Holding

Clause (b) of the Explanation to Section 125(1) CrPC includes a woman who has obtained a divorce from her husband, even when the divorce is by decree under the 1939 Act, so she remains a wife for purposes of maintenance under Section 125.

Summary

Zohra Khatoon, the legally married wife of Mohd. Ibrahim, filed a petition under Section 125 of the Criminal Procedure Code, 1973 for maintenance for herself and her minor child after the husband neglected her. The trial magistrate granted Rs.100 per month to both, but the High Court quashed the maintenance for the wife, holding that clause (b) of the Explanation to Section 125(1) applied only to divorces effected by the husband, not to a decree of dissolution obtained under the Dissolution of Muslim Marriages Act, 1939. The Supreme Court examined the legislative intent of clause (b), the meaning of "divorce," and the interplay with Section 127, concluding that the clause expressly includes a woman who has obtained a divorce from her husband, even if by court decree, and therefore she remains a "wife" for maintenance purposes. Consequently, the magistrate’s order was upheld and the High Court’s order set aside.

Issues considered

Whether clause (b) of the Explanation to Section 125(1) CrPC applies to a woman who obtained a decree of dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939.
Whether Section 127 of the CrPC can be invoked to cancel the maintenance order in such circumstances.
Whether the magistrate was competent to award maintenance despite the decree of dissolution and completion of iddat.
Interpretation of the term "divorce" within the statutory provision.

Legislation cited

Code of Criminal Procedure, 1973s. 125, s. 127
Criminal Procedure Code, 1898s. 488, s. 489
Dissolution of Muslim Marriages Act, 1939s. 2
Indian Majority Act, 1875

Subjects

maintenanceSection 125Criminal Procedure CodedivorceDissolution of Muslim Marriages Actiddatpersonal lawinterpretationSection 127

Judgment

910

A MST. ZOHARA KHATOON
JI.

MOHD. IBRAHIM
February 18, 1981
B (S. MURTAZA FAZAL ALI, A. D. KOSHAL AND A. VARADARAJAN, JJ.]

Crifninal Procedure Code, 1973, Section 125 ( 1 ), Explanation (b )-Whether •
hfa1.dstrate conipetcnt to award nu1intrna11ce if under the personal law of the'
Jl.t!ohornedan.5, tlie lrife obtained a valid divorce and had completed the period
oj 1ddar-"wife'' whether includ:es a woman who has been divorced by, or has
c obtained a divorce froni her husband and has not re1narried.

The appellant was the legally married wife of the respondent. As he wil·
fully neglected her, she filed an application before the Magistrate for mainte·
nance under Section 125 of the ,Code of Criminal Procedure 1973. The Magis·
trate accepted the a-llegation of the appellant that she had been neglected by the
respondent without reasonable or probable cause and awarded maintenance at
D Rs. 100/- per n1onth for the appellant and the minor child.

The Hi.~h Court held that clause (b) of the explanation to Section 125 (I)
of the Code had no application to the facts of the case and that so far as the

E
appellant was concerned, she was not entitled to any maintenance. It however
afirmed the order of the Magistrate fixing Rs. 40/- per month as maintenance
for her minor son. -
fn the appeal, it was contended that the view taken by the High Court is
legally erroneous a·nd is based on wrong interpretation of clause (b) of the
explanation to Section 125(1) of the Code.

Accepting the. Appeal 1,

F (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 I27(3)(b) of the 1973 Ccxle but this case is
squarely covered by Clause (b) of the ExplanaHon to S. 125(i) of that Code
as a reiult of which the appellant in the eye of law continues to be the wife oi
G the respondent, despite the decree for dissolution of marriage. [925 II, 926 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 impor-
tant additions that h<!!ve been made under tbe 1971 Code. A provision like
H 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]
ZOHRA KHATOON V. MOHD. IBRAHIM 911

Nanak Chand v. Shd Chandra Kishare Agarwala & Ors. [1970] I SCR 565, A
Ram Singh v. State & Anr. AIR 1963 All. 355, Nalini Ranjan Chakravarty v.
Smt. Kiran Rani Chakravarty AIR 1965 Pat. 442, Mahabir Agarwal/a v. Gita
Roy [1962) 2 Cr. L.J. 528, referred to:

