Beruflich Dokumente
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PROCEDURE CODE
In 1882, James Fitz James Stephen, who piloted the Code of Criminal
Procedure, spoke thus of section 488 (corresponding to the present section
125), the objective of the provision being "preventing vagrancy or at
least of preventing its consequences." Then the provision was looked
upon as a legislative effort to prevent vagrancy or the consequences resul-
ting from it. In 1963 Subba Rao J., as he then was, observed that section
488 was intended "to serve a social purpose."2 In 1985, Chandrachud C.J.
observed3 that section 125 imposed on an individual obligation towards
the society to maintain some of his close relations listed therein so as to
prevent vagrancy and destitution. He also rightly said that it is a measure
which enacts a uniform law applicable to all persons belonging to any
community, caste or religion. It is essentially of a prophylactic nature and
Under section 488 of the old Criminal Procedure Code deserted wives
and children were entitled to claim maintenance and the provision did not
extend to parents. Similarly, the provision was not available to a divorced
wife.5 Section 125 of the new code includes wife, divorced as well as
undivorced, minor children, legitimate or illegimate, father and mother.6
4. Naurang Singh Chuni Singh v. Sapla Devi, A.I.R. 1968 All. 412 at 413.
5. S. 488(1) ran thus: *Tf any person having sufficient means neglects or refuses to
maintain his wife or his legitimate or illegitimate child unable to maintain itself, the
District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate
of the fiist class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, at such monthly
rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and
to pay the same to such persons as the Magistrate from time to time directs."
6. Sub. section (1) of s. 125 of the Code of Criminal Procedure 1973 runs: "If any
person having sufficient means neglects or refuses to maintain—
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to
maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any physical or mental abnormality
or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such
person to make a monthly allowance for the maintenance of his wife or such child,
father or mother, at such monthly rate not exceeding five hundred rupees in the whole,
as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may
from time to time direct. . . .*'
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 293
Child
7. Per S.M. Sikri L, as he then was, in Nanak Chand v. Chandra Kishore Aggarwal,
A.I.R. 1970 S.C. 446. See also Amirthammal v K. Marimuthu, A.I.R. 1967 Mad. 77,
where Natesan J. has referred to practically all the Indian cases as well as a number of
English cases and various statutory provisions using the word 'child'.
8. S. 125(l)(c).
9. In re Sheikh, 18 W.R. 28; Venkatakrishnay. Chimmukutti, I.L.R. 22 Mad. 246;
Nur Mohomedv. Bismulla Jan, I.L.R. 16 Cal. 781 (1889).
10. Sarfraz Begam v. Miran Baksh, 29 Cr. L.J. 1052 (1928); Zauhra Bi v. Muhammad
Yusaf 32 Cr. LJ. 247 (1931); In re Vaithialinga, 2 Weir 630; A. Murgesan Mudaliar v.
Sodiamma, 16 Cr. L.J. 656(1915); Md. Yusufv. Haji Adam, I.L.R. 37 Bom. 71; In re
Parathy Valappil Moidden, 14 Cr. L.J. 597 (1913); Muzaffaruddin v. Hajira, 53 Cr. L.J.
996 (1952); Allah Rakhi v. Karam Illahi, 35 Cr. LJ. 344 (1934). Among the Sunnis and
Shias, the mother is entitled to the custody of her children of tender years,
though the ages upto which the mother may have custody, vary from school to school.
See Paras Diwan, Muslim Law in Modern India (1982). Under proviso to section
6(a), of the Hindu Minority and Guardianship Act 1956, the mother is/entitled to the
custody of her children upto the age of five. See Paras Diwan, Modern Hindu Law 227
(1985).
11. Ebrahim Mahomed v. Khurshedbai, A.I.R. 1941 Bom. 267; Kuppala Krishtappa v.
Premaleelamani, A.I.R. 1942 Mad. 705; Muniammal Venkataramanachari, A.I.R. 1943
Mad. 768.
294 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2
12. Parvathiv. Ramaswami, 2 Weir 630; Sita Devi v. Har Narain, 32 Cr. L J. 196
(1931).
