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PETITIONER: MST. ZOHARA KHATOON

       Vs.

RESPONDENT: MOHD. IBRAHIM

DATE OF JUDGMENT18/02/1981

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KOSHAL, A.D. VARADARAJAN, A. (J)

CITATION:  1981 AIR 1243            1981 SCR  (2) 910  1981 SCC  (2) 509        1981 SCALE  (1)370  CITATOR INFO :  F          1966 SC 587  (2,3)

ACT:      Criminal  Procedure   Code,   1973,   Section   125(1), Explanation  (b)-Whether   Magistrate  competent   to  award maintenance if under the personal law of the Mohomedans, the wife obtained  a valid  divorce and had completed the period of Iddat-"wife"  whether  includes  a  woman  who  has  been divorced by,  or has obtained a divorce from her husband and has not remarried.

HEADNOTE:      The appellant  was the  legally  married  wife  of  the respondent. As  he willfully  neglected her,  she  filed  an application before  the  Magistrate  for  maintenance  under Section 125  of the  Code of  Criminal Procedure  1973.  The Magistrate accepted the allegation of the appellant that she had been  neglected by  the respondent without reasonable or probable cause  and awarded  maintenance at  Rs.  100/-  per month for the appellant and the minor child.      The High  Court held that clause (b) of the explanation to Section  125(1) of  the Code  had no  application to  the facts of  the case  and that  so far  as the  appellant  was concerned, she  was not  entitled  to  any  maintenance.  It however affirmed the order of the Magistrate fixing Rs. 40/- per month as maintenance for her minor son.      In the  appeal, it was contended that the view taken by the High  Court is  legally erroneous  and is based on wrong interpretation of  clause (b)  of the explanation to Section 125(1) of the Code.      Accepting the Appeal, (Per Fazal Ali & Vardarajan, JJ.) ^      HELD: 1. In the instant case Section 127 does not apply at all  because the respondent has not filed any application for cancellation of the maintenance on the grounds mentioned in Section  127(3)(b) of  the 1973  Code but  this  case  is squarely covered  by Clause  (b) of  the Explanation  to  S. 125(i) of  that Code  as a  result of which the appellant in the eye  of law  continues to be the wife of the respondent, despite the  decree for dissolution of marriage. [925 H, 926

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A-B]      2. It  is clear  that the 1898 Code by virtue of S. 488 provided  a  summary  remedy  for  awarding  maintenance  to neglected wives  irrespective of the caste, creed, community or religion  to which  they belonged.  Sections 488  and 489 were the  corresponding provisions  of the  1898 Code  which were couched  almost in the same language as ss. 125 and 127 of the  1973 Code  having some important additions that have been made  under the  1973 Code. A provision like clause (b) of the  Explanation to  S.  125(1)  of  the  1973  Code  was conspicuously absent  in s. 488 of the old Code and has been added by the 1973 Code. [914 H, 915 A, D, 917 C-D] 911      Nanak Chand  v. Shri  Chandra Kishore  Agarwala &  Ors. [1970] 1  SCR 565,  Ram Singh  v. State & Anr. AIR 1963 All. 355,  Nalini   Ranjan  Chakravarty   v.  Smt.   Kiran   Rani Chakravarty AIR 1965 Pat. 442, Mahabir Agarwalla v. Gita Roy [1962] 2 Cr. L.J. 528, referred to.      3. The  Mohomedan Law  on the  subject was that where a woman governed by the Mohomedan Law was awarded maintenance, the same  would cease  from the date of divorce given by the husband and the completion of the period of Iddat. [917 G-H]      In re  Shekhanmian AIR  1930 Bombay  178, Syed  Said v. Meera Bee  20 M.L.J.  12, Mohamed Rahimullah & Anr. AIR 1947 Madras 416,  Aahimunnissa &  Ors. v.  Mohd. Ismail  AIR 1956 Hyderabad 14, Din Mohmmad’s V.I.L.R. 1883 226, referred to.      4. Although  a Mohomedan wife had a right to be awarded maintenance by  the Magistrate under s. 488 of the old Code, the said  right ceased  to exist  if she was divorced by her husband and  had observed  the period of Iddat. This was the undoubted position  of law under the 1898 Code as amended by the 1955 Amending Act. [920 A-B]      5. Clause  (b) has  made a  distinct departure from the earlier Code  in that  it has widened the definition of wife and, to  some extent,  over-ruled the  personal law  of  the parties so  far as proceedings for maintenance under Section 125 are  concerned. Under  Clause (b), the wife continued to be a  wife within  the meaning of the provisions of the Code even though  she has  been divorced  by her  husband or  has otherwise obtained  a divorce  and  has  not  remarried.  It follows, therefore,  that the  divorce  resulting  from  the aforesaid dissolution  of  the  marriage  is  also  a  legal divorce under  the Mohomedan  Law by  virtue of  the statute (1939 Act). [920 E-F, 921 B]      6. Under  the  Mohomedan  Law  the  commonest  form  of divorce is a unilateral pronouncement of divorce of the wife by the  husband according to the various forms recognised by the law.  A divorce  given unilaterally  by the  husband  is especially peculiar  to Mohomedan  Law. In  no other law has the husband  got a unilateral right to divorce his wife by a simple declaration  because other  laws, viz., the Hindu Law or the  Parsi Marriage  and Divorce  Act, 1936,  contemplate only a  dissolution of  marriage on  certain grounds brought about by one of the spouses in a court of law. [921 C-D]      7. A  wife thus had a statutory right to obtain divorce from the  husband through  the court on proof of the grounds mentioned in  the Act.  The Act  provided for  the  wife  an independent remedy which could be resorted to by her without being  subjected  to  a  pronouncement  of  divorce  by  the husband. It  is, therefore,  in the  background of  this Act that the  words ’has obtained a divorce from her husband’ in clause (b) of the Explanation have to be construed. Thus the High Court in considering the effect of these words seems to have over looked the dominant object of the statutory remedy that was made available to the wife under the Act of 1939 by

