http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 18  

PETITIONER: MOHD. AHMED KHAN

       Vs.

RESPONDENT: SHAH BANO BEGUM AND ORS.

DATE OF JUDGMENT23/04/1985

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) MISRA RANGNATH DESAI, D.A. REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J)

CITATION:  1985 AIR  945            1985 SCR  (3) 844  1985 SCC  (2) 556        1985 SCALE  (1)767  CITATOR INFO :  F          1986 SC 587  (4)  RF         1987 SC1103  (10)  D          1988 SC 644  (5,6)

ACT:      Muslim Personal  Law-Concept of divorce-Whether, on the pronounccments of "talaq" and on the expiry of the period of iddat a divorced wife ceases to be a wife.      Code of Criminal Procedure Code, 1973 (Act II  of 1974) Sections 125(1)  (a) and Explanation (b) thereunder, Section 125 (3)  and the  Explanation, under the proviso thereto and section 127 (3) (b), scope and interpretation of-Correctness of three Judges.’ Bench decision reported in (1979) 2 SCR 75 and (1980)  3 SCR 1127 to the effect that section 125 of the code applies to Muslims and divorced Muslim wife is entitled to maintenance-Whether  there is  any conflict  between  the provisions of  section 125  and that  of the Muslim Personal Law on  the liability  of the  Muslim husband to provide for the maintenance of his divorced wife.      Code of  Criminal Procedure,  1973, section 127 (3) (b) read with  section 2 of the Shariat Act XXVI of 1937-Whether section 127  (3) (b)  debars payment  of  maintenance  to  a divorced wife,  once the  Mahar or dower is paid-Whether the liability of  the husband  to maintain  a divorced  wife  is limited to the period of "iddat"      Nature of Mahr or dower-Whether Mehr is maintenance.

HEADNOTE:      Under 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. Under Explanation (b) thereunder ’ wife" includes a woman  who has been divorced by, or has obtained a divorce from  her   husband  and   has  not   remarried.  Under  the explanation below sub section 3 of section 125, if a husband has contracted  marriage  with  another  woman  or  keeps  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 18  

mistress it  shall be considered to be a just ground for his wife’s refusal to live with him. Keeping this in view, if in the trial arising out of 845 an application  made under  section 125,  and if the husband offers to maintain his wife on condition of living with him, the Magistrate may consider any of the grounds of the wife’s refusal  to  live  with  her  husband  before  ordering  the maintenance. Under section 127 (3) (b), the Magistrate shall cancel the  order passed by him under section 125, in favour of a  woman who  has been  divorced by,  or has  obtained  a divorce from  her husband if the woman who has been divorced by her  husband 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.      The appellant.  who is  an advocate  by profession  was married to  the respondent  in  1932.  Three  ions  and  two daughters were  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, in the Court of  the  Judicial  Magistrate  (First  class)  Indore, asking for  maintenance at the rate of Rs. 500 per month, in view of  the professional  income of the appellant which was about Rs.  60,000  per  annum.  On  November  6,  1978,  the appellant divorced  the respondent by an irrevocable "talaq" and took  up the  defence that she had ceased to be his wife by reason  of the  divorce granted  by  him;  that  he  was, therefore, under  no obligation  to provide  maintenance for her; that  he had  already paid  maintenance for  her at the rate of  Rs. 200 per month for about two years, and that, he had deposited  a sum  of Rs.  3,000 in  the court  by way of "dower or  Mahr" during  the period  of "iddat".  In  August 1979,  the  Magistrate  directed  the  appellant  to  pay  a princely sum of Rs. 25 per month to the respondent by way of maintenance.  In   a  revisional  application  Sled  by  the respondent the  High Court  of Madhya  Pradesh enhanced  the amount of  maintenance to  Rs. 179.20  per month.  Hence the appeal by  special leave  by the  husband. The view taken in the earlier  two three  Judges’ Benches of the Supreme Court presided over  by Krishna  Iyer, J. and reported in [1979] 2 SCR 75,  and [1980]  3 SCR  1127, to the effect that section 125 of  the Code applies to Muslims also and that therefore, the  divorced   Muslim  wife   is  entitled   to  apply  for maintenance was  doubted, by  the Bench  consisting of Fazal Ali and  Varadarajan, JJ.,  since in  their opinion the said decisions  required   reconsideration  by   a  larger  Bench consisting of  more than  three judges  as the decisions are not  only   in  direct   contravention  of   the  plain  and unambiguous language  of section  127 (3)  (b) of  the  Code which far  from overriding  the Muslim  law on  the  subject protects and  applies the same in case where a wife has been divorced by  the husband  and the  dower specified  has been paid and  the period  of iddat  has been  observed but  also militates against  the fundamental concept of divorce by the husband and  its consequences under the Muslim law which has been expressly protected by section 2 of the Muslim Personal Law (Shariat)  Application Act,  1937-an Act  which was  not noticed in the said two decisions.      Dismissing  the   appeals,   the   Court ^      Held:   (Per Chandrachud, C. J.)      1. The  Judgments of  the Supreme  Court in  Bai Tahira (Krishna lyer,  J., Tulzapurkar,  J.  and  Pathak,  J.)  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 18  

