts below or urged before us. But if one were to locate a legal ground  to raise  The contention That the liability to pay maintenance  had ceased  on account  of the  payment  of mehar, it is s. 127(3) of the Code. So we must deal with the dual sub-heads of the third ground.      The meaning  of meanings  is! derived  from values in a given  society   and  its   legal  system.   Art.15(3)   has compelling, compassionate relevance in the context of s. 125 and the benefit of doubt. If any in statutory interpretation belongs to the ill-used wife and the derelict divorcee. This social  perspective  granted,  the  resolution  of  all  the disputes projected  is easy.  Surely, Parliament, in keeping with Art.  15(3) and  deliberate by  design, made  a special provision to  help women  in distress  cast away by divorce. Protection against  moral and  material abandonment manifest in  Art.   39  is  part  of  social  and  economic  justice, specificated in  Art. 38, fulfilment of which is fundamental to the  governance of  the country (Art.37). From this coign of vantage  we must  view the printed text of the particular Code. 80      S. 125 requires, as a sine qua non for its application, neglect  by   husband  or  father.  The  magistrate’s  order proceeds on  neglect to  maintain; the  sessions  judge  has spoken nothing  to the  contrary; and The High Court has not spoken at  all.  Moreover,  the  husband  has  not  examined himself to  prove that  he has been giving allowances to the divorced wife.  His case,  on the  contrary, is that she has forfeited her  claim because  of  divorce  and  the  consent decree. Obviously,  he has  no case of non-neglect. His plea is his right to ignore. So the basic condition of neglect to maintain is  satisfied. In  this  generous  jurisdiction,  a broader perception  and appreciation  of the facts and their bearing must govern the verdict not chopping little logic or tinkering with burden of proof.      The next  submission is  that  the  absence  of  mutual consent to live separately must be made out if the hurdle of s. 125(4)  is to  be over  come. We  see hardly any force in this plea.  The compulsive  conclusion from  a divorce  by a husband  and  his  provision  of  a  separate  residence  as evidenced by the consent decree fills the bill. Do divorcees have to  1) prove  mutual consent  to  live  apart?  Divorce painfully implies  that the  husband orders  her out  of the conjugal home.  If law  has nexus with life this argument is still-born.      The last  defence, based  on mehar payment, merits more serious attention.  The contractual  limb of  the contention must easily  fail. The  consent decree  of 1962 resolved all disputes and settled all claims then available But here is a new statutory right created as a projection of public policy by the  Code of  1973, which  could not  have  been  in  the contemplation of the parties when in 1962, they entered into a contract to adjust their then mutual rights. No settlement of claims which does not have the special statutory right of the divorcee under s. 125 can operate to negate that claim.      Nor  can   s.127  rescue   the  respondent   from   his obligation.  Payment   of  mehar   money,  as   a  customary discharge, is  within the  cognisance of that provision. But

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what was  the amount  of mehar  ? Rs.  5000/-, interest from which could  not keep the woman’s body and soul together for a day,  even in  that city  where 40%  of the population are reported to  live on pavements, unless she was ready to sell her body  and give  up her  soul ? The point must be clearly under stood  that the scheme of the complex of provisions in Chapter  IX   has  a  social  purpose.  Ill-used  wives  and desparate divorcees  shall not  be driven  to  material  and moral dereliction  to seek  sanctuary in  the streets.  This traumatic horror  animates the amplitude of s.127. Where the husband, by  customary payment  at the  time of divorce, has adequately provided  for the divorce, a subsequent series of recurrent does is 81 contra-indicated and  the husband  liberated.  This  is  the teleological A  interpretation, the sociological decoding of the text  of s.127.  The  keynote  thought  is  adequacy  of payment which will take reasonable care of her maintenance.      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 that rate unless it is  a reasonable  substitute. The  legal sanctity  of the payment  is  certified  by  the  fulfilment  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  if the  court is to pay true homage to  the Constitution.  The only  just construction of the section is that Parliament intended divorcees should not derive a  double benefit.  If the  first payment  by way  of mehar or ordained by custom has a reasonable relation to the object and  is a  capitalised substitute for the order under s. 125-not  mathematically but  fairly-then  s.  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 divorcee and  to provide  her with  wherewithal to  maintain herself. The  whole scheme of s. 127(3) (b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment organised  by the  custom of  the community  or  the personal law  of the  parties.  There  must  be  a  rational relation between  the sum  so  paid  and  its  potential  as provision for  maintenance. To  interpret  otherwise  is  to stultify the  project. Law is dynamic and its meaning cannot he pedantic  but purposeful.  The proposition, therefore, is that no husband can claim under s. 127(3)(b) absolution from this obligation  under s. 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.      The conclusion  that we  therefore reach  is  that  the appeal should  be allowed  and it is hereby allowed, and the order of the trial court restored. P.B.R.                                       Appeal allowed. 82