3. The ~Iohomedan Law on the subject was that where a woman governed
by the Mohon1cdoo. Law was awarded maintenance, the same would cease from
the date of divorce given by the husband and the completion of the period of B
Jddat. [917 G-H]

.,. In re Shckhannzian AIR 1930 Bombay 178, Syed Said v. A-feera Bee 20
M.L.J. 12, Mohamed Ra/dmul/ah & Anr. AIR 1947 Madras 416, Aahimun-
nissa & Ors. v. Mohd. Ismail AIR 1956 Hyderabad 14, Din Mohanunad's
V.I.L.R. 1883 226, referred to.

4. Although a l\{ohomedan 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
\vas 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-BJ

5. Clause (b) has made a distinct departure from the earlier Code in that D
it has widened the definition of wife and, to some extent, over~ruled the per-
sonal law of the parties so far &5 proceedings for maintenance under Section 125
arc 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
foJJows, therefore, that the divorce "resulting from the aforesaid dissolution of
the 1na·rriage is also a legal divorce under the Mohomedan Law by virtue of the E
statute (1939 Act). [920 E-F, 921 BJ

6. Under the .l'vfohomedan Law the commonest form of divorce is a unila~
teral pronouncerneut of divorce of the wife by the husband according to the
various fonns recogniSed by the Jaw. A divorce given unilaterally by the hus.--
band is especially peculiar to Mohomedan Law. In no other law has the
husba·nd got a unilateral right to divorce his wife by a simple declaration F
because other Iav. s, viz., the Hindu Law or the Parsi Marriage and Divorce
1

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 husbruid
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 G
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 look·
• ed the dominant object of the statutory remedy that was made available to the
wife under the Act of 1939 by which the wife could get a decree for dissolution
of marriage on the grounds mentioned in the 1939 Act by petitioning the civil H
, court without any overt act on the part of the husband in divorcing her. The
High Court also failed to consider the legal consequences ll.owing from the
912 SUPREME COURT REPORTS [1981] 2 S.C.R.

A decree passed by, the Court dissolving the inarriage, viz., a legal di\'orcc 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 fron1 the provisions of ~tohn
medan la\v itself. 1t would appear that under the Mohomedan la\\I there are
three distinct modes in which a 1\luslim marriage can be dissolved and the rela-
B tionship of the· husband and \Vife terminated so as to result in an irrevocable
divorce. [922 F-GJ
9. It is, therefore, manifest that clause (b) of Explanat:on to S. 125
envi~ages all the three modes, whet-her a \Vife is divo:rced 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 maintena·nce under S. 125 of
the 1973 c·oJc. In these circumstances the High Court was not at all justified
c ir. t<1h.ing the two scpar<1.te clauses 'who has been divorced' and 'had obtained a
divorce front her husbund' coniunctively so as to indicate <1 divorce proceeding
from the. husba.nd anrt 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 bet~·een dissolution of n1arriage
hrought about by 1he husband in exercising: his unilateral right to divorce and
D the act of .the \Vife in obtaining a decree for dissolution of the marria·g:e 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]
E (Per A. D. Koslial, J. concurrinR)

1. The \.Vord 'divorce' is not defined in the Code of Criminal Procedure and
may legitirn.<itely be regarded <is having been used in clause (b) of sub-section
1 of Section 125 in the dictiona•ry sense. As ordin'.1rily 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
F law. It would be wrong to regard the v.·to terms as not be synonyn1ous v;ith
each other, unless the legjslature makes a direction to the contrary. [927A,
C-Dl
2. According to Section 125 of the Code of Criminal Proccd11re. a full-
fledged wife is entitled to maintenance. By reason of clause (b) even a
divo:·ced wife ha<; th<it right provided that she has not re-married. If that clause
G envisaged only divorce by voluntary nction of the husband, the second limb of
the clause \vhich makes the definition of 'wife' inclusive of a woman \vho has
'obtained a divorce from the husband' would be rendcr.ed otiose. The word
obtained may well be u:oied in the sense of 'procured with effort' :1nd would
ccrtainiy describ~ correctly a situation where son1ething is ac,hieved by a person.
through his exertion in spite of opposition from others. [928 E, F-(}] •
3. Divorce by the Act of the husband, is not recognised by any system of
H Jaw except that applicable to Muslims. Members of the other main comrnunities
inhabiting India, i.e. Hindus, Sikhs, Buddhists, Jains, Christians, etc. have per- '•
force to go to courts in order to Obtain divorce. If clause (b) was intended to
ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal AU,!.) 913

