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SUPREME COURT OF INDIA
R.S.Pathak : V.D.Tulzapurkar : V.R.Krishna Iyer
Baitahka
Versus
Alihussainfidaallichothia
Case No. : 332 of 1977
Date of Decision : 10/6/71
Advocates Appeared: Bhandare M.C. : Karkhams A.K. : Sahu A.K. : Sanghi G.L. : Shroff J.V.
Criminal Procedure Code, 1973 – Sections 125, 127 – Divorce – Maintenance – Reduction of maintenance – In this appeal, by special leave, we are called upon to interpret a benign, provision enacted to ameliorate the economic condition of neglected wives and discarded divorcees, namely. S. 125, Criminal Procedure Code. – Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of Article IS(3) of the Constitution must belight the meaning of the section. – "The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure. – So, S. 125 and sister ckUBCS must receive a compassionate expansion of sense that the words used permit. – Order was challenged before the Sessions Judge by the aggrieved husband, who on a strange view of the law that the court, under S. 125, had no jurisdiction to consider whether the applicant was a wife, dismissed the petition in allowance of the appeal. – High court deigned to bestow little attention on the matter and summarily dismissed a revision petition. – This protracted and fluctuating litigation misfortune has led to the appeal, by special leave, before this court. – Held, Traumatic horror animates the amplitude of S. 127. – Where the husband, by customary payment at the time of divorce, has adequately provided for the divorcee, 3 subsequent series of recurrent doles is contra-indicated and the husband liberated. – This is the teleological interpretation, the sociological decoding of the text of S. 127. – key-note thought is adequacy of payment which will take reasonable care of her maintenance. – Payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate that rate unless it is a reasonable substitute. – Legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom. – No construction which leads to frustration of the statutory project can secure validation if the court is to pay true homage to the Constitution. – Only just construction of the S. is that Parliament intended divorcees should not derive a double benefit. – If the first payment by way of mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order under S. 125 not mathematically but fairly then S. l27(3)(b) subserves the goal and relieves the obliger, not pro tento but wholly. – Purpose of the payment under any customary or personal law must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. – Whole scheme of S. l27(3)(b) is manifestly to recognise the substitute maintenance arrangement by lump sum payment organised by the custom of the community or the personal law of the parties. – There must be a rational relation between the sum so paid and its potential as provision for maintenance to interpret otherwise is to stultify the project. – Law is dynamic ami its meaning cannot be pedantic bat purposeful. – Proposition, therefore, is that no husband can claim uuder S. l27(3)(b) absolution from his obligation under S. 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance. – Appeal Allowed
V.R.Krishna Iyer, J. A Prefatory Statement
(1) IN this appeal, by special leave, we are called upon to interpret a benign, provision enacted to ameliorate the economic condition of neglected wives and discarded divorcees, namely. S. 125, Criminal Procedure Code. Welfare laws must be so read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections, like destitute women, the spirit of Article IS(3) of the Constitution must belight the meaning of the section. "The Constitution is a pervasive omnipresence brooding over the meaning and transforming the values of every measure. So, S. 125 and sister ckUBCS must receive a compassionate expansion of sense that the words used permit.
(2) THE respondent (husband) married the appellant (wife) as a second wife, way back in 1956, and a few years later had a son by her. The initial warmth vanished and the jealousies of a triangular situation erupted, marring mutual affection. The respondent divorced the appellant around July, 1962. A suit relating to a flat in which the husband had housed the wife resulted in a consent decree which also settled the marital disputes. For instance, it recited that the respondent hud transferred the suit premises, namely, a flat in Bombay, to the appellant and also the shares of the Co-operative Housing Society which built the flat concerned. There was a reference to roehar money (Rs .5000 and iddat money, Rs. 180.00) which was also stated to have been adjusted by the compromise terms. There was a clause in the. compromise :
THE plaintiff declares that she has now no claim or right whatsoever against the defendant or against the estate and the properties of the defendant.
And another term in the settlement was that the appellant bad by virtue of the compromise become the absolute owner of the flat and various deposits in respect of the said flat made with the Correlative Housing Society.
(3) FOR some time there was flickering improvement in the relations between the quondum husband and the quondum wife and they lived together. Thereafter, again they separated, became estranged. The appellant, finding herself in financial straits and unable to maintain herself, moved the Magistrate under S. 125 of the Criminal Procedure Code, 1973, for a monthly allowance for the maintenance of herself and her child. .She proceeded on the footing that she was still a wife while the respondent rejected this status and asserted that she was a divorcee and therefore ineligible for maintenance. The Magistrate, who tried the petition for maintenance, held that the appellant was a subsisting wife and awarded monthly maintenance of Rs 300.00 for the son and Rs.400.00 for the mother for their subsistence, taking due note of the fact that the cost of living in Bombay, where the parties lived, was high, and that the respondent had provided residential accommodation to the appellant.
(4) THIS order was challenged before the Sessions Judge by the aggrieved husband, who on a strange view of the law that the court, under S. 125, had no jurisdiction to consider whether the applicant was a wife, dismissed the petition in allowance of the appeal. The High court deigned to bestow little attention on the matter and summarily dismissed a revision petition. This protracted and fluctuating litigation misfortune has led to the appeal, by special leave, before this court.
(5) SHRI Bhandare, appearing for the appellant, contended that the courts below had surprisingly forgotten the plain provision in Explanation (b) to S. 125(1) of the Code, which reads:
"WIFE" includes a woman who has been divorced by, or has obtained a divorce from. her husband and has not remarried.
On this foundation, he urged that accepting the contention of the respondent that the appellant was a divorcee, his client was still entitled to an allowance. This is obviously beyond dispute on a sim
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