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SUPREME COURT OF INDIA
Y.V. CHANDRACHUD, CJI., D.A. DESAI, O. CHINNAPPA REDDY, E.S. VENKATARAMIAH, AND RANGANATH MISRA, JJ.
Mohd. Ahmed Khan, Appellant
Versus
Shah Bano Begum and others, Respondents.
Criminal Appeal No. 103 of 1981, D/- 23-4-1985.
Under section 125 (1) (a), a person who, having sufficient means, neglects or refuses to maintain his wife 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 requirement. 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 those 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.
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 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. [Para 7
Under section 488 of the Code of 1898, the wife's right to maintenance depended upon tile 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 provisions of the .new section 125 have been enacted. The induction of the definition of 'wife' is applicable irrespective of the religion professed by her or her husband. Therefore, 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 the section is unaffected by the provisions of the personal law applicable to her. (1964) 2 SCR 73, (1970) 1 SCR 565 referred to. [Para 9
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 of 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. [Para 14
(2) Criminal P.C., 1973 -- S. 127 (3) (b) -- sum payable 'on such divorce' meaning of -- Mahr 'prompt' or 'deferred' -- are not sums payable 'on divorce'.
(3) Mohammedan Law -- Mahr -- nature of.
Dower is an obligation imposed upon the husband as a mark of respect for the wife. The amount of Mahr is usually split into two parts, one of which is called 'prompt', which is payable on demand, and the other called 'deferred' which is payable on the dissolution of the marriage. But the fact that the deferred Mahr is payable at the time of the dissolution of "marriage, cannot justice, the conclusion that it is payable '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'. AIR 1960 PC 46, AIR 1938 PC 110 relied on. The statement made in Bai Tahira's case that "payment of Mahr-money, as a customary discharge is within the cognizance of the provision i.e. section 127(3) (b)", is incorrect except this statement (1979) 2 SCR 75 affirmed. (1980) 3 SCR 1127 also affirmed. [Para 24 & 33
(4) Constitution of India -- Art. 44 -- uniform civil code throughout India -- necessity of -- role of the Courts.
Article 44 of the Constitution 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 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 desperate 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 justice to be suffered when it is so palpable. But piecemeal attempts of Courts to bridge the gap between personal laws cannot take place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case. [Para 32
Based on the provided legal document, the key facts relevant to the legal query are as follows:
The case involves a Muslim woman who was married and later divorced by her husband. The husband had previously paid a sum of money called Mahr at the time of marriage, which is a customary obligation under Muslim Personal Law. After divorce, the husband argued that his obligation to maintain the wife was limited to the period of iddat, the waiting period following divorce, and that there was no ongoing obligation to provide maintenance once this period expired, especially since the wife was unable to maintain herself (!) (!) .
The woman filed an application for maintenance under a statutory provision that provides a quick and summary remedy for individuals unable to maintain themselves, regardless of their religion. The law explicitly includes divorced women who have not remarried within its scope, and the provisions are designed to be secular, cutting across religious personal laws (!) (!) .
The core issue is whether the statutory obligation to provide maintenance extends beyond the period of iddat for a divorced Muslim woman who is unable to support herself, and whether this statutory obligation conflicts with or is overridden by Muslim Personal Law. The law recognizes that, even under Muslim Personal Law, a divorced woman who cannot maintain herself remains entitled to seek maintenance from her former husband under the statutory law (!) .
Additionally, the law emphasizes that the obligation to maintain close relatives, including a divorced wife unable to support herself, is rooted in societal moral duties rather than religious doctrine. The definition of "wife" in the statutory law includes a divorced woman who has not remarried, and this inclusion is intended to be comprehensive and secular (!) (!) .
The case also considers the interpretation of religious texts, which support the obligation of Muslim husbands to provide for their divorced wives, indicating that the obligation is not limited to the period of iddat but extends as long as the wife remains unable to support herself (!) (!) .
In summary, the facts establish that the statutory law provides a secular, inclusive framework that mandates maintenance for a divorced woman unable to support herself, regardless of her religious personal law, and that this obligation is consistent with, and not overridden by, Muslim Personal Law.
Judgment
CHANDRACHUD, CJI.:- 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. "Na stree swatantramarhati" said Manu, the law giver : The woman does not deserve independence. And. it is alleged that the fatal point in Islam is the degradation of woman Selections from Kuran - Edward William Lane 1843, Reprint 1982, page XC (Introduction). 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.
2. This appeal, arising out of an application 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, 1979 the appellant divorced the respondent by an irrevocable talaq. His defence to the respondents petition for maintenance was that she had ceased to be 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 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 of iddat. In August, 1979 the learned Magistrate directed the appellant to pay a princely sum of Rs. 25/- per month to the respondent 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.
3. 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 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.
4. 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 Fidaalli Chothia (1979) 2 SCR 75 and Fazlunbi v. K. Khader Vali (1980) 3 SCR 1127. Those decisions took the view that the divorced Muslim wife is entitled to apply for mainte
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