FAZLUNBI versus K. KHADER V ALI AND ANR.

Citation: [1980] 3 S.C.R. 1127 · Decided: 08-05-1980 · Supreme Court of India · Bench: V.R. KRISHNA IYER, O. CHINNAPPA REDDY, A.P. SEN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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1127 
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____ 'If.! 
FAZLUNBI 
.. 
v . 
K. KHADER V ALI AND ANR. 
May 8, 1980 
[V. R. KRISHNA !YER, 0. CmNNAPPA REDDY AND A. P. SEN, JJ.] 
CJode of Criminal Procedure Code, 1973, Section 127 (3) (b), scheme and 
scope of-Whether by the payment of Mahar and Iddat dues, the provisions 
of s. 
127(3)(b) of the Code would be complied with or th• vinculum juris 
created by the order under s. 125 continues despite the make--believe ritual of 
miniscule mahar which merely stultified section 127 (3) (b) Cr.P.C.-Precede11ts 
and binding nature under Article 141 of the Constitution. 
F'azlunbi, tho appellant, married Khader Vali, the respondent, in 
1966, 
and during their conjugal life, a son Khader Basha;· was born to them. Tho 
respondent, husband, an additional accounlt!nt in the Stare Bank of India, 
drawing a salary of Rs. 1000/-, discarded tho wife and the child, and the 
tormented woman talaqed out of the conjugal home, -sought shelter in her 
parent's abode. Driven by destitution, she prayed for maintenance allowance. 
for .herself and her son under section 125 Cr. P.C. and tho Magistrate granted 
· payment of a monthly sum of Rs. 250/r to the wife and Rs. 
150/- to the 
child. The respondent husband challenged the award in the High Court where 
thC unjustified neglect was upheld, but the 
quantum of maintenance of the 
child .was reduced to Rs. 100/- per menscm. 
Thereafter, the respondent husband resorted to the unilateral technique of 
talaq and tendered the magnificent sum of Rs. 500 /- by way of Mahar and 
Rs. 750/- towards maintenance for the period of iddat, hopeful thereby, of 
extricating himself from lhe obligation to maintain the appellant The Addi-· 
tional First Qass Magistrate vacated the grant of maintenance already granted 
on the score of divorce coupled with discharge of mahar and Iddat dues. This 
order was unsuccessfully challenged in the Sessions Court. The desperate appel-
lant reached the High Court end invoked its jurisdiction under section 
482 
Cr!. P.C. A Division Bench of that High Court, though the revision petitioner 
banked upon the decision of the Supreme Court in Bai Tahlrris case [1979) 
'2 SCR 75 in her favour, distinguished that case and dismissed the petition.• 
Hence the appellant-wife's appeal by special leave. 
Allowing tho appeal, the Court 
HELD. : 1. Tho conscience of social justice, the cornerstone of our Consti· 
tution will be violated and the soul of the scheme of Chapter IX of the Code, 
a secular safeguard of British India vintage against the outrage 0£ jetsam 
women and 11otsam children, will be defiled if judicial interpretation sabotagca 
the true meaning and reduces a benign protection into a damp squib. 
[1131 
E-F] 
2. Precedents of the Supreme Court are not to be left 
on the shelves. 
Neither could they be brushed aside saying that precedents is an .authority only 
"on its actual facts". Such devices are not permissible for the High Courts when 
decisions of the Supreme Court are cited before them. not merely because of 
the jurisprudence of precedents, but because of the imperatives of Article 141. 
[1134 D·EJ 
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1128 
SUPREME COURT REPORTS 
(1980] 3 s.c.R. 
No Judge in India, except a laraer Be:n.eh of the Supreme Court, without 
a departure from judicial discipline can whittle down, wish away or be un .. 
bound by the ratio in Bai Tahira's case, in 
which Section 127(3)(b) Of 
Cr!. P.C. was interpreted. The langual!C used is unmistakable, the logic at play 
is irresistible, the conClusion reached is inescapable the application of the law 
as expanded there is an easy task. And yet, the Division Bench, by the fine art 
of skirting the real reasoning laid d-own "unlaw" in the face of th.e law in 
Bail T ahira which is hardly a service and surely a mischief, unintended by the 
Court may be, but embarrassing to the subordinate Judiciary. There is no 
warrant whatever for the High Court to reduce to a busk a decision of this 
Court by its doctrinal gloss. [1132 C-E] 
(3) Cr!. P.C. (Sections 125-127) is a secular code deliberately designed to 
protect destitute women, who are victims of neglect during marriage and after 
divorce. 
It is rooted in the State's responsibility for the welfare of the weaker 
sections of women and children and is not confined to members of one religion 
or region, but the whole community of womanhood. Secondly muslim law 
show its -reverence for the wife in the institution of Mehar 
(dower). 

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