~rn!:lracc only cases of divorce brought about by the Act of the husband, its A
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 \voman 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]
B
Deacock v. Deacock [1958] 2 All E.R. 633 referred to .
•
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 761
of 1980.
Apperu by Special Leave from the Judgment and Order dated
20-10-1978 of the Allahabad High Court in Criminal Misc. Case No.
c
822 of 1978.
Jagdish Kumar Aggarwal for the Appellant.
Nemo for the Respondent.
The Judgment of Murtaza Pazal Ali & A. Varda.rajan JJ was deli- D
vered by Fazal Ali, J., A. D. Kasha!, 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 E
was accepted and the said order was quashed.
The facts of the appeal lie within a narrow compass hut the case
involves a substantial question of law. Unfortunately, as the respon-
dent did not appear despite service, we had to rely mainly on the
arguments of the learned counsel for the appellant and had also to
F
consider various aspects that could be stressed by the respondent if he
had appeared. The appellant, Mst. Zohara Khatoon, wa,s a legally
~-~ married wife of Mohd. Ibrahim. As Mohd. Ibrahim ~oon after the
marriage wilfully neglected her she filed an application before the trial
Magistrate on September 17, 1974 under s. 125 of the Code of Cri-
minal Procedure 1973 (hereinafter referred to as the '1973 Code') G
in order to fix maintenance for her and her minor son. The Special
Judicial Magistrate, Barabanki (U.P.), after hearing the parties, allow-
ed 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 a!Jega>-
tion of the appellant that she had been neglected by the husband with- Fl
out reasonable or probable cause. The order of the Magistrate was
•
• upheld by the Sessions Judge in revision .
11 -!14 SCI/81
914 SUPREME COURT REPORTS [1981) 2 S.C.R.

A Before the Magistrate, the respondent-husband had taken the
defence that as the, appellant had brought a suit for dissolution of mar-
riage on the ground of cruelty and wilful 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, therefore, not entitled
to maintenance under s. 125 ors. 127 of the 1973 Code. Ultimately,
B 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 t~ 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
c continued to be the wife despite obtaining a decree for dissolution of
marriage and thus )ler 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 refer-
red to above would apply only if the divorce proceeded from the
husband, that is to say, the said clause would not apply unless the
D 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 uuder 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 husb'and because the marriage
E 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, ma'ntained 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 nnd 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 var<ous rrovisions
of the 1973 Code, particularly ss. 125 and 127 we are mtisfied that
G the contentions raised by the counsel for the appellant are well found-
ed and must prevail.
ln order to decide the issue in question it may be necessary to give
a hricf survey of the corresponding provisions of the Code of Crimin~! •
Proce,lurc, 1898 (h<:rcinafter referred to as the '1898 Code') to show
•
u the nature and ambit of the provisions relating to the award of main-
tenance. Sections 488 and 489 were the corresponding provisions •
of the 1898 Code which were couched almost in the same language as •
ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, !.) 915