Fazlunbi (Krishna pyer, J, Chinnappa 846 Reddy, J.  and A.P.  Sen, J.)  are correct,  except  to  the extent that  the statement  at page  80 of the report in Bal Tahira made  in the  context of  section 127 (3) (b) namely, "payment of  Mahr money,  as a customary discharge is within the cognizance  of that provision". Justice Krishna Lyre who spoke for  the Court  in both these cases, relied greatly on the teleological  and schematic  method of interpretation 90 as to  advance the  purpose of the law. These constructional techniques have  their own  importance in the interpretation of statutes  meant to ameliorate the conditions of suffering sections  of   the  society.A   divorced  Muslim   wife  is, therefore, entitled  to apply  for maintenance under section 125 of the Code. [865H, 866A-C]      2.1 Clause (b) of the Explanation to section 125 (1) of the Code, which defines "wife" as including a divorced wife, contains no  words of limitation to justify the exclusion of Muslim women  from its scope. Wife, means a wife as defined, irrespective of  the religion  professed by  her or  by  her husband. Therefore,  a divorced  Muslim woman so long as she has not  married, is  a wife for the purpose of section 125. [855A-B: 854B]      2.2 Under  section 488  of the Code of 1898, the wife’s right to  maintenance depended  upon the  continuance of her married status.  Therefore, that  right could be defeated by the husband  by divorcing  her  unilaterally  as  under  the Muslim Personal  Law, or  by obtaining  a decree  of divorce against her  under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the  benefit of  the provisions  regarding  maintenance should be  extended to  a divorced woman, so long as she has not re  married after  the divorce.  That is  the genesis of clause (b)  of the  Explanation to  section 125 (I). Section 125 of  the Code  is truly secular in character. Section 125 was enacted  in order  to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Whether the  spouses are  Hindus or  Muslims, Christians  or Parsis, Pagans  or Heathens,  is wholly  irrelevant  in  the application of  these-provisions. The  reason  for  this  is axiomatic, in  the sense  that section  125 is a part of the Code of  Criminal Procedure  not of  the  Civil  Laws  which define and  govern the rights and obligations of the parties belonging to  particular relations, like the Hindu Adoptions and Maintenance  Act, The  Shariat, or the Parsi Matrimonial Act. It  would make no difference as to what ii the religion professed by  the neglected  wife, child or parent. [834D-E: 855E-G]      2.3 Neglect by a person of sufficient means to maintain these  and  the  inability  of  these  persons  to  maintain themselves are  the objective  criteria which  determine the applicability of  section 125.  Such provisions,  which  are essentially  of   a  prophylactic  nature,  cut  across  the barriers of  religion. True  that they  do not  supplant the personal law  of the  parties  but,  equally,  the  religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of  such laws  unless, within the framework of the Constitution,  their  application  is  restricted  to  a defined  category   of  religious   groups  or  classes  The liability imposed  by  section  125  to      maintain  close relatives who are indigent is founded upon the indi- 847 viduals’ obligation  to the society t a prevent vagrancy and destitution. That is the moral edict of the law and morality

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 18  

cannot be clubbed With relation.                                                     [834G-Hl      That  the   right  conferred  by  section  125  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 the Code. The explanation confers upon the wife  the right to refuse to live with her husband if he contracts another  marriage leave alone, three or four other marriages, which  a Mohammedan  may have  under the  Islamic law.  Further   it  shows  unmistakably,  that  section  125 overrides the personal law, if there is any conflict between the two [836B-C,F-G]      Jagir Kaur  v. Jaswant Singh, [1964] 2 SCR 73,84, Nanak Chand v.  Shri Chandra  Kishore Agarwala,  11970] I  SCR 56C applied.      3.1 The  contention that,  according to Muslim Personal Law the  husband’s liability  to provide for the maintenance of his  divorced wife  is limited  to the  period of  iddat. despite the  fact that  she is  unable to  maintain  herself cannot be  accepted, since  that law does not contemplate or countenance the  situation envisaged  by section  125 of the Code. Whether  a husband  is liable  to maintain  his  wife, which includes a divorced wife, in all circumstances, and at all events is not the subject matter of section 125. Section 125 deals  with cases  in which a person who is possessed of sufficient means  neglects or  refuses to  maintain  amongst others, his  wife who  is unable to maintain herself. [838H, 851A-B]      3.2 One  must have  regard to  the entire conspectus of the Muslim  Personal Law  in order  to determine the extent, both in  quantum and in duration, of the husband’s liability to provide  for the  maintenance of an indigent wife who has been divorced  by him.  Under that law, the husband is bound to pay  Mahr to  the wife as a mark of respect to her. True, that he  may settle any amount he likes by way of dower upon his wife,  which cannot  be less  than 10  Dirhams which  is equivalent to three or four rupees. But one must have regard to the realities of life. Mahr is a   mark of respect to the wife. The  sum settled  by way of Mahr is generally expected to take  care of  the ordinary  requirements  of  the  wife, during the  marriage and  after. But these provisions of the Muslim Personal  Law do  not countenance  cases in which the wife is  unable to  maintain herself  after the divorce. The application of  those statements  of law  to the contrary in text-books on Muslim Law must be restricted to that class of cases, in  which there  is no  possibility  of  vagrancy  or destitution arising  out of  the indigence  of the  divorced wife. [858D-G]      3.3 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 the Code. Thus there is  no conflict  between the provisions of section 125 and those  of the Muslim Personal Law on the question of the Muslim husband’s  obligation to  provide maintenance  for  a divorced wife 848 who is  unable to maintain herself. Aiyat No. 241 and 242 of ’the Holy  Koran’ fortify  that the  Holy Koran  imposed  an obligation on the Muslim husband to make provision for or to provide maintenance  to  the  divorced  wife.  The  contrary argument does  less than  justice to the teachings of Koran. [859C-D; 862C-D]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 18  

