LexMST. ZOHARA KHATOON versus MOHD. IBRAHIM
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MST. ZOHARA KHATOON
JI.
MOHD. IBRAHIM
February 18, 1981
(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
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
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
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. Appeal1,
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(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
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the respondent, despite the decree for dissolution of marriage. [925 II, 926 A-B]
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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
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]
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ZOHRA KHATOON V. MOHD. IBRAHIM
911
Nanak Chand v. Shd Chandra Kishare Agarwala & Ors. [1970] I SCR 565,
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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
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Jddat.
[917 G-H]
.,.
In re Shckhannzian AIR 1930 Bombay 178, Syed Said
v.
A-feera Bee 20
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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
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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
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statute (1939 Act). [920 E-F, 921 BJ
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