ss. 125 and 127 of the 1973 Code minus s.ome important addition§ that A
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 re-
fuses to maintain his wife or his legitimate or illegitimate
child unable to maintain itself, the District Magistrate, a B
Presidency Magistrate, a Sub-Divisional Magistrate or a
• Magistrate of the first class may, upon proof of such neg-
lect Dr refusal, order such person to make a monthly <illow-
ance for the maintenance of his wife or snch child, at such
monthly rate, not exceeding (five hundred rupees) in the
whole, as such Magistrate thinks fit, and to pay the same to c
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 ckdding
this appeal. It may, however, be noted that a provision 'ike clause
{b) of the Explanation to s. 125{1) of the 1973 Code was conspi- I)
cuously absent from s. 488 and has been added by :he 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 machinory
for determining the maintenance to be awarded by the \1agistrate
under the circumstances mentioned in the section. rrh~ provisions E
may not be inconsistent with other parallel Acts in so far as '1:laintcn-
ance is concerned, but the section undoubtedly excludes to some ex-
tent the application of any other Act. At the same t.ime, it cannot
be said that the personal law of the parties is completely exclt!ded 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 F
is concerned that would have to be determined according to the said
personal law. Thus, the exclusion by s. 488 extends only to the
'4.' !juantum of the maintenance and the circumstances acder which it
, could be granted. The scope of s. 488 of 1898 Code was w"sidercd
by this Court in Nanak Chand v. Shri Chandra Kisho.'e Auw;vala Ill.
Ors.(') where the following observations were made:--· c;
"We are unable to see any inconsistency bet\v•2en i_he
Maintenance Act and s. 488 Cr.P.C ....... The hw ··:'
• substantially similar before and nobody c 0·cr sug~re ,tcd 'k;t
Hindu Law, as in force immediately hfrre the "''''·Jiw ":e-
ment of this Act, insofar as it dealt with the mahilemr.ce. n
of children, was in any way inconsistent withs. 488 Cr. P,C .
•
(1) [1970] 1 S.C.R. 565.
916 SUPREME COURT REPORTS [1981J 2 S.t.R ..

A The scope of the two laws is different. Section 488 pro-
vides 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 (AlR
1963 All. 355), before the Calcutta High Court in Mahabir
B
Agarwal/a 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 Main-
tenance Act does not repeal or affect in any manner the
c 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 Agarwal/a and Nalini Ranjan mention-
ed in the observations extracted above. In order to und~rstand the
prqper scope of s. 488 of the 1898 Code which is almost the same as
D 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 Main-
tenance Act to suggest expressly or by necessary implica-
E tion that the Act is intended to be a substitute for the pro-
visions 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 31>plicable to a wife, irres-
pective of her religion, but the former is applicable to the
case of Hindus only. It could not, therefore, be intend~d to
F be a substitute for s. 48 8 Cr. P. C."

To the same effect is the decision of the Patna High Court in Nalini 1,..
Ro•zfan Clwkravarty v. Smt. Kiran Rani Ch"kravarty(2) where the·
following observations were made : -
G "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 posses- •
sion of that right being in the case of a wife the acceptance •
II of the conjugal relation. Further, s. 488 provided for only
(!) AIR 1963 All. 355. •
(2) AIR 1965 Pat. 442
•
ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, J.) 917

a speedy remedy and a summary procedure before a Magis- A
trate 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 8
Agarwalla v. Gita Roy CJ where the following observations were
• made:-
"An alternative but not inconsistent summary remedy
was provided by section 488 of the Code of Criminal Pro-
cedure not only to the Hindu wife but generally to wives
irrespective of religion for recovery of maintenance from !lie C
husband. The two remedies were, however, not co-exten-
sive."
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 irres,pective of D
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 miportant
questiQn still remains : Was the Magistrate competent to a.ward main-
tenance if urider the personal law of the Mahomedans the "life had E
been validly divorced and had completed the period of ldd;it? 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 pay-
ment of the maintenance on proof of a change in the circumstances.
Similarly, s. 489(2), which is extracted below, provided t111t the
F
Magistrate could cancel the maintenance in consequence of a decision
~· .. of any competent court :
"(2) Where it awears to the Magistrate that . in con-
sequence of any decision of a competent Civil Court, 3 .iy
order made under Section 488 should be cancelled or varied,
he shall cancel the order or, as the case may be, vary the G
same accordingly."
Thus, consiJoring the scheme of ss. 488 and 489 it was generally 11ccep-
1ed as geod bw 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 com- H
•
pletion of the period of Iddat. That this is the Mahomedan law on
(I I 11962] 2 Cr. L.J. 528.
918 SUPREME COURT REPORTS [1981] 2 S.C.R.