    3.4 Mahr  is not  the amount  payable by the husband to the wife  on divorce and therefore, does not fall within the meaning of  section 127  (3) (b)  of the Code and the facile answer of  the All  India Muslim Law Board that the Personal Law has  devised the system of Mahr to meet the requirements of women  and if  a woman  is indigent, she must look to her relations, including  nephews and cousins, to support her is a most unreasonable view of law as well as of life. [863E-F, 866E-F]            3.5 It is true 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 that  it is  payable ’on divorce’. even assuming  that, in  a given  case, the entire amount of Mahr is  of the  deferred variety payable on the dissolution of marriage  by divorce,  it cannot  be said  that it  is an amount which is payable on divorce.                                                     [863B-D]      3.6 Divorce  may be  a convenient or identifiable point of time  at which  the deferred amount has to be paid by the husband to  the wife.  But, the payment of the amount is not occasioned by  the divorce,  which is  what is  meant by the expression ’on divorce’, which occurs in section 127 (3) (b) of the Code. If 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 the marriage.  Therefore.   no  amount   which  is   payable  in consideration of  the marriage  can possibly be described as an  amount   payable  in   consideration  of   divorce.  The alternative premise  that 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.A man may marry a woman for love, looks, learning or  nothing at  all. And,  he may settle a sum upon her as  a mark  of respect  for her. But he does not divorce her as  a mark  of respect.  Therefore, a sum payable to the wife out  of respect  cannot be  a sum  payable on divorce’. Thus, the  payment of  Mahr may be deferred to a future date as, for  example, death  or divorce. But, that does not mean that the  payment of  the deferred  dower is  occasioned  by these events. [863D-G]      Similarly, the  provision contained  in section 127 (3) (b) may  have been  introduced because  of the misconception that dower  is an  amount payable  ’on divorce.’  But,  that again cannot  convert an amount payable as a mark of respect for the wife into an amount payable on divorce. [863H]      Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294; Syed Sabir Hussain v. Farzand Hasan, 65 Indian Appeal 119 and 127 referred to. 849 OBSERVATION      (Article   44   of our Constitution has remained a dead letter. There  is no  evidence of  any official activity for framing a  common civil  code for the country.A common Civil Code will help the cause of national integration by removing disparate  loyalties   to  laws   which   have   conflicting ideologies. It is the State which incharged with the duty of securing a  uniform civil  code  for  the  citizens  of  the country  and,   unquestionably,  it   has  the   legislative competence to  do so.A  beginning has  to  be  made  if  the Constitution is to have any meaning. Inevitably, the role of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 18  

the reformer  has to be assumed by the courts because, it is beyond the  endurance of  sensitive minds to allow injustice to  be  suffered  when   it   is  so palpable. But piecemeal attempts of courts to bridge the gap between  personal  laws cannot  take the  place of  a  common Civil Code. Justice to all is a  far  more  satisfactory  way of dispensing justice than justice from case to case.)

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 103 of 1981.      From the  Judgment and  Order dated  1. 7.  1980 of the Madhya Pradesh High Court in Crl. Revision No. 320 of 1979.      P. Govindan  Nair, Ashok  Mahajan, Mrs.  Kriplani,  Ms. Sangeeta and S.K Gambhir for the Appellant.      Danial Latifi  Nafess   Ahmad Siddiqui,  S.N. Singh and T.N.Singh for the Respondents.      Mohd.  Yunus    Salim  and  Shakeel  Ahmed  for  Muslim Personal Law Board.      S.T. Desai  and S.A.  Syed for  the  Intervener  Jamat- UlemaHind.      The Judgment of the Court was delivered by      CHANDRACHUD,C.J.  This  appeal  does  not  involve  any question of  constitutional importance  but, that  is not to say that  it does  not involve  any question  of importance. Some questions  which arise  under the  ordinary  civil  and criminal law  are of  a far-reaching  significance to  large segments of  society which have been traditionally subjected to unjust  treatment. Women  are one such segment. ’ Nastree swatantramarhati" said  Manu, the  Law giver: The woman does not deserve independence. And, it is alleged that the ’fatal 850 point in  Islam is  the ’degradation  of woman’(l).  To  the Prophet is  ascribed the  statement, hopefully wrongly, that ’Woman was  made from  a crooked rib, and if you try to bend it straight,  it will  break;  therefore  treat  your  wives kindly.      This appeal,  arising out  of an appellation filed by a divorced Muslim  woman for  maintenance under section 125 of the Code  of Criminal  Procedure, raises  a  straightforward issue which  is of common interest not only to Muslim women, not only  to women generally but, to all those who, aspiring to  create  an  equal  society    of  men  and  women,  lure themselves into  the belief  that  mankind  has  achieved  a remarkable  degree   of  progress  in  that  direction.  The appellant, who  is an advocate by profession, was married to the respondent  in 1932.  Three sons  and two daughters were 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 in the court of the learned Judicial Magistrate (First  Class), Indore  asking for maintenance at the rate  of Rs  500 per  month. On  November  6,  1978  the appellant divorced  the respondent  by an irrevocable talaq. His defence to the respondent’s petition for maintenance was that she  had ceased to be his wife by reason of the divorce granted by  him, to  provide that  he was therefore under no obligation maintenance  for her,  that 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  a princely sum of Rs. 25 per month to the respondent

