LexBAI TAHIRA versus ALI HUSSAIN FISSALLI CHOTHIA AND ANR .
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7:;
BAI TAHIRA
A
v.
ALI HUSSAIN FISSALLI CHOTHIA AND ANR .
•
October 6, 1978
[V. R. KRISHNA IYER, V. D. TULZAPURKAR AND R. S. PATHAK, JJ.J
B
Code of Crin1inal Procedure, 1973-S. 127(3) (b )-Scope of-Wife dh·orced
"l-
by the husband and was granted mehar in 1962-Wffc claimed 1naintenance f1-01n
husband under s. 125, Cr.P.C. 1973-lf could clafm-"under any customary or
personal law"-Meaning ef.
··-~
Explanation (b) to s. 125(1) of th• Code of Criminal Procedure. 1973
provides tha.t "wife" includes a woman who has been divorced by or has obrained
a divorce from her husband and has not re-married.
Section 127(3) (b) pro-
vides that where any order has been made under s. 125 in favour of a \\'Oman
who has been divorced by or has obtained a divorce from her husband, the
~{agistrate sha.11 if he is s·atisfied that the woman has been divorced by her
husband and 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
1he parties, was payable on such divorce cancel such order in the circumstoo.C'eS
-stated therein.
The respondent (husband) married the appellant (wife) and had a son by
her.
A few years later the respondent divorced his \Vife.
By a consent decree,
in the suit filed by the wife, he transferred to her the fiat in which she was
living and agreed to pay mehar money. The
compromise
stated
that
the
"plaintiff declares that she has now no claim or right whatsoever against the
defendant". For some time thereafter they lived together but again separated.
The wife moved the magistrate under s. 125 Cr.P.C. for grant of maintenance
to her and her son. This was granted.
On appeal the Sessions Judge held
that the C.ourt had no jurisdiction under s. 125.
The High Court dismissed
the wife's appeal.
On further appeal to this Court it was contended on behalf of the respondent
that (i) s. 125(4) would apply in the absence of proof that the wife wa< not
living separately by mutual consent; (ii) to attract s. 125 there must be Proof
of neglect to maintain the wife and (iii) no claim for maintenance in this case
ean survive in the face of the consent decree whereby melzar money had. been
paid and all claims adjusted.
Allowing the appeal the Court,
HELD : Every divorcee, otherwise eligible, is entitled to the benefit of main~
tenance allowance and the dissolution of the maniage makes no difference to
this right under t.he current Code. [78Hl
I. There is no force in the argument that the absence of mutual consent
to Jive separately must be made out if the hurdle of s. 125(4) is to be overcome.
c
D
E
.F
G
The compulsive conclusion from a divorce by a husband and his provision of a
separate :residence as evidenced by the consent decree fills the bi1l.
Divorce
H
p1ainful1y implies that the husband orders the wife out of the conjugal home.
f80Dl
76
SUPREME COURT REPORTS
(1979] 2 S.C.R:.
A
2. The husband's plea is his right to ignore. So the basic condition of neglect
B
c
D
to maintain is satisfied. In this generous jurisdiction the broader perception. and
appreciation of the facts and their bearing must govern the verdict-not chopplng
little logic or tinkering with burden of proof. [SOC]
3. (a) The consent decree resolved all disputes and settled all claims then
available. The new statutory right which could not have been in the contempla.-
tion of the parties when they entered into the consent decree in 1962 had been
created by the Code of 1973. No settlement of claim which does not have 1he
special statutory right of the divorcee under s. 125 can operate to negate that
claim. [80F]
(b) No husba.nd can claim under s. 127(3) (b) absolution from his obligation
under s. 125 towards a divorced \Vife except on proof of payment of a ~um
stipulated by customary or personal law whose quantun1 is ;.nore or less sufficient
to do duty for maintenance allowance. [81F]
(c) Section 127 cannot rescue the husband from his obligation.
The scheme
of Chapt.er IX has a social purpose.
Ill-used wives and desperate divorcees
shall not be driven to material and moral dereliction to seek sanctuary in the
streets. Where the husband, by customary payment at the time of divorce. has
adequately provided for the divorcee, a subsequent series of recurrent doles is.
contra-indicated and the husband liberated. The key note thought is adequacy
of payment whlcb will take reasonable care of the wiExcerpt shown. Read the full judgment & AI analysis in Lexace.