A the subject admits of no doubt and bas not been controverted before
us. We would however, refer to a few decisions on this point to
support our point of view.
In Jn re Shekhanmian(') while defining the consequences of a
divorce and its impact on s. 488 of the 1898 Cede a division Bench of
B the Bombay High Court observed thus : -
"A talak when it becomes irrevocable puts an end to
conjugal relationship which had subsisted between :he par-
ties, and the divorced wife would not be entitled to claim
maintenance from her husband beyond the period of iJdat
from the date of such irrevocable divorce. S. 488 Criminal
c P.C., has in no manner abrogated this part of the per'C111al law
of the parties. The existence o! conjugal relations in the
case of Mahomcdans has to be determined by reference to
the provisions of the Mahomedan Law and not by consider-
ations of equity and good conscience as ucde1'tood in any
other system of law."
D
To the same effect is the decision of the Madras High Court in
Syed Sold v. Mccram Bee (2) where in division Bench observed thus :
"A ~1agistrat1..:, ho\vcver, exercising summary powers conR
fcrrcd on him hy s. 488, Code of Criminal Procedure, can
make or enforce an order to that effect only if the relationship
E
of husband and wife exists between the two, but in order to
deteymine this, and only to that extent, we must ascertain the
effect in Mahomedan law of au irreversible divorce on con-
jugal relations."

It was further held in that case that a divorce becomes irrevocable after
F
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 reiteraled by the Madras High Court in
a later decision in In re Mohamed Rahimullah & Anr. (") where Yahya
Ali, J. observed thus : -
G "The foundation upon which Ss. 488 & 489, Crimina·l
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
H or upon any canon of justice or even upon the language of
(I) AIR 1930 Bombay 178. •
(2) 20 M.L.J. 12
•
(3) AIR 1947 Madras 461.
ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, !.) 919

Ss. 488 and 489 how the husband can be directed to continue A
to maintain his divorced wife."

The Hyderabad High Court also took the same v;ew in Rahimun-
nissa & Ors. v. Mohd. Ismail(') and after con,idering the entire law
on the subject Bilgrami, J. observed thus : -
'"All these grounds can be sullicicnt or valid for refusal of B
• 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 Pbliga-
tion which binds a wife during this period is that she .;liould
not remarry."
c
In a very early case of the AJlahalYad High Court-Di11 lYi<ilwm-
mad's cwe(')-Mahmood, J. pointed out that while the enactment re-
garding maintenance was of a general nature being applicable to Maho-
medans as also to Hindus, Buddhists, and other communities vet the
legislature never intended to restrict the Mahomcdan law of Divorce. D
The Judge, further held that the right to maintenance came to a'1 end
when the conjugal relationship between the husband and the wife ceas-
• ed to exist. In this connection, Mahmood, J. observed as f·illows :
"The enactment under which that order was made does
not relate more especiaJly to Muha=adans than to Hindus, E
Buddhists, Indo-Britons, Europeans, or any other branch
of the general community, and the Legislature could never
hayc irtcnded by it to interfere with or restrict the Muham-
madan law of divorce ...... The whole of Chapter XLl,
Crimi11:1l Procedure Code. so far as it relates to the main-
tenance of wives, contemplates the existence of the wuiupl F
relation as a condition precedent to an order of maintenance
and, on general principles, it foJlows that as soon "' the
conjugal relation ceases, the order of maintenance must aho
cease to have any enforceable effect. When and in what
manner a cessation of the conjugal relation takes place, is
G
a question which, ex necessitate rei, must be determined ac-
cording to the personal law fo which the parties concerned arc
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 er creed
of the parties, the only condition precedent to the possession
H
(l) AIR 1956 Hydrabad 14
(2) V. l.L.R. (1813) 226
920 SUPREME COURT REPORTS [1981] 2 S.C.R.