13. Ralla v. Atti, 15 Cr. LJ. 529 (1914;; Sultan v. Mahtab Bibi, 27 Cr. LJ. 1319 (1926).
14. Balbir Singh v. Hardeep Singh, 82 Cr. L J . 1136 (1976).
15. Kent v. Kent, I.L.R. 49 Mad. $91; Kembu Ammal v. Ranganatham, 25 Cr. L J .
94 (1924).
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 295
Wife
Parent
Clause (d) of section 125 (1) speaks of the 'father* or 'mother', and
does not use the word parent. This means that the obligation to maintain
father or mother is only that of a legitimate son. The illegitimate son has
no obligation to provide maintenance under section 125 of the Criminal
Procedure Code. A daughter too has no such obligation, irrespective
of the fact whether she is the legitimate or illegitimate child of her
parents.
16. ShahAbuv. Ulfat Bibi, I.L.R, 19 All. 50 (.1897); Md. Ibrahim v. Jaithoon Bivi,
A.I.R. 1951 Mad. 831; Md. Shamsuddin v. Noor Jahan, A.I.R. 1955 Hyd. 144;
Ahmad Giri v. Begha, A.LR. 1955 J. & K. 1.
17. Chandbi v. Bandesha, A.I.R. 1961 Bom. 121. See also cases cited in ibid.
\la. 1976,Cr.LJ. 1584.
18. Supra note 1.
296 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2
The magistrate first class, has the power to make an order for a
monthly allowance for the maintenance of the claimant (wife, child or
parent) at such rate not exceeding Rs. 500 on the whole, as he thinks fit,
and to pay the same to such person as he may from time to time direct.
The basis for the award of maintenance by the court is the neglect or
failure of a person having sufficient means to maintain his child, wife,
father or mother.19
The failure of a person, against whom a maintenance order has been
made, to comply with the order without sufficient cause, empowers the
magistrate to issue, for every breach of such order, a warrant for levying the
amount due in the manner provided for levying fines, and further to
sentence him, for the whole or any part of each month's allowance remain-
ing unpaid after the execution of the warrant, to imprisonment for a
term which may extend to one month or until the payment is made
sooner.20 The procedure for levy of fine is laid down in section 421 of the
code. The procedure for recovery of maintenance amount as fine is that
the court may issue a warrant for the levy of the amount by attachment
and sale of any moveable property belonging to a person against whom an
order for maintenance is made, or issue a warrant to the collector of the
district, authorising him to realize the amount as arrears of land revenue
from the moveable or. immoveable property, or both, of the defaulter.
But, it should be noticed that the maintenance thereby does not become
"fine" within the meaning of criminal law. It is merely made to be realis-
able in the manner fines are realised.21 The magistrate has a discretion to
follow either course.22 If on execution of the distress warrant the mainte-
nance amount remains unpaid, wholly or partly, the magistrate may issue
a body warrant, and sentence the defaulter to imprisonment for a maximum
period of one month for each month's payment in default or any surplus
fraction of a month.23 It is not necessary that the magistrate should issue
a separate warrant in regard to each month's default, and thus where
arrears of several months have fallen due, he may issue one warrant and
impose a cumulative sentence of imprisonment.24 Since the first proviso
to clause (3) of section 125 lays down that no warrant can be issued for
recovery of any amount due under this section unless application is made
to the court to levy such amount within a period of one year from the
date on which it became due, the maximum sentence of imprisonment at
any time cannot be of more than one year.25 The sentence of imprison-
ment is inflicted for default of payment of the unrealized portion of main-
tence, and, therefore, imprisonment will cease upon payment of the amount
due.26
When a sentence of imprisonment is inflicted for breach of the main-
tenance order, it should not be considered that such a person is under
imprisonment in execution of the decree of any court for the payment of
money.27 The objective of proceedings for imprisonment of the defaulting
person is not to punish him for his past neglect but to use the coercive or
compulsive machinery of criminal law to compel him to pay maintenance
as ordered by the court to the needy wife, children or parents.28
Nature of proceedings
Proceedings under section 125 are not civil but criminal proceedings
of a summary nature. In the words of Dua C.J.:
That the criminal proceedings under section 125 are of civil nature is
made evident by clause (3) of section 126 which empowers the court to
make such orders as to costs as may be just. Further, where the magis-
trate is satisfied that the person against whom an order