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 18  

by  way  of  maintenance.  It  may  be  mentioned  that  the respondent  had   alleged  that   the  appellant   earns   a professional income  of about  Rs. 60,000 per year. 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. The husband is before us by special leave.      Does the  Muslim Personal Law impose no obligation upon the husband  to provide  for the maintenance of his divorced wife ?  Undoubtedly, the Muslim husband enjoys the privilege of being (1)  ’Selections   from  Kuran’-Edward  William  Lane  1843, Reprint 1982, page xc (Introduction) 851 able to  discard his  wife whenever he chooses to do so, for reasons good,  bad or  indifferent. Indeed, for no reason at all. But,  is the only price of that privilege the dole of a pittance during  the period  of iddat  ? And,  is the law so ruthless in  its inequality  that, no  matter how  much  the husband pays for the maintenance of his divorced wife during the period  of  iddat,  the  mere  fact  that  he  has  paid something, no  matter how little, absolves him for ever from the duty  of paying  adequately so  as to enable her to keep her body  and soul  together ?  Then  again,  is  there  any provision in  the Muslim  Personal Law  under which a sum is payable to  the wife  ’on divorce’  ? These  are some of the important, though  agonising, questions  which arise for our decision.      The question  as to  whether section  125 of  the  Code applies to  Muslims also  is concluded  by two  decisions of this Court  which are  reported in Bai Tahira v. Ali Hussain Fidalli Chothia(1)  and Fazlunbi v. K. Khader Vali.(2) These decisions took  the view  that the  divorced Muslim  wife is entitled to  apply for maintenance under section 125. But, a Bench consisting  of our learned Brethren, Murtaza Fazal Ali and A. Varadarajan, JJ. were inclined to the view that those cases are  not correctly  decided. Therefore,  they referred this appeal  to a larger Bench by an order dated February 3, 1981, which reads thus:           "As this  case involves  substantial questions  of      law of  far-reaching consequences,  we  feel  that  the      decisions of  this Court  in Bai  Tahira v. Ali Hussain      Fidaalli Chothia & Anr and Fuzlunbi v. K. Khader Vnli &      Anr. require  reconsideration because,  in our opinion,      they are  not only in direct contravention of the plain      and an unambiguous language of s. 127(3)(b) of the Code      of Criminal  Procedure, 1973  which far from overriding      the Muslim  Law on the subject protects and applies the      same in  case where  a wife  has been  divorced by  the      husband and  the dower  specified has been paid and the      period of  iddat has  been observed.  The decision also      appear to  us to  be against the fundamental concept of      divorce by the husband and its consequences      (1) 1979 (2) SCR 75      (2) 1980 (3)SCR 1127 852      under the Muslim law which has been expressly protected      by  s.   2  of   the  Muslim   Personal  Law  (Shariat)      Application Act,  1937-an Act  which was not noticed by      the aforesaid decisions. We, therefore, direct that the      matter may be placed before the Honorable Chief Justice      for being  heard by  a larger  Bench consisting of more      than three Judges. "      Section 125  of the  Code of  Criminal Procedure  which deals with  the right  of maintenance reads thus: "Order for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 18  

maintenance of wives, children and parents           125. (1)  If any  person having  sufficient  means      neglects or refuses to maintain-      (a) his wife, unable to maintain herself,      (b)...      (c)...      (d)...      a Magistrate of the first class may, upon proof of such      neglecter 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      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  has not      remarried.      (2)..... . 853      (3) If  any person  so ordered fails without sufficient      cause   to comply  with the  order, any such Magistrate      may, for every breach of the order, 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."          Section 127(3)(b), on which the appellant has built up the edifice of his defence reads thus:           "Alteration in allowance      127. (1).....      (2)......           (3) Where  any order  has been  made under section      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-      (a).....           (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, 854      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      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."      Under  section   125(1)(a),  a   person   who,   having sufficient means,  neglects or  refuses to maintain his wife

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 18  

who is unable to maintain herself, can be asked by the court to pay  a monthly maintenance to her at a rate not exceeding Five Hundred  rupees. By  clause (b)  of the  Explanation to section 125(1), ’wife’ includes a divorced woman who has not remarried. These  provisions 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. Whether the spouses are Hindus or Muslims, Christians  or   Parsis,  pagans   or  heathens,  is  wholly irrelevant in  the  application  of  these  provisions.  The reason for  this is axiomatic, in the sense that section 125 is a  part of  the Code  of Criminal  Procedure, not  of the Civil  Laws   which  define   and  govern   The  rights  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  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 criteria  which  determine  the  applicability  of section 125.  Such provisions,  which are  essentially of  a prophylactic nature,  cut across  the barriers  of religion. True, that  they do  not supplant  the personal  law of  the parties but,  equally the  religion professed by the parties or the state of the personal law by which they are governed, cannot have  any repercussion  on the  applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or  classes. The  liability imposed by section 125 to maintain close  relatives who  are indigent  is founded upon the  individual’s  obligation  to  the  society  to  prevent vagrancy and 855 destitution. That is the moral edict of the law and morality cannot  be   clubbed  with   religion.  Clause  (b)  of  the Explanation to  section  125(1),  which  defines  ’wife’  as including a  divorced wife,  contains no words of limitation to justify  the exclusion  of Muslim  women from  its scope. Section 125 is truly secular in character.      Sir James  FitzJames Stephen  who piloted  the Code  of Criminal Procedure,  1872 as a Legal Member of the Viceroy’s Council, described  the precursor  of Chapter IX of the Code in which  section 125  occurs,  as  ’a  mode  of  preventing vagrancy or  at least  of preventing  its  consequences.  In Jagir kaur  v. Jaswont  Singh,(1) Subba Rao, J. speaking for the Court  said that Chapter XXXVI of the Code of 1898 which contained  section   488,  corresponding   to  section  125, "intends to  serve a social purpose". In Nanak Chand v. Shri Chandra Kishore  Agarwala.(2) Sikri,  J., while pointing out that the  scope of  the Hindu Adoptions and Maintenance Act, 1956 and  that of  section  488  was  different,  said  that section 488  was "applicable to all persons belonging to all religions and  has no  relationship with the personal law of the parties".      Under section 488 of the Code of 1898, the wife’s right to maintenance  depended upon the continuance of her married status. Therefore,  that. right  could be  defeated  by  the husband by  divorcing her  unilaterally as  under the Muslim Personal Law,  or by  obtaining a  decree of divorce against her under  the other  systems of  law. It  was in  order  to remove this  hardship that  the Joint  Committee recommended that the  benefit of  the provisions  regarding  maintenance