A 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 mainten-
ance by the Magistrate under s. 488 of the Code, the said right ceased
B to exist if she was divorced by her husband and had observed : he period
of iddat. This was the undoubted position of law under the 1298
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
c Code and changed the legal position of a woman after divorce. f>ection
125 of the 1973 Code is couched almost in the same language ass. 488
of the earlier Code with the important exception that an 1:xplanation
has been added after sub-clause (1) of s. 125 which runs thus :

"Explanation-For the purposes of this Chapter.-
D ( a) "minor" means a person who, under the provisions ot
the Indian Majority Act, 1875 is deemed not to have
attained his majority;
(b) "wife includes a woman whn has been divorced by or •
has obtained a divorce from, her husband and bis
not remarried."
(Emphasis supplied)

We are however not concerned with clause (a) of ihe E"planation.
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
F 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
0

she has been divorced by her husband or has otherwise ohtained a
divorce and has not remarried. The decision in this case turns upon
the interpretation of clause (h). The High Court has construec the
G words 'who has been divorced or has obtained a divorce from her hus ..
band' as signifying that in both cases the divorce must proceed from
the husband and should be the act of the husband and not !l ,at of the
wife. In taking this view, the High Court obviously seem' to have
been guided by the consideration that a dissolution of marri2ge brought •
about at the instance of the wife under the 1939 Act does not amount
H to a divorce by the husband under the Mahomedan law and henct1 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 whst it
WHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, J.) 921

overlooked was whereas a dissolution of marriage under the Hindu A
Marriage Act may not necessarily end in a divorce but other conse-
quences 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 t,he 1939 B
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 wou.\d be manifest from the circumstances
which we shall mention hereafter.
c
There can be no doubt that under the Mahomedan law the com-
monest 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 divcrce his wife by a simple dedara- D
tion because other laws, viz., the Hindu law or the Pmsi 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 E
husband if he refused to divorce her. This was undouhtdly the
fundamental concept of divorce as laid duwn by the Mahomctian law.
As, however, some of the Muslim Jurists and Theologists were of the
view that where a husband becomes importent 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 mar- F
riage. Relying on these anthorities the legislature intervenerl and p>ass-
ed 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
G
tl1e 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 leavin~ her unprovid·· H
ed for and under certain other circumstances. The absence of
such a provision has entailed unspeakable misery to innumer-
922 SUPREME COURT REPORTS [1981] 2 S.C.R •.

A able Muslim women in British India. The Hanafi Ju;·i<;ts.
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
B A of this Bill (now see section ?. of the Act), a married
Muslim woman may obtain a decree dissolving her marriage '
. . . As the Courts are "'T to he<itate to apply the Maliki
Law to the case cf a :rv1tFlirn. "'on1an, legislation recognizing
and enforcing the abovcmcntioncd principle is called for in
c order to relieve thr suff,?r'.n~;s cf cGunt'lcss Muslim women."

One of the grounds ·.vas that a st1it could be brought if the husband had
neglected or failed to provide 111<•1ten1nce for the wife for a period of
two years.

After the Act of 1939, a wif: thus had a statntorv right to obtain
D divorce from the husband through the Court on proof of the grounds
mentioned in the Act. The Act provided for the wife an i'ldepen-
dent 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 liusband' in clause (b) of the Explanation have to be constructed.
E
Thus the High Court in considering the effect of these words seems
to have overlooked the dominant ob.iect of the statutory remedy that
was made available t0 the wife under the Act of 1939 11y •. ,hich the
wife could get a dr-rrcc f('r di'-solution of marriage en the ground~
mentioned in the 1939 Act bv petiti0ning the civil court with0ut any
F overt act on the part of the husband in divorcing her. The Hi~h Court
also failed to consider the Ieeal consequences flowing from 11-:e decree
passed by the court discolvinf! the marriage. viz., a legal div0rce under
the Maho.medan law.

