The legislative will and applicability of S. 125 of the Criminal Procedure Code to all religions, as well as the influence of Judges and Courts in modifying Muslim Law

The appellant in the second appeal - the husband who instituted the suit - admittedly married the respondent-defendant oh 18-6-1976. The tragedy in the form of an infantile mortality which befell the child born to them caused friction between the parties and later to untasteful litigations. The wife caused to be sent a notice on 20-2-1978 seeking a divorce. The husband retaliated by his reply dated 15-3-1978, demanding her to come and reside with him. The wife did not relent. The husband married a second time, as well permitted by his personal law. The wife then moved the criminal court for maintenance. Divorce was sought for in civil proceedings. Ultimately divorce was granted by the civil court, and maintenance by the criminal court, at the rate of Rs. 100/- per month invoking S. 125 of the Criminal Procedure Code.

2. The husband then came to the civil court seeking to establish the supremacy of his personal law and emphasising the summary character of the proceedings for maintenance under the Criminal Procedure Code. The prayer in the Plaint was to set aside the order of the criminal court, and for an injunction restraining the defendant from executing that order. The plea succeeded with the trial court but failed in the appellate court.

3. In a commendable well-discussed judgment, the appellate court referred to the frame of the suit and the substantial character of the reliefs claimed therein. Referring to the decision in Gauri Devi v. Bishwanath, AIR 1970 All 185 : 1970 Cri LJ 310), the appellate court held that a civil court has no jurisdiction to set aside an order of a Magistrate Court granting maintenance under the Criminal Procedure Code, when there was no allegation of fraud as regards the order of the Magistrate. Other judicial decisions including one of this court rendered by Krishna Iyer, J. in Shahulameedu v. Subaida Beevi, 1970 Ker LT 4 were referred to by the appellate court. The husband in this case had no case that the order of the criminal court was obtained by fraud. A divorced wife is also entitled to maintenance. The suit was ultimately dismissed.

4. The limited question which arises in the second appeal is whether the view taken by the appellate court is vitiated by such a substantial error of law as to merit interference in second appeal. I am clearly of the view that there is no such error. There is a valid binding order of the criminal court awarding maintenance to the wife. That is perfectly justified on the wording of S. 128. Cr.P.C. a refusal of the wife to live with the husband when the husband has another wife is perfectly justified, for it is so proclaimed by the Parliament. Personal law has necessarily to yield to the will of the Parliament. Many are the anachronisms of such personal law which have been done away with by legislative will.

5. The process had started long time back in India. The Dissolution of the Muslim Marriage Act, 1939 passed "in order to relieve the sufferings of countless Muslim women", is one such enactment. The following extract from the Objects and Reasons of that Act throws light on the situation which existed then and which led to the legislative intervention :

"There is no provision 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 innumerable Muslim women in British India."

Fazal Ali, J. while delivering judgment in Zohara Khatoon v. Mohd. Ibrahim. AIR 1981 SC 1243 : (1981 Cri LJ 754), noted that the amendment of the Criminal Procedure Code in 1973 had "to some extent overruled the personal law of the parties so far as the proceedings for maintenance under S. 125 are concerned."

6. Section 125 does not make any distinction b