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 18  

should be,  extended to a divorced woman, so long as she has not remarried  after the  divorce. That  is the  genesis  of clause (b)  of the  Explanation  to  section  125(1),  which provides that  ’wife’ includes a woman who has been divorced by, or  has obtained  a divorce from her husband and has not remarried. Even in the absence of this provision, the courts had  held  under  the  Code  of  1&98  that  the  provisions regarding maintenance  were independent  of the personal law governing the  parties. The  induction of  the definition of ’wife, so  as to include a divorced woman lends even greater weight to that (1) 1964 (2) SCR 73, 84. (2) 1970 (l) S CR 565. 856 conclusion. ’Wife’  means a wife as defined, irrespective of the religion professed by her or by her husband. Therefor, a divorced Muslim  woman, so long as she has not remarried, is a ’wife’ for the purpose of section 125. The statutory right available to  her under  that section  is unaffected  by the provisions of the personal law applicable to her.      The conclusion  that the right conferred by section 125 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 the  Code. 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 not with standing the  offer of  the husband, if he is satisfied that there is  a just ground for passing such an order. According to the Explanation to the proviso:           "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."      It is too well-known that "A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife  when he  has already  four, the  marriage is not void, but merely irregular". (See Mulla’s Mahomedan Law,18th Edition, paragraph   25S, page 285, quoting Baillie’s Digest of Moohummudan  Law; and  Ameer  Ali’s  Mahomedan  Law,  5th Edition, Vol.  II, page  280). The  explanation confers upon the wife  the right to refuse to live with her husband if he contracts  another  marriage,  leave  alone  3  or  4  other marriages.  It   shows,  unmistakably,   that  section   125 overrides the personal law, if is any there conflict between the two.      The whole  of this  discussion as  to whether the right conferred by  section 125  prevails over the personal law of the parties, has proceeded on the assumption that there is a conflict between the provisions of that section and those of the Muslim  Personal Law.   The  argument that  by reason of section 2 of the Shariat Act, 857 XXVI of  1937, the  rule of  decision in  matters  relating, inter alia,  to maintenance  "shall be  the Muslim  Personal Law" also  proceeds upon  a similar  assumption. We embarked upon the  decision of  the question  of priority between the Code and  the Muslim  Personal Law  on the  assumption  that there was  a conflict  between the two because, in so far as it lies  in our  power, we  wanted to  set at rest, once for all, the question whether section 125 would prevail over the personal law  of the  parties, in  cases where  they are  in conflict.      The next  logical  step  to  take  is  to  examine  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 18  

question, on  which considerable  argument has been advanced before  us,  whether  there  is  any  conflict  between  the provisions of  section 125  and those of the Muslim Personal Law on  the liability  of the  Muslim husband to provide for the maintenance of his divorced wife.      The contention  of the  husband and  of the interveners who support  him is that, under the Muslim Personal Law, the liability of  the husband  to maintain  a divorced  wife  is limited  to   the  period  of  iddat.  In  support  of  this proposition, they  rely upon  the statement  of law  on  the point contained  in certain text books. In Mulla’s Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the  effect that, "After divorce, the wife is entitled to maintenance during  the period  of iddat".  At page 302, the learned author says: -           ’Where an  order is  made for the maintenance of a      wife under  section 488  of the Criminal Procedure Code      and the  wife is  afterwards divorced, the order ceases      to operate  on the  expiration of  the period of iddat.      The result is that a Mahomedan may defeat an order made      against him  under section  488 by  divorcing his  wife      immediately after  the order is made. His obligation to      maintain his  wife will  cease  in  that  case  on  the      completion of her iddat,"      Tyabji’s Muslim  law (4th Edition, para 304, pages 268- 269). contains the statement that:           "On the  expiration of  the iddat after talaq, the      wife’s right  to maintenance  ceases, whether  based on      the Muslim 858      Law, or on an order under the Criminal Procedure Code-" According to Dr Paras Diwan:           "When a  marriage is dissolved by divorce the wife      is  entitled   to  maintenance  during  the  period  of      iddat.... On the expiration of the period of iddat, the      wife is  not entitled  to  any  maintenance  under  any      circumstances.  Muslim   Law  does  not  recognise  any      obligation on the part of a man to maintain a wife whom      he had divorced."      (Muslim Law in Modern India, 1982 Edition, page 130)      These   statements in  the text  book are inadequate to establish the  proposition that  the Muslim  husband is  not under an  obligation to  provide for  the maintenance of his divorced wife,  who is  unable to maintain herself. One must have regard  to the entire conspectus of the Muslim Personal Law in  order to  determine the extent both,  in quantum and induration, of  the husband’s  liability to  provide for the maintenance of  an indigent  wife who  has been  divorced by him. Under that law, the husband is bound to pay Mahr to the wife as  a mark  of respect to her. True, that he may settle any amount  he likes  by way  of dower  upon his wife, which cannot be  less than  10 Dir   hams,  which is equivalent to three or  four  rupees (Mulla’s Mahomedan Law, 18th Edition, para 286,  page 308).  But, one  must  have  regard  to  the realities of life Mahr is a mark of respect to the wife. The sum settled  by way  of Mahr  is generally  expected to take care of  the ordinary  requirements of  the wife, during the marriage and  after. But  these  provisions  of  the  Muslim Personal Law  do not  countenance cases in which the wife is unable to maintain herself after the divorce. We consider it not only  incorrect but  unjust, to  extend the scope of the statements extracted above to cases in which a divorced wife is unable  to maintain  herself. We  are of the opinton that the  application   of  those   statements  of  law  must  be restricted to  that class  of cases,  in which  there is  no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 18  