In these circumstances we are. therefore, satisfied that the inter-
G pretation put by the High Court on the second limb of clause (b) is
not correct. This seems to be borne out from the provisions .,f Maho-
medan law itself. It wonlr1 arpear that under the Mahorneclan law
there are three d:stinct moies in which a muslim marriage can he dis- ',
solved and the relations hi!' of the husband and the wife terminated so as
to result in an irrevocable divorce.
H ( 1) Where the hmband unihtcrallv gives a divorce
according to any of the forms approved by the Mahomedan
law, viz .. Talaq ahsan, which consisss of a single pronounce-
WHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, /,) 923

ment o f divorce during tuhr (Period between menstruations)
followed by abst:nence from sexual intercourse for the period
t1i i<ldat ; 01 Talak hasan which cons�sts of three prcnounce-
111cn1s 111:!.de during lhc successive tuhrs, no intercourse
taking place between three tuhrs: and lastly Talak-ul-bidaat
e r ta/ai:-i-badai which consi<ts of three pronouncements
made during a single tuhr either in one sentence or in
B
•
A
three sentences s i gnifyin g a clear intention to divorce the
wife, for instance, the husband saying 'I divorce thee irrevo-
cably' or 'l divorce thee, f 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
c
the appel'ant who appears to be a Sunni and governed by
the Hanafi law ( vide Mulla's Principles of Mahomedan
Law, Sec, 3 1 1 , p, 297) .
A divorce or talaq may be given orally or in writing and
it hecomes irrevocable if the period of iddat is observed
though it is not necessary that the woman divorced should D·
come to know o f the fact that she has been divorced b y her
husband.

(2) By an agreement between the husband and tl:ie wife
wherel'ly a wife obtains divorce by relinquishing either her
entire or part of the dower. This mode of divorce is called
E
'khula'. or Mubarat. This form of divorce is initiated by
the wife and comes into existence if the husband gives con
sent 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 modes is that it comes into existence with the consent
F
of both the parties particularly the husband because with
out his consent this mode of divorce would be incapable
j 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 G
reasonable nature and which again are agreed to by 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 lleeii pronounced by the husband, This mode of
divorce is called 'Tawfeez' (vide Mulla's Mohmedan Law,
Sec. 3f4, p. 300).
(31 By obtaining a decree from a civil court for disso
Iutinn of marriage under s, 2 of the Act of 1 939 which also
924 SUPREME COURT REPORTS [1981] 2 S.C.R.

A 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.
B
These are the three distinct modes in which a dissolution of mar-
riage 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
c under mode numbers 2 and 3, she continues to be a wife for the pur-
pose of getting maintenance under s. 125 of the 1973 O·<k In these
·Circumstances 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' conjunclively so as to indicate a divorce
proceeding from the husband and the husband alone and in not treat-
D ing 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 Mahome.dan 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
-
E 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 cus-
r tomary 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
G period, if any, for which maintenance has been
actually paid by the husband to the woman."

This clause refers to Mode No. I, that is to say, where the husband
unilaterally divorces his wife. For the application of clause (b), two
conditions are necessary-
H
( I) that an application for cancellation of the mainte-
'•
nance is made by the husband under s. 127(2), and
lUHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, I.) 925

(2) that after the wife has been divorced by the husband A
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 B
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
c
cancellation 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 hnsband the amount of maintenance cannot be D
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." E

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 unger the Act of 1939.
We might further add that our conclusion that the second limb F
of clause (b) of the Explanation to s. 125 applies also to a situation,
... -.i 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
G
of the husband unless the wife voluntarily surrenders her rights to
maintenance or relinquishes the same and not otherwise. Thus, the
two limbs of clause (b) of the Explanation to s. 125(1) have separate
' and different legal incidents--one is reflected in clanse (b) of sub-
section (3) of s. 127 and the other in clause (c) of sub-section (3)
of s. 127. H
In view o1' the reasons given and the circumstances discu8sed by
•' us, it is manifest that in the instant case s. 127 does not apply at all
926 SUPREME COURT REPORTS ll 98 lj 2 S.C.R.