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which the  wife  could  get  a  decree  for  dissolution  of marriage on  the  grounds  mentioned  in  the  1939  Act  by petitioning the  civil court  without any  overt act  on the part of  the husband  in divorcing  her. The High Court also failed to consider the legal consequences flowing from the 912 decree passed  by the Court dissolving the marriage, viz., a legal divorce under the Mohomedan law. [922 D-F]      8. The  interpretation put  by the  High Court  on  the second limb  of clause  (b) is not correct. This seems to be borne out  from the  provisions of  Mohomedan law itself. It would appear  that under  the Mohomedan  law there are three distinct modes  in which  a Muslim marriage can be dissolved and the  relationship of  the husband and wife terminated so as to result in an irrevocable divorce. [922 F-G]      9. It  is,  therefore,  manifest  that  clause  (b)  of Explanation to S. 125 envisages all the three modes, whether a wife  is divorced  unilaterally by  the husband or whether she obtains  divorce under  the mode  numbers 2  and 3,  she continues  to   be  a   wife  for  the  purpose  of  getting maintenance  under  S.  125  of  the  1973  Code.  In  these circumstances the  High Court  was not  at all  justified in taking the  two separate clauses ’who has been divorced’ and ’had obtained  a divorce  from her husband’ conjunctively so as to indicate a divorce proceeding from the husband and the husband alone  and in not treating a dissolution of marriage under the 1939 Act as a legal divorce. [924 B-D]      10.  A   clear  distinction   has  been   made  between dissolution of  marriage brought  about by  the  husband  in exercising his  unilateral right  to divorce  and the act of the wife  in obtaining  a  decree  for  dissolution  of  the marriage from a civil court under the Act of 1939. [925 E-F]      11. The  two limbs  of clause (b) of the Explanation to S. 125(1) have separate and different legal incidents-one is reflected in clause (b) of sub-Section (3) of S. 127 and the other in clause (c) of sub-section (3) of S. 127. [925 G-H] (Per A. D. Koshal, J. concurring)      1. The  word ’divorce’  is not  defined in  the Code of Criminal Procedure  and  may  legitimately  be  regarded  as having been  used in  clause (b) of sub-section 1 of Section 125 in  the  dictionary  sense.  As  ordinarily  understood, ’divorce’ is  nothing more  nor less  than another  name for dissolution of  marriage, whether  the same  result from the act of parties or is a consequence of proceedings at law. It would be  wrong to regard the two terms as not be synonymous with each other, unless the legislature makes a direction to the contrary. [927A, C-D]      2. According  to Section  125 of  the Code  of Criminal Procedure, a  full-fledged wife  is entitled to maintenance. By reason  of clause (b) even a divorced wife has that right provided  that  she  has  not  re-married.  If  that  clause envisaged only  divorce by  voluntary action of the husband, the second  limb of the clause which makes the definition of ’wife’ inclusive of a woman who has ’obtained a divorce from the husband’ would be rendered otiose. The word obtained may well be  used in  the sense  of ’procured  with effort’  and would  certainly   describe  correctly   a  situation  where something is  achieved by  a person  through his exertion in spite of opposition from others. [928 E, F-G]      3. Divorce by the Act of the husband, is not recognised by any  system of  law except  that applicable  to  Muslims. Members of the other main communities inhabiting India, i.e. Hindus,  Sikhs,  Buddhists,  Jains,  Christians,  etc.  have perforce to  go to  courts in  order to  obtain divorce.  If clause (b) was intended to

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913 embrace only  cases of  divorce brought  about by the Act of the husband,  its applicability  would be  limited,  by  and large, only to Muslims, which per se appears to be an absurd proposition. [929 C-D]      4. The  expression ’a  woman who has obtained a divorce from  her  husband’  has  therefore  to  be  interpreted  as including  a   wife  who   has  been  granted  a  decree  of dissolution of marriage by the Court. [929 E]      Deacock v. Deacock [1958] 2 All E.R. 633 referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 761 of 1980.      Appeal by  Special Leave  from the  Judgment and  Order dated 20-10-1978  of the  Allahabad High  Court in  Criminal Misc. Case No. 822 of 1978.      Jagdish Kumar Aggarwal for the Appellant.      Nemo for the Respondent.      The Judgment  of Murtaza  Fazal Ali  & A. Vardarajan JJ was delivered  by Fazal  Ali, J.,  A. D.  Koshal, J.  gave a concurring Opinion.      FAZAL ALI,  J.-This appeal by special leave is directed against a  judgment dated  October 20, 1978 of the Allahabad High Court  (Lucknow Bench) by which a revision filed by the respondent for  setting aside an order of maintenance passed by the  trial Magistrate was accepted and the said order was quashed.      The facts of the appeal lie within a narrow compass but the  case   involves  a   substantial   question   of   law. Unfortunately, as  the respondent  did  not  appear  despite service, we  had to  rely mainly  on the  arguments  of  the learned counsel  for the  appellant and had also to consider various aspects  that could be stressed by the respondent if he had  appeared. The  appellant, Mst. Zohara Khatoon, was a legally married wife of Mohd. Ibrahim. As Mohd. Ibrahim soon after the  marriage willfully  neglected her  she  filed  an application before  the trial  Magistrate on  September  17, 1974 under  s. 125  of the  Code of  Criminal Procedure 1973 (hereinafter referred to as the ’1973 Code’) in order to fix maintenance for  her and her minor son. The Special Judicial Magistrate, Barabanki  (U.P.), after  hearing  the  parties, allowed the application by his order dated December 29, 1976 and fixed  the maintenance at Rs. 100/- (Rupees one hundred) per month  both for  the wife  and the child. The Magistrate also accepted  the allegation  of the appellant that she had been neglected by the husband without reasonable or probable cause. The  order  of  the  Magistrate  was  upheld  by  the Sessions Judge in revision. 914      Before the Magistrate, the respondent-husband had taken the defence  that as  the appellant  had brought  a suit for dissolution of marriage on the ground of cruelty and willful neglect which  was decreed  by the  civil court on 15-1-1973 and she  was living separately, she ceased to be the wife of the  respondent   and  was,   therefor,  not   entitled   to maintenance under  s. 125  or  s.  127  of  the  1973  Code. Ultimately, the husband moved the High Court under s. 482 of the 1973 Code for quashing the order of the Magistrate as it was vitiated by an error of law.      In the  High Court,  the argument  of the appellant was that in  view of  clause (b) of the Explanation to s. 125(1) of the  1973 Code,  she continued  to be  the  wife  despite

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obtaining a  decree for dissolution of marriage and thus her right to  maintenance would  not be  affected by  the decree passed by  the civil court. The High Court after hearing the parties was  of the  view that clause (b) of the Explanation referred to  above would apply only if the divorce proceeded from the  husband, that is to say, the said clause would not apply unless  the divorce  was  given  unilaterally  by  the husband or  was obtained  by the  wife from  the husband. In other words,  the High Court thought that as, in the instant case, the  dissolution of  marriage was brought about by the wife under  the Dissolution  of Muslim  Marriages Act,  1939 (hereinafter referred to as the ’1939 Act’) the decree under the said  Act did  not amount  to a  divorce by  the husband because the marriage was dissolved by operation of law only. Hence clause  (b) of  the Explanation  to s.  125(1) had  no application and  the  appellant  was  not  entitled  to  any maintenance under s. 125 of the 1973 Code, so far as she was concerned. The  High Court, however, maintained the order of the Magistrate  so far  as the  minor son  was concerned and fixed his maintenance at Rs. 40/- per month.      The learned  counsel for the appellant submitted before us that  the  view  taken  by  the  High  Court  is  legally erroneous and  is based  on a wrong interpretation of clause (b) of  the Explanation to s. 125(1) of the 1973 Code. After having gone through the various provisions of the 1973 Code, particularly ss.  125 and  127 we  are  satisfied  that  the contentions raised by the counsel for the appellant are well founded and must prevail.      In order  to decide  the issue  in question  it may  be necessary to  give  a  brief  survey  of  the  corresponding provisions  of   the  Code   of  Criminal   Procedure,  1898 (hereinafter referred  to as  the ’1898  Code’) to  show the nature and  ambit of the provisions relating to the award of maintenance. Sections  488 and  489 were  the  corresponding provisions of the 1898 Code which were couched almost in the same language as 915 ss. 125  and 127  of the  1973  Code  minus  some  important additions that  have been  made under  the  1973  Code.  The relevant portion of s. 488 of the 1898 Code may be extracted thus:-           "If any person having sufficient means neglects or      refuses to  maintain his  wife  or  his  legitimate  or      illegitimate  child  unable  to  maintain  itself,  the      District Magistrate,  a Presidency  Magistrate, a  Sub-      Divisional Magistrate  or a  Magistrate  of  the  first      class may, upon proof of such neglect or refusal, order      such  person  to  make  a  monthly  allowance  for  the      maintenance of  his wife or such child, at such monthly      rate, not exceeding (five hundred rupees) in the whole,      as such  Magistrate thinks  fit, and to pay the same to      such  person  as  the  Magistrate  from  time  to  time      directs."      It is not necessary to refer to the other provisions of s. 488  of the said Code as the same are not germane for the purpose of  deciding this  appeal. It may, however, be noted that a  provision like  clause (b)  of the Explanation to s. 125(1) of the 1973 Code was conspicuously absent from s. 488 and has  been added by the 1973 Code. We shall deal with the legal effect  of this provision a little later. A perusal of s.  488   would  clearly   reveal  that  it  carves  out  an independent sphere of its own and is a general law providing a summary  machinery for  determining the  maintenance to be awarded by  the Magistrate under the circumstances mentioned in the  section. The provisions may not be inconsistent with

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other parallel  Acts in  so far as maintenance is concerned, but the  section undoubtedly  excludes to  some  extent  the application of any other Act. At the same time, it cannot be said that  the personal  law of  the parties  is  completely excluded for  all purposes. For instance, where the validity of a  marriage or  mode of  divorce or cessation of marriage under the  personal law  of a  party is concerned that would have to  be determined  according to  the said personal law. Thus, the exclusion by s. 488 extends only to the quantum of the maintenance  and the  circumstances under which it could be granted.  The scope of s. 488 of 1898 Code was considered by this  Court  in  Nanak  Chand  v.  Shri  Chandra  Kishore Agarwala & Ors. where the following observations were made:-           "We are  unable to  see any  inconsistency between      the Maintenance  Act and s. 488 Cr.P.C..... The law was      substantially similar  before and nobody ever suggested      that Hindu  Law, as  in force  immediately  before  the      commencement of  this Act, insofar as it dealt with the      maintenance of  children, was  in any  way inconsistent      with s. 488 Cr. P.C. 916      The scope  of the  two laws  is different.  Section 488      provides a  summary remedy  and is  applicable  to  all      persons  belonging   to  all   religions  and   has  no      relationship with  the personal  law  of  the  parties.      Recently the  question came  be fore the Allahabad High      Court in Ram Singh v. State (AIR 1963 All. 355), before      the Calcutta  High Court  in Mahabir  Agarwalla v. Gita      Roy [1962]  2 Cr.  L.J. 528  and before  the Patna High      Court in  Nalini Ranjan  v. Kiran  Rani (AIR  1965 Pat.      442).  The  three  High  Courts  have,  in  our  views,      correctly come  to the  conclusion that  s. 4(b) of the      Maintenance Act does not repeal or affect in any manner      the provisions contained in s. 488, Cr.P.C."      It would  be seen  that  this  Court  approved  of  the decisions in  the cases  of Ram Singh, Mahabir Agarwalla and Nalini Ranjan mentioned in the observations extracted above. In order  to understand  the proper  scope of  s. 488 of the 1898 Code  which is almost the same as that of s. 125 of the 1973 Code,  it may  be necessary  to examine  the  decisions which were  referred to with approval by this Court in Nanak Chand’s case  (supra). In Ram Singh v. State & Anr., Kailash Prasad, J. observed as follows:-           "There is  nothing  in  the  Hindu  Adoptions  and      Maintenance Act  to suggest  expressly or  by necessary      implication that the Act is intended to be a substitute      for the  provisions of  s. 488  Cr. P.C.  In  fact  the      provisions of sec. 18 of the Act cannot be a substitute      for s.  488 Cr.P.C. The latter provision is general and      is applicable  to a wife, irrespective of her religion,      but the  former is  applicable to  the case  of  Hindus      only. It  could not,  therefore, be  intended to  be  a      substitute for s. 488 Cr. P. C." To the  same effect  is the decision of the Patna High Court in Nalini  Ranjan Chakravarty v. Smt. Kiran Rani Chakravarty where the following observations were made:-           "Before the enactment of 1956, it was well settled      that the  right conferred  by section  488 Cr.P.C.  was      independent of  the personal  law of  the parties.  The      right of maintenance under section 488 was irrespective      of the  nationality or  creed of  the parties, the only      condition precedent  to the  possession of  that  right      being in  the case  of a  wife the  acceptance  of  the      conjugal relation. Further, s. 488 provided for only 917

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    a speedy  remedy  and  a  summary  procedure  before  a      Magistrate against  starvation of  a deserted  wife  or      child. This  section did  not cover the civil liability      of a  husband or  a father  under his  personal law  to      maintain his wife and children."      The Calcutta  High Court  also took  the same  view  in Mahabir  Agarwalla   v.  Gita   Roy  where   the   following observations were made:-           "An  alternative   but  not  inconsistent  summary      remedy was  provided by  section 488  of  the  Code  of      Criminal Procedure  not only  to  the  Hindu  wife  but      generally  to   wives  irrespective   of  religion  for      recovery of  maintenance  from  the  husband.  The  two      remedies were, however, not coextensive."      Thus, on  a consideration  of the authorities mentioned above, it  is clear  that the  1898 Code by virtue of s. 488 provided  a  summary  remedy  for  awarding  maintenance  to neglected wives  irrespective of  caste, creed, community or religion to which they belonged. It was in this context that the Courts  referred to above considered the effect of Hindu Adoption and Maintenance Act and other similar Acts.      This, however,  does not  conclude the controversy. The important  question   still  remains:   Was  the  Magistrate competent to  award maintenance if under the personal law of the Mahomedans  the wife  had been  validly divorced and had completed the  period of Iddat ? In fact, s. 489 of the 1898 Code, as amended by the 1955 Amending Act, had empowered the Magistrate to  make any  alteration in  the payment  of  the maintenance on  proof of  a  change  in  the  circumstances. Similarly, s.  489(2), which  is extracted  below,  provided that  the   Magistrate  could   cancel  the  maintenance  in consequence of a decision of any competent court:           "(2) Where  it appears  to the Magistrate that, in      consequence of any decision of a competent Civil Court,      any order made under Section 488 should be cancelled or      varied, he  shall cancel  the order or, as the case may      be, vary the same accordingly." Thus, considering  the scheme  of ss.  488 and  489  it  was generally accepted  as good  law by all the High Courts that where a  woman governed  by the  Mahomedan law  was  awarded maintenance, the  same would  cease from the date of divorce given by  the husband  and the  completion of  the period of Iddat. That this is the Mahomedan law on 918 the subject admits of no doubt and has not been controverted before us.  We would  however, refer  to a  few decisions on this point to support our point of view.      In  re Shekhanmian while defining the consequences of a divorce and its impact on s. 488 of the 1898 Code a division Bench of the Bombay High Court observed thus:-           "A talak  when it  becomes irrevocable puts an end      to conjugal  relationship which  had subsisted  between      the  parties,  and  the  divorced  wife  would  not  be      entitled to  claim maintenance  from her husband beyond      the period  of iddat  from the date of such irrevocable      divorce.  S.  488  Criminal  P.C.,  has  in  no  manner      abrogated this part of the personal law of the parties.      The existence  of conjugal  relations in  the  case  of      Mahomedans has  to be  determined by  reference to  the      provisions  of   the   Mahomedan   Law   and   not   by      considerations  of   equity  and   good  conscience  as      understood in any other system of law."      To the  same effect  is the decision of the Madras High Court in Syed Said v. Meeram Bee (2) where in division Bench observed thus:

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         "A Magistrate,  however, exercising summary powers      conferred on him by s. 488, Code of Criminal Procedure,      can make or enforce an order to that effect only if the      relationship of  husband and  wife exists  between  the      two, but  in order  to determine this, and only to that      extent, we  must ascertain  the effect in Mahomedan law      of an irreversible divorce on conjugal relations." It was  further held  in that  case that  a divorce  becomes irrevocable after  the wife has observed the period of iddat which is  usually three  months or  if she was pregnant, the date of  delivery so  that she  may be  free to marry again. This view was reiterated by the Madras High Court in a later decision in  In re Mohamed Rahimullah & Anr. (3) where Yahya Ali, J. Observed thus:-           "The foundation upon which Ss. 488 & 489, Criminal      P.C. rest,  so far  as granting  of maintenance  by the      husband  to   the  wife   is  concerned,  is  that  the      relationship of husband and wife subsists between them.      When that  relationship is lawfully dissolved and there      is no marital tie either in reason or upon any canon of      justice or even upon the language of 919      Ss. 488  and 489  how the  husband can  be directed  to      continue to maintain his divorced wife."      The Hyderabad  High Court  also took  the same  view in Rahimunissea &  Ors. v.  Mohd. Ismail  and after considering the entire law on the subject Bilgrami, J. Observed thus:-           All these  grounds can  be sufficient or valid for      refusal of  maintenance to  a wife with whom the tie of      marriage subsists,  but when this tie is dissolved, all      these defences  cannot be  set up  and the right of the      wife  to  maintenance  during  the  "iddat"  period  is      absolute under  the Mahomedan  law; the only obligation      which binds  a wife  during this  period  is  that  she      should not remarry."      In a  very early  case of  the Allahabad High Court-Din Mahommad’s case  (2)- Mahmood, J. pointed out that while the enactment regarding  maintenance was  of  a  general  nature being applicable to Mahomedans as also to Hindus, Buddhists, and other  communities yet the legislature never intended to restrict the  Mahomedan law  of Divorce.  The Judge, further held that  the right  to maintenance came to an end when the conjugal relationship  between  the  husband  and  the  wife ceased to exist. In this connection, Mahmood, J. Observed as follows:           "The enactment  under which  that order  was  made      does not  relate more especially to Muhammadans than to      Hindus,  Buddhists,  Indo-Britons,  Europeans,  or  any      other  branch   of  the   general  community,  and  the      Legislature  could   never  have   intended  by  it  to      interfere  with  or  restrict  the  Muhammadan  law  of      divorce...The whole  of Chapter XLI, Criminal Procedure      Code, so far as it relates to the maintenance of wives,      contemplates the  existence of the conjugal relation as      a condition  precedent to  an order of maintenance and,      on general  principles, it  follows that as soon as the      conjugal relation ceases, the order of maintenance must      also cease  to have any enforceable effect. When and in      what manner  a cessation of the conjugal relation takes      place, is a question which, ex necessitate rei, must be      determined according  to the  personal law to which the      parties   concerned    are   subject...The   right   to      maintenance  conferred   by  s.  536  of  the  Criminal      Procedure  Code   is  a   statutory  right,  which  the      Legislature has  framed irrespective of the nationality

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    or creed  of the  parties, the only condition precedent      to the possession 920      of that  right, in  the  case  of  a  wife,  being  the      existence of the conjugal relation."      Thus, a  review of  the  decisions  referred  to  above clearly reveals  that although  a Mahomedan wife had a right to be  awarded maintenance by the Magistrate under s. 488 of the Code, the said right ceased to exist if she was divorced by her  husband and  had observed  the period of iddat. This was the  undoubted position  of law  under the  1898 Code as amended by the 1955 Amending Act.      The serious question to be determined in this appeal is as to  how far  the 1973  Code has made a distinct departure from the  previous Code  and changed the legal position of a woman after divorce. Section 125 of the 1973 Code is couched almost in  the same  language as  s. 488 of the earlier Code with the  important exception  that an  Explanation has been added after sub-clause (1) of s. 125 which runs thus:           "Explanation-For the purposes of this Chapter.-           (a)  "minor"  means   a  person   who,  under  the                provisions of  the Indian  Majority Act, 1875                is deemed not to have attained his majority;           (b)  "wife includes  a woman who has been divorced                by  or  has  obtained  a  divorce  from,  her                husband and has not remarried."                                          (Emphasis supplied)      We are  however not  concerned with  clause (a)  of the Explanation. Clause  (b) has  made a distinct departure from the earlier  Code in  that it  has widened the definition of wife and,  to some extent, overruled the personal law of the parties so  far as  the proceedings for maintenance under s. 125 are  concerned. Under  clause (b), the wife continues to be a  wife within  the meaning of the provisions of the Code even though  she has  been divorced  by her  husband or  has otherwise obtained  a divorce  and has  not  remarried.  The decision in  this case  turns  upon  the  interpretation  of clause (b).  The High Court has construed the words ’who has been divorced or has obtained a divorce from her husband’ as signifying that  in both cases the divorce must proceed from the husband  and should  be the  act of  the husband and not that of  the wife.  In taking  this  view,  the  High  Court obviously seems  to have  been guided  by the  consideration that a dissolution of marriage brought about at the instance of the  wife under the 1939 Act does not amount to a divorce by the  husband under the Mahomedan law and hence the second limb of  clause (b)  also does not apply. Although there may be some  substance in  the view  taken by the High Court yet what it 921 overlooked was  whereas a  dissolution of marriage under the Hindu Marriage  Act may not necessarily end in a divorce but other consequences such as declaration that the marriage was a nullity,  a decree for judicial separation, etc. but under the 1939  Act when the marriage is dissolved by the Court at the instance  of the  wife, the  only result that follows is that the  wife stands divorced from the husband by operation of law and no other relief can be granted by the court under the 1939  Act after  a decree  for dissolution is passed. It follows, therefore,  that the  divorce  resulting  from  the aforesaid dissolution  of  the  marriage  is  also  a  legal divorce  under   the  Mahomedan   law  by   virtue  of   the statute(1939 Act).  That this  is so  would be manifest from the circumstances which we shall mention hereafter.      There can  be no doubt that under the Mahomedan law the

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commonest form  of divorce  is a  unilateral declaration  of pronouncement  of   divorce  of  the  wife  by  the  husband according to  the various  forms recognised  by the  law.  A divorce given  unilaterally by  the  husband  is  especially peculiar to  Mahomedan law.  In no other law has the husband got a  unilateral right  to divorce  his wife  by  a  simple declaration because  other laws,  viz., the Hindu law or the Parsi Marriage  and Divorce  Act, 1936,  contemplate only  a dissolution of  marriage on certain grounds brought about by one of the spouses in a Court of law.      Before the  enactment of the Act of ‘1939 a woman under pure Mahomedan  law had no right to get a decree for divorce from the  husband if  he refused  to divorce  her. This  was unboubtedly the  fundamental concept of divorce as laid down by the  Mahomedan law.  As,  however,  some  of  the  Muslim Jurists and  Theologists were  of  the  view  that  where  a husband becomes  important or  disappears for a large number of years  or treats  his wife  with great  cruelty, the wife should have  some right  to approach the Qazi for dissolving the marriage.  Relying on  these authorities the legislature intervened and  passed the  Dissolution of  Muslim Marriages Act, 1939  under which  the wife was conferred a legal right to move  the civil  court for  a decree  for dissolution  of marriage on  the grounds  specified in  s. 2  of the  Act of 1939. This  is spelt  out from  the statement of Objects and Reasons of  the Act  of 1939,  the relevant portion of which may be extracted thus:           "There is  no proviso in the Hanafi Code of Muslim      Law enabling  a married Muslim woman to obtain a decree      from the  Court dissolving  her marriage  in  case  the      husband  neglects  to  maintain  her,  makes  her  life      miserable by  deserting or persistently maltreating her      or  absconds  leaving  her  unprovided  for  and  under      certain other  circumstances. The  absence  of  such  a      provision has entailed unspeakable misery to innumer- 922      able Muslim women in British India. The Hanafi Jurists.      however, have  clearly laid down that in cases in which      the application  of Hanafi  Law causes  hardship, it is      permissible to  apply the  provisions of  the  "Maliki,      Shafii or  Hambali Law".  Acting on  this principle the      Ulemas have  issued fatwas  to the effect that in cases      enumerated in  clause 3,  Part A  of this Bill (now see      section 2  of the  Act), a  married  Muslim  woman  may      obtain a  decree dissolving  her marriage ...... As the      Courts are  sure to hesitate to apply the Maliki Law to      the case of a Muslim woman, legislation recognizing and      enforcing the  above mentioned  principle is called for      in order  to relieve the sufferings of countless Muslim      women." One of  the grounds  was that a suit could be brought if the husband had  neglected or  failed to provide maintenance for the wife for a period of two years.      After the  Act of  1939, a  wife thus  had a  statutory right to  obtain divorce  from the husband through the Court on proof  of the  grounds mentioned  in  the  Act.  The  Act provided for  the wife  an independent remedy which could be resorted  to   by  her   without  being   subjected   to   a pronouncement of  divorce by  the husband. It is, therefore, in the background of this Act that the words ’has obtained a divorce from  her husband’  in clause (b) of the Explanation have to  be constructed.  Thus the High Court in considering the effect  of these  words seems  to  have  overlooked  the dominant object  of  the  statutory  remedy  that  was  made available to  the wife  under the  Act of  1939 by which the

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wife could  get a  decree for dissolution of marriage on the grounds mentioned  in the  1939 Act by petitioning the civil court without  any overt  act on  the part of the husband in divorcing her.  The High  Court also  failed to consider the legal consequences  flowing from  The decree  passed by  the court dissolving  the marriage,  viz., a legal divorce under the Mahomedan law.      In these circumstances we are therefore, satisfied that the interpretation  put by the High Court on the second limb of clause  (b) is  not correct.  This seems  to be borne out from the provisions of Mahomedan law itself. It would appear that under  the Mahomedan law there are three distinct modes in  which  a  muslim  marriage  can  be  dissolved  and  the relationship of the husband and the wife terminated so as to result in an irrevocable divorce.           (1) Where the husband unilaterally gives a divorce      according to any of the forms approved by the Mahomedan      law,  viz,  Talaq  ahsan  which  consiss  of  a  single      pronounce- 923      ment  of   divorce   during   tuhar   (Period   between      menstruations)  followed   by  abstinence  from  sexual      intercourse for  the period  of iddat;  or Talak  hasan      which consists  of three  pronouncement made during the      successive tuhrs,  no intercourse  taking place between      three tuhrs;  and lastly  Talak-ul-bidaat or  talalk-i-      badai  which  consists  of  three  pronouncements  made      during a single tuhr either in one sentence or in three      sentences signifying  a clear  intention to divorce the      wife, for  instance, the husband saying ’I divorce thee      irrevocably’ or  ’I divorce  thee, I  divorce  thee,  I      divorce thee’.  The third  form referred  to  above  is      however not recognised by the Shiah law. In the instant      case, we  are concerned  with the appellant who appears      to be  a Sunni  and governed  by the  Hanafi law  (vide      Mulla’s Principles of Mahomedan Law, Sec. 311, p. 297).           A divorce  or talaq  may be  given  orally  or  in      writing and  it becomes  irrevocable if  the period  of      iddat is  observed though  it is not necessary that the      woman divorced should come to know of the fact that she      has been divorced by her husband.           (2) By  an agreement  between the  husband and the      wife whereby  a wife  obtains divorce  by relinquishing      either her  entire or  part of  the dower. This mode of      divorce is  called ’khula’  or Mubarat.  This  form  of      divorce  is  initiated  by  the  wife  and  comes  into      existence if the husband gives consent to the agreement      and releases her from the marriage tie. Where, however,      both parties agree and desire a separation resulting in      a divorce, it is called mubarat. The gist of these mode      is that  it comes  into existence  with the  consent of      both  the  parties  particularly  the  husband  because      without his  consent this  mode  of  divorce  would  be      incapable of  being enforced.  A divorce  may also come      into existence  by virtue of an agreement either before      or after  the marriage by which it is provided that the      wife  should  be  at  liberty  to  divorce  herself  in      specified  contingencies  which  are  of  a  reasonable      nature and which again are agreed to be the husband. In      such a  case the  wife can  repudiate  herself  in  the      exercise of  the power  and the divorce would be deemed      to have  been pronounced  by the  husband. This mode of      divorce is called ’Tawfeez’ (vide Mulla’s Mohmedan Law,      Sec. 314. p. 300.                (3) By  obtaining a decree from a civil court

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         for dissolution  of marriage under s. 2 of the Act           of 1979 which also 924           amounts to  a divorce  (under the law) obtained by           the wife.  For the  purpose of  maintenance,  this           mode is  governed not  by clause (b) but by clause           (c) of sub-section (3) of s. 127 of the 1973 Code;           whereas the  divorce given under modes (1) and (2)           would be  covered by clause (b) of sub-section (3)           of s. 127.      These  are   the  three   distinct  modes  in  which  a dissolution  of  marriage  can  be  brought  about.  It  is, therefore, manifest  that clause  (b) Explanation  to s. 125 envisages all  the three  modes, whether  a wife is divorced unilaterally by  the husband  or where she obtains divorce S under mode  numbers 2  and 3, she continues to be a wife for the purpose  of getting maintenance under s. 125 of the 1973 Code. In  these circumstance  the High  Court was not at all justified in  taking the  two separate clauses ’who has been divorced’ and  ’has obtained  a divorce  from  her  husband’ conjunctively so  as to  indicate a  divorce proceeding from the husband  and the  husband alone  and in  not treating  a dissolution of  marriage under  the  1939  Act  as  a  legal divorce. We  might like  to mention  here that the 1973 Code has by  extending the  definition of  wife, not excluded the various modes  of divorce but has merely abrogated that part of the  Mahomedan law  under which  the wife  ceased to  get maintenance if  the conjugal relationship of the husband and wife came  to an  end. Nevertheless,  the  personal  law  is applied fully  and kept  alive by  clause (b) of sub-section (3) of s. 127 which may be extracted thus:           "(b) the  woman has  been divorced  by her husband      and that  she has received, whether before or after the      date of  the said  order, the  whole of  the sum which,      under any  customary or  personal law applicable to the      parties, was  pay able  on such  divorce,  cancel  such      order:-           (i)   in the  case where  such sum was paid before                such order, from the date on which such order                was made,           (ii) in any other case, from the date of expiry of                the period, if any, for which maintenance has                been actually  paid by  the  husband  to  the                woman."      This clause refers to Mode No. 1, that is to say, where the  husband   unilaterally  divorces   his  wife.  For  the application of clause (b) two conditions are necessary-           (1)   that an  application for cancellation of the                maintenance is  made by  the husband under s.                127(2), and 925           (2)  that after  the wife has been divorced by the                husband she has received the whole of the sum                which under  any customary  or  personal  law                applicable to  the  parties  was  payable  on                divorce.      In other  words, under  the Mahomedan  Law the  husband could still  get the  maintenance cancelled  after divorcing his wife  according to  personal law  if he  paid the entire dower specified at the time of marriage.      We would however? Like to point out one peculiar aspect of the provisions of s. 127. While clause (b) of sub-section (3)  of   s.  127  does  provide  for  cancellation  of  the maintenance  on  payment  of  dower  if  a  woman  has  been divorced, the  said clause does not contemplate cancellation

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of maintenance  where  a  woman  obtains  divorce  from  her husband through  a civil  court under  the provisions of the Act of  1939. In  this connection  clause (c) of sub-section (3) of  s. 127,  which is  extracted below, clearly provides that where  a woman  obtains a  divorce from her husband the amount  of   maintenance  cannot   be  cancelled  until  she voluntarily relinquishes  or surrenders  her rights  to  the same:-           "the woman has obtained a divorce from her husband      and that  she had voluntarily surrendered her rights to      maintenance after  her divorce,  cancel the  order from      the date thereof."      Thus,  a   clear  distinction  has  been  made  between dissolution of  marriage brought  about by  the  husband  in exercising his  unilateral right  to divorce  and the act of the wife  in obtaining  a  decree  for  the  dissolution  of marriage from a civil court under the Act of 1939.      We might  further add  that  our  conclusion  that  the second limb  of clause  (b) of  the Explanation  to  s.  125 applies also to a situation, where a dissolution of marriage resulting in  a decree  for divorce brought about by the Act and at the instance of the wife, is fortified and reinforced by the  language of  clause (c) of sub-section (3) of s. 127 under  which   maintenance  cannot   be  cancelled   on  the application of  the  husband  unless  the  wife  voluntarily surrenders her  rights to  maintenance or  relinquishes  the same and not otherwise. Thus, tho two limbs of clause (b) of the Explanation  to s.  125(1) have  separate and  different legal incidents-one is reflected in clause (b) of subsection (3) of s. 127 and the other in clause (c) of sub-section (3) of s. 127.      In view  of the  reasons given  and  the  circumstances discussed by  us, it is manifest that in the instant case s. 127 does not at all 926 because the  husband  has  not  given  any  application  for cancellation of  the maintenance on the grounds enshrined in s. 127(3)(b)  of the  1973 Code  but this  case is  squarely covered by clause (b) of the Explanation to s. 125(1) of the 1973 Code  as a  result of which the appellant in the eye of law continues  to be the wife of the respondent, despite the decree for  dissolution of  marriage.  The  Magistrate  was, therefore, fully  justified in  granting maintenance  to the appellant. The  High Court, therefore, erred in quashing the order of  the Magistrate,  we, therefore, allow this appeal, set aside  the order  of the  High Court and restore that of the Magistrate granting maintenance of a consolidated amount of Rs. 100/- per month for the appellant and her minor child. It  would be  open to  the appellant  to apply to the Magistrate  for   a  warrant   to  realise  the  arrears  of maintenance, if any      KOSHAL, J.-I  have had  the advantage  of perusing  the judgment prepared  by my learned brother Fazal Ali, J., with whom I find myself in general agreement. However, as I would like to  highlight a  particular aspect  of the matter, I am appending a short note of my own.      2. Sub-section  (1) of  section  125  of  the  Code  of Criminal Procedure  (hereinafter referred  to as  the  Code) confers on a Magistrate of the First Class the jurisdiction, inter alia,  to order maintenance to be paid by a husband to his wife  or his  minor  or  destitute  children.  The  case propounded by the wife in the present proceedings is that in spite of the decree of dissolution of marriage passed in her favour by  a Civil  Court on  the 15th  January,  1973,  she continues to  be the wife of the respondent for the purposes

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of the  said sub-section  (1) by reason of the definition of the term  "wife" contained  in clause (b) of the Explanation appended to that sub-section. That clause runs thus:           "Explanation:-For the purposes of this chapter,-           ’(a)...............................           ’(b) "wife" includes a woman who has been divorced      by, or has obtained a divorce from, her husband and has      not re-married."      The claim  of the wife has been turned down by the High Court on  the ground that this clause is inapplicable to her case inasmuch as-           (i)   the appellant  has obtained only a decree of                dissolution of  marriage and  not a  divorce,                and           (ii) the expression  "from the husband" as used in                the clause  extracted above envisages divorce                by voluntary  action of  the husband which is                missing in  this  case,  the  dissolution  of                marriage having been obtained from the court,                and, therefore, not from the husband. 927      3. The  word ’divorce’  is not  defined in the Code and may legitimately  be regarded  as having been used in clause (b) above extracted in the dictionary sense. Webster’s Third New International  Dictionary states  it  to  mean,  amongst other things,-           "(a) legal dissolution  in whole  or in  part of                marriage relation usually by a court or other                body having competent authority;           "(b) an absolute  dissolution in  a valid marriage                made by  decree of  court  for  lawful  cause                arising  after  the  marriage  (distinguished                from annulment);           "(c) a formal  separation of  man and  wife by the                act of  one party  or by consent according to                established custom."      As ordinarily understood, therefore, divorce is nothing more nor less than another name for dissolution of marriage, whether the  same results  from  act  of  parties  or  is  a consequence of  proceedings at  law, and  it would,  in  our opinion, be  wrong to  regard the  two terms  as  not  being synonymous with  each other,  unless the legislature makes a direction to  the contrary.  We need  hardly point  out that section 125 of the Code contains no such direction.      4. Deacock  v. Deacock, [1958] 2 All. E.R. 633 supports the view  just expressed.  In that case the English Court of Appeal was called upon to interpret sections 16(1) and 19(3) of the  Matrimonial Causes  Act, 1950  which posed a similar problem. The  relevant  portions  of  those  provisions  are reproduced below:             "16(1)  Any  married  person  who  alleges  that      reasonable grounds  exist for  supposing that the other      party to the marriage is dead may present a petition to      the court  to have  it presumed that the other party is      dead and to have the marriage dissolved, and the court,      if satisfied  that such  reasonable grounds  exist, may      make  a   decree  of   presumption  of   death  and  of      dissolution of the marriage.           "19(3) On  any decree  for divorce  or nullity  of      marriage, the  court may,  if it  thinks fit,  by order      direct the  husband to  pay to  the wife,  during their      joint  lives,  such  monthly  or  weekly  sum  for  the      maintenance and  support of  the wife  as the court may      think reasonable..."      An argument was raised that a decree for dissolution of

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marriage as  envisaged in section 16(1) does not amount to a decree for  divorce mentioned  in section  19(3)  and  that, therefore, there  was no jurisdiction in the Court to direct the husband to any the wife any main- 928 tenance in  pursuance of  the latter  section. Hodson, L.J., with  whom  Morris,  L.J.,  and  Vaisey  J.,  fully  agreed, repelled the argument thus:           ’It is said (and I confess that this argument does      not produce  very much impact on my mind) that there is      a  distinction   between  the   words  "dissolution  of      marriage"  and  "divorce",  and  that,  as  section  19      contains the  word "divorce"  and section  16 does not,      there is no statutory power to apply for maintenance at      811 in the case of presumption of death......In my view      the word  "dissolution relates  to  the  marriage  bond      itself, whereas  the  word  "divorce"  relates  to  the      parties to  tile marriage  bond; and it is apt to refer      to "divorce" when speaking of parties "and dissolution"      when speaking of the bond.           ’As the  decree in  this case shows, what has been      done, or  what has  been purported  to be  done, by the      court was  to  dissolve  the  marriage;  and  the  word      "dissolved" is  used in  this and in all other decrees,      as it  has been  used for  years: the word "divorce" is      not used".      Thus according  to the  Court of Appeal the expressions "divorce" and  "dissolution" were  really two  facets of the same situation.      5. The  matter may be looked upon from another angle in so far as section 125 of the Code is concerned. According to its provisions  a full-fledged wife is obviously entitled to maintenance. By reason of clause (b) above extracted, even a divorced wife  has that  right provided that she has not re- married. Could  then it be argued with any plausibility that a wife  who has  been granted  a decree  of  dissolution  of marriage by  a Civil  Court but  has not  been divorced by a voluntary act of her husband was intended by the legislature not to  be entitled to the benefit of clause (b)? The answer must be  an emphatic  no and  this answer  follows from  the terms of  clause (b)  itself. If  that clause envisaged only decree by  voluntary action  of the husband, the second limb of the clause which makes the definition of "wife" inclusive of a  woman who  has ’obtained  a divorce  from the husband’ would be  rendered otiose.  The word  obtained’ may  well be used in  the sense  of  ’procured  with  effort’  and  would certainly describe  correctly a situation where something is achieved by  a person  through  his  exertion  in  spite  of opposition from others. According to Webster, again the word ’obtain’ signifies:           "(a) to gain  or attain possession or disposal of,                usually by some planned action or method,           "(b) to bring about or call into being, etc." 929      If a  person sues  another person  for the  recovery of property and the suit is resisted but ultimately decreed and the plaintiff  recovers possession  of the property from the defendant he  may properly  be described  as having obtained the property  from the  defendant although  this result  has come about  not because  the defendant obliged the plaintiff but because  of the coercive process of the court. Similarly information  contained  In  a  statement  brought  about  by coercive methods  used against a helpless person would still be information  obtained from  him even  though he  is not a willing party to the statement.

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    6.  There   is  another  good  reason  why  the  narrow interpretation placed  by the High Court on clause (b) above extracted cannot  be accepted.  Divorce by  the act  of  the husband is,  broadly speaking,  not recognised by any system of law except that applicable to Muslims (barring variations of personal  law by  custom).  Members  of  the  other  main communities   inhabiting   India,   i.e.,   Hindus,   Sikhs, Buddhists, Jains,  Christians, etc.,  have perforce to go to courts in  order  to  obtain  divorce.  If  clause  (b)  was intended to  embrace only  cases of divorce brought about by the act  of the husband, its applicability would be limited, by and large, only to Muslims, which per se appears to us to be an absurd proposition.      7.  For  the  reasons  stated  I  would  interpret  the expression "a  woman who  has obtained  a divorce  from  her husband" as  including a  wife who has been granted a decree of dissolution  of marriage  by the  Court. That such is the case  here   is  admitted  on  all  hands.  In  the  result, therefore, the  appeal is accepted, the Judgment of the High Court is  set aside  and the order of the learned Magistrate granting an  amount of Rs. 100/- per month as maintenance to the appellant and her minor child is restored. N.K.A.                                      Appeal allowed. 930