possibility of  vagrancy or  destitution arising  out of the indigence of  the divorced  wife. We  are not concerned here with the  broad and  general question  whether a  husband is liable to maintain his wife, which includes a divorced wife, in all  circumstances and  at all  events. That  is not  the subject matter of section 125. That section deals with cases in which,  a person  who is  possessed of  sufficient  means neglects or  refuses to   maintain, amongst others, his wife who is unable to maintain 859 herself. Since  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, it would be wrong to hold that the Muslim husband, according to his personal  law, is  not under  all obligation  to provide maintenance, beyond  the period  of iddat,  to his  divorced wife who  is unable to maintain herself. The argument of the appellant that,  according to  the Muslim  Personal Law, his liability to  provide for  the maintenance  of his  divorced wife is limited to the period of iddat, despite the fact she is unable to maintain herself, has therefore to be rejected. 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 the Code. The outcome of  this discussion  is that  there is  no  conflict between the  provisions of  section 125  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.      There can be no greater authority on this question than the Holy  Quran, "The  Quran,  the  Sacred  Book  of  Islam, comprises in  its  114  Suras  or  chapters,  the  total  of revelations believed  to have  been communicated  to Prophet Muhammed, as  a final expression of God’s will". (The Quran- Interpreted by  Arthur J.  Arberry). Verses (Aiyats) 241 and 242 . of the Quran show that according to the Prophet, there is an  obligation on  Muslim husbands  to provide  for their divorced wives. The Arabic version of those Aiyats and their English translation are reproduced below: Arabic version                          English version Ayat No. 241                            For divorced women WA LIL  MOTALLAQATAY                     Maintenance (should be MATA UN                                 Provided) BIL MAAROOFAY                                On a reasonable (Scale) HAQQAN                                  This is a duty ALAL  MUTTAQEENA                        On the righteous. Ayat No. 242 KAZALEKA YUBAIYYANULLAHO                Thus doth God 860 LAKUM AYATEHEE LA ALLAKUM               Make clear His Signs       TAQELOON                              To you: in order that                                         ye may understand.        (See ’The Holy Quran’ by Yusuf Ali, Page 96).      The correctness  of the  translation of these Aiyats is not in  dispute except that, the contention of the appellant is that  the word  ’Mata’ in Aiyat No. 241 means ’provision’ and not  ’maintenance’. That  is  a  distinction  without  a difference. Nor  are we  impressed by  the shuffling plea of the All  India Muslim Personal Law Board that, in Aiyat 241,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 18  

the exhortation  is to  the’ Mutta  Queena’, that is, to the more pious  and the more God-fearing, not to the general run of the  Muslims, the  ’Muslminin’. In  Aiyat 242,  the Quran says: "It is expected that you will use your commonsense".      The English  version of  the  two  Aiyats  in  Muhammad Zafrullah Khan’s ’The Quran’ (page 38) reads thus:           "For divorced  women also there shall be provision      according to  what  is  fair.  This  is  an  obligation      binding on  the righteous.  Thus does  Allah  make  His      commandments clear to you that you may understand."      The translation of Aiyats 240 to 242 in ’The Meaning of the Quran’  (Vol. I,  published  by  the  Board  of  Islamic Publications, Delhi) reads thus .      "240-241.           Those of you, who shall die and leave wives behind      them, should make a will to the effect that they should      be provided with a year’s maintenance and should not be      turned out  of their  homes. But  if they  leave  their      homes of  their own accord, you shall not be answerable      for whatever  they choose for themselves in a fair way;      Allah is All Powerful, All-wise. Likewise, the divorced      women should also be given something in accordance with      the known fair standard. This is an obligation upon the      God-fearing people. 861      242. A           Thus Allah makes clear His commandments for you:      It is expected that you will use your commonsense."           In "The  Running Commentary  of  The  Holy  Quran"      (1964 Edition)  by Dr.  Allamah  Khadim  Rahmani  Nuri,      Aiyat No. 241 is translated thus:      "241           And for  the divorced  woman  (also)  a  provision      (should be  made) with  fairness (in  addition  to  her      dower); (This is) a duty (incumbent) on the reverent."      In  "The  Meaning  of  the  Glorious  Quran,  Text  and Explanatory  Translation",   by  Marmaduke  Pickthall,  (Taj Company Ltd.,karachi), Aiyat 241 is translated thus:      ’-241.           For divorced women a provision in kindness: A duty      for those who ward off (evil)."      Finally,  in  "The  Quran  Interpreted"  by  Arthur  J. Arberry. Aiyat 241 is translated thus:      "241.           There  shall   be  for  divorced  women  provision      honourable-an obligation on the god fearing."           So God  makes clear His signs for you: Happily you      will understand."      Dr. K.R.  Nuri in  his book  quoted above: ’The Running Commentary of the Holy Quran", says in the preface:           "Belief in  Islam does not mean mere confession of      the  existence   of  something.  It  really  means  the      translation of 862      the faith  into action.  Words without  deeds carry  no      meaning in  Islam. Therefore  the term  "believe and do      good" has  been used  like a phrase all over the Quran.      Belief in something means that man should inculcate the      qualities or  carry out  the promptings  or guidance of      that thing  in his  action. Belief  in Allah means that      besides acknowledging  the existence  of the  Author of      the  Universe,   we  are   to  show  obedience  to  His      commandments..."      These Aiyats  leave no  doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 18  

provide maintenance  to  the  divorced  wife.  The  contrary argument does  less than  justice to  the  teaching  of  the Quran.  As   observed  by   Mr.  M.   Hidayatullah  in   his introduction to  Mulla’s Mahomedan  Law, the  Quran  is  Al- furqan’ that  is one  showing truth from falsehood and right from wrong.      The second  plank of  the appellant’s  argument is that the respondent’s  application under section 125 is liable to be dismissed  be cause of the provision contained in section 127 (3)  (b). That section provides, to the extent material, that the  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". That raises  the question  as to  whether, under  the Muslim Personal law,  any sum  is payable to the wife ’on divorce’. We do  not have  to grope  in the  dark and  speculate as to which kind  of a  sum this can be because, the only argument advanced before  us on  behalf of  the appellant  and by the interveners supporting  him, is  that  Mahr  is  the  amount payable by  the husband  to the  wife on divorce. We find it impossible to accept this argument.      In Mulla’s  principles of  Mahomedan Law (18th Edition, page 308),  Mahr or  Dower is defined in paragraph 285 as "a sum of money or other property which the wife is entitled to receive from  the husband in consideration of the marriage." Dr. Paras  Diwan in  his book,  "Muslim Law in Modern India" (1982 Edition,  page 60),  criticises this definition on the ground  that  Mahr  is  not  payable  "in  consideration  of marriage" but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the 863 fact that  non-specification of Mahr at the time of marriage does not  affect the  validity of  the marriage. We need not enter into  this controversy and indeed, Mulla‘s book itself contains the  further statement  at page  308 that  the word ’consideration’ is not used in the sense in which it is used in the Contract Act and that under the Mohammedan Law, Dower is an  obligation imposed  upon the  husband as  a  mark  of respect for  the wife.  We are  concerned to find is whether Mahr is  an amount  payable by  the husband  to the  wife on divorce. Some  confusion is  caused by  the fact that, 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 tact that deferred Mahr is payable at the  time of  the dissolution of marriage, cannot justify the  conclusion  that  it  is  payable  ’on  divorce’.  Even assuming that, in a given case, the entire amount of Mahr is of the  deferred  variety  payable  on  the  dissolution  of marriage by  divorce, it cannot be said that it is an amount which is  payable on divorce. Divorce may be a convenient or identifiable point  of time at which the deferred amount has to be  paid by  the husband to the wife. But, the payment of the amount  is not  occasioned by the divorce, which is what is meant  by the  expression ’on  divorce’, which  occurs in section 127  (3) (b) of the Code. If Mahr is an amount which the  wife  is  entitled  to  receive  from  the  husband  hl consideration of  the marriage, that is the very opposite of the  amount  being  payable  in  consideration  of  divorce. Divorce dissolves the Marriage. Therefore no amount which is payable in  consideration of  the marriage  can possibly  be described as  an amount payable in consideration of divorce. The alternative  premise that  Mahr is an obligation imposed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 18  

upon the  husband as  a mark  of respect  for the  wife,  is wholly detrimental  to the  stance  that  it  is  an  amount payable to  the wife  on divorce.A man may marry a woman for love, looks,  learning or nothing at all. And. he may settle a sum upon her as a mark of respect for her. But he does not divorce her  as a  mark of respect. Therefore, a sum payable to the  wife out  of respect  cannot be  a sum  payable  ’on divorce’.      In  an  appeal  from  a  Full  Bench  decision  of  the Allahabad High  Court, the  Privy Council  in Hamira Bibi v. Zubaide Bibi(1) sum- (1) 43 1. A. 294. 864 med up the nature and character of Mahr in these words:           "Dower is  an essential  incident under the Muslim      Law to  the status  of marriage; to such an extent that      is so  that when  it is  unspecified at  the  time  the      marriage is  contracted, the  law declares that it must      be adjudged  on  definite  principles.  Regarded  as  a      consideration for  the  marriage,  it  is,  in  theory,      payable before  consummation; but  the law  allows  its      division  into  two  parts,  one  of  which  is  called      "prompt" payable  before the wife can be called upon to      enter the  conjugal domicil;  the  other  "  deferred",      payable on the dissolution of the contract by the death      of either of the parties or by divorce." (p. 300-301)      This statement  of law  was adopted in another decision of the  Privy  Council  in  Syed  Sabir  Husain  v.  Farzand Hasan.(1) It is not quite appropriate and seems invidious to describe any particular Bench of a court as "strong" but, we cannot resist  the temptation  of mentioning  that Mr.  Syed Ameer Ali  was a  party to the decision in Hamira Bibi while Sir Shadi  Lal was  a party  to the  decision in  Syed Sabir Husain. These  decisions show  that the payment of dower may be deferred  to a  future date  as, for  example,  death  or divorce. But,  that does  not mean  that the  payment of the deferred dower is occasioned by these events.      It is  contended on  behalf of  the appellant  that the proceedings of  the Rajya  Sabha  dated  December  18,  1973 (volume 86, column 186), when the bill which led to the Code of 1973  was on  the anvil, would show that the intention of the Parliament  was to  leave the  provisions of  the Muslim Personal Law  untouched. In  this behalf, reliance is placed on the  following statement  made by  Shri Ram Niwas Mirdha, the then Minister of State, Home Affairs:           "Dr. Vyas very learnedly made certain observations      that a  divorced wife  under the Muslim law deserves to      be treated  justly and  she  should  get  what  is  her      equitable or  legal due. Well, I will not go into this,      but say  that we  would not  like to interfere with the      customary law  of  the  Muslims  through  the  Criminal      Procedure Code. If there is (1) 65 I.A. 119, 127 865      a demand  for change  in the  Muslim Personal  Law,  it      should actually  come from  the Muslim Community itself      and we  should wait  for the  Muslim public  opinion on      these matters  to crystalise  before we  try to  change      this customary  right or make changes in their personal      law. Above  all, this  is hardly,  the place  where  we      could do  so. But  as I tried to explain, the provision      in the  Bill is an advance over the previous situation.      Divorced women  have been  included and  brought within      the admit  of clause  125, but  a limitation  is  being      imposed by  this amendment  to clause 127, namely, that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 18  

    the maintenance  orders would  ceases to  operate after      the amounts  due to her under the personal law are paid      to her.  This is a healthy compromise between wh lt has      been termed  a conservative  interpretation of law or a      concession to  conservative public  opinion and liberal      approach to  the problem.  We have  made an advance and      not tried to transgress what are the personal rights of      Muslim women.  So this,  I think,  should satisfy  Hon.      Members that  whatever advance  we have  made is in the      right direction and it should be welcomed."      lt does appear from this speech that the Government did not desire  to interfere with the personal law of the Muslim through the  Criminal Procedure  Code. It  wanted the Muslim community to  take the lead and the Muslim public opinion to crystalise on the reforms in their personal law. However, we do not  concerned with  the question  whether the Government did   not desire  to  bring  about  changes  in  the  Muslim Personal Law  by enacting  sections 125 and 127 of the Code. As we  have said  earlier and,  as admitted by the Minister, the Government  did introduce  such a change by defining the expression ’wife’  to  include  a  divorced  wife.  It  also introduced another  significant change by providing that the fact that  the husband  has contracted marriage with another woman is  a just  ground for the wife’s refusal to live with him. The provision contained in section 127 (3) (b) may have been introduces  because of  the misconception that dower is an amount  payable "on divorce". But, that cannot convert an amount payable  as a  mark of  respect for  the wife into an amount payable on divorce.      It must  follow from  this  discussion,  unavoidably  a little too  long, that  the judgments  of this  Court in Bai Tahira (Krishna 866 Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (Krishna Iyer, J.,)  one of  us, Chinnappa Reddy J. and A. P. Sen J.) are correct. Justice Krishna Iyer who spoke for the Court in both these  cases, relied  greatly on  the teleological  and schematic method  of interpretation  so as  to  advance  the purpose of  the law.  These constructional  techniques  have their own importance in the interpretation of statutes meant to ameliorate  the conditions  of suffering  sections of the society. We  have attempted to show that taking the language of the  statute as one finds it, there is no escape from the conclusion that  a divorced Muslim wife is entitled to apply for maintenance  under section  125 and  that, Mahr is not a sum which,  under the  Muslim Personal  Law, is  payable  on divorce.      Though Bai Tahira was correctly decided, we would like, respectfully, to  draw attention to an error which has crept in the  judgement There  is a  statement at  page 80  of the report, in the context of section 127 (3) (b), that "payment of Mahr  money, as  a customary  discharge,  is  within  the cognizance of  that provision".  We have taken the view that Mahr, not being payable on divorce, does not fall within the meaning of that provision.      It is  a  matter  of  deep  regret  that  some  of  the interveners who  supported the appellant, took up an extreme position by  displaying an  unwarranted zeal  to defeat  the right to  maintenance of  women who  are unable  to maintain themselves. The  written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is  irrelevant to  inquire as  to how  a  Muslim  divorce should maintain  herself. The  facile answer of the Board is (that the  Personal Law  has devised  the system  of Mahr to meet the  requirements of  women and if a woman is indigent,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 18  

she  must  look  to  her  relations,  including  nephew  and cousins, to support her. This is a most unreasonable view of law as well as life. We appreciate that Begum Temur Jehan, a social worker  who has  been working in association with the Delhi City  Women’s Association  for the  uplift  of  Muslim women, intervened  to support Mr. Daniel Latifi who appeared on behalf of the wife      It is  also a  matter of  regret that Article 44 of our Constitution has  remained a  dead letter.  It provides that "The State  shall endeavour  to secure  for the  citizens  a uniform civil code throughout the territory of India". There is no evidence of any official activity for 867 framing a  common civil  code for the country.A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law.A common  Civil   Code  will   help  the   cause  of  national integration by  removing disparate  loyalties to  laws which have conflicting  ideologies. No community is likely to bell the cat  by making  gratuitous concessions on this issue. It is the  State which  is charged  with the duty of securing a uniform civil  code for  the citizens  of the  country  and, unquestionably, it has the legislative competence to do so.A counsel  in  the  case  whispered,  somewhat  audibly,  that legislative competence  is one  thing, the political courage to use  that competence  is quite another. We understand the difficulties  involved  in  bringing  persons  of  different faiths and persuasions on a common platform But, a beginning has to  be made  if the Constitution is to have any meaning. Inevitably, the  role of  the reformer  has to be assumed by the courts  because, it is beyond the endurance of sensitive minds to  allow injustice  to be  suffered  when  it  is  so palpable. But piecemeal attempts of courts to bridge the gap between personal  Laws cannot  take the  place of  a  common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.      Dr. Tahir  Mahmood in  his book  ’Muslim Personal  Law’ (1977 Edition,  pages 200-202), has made a powerful plea for framing a  uniform Civil  Code for all citizens of India. He says: "In  pursuance of  the goal  of secularism,  the State must stop  administering religion  based personal  laws". He wants the  lead to  come from the majority community but, we should have  thought that,  lead or  no lead, the State must act. It  would be  useful to  quote the  appeal made  by the author to the Muslim community:      "Instead  of   wasting  their   energies  in   exerting      theological and  political pressure  in order to secure      an "immunity"  for their  traditional personal law from      the state‘ legislative jurisdiction, the Muslim will do      well to  begin exploring and demonstrating how the true      Islamic   laws,   purged   of   their   time-worn   and      anachronistic interpretations,  can enrich  the  common      civil code of India."      At a  Seminar  held  on  October  18,  1980  under  the auspices of  the Department  of Islamic and Comparative Law, Indian Institute  of Islamic Studies New Delhi? he also made an appeal to the 868 Muslim community  to display  by  their  conduct  a  correct understanding of  Islamic concepts  on marriage  and divorce (See Islam  and Comparative Law Quarterly, April-June, 1981, page 146).      Before we  conclude, we would like to draw attention to the Report  of the  Commission on  marriage and Family Laws, which was  appointed by  the Government  of  Pakistan  by  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 18  

Resolution  dated   August  4,   1955.  The  answer  of  the Commission to  Question No.5  (page 1215  of the  Report) is that           "a large number of middle-aged women who are being      divorced without  rhyme or  reason should not be thrown      on the  streets without  a roof  over their  heads  and      without any  means of  sustaining themselves  and their      children."           The Report concludes thus:           "In the words of Allama Iqbal, "the question which      is likely  to confront  Muslim countries  in  the  near      future, is  whether the  law of  Islam  is  capable  of      evolution-a   question   which   will   require   great      intellectual effort,  and is sure to he answered in the      affirmative "      For these  reasons, we  dismiss the  appeal and confirm the judgment  of the  High Court. The appellant will pay the costs of  the appeal  to respondent  1, which we quantify at rupees ten  thousand. It is needless to add that it would be open to  the respondent to make an application under section 127  (1)  of  the  Code  for  increasing  the  allowance  of maintenance granted  to her  on proof  of a  change  in  the circumstances as envisaged by that section. S.R.                                       .Appeal dismissed 869