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 Ex
planation 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 tkcrce lo,. dissclufon of marr:age. The Magistrate was,
B
thcre[ore, fully justified in granting maintenance to the appellant. The
High Court, therefore, erred in quashing the order ol the Magistrate, '

we, therefore, allow this app�al, set aside the order of the High Court •

and restore that of the Magistrate granting maintenance of a consoli
dated amount of Rs. 100/- per month for the appellant and her minor
c child. It would be open to the appellant to apply to the Magistrate
for a warrant to realise the arrears of 1naintcnance, 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 parti
cular aspect of the matter, I am appendiag a short note of my own.
D 2. Sub-section ( I ) of section 125 of the Code of Criminal Pro
cedure (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 Crnt in
spite of the decree of dissolution of marriage passed in her favour by
E a Civil Court on the 15th January, 1973, she continues to be the wife
of the respondent for the purposes 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:
F
"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
G
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
H 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.
ZOHRA KHATOON v. MOHD. IBRAHIM (Koshal, J.) 92 7

3. The word 'divorce' is not defined in the Code and may legi- A
timateiy be regarded as having been used in clause (b) above extract-
ed in the dictionary sense. Webster's Third New International Dic
tionary states it to mean, amongst other things,.-

" (a) legal dissolution in whole or in part of a marriage rela-
tion usually by a court or other body having competent B
authority;

" (b) an absolute dissolution of 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
- c
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, unle'8 the legislature makes a D
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
cBJled upon to interpret sections 1 6 ( 1 ) and 1 9 ( 3 ) of the Matrimonial E
Causes Act, 1950 which posed a similar problem. The relevant por
tions of those provisions are reproduced below:

" 1 6 ( 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 F
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 G
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 marriage
as envisaged in section 1 6 ( 1 ) does not amount to a decree for divorce R
mentioned in section 1 9 ( 3 ) and that, therefore, there was no juris
diction in the Court to direct the husband to pay the wife any main-
I!
\
i

928 SUPREME COURT REPO!~TS [1981] 2 S.C.R.

A 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 dis-
tinction between the words "dissolution of marriage" and ,.i
B "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 all in the case of pre-
snpmption of death .......... In my view the word "dis- · t
solution relates to the marriage bond itself, whereas the
word "divorce" relates to the parties to the marriage bond;
c 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
thls and in all other decrees, as it has been used for years:
D 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
E 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 pro-
vided that she has not re-married. Could then it be argued with any
plausibility that a wife who h_as been granted a decree of dissolution
of marriage by a Civil Court but has not been divorced by a voluntary
F 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. It that
clause envisaged only divorce by voluntary action of the husband, the
second limb of the clause which makes the definition of "wife" inclu-
sive of a woman who has 'obtained a divorce from the husband' would
G 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 exer-
tion in spite of opposition from others. According to Webster, again
the word 'obtain' signifies: '•
H "(a) to gain or attain possession or disposal of, usually by
some planned action or method,
>
"(b) to bring about or call into hein.g, etc." •
ZOHRA KHATUN v. MOHD. IBRAHIM (Koshal, J.) 929

If a person sues another person for the recovery of property and A
the suit is resisted but ultimately decreed and the plaintiff recovers
possession of the property from the defendant he may properly be
<lescribed 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 B
methods used against a helpless person would still be information
obtained from him even though he is not a willing party to the state-
' ment.
6. There is another good reason why the narrow interpretation
placed by the High Court on clause (b) above extracted cannot be c
accepted. Divorce by the act of the husband is, broadly speaking,
not recognised by any system of law except that applicabie to Muslims
(barring variations of personal law by custom). Members of the
other main communities inhabiting India, i.e., Hindus, Sikhs, Bud-
dhists, Jains, Christians, etc., have perforce to go to courts in order
• to obtain divorce. If clause (b) was intended to embrace only cases D

.
'
of divorce brought about by the act of the husband, its applicability
would be limited, by and large, ofrly 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 E
a wife who has been granted a decree of dissolution of marriage by
the Court. That snch 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 tl1e learned Magistrate granting
an amonnt of Rs. 100/- per month as maintenance to the appellant
and her minor child is restored. F

.& N.K.A. Appeal allowed.

•
'

... ", 12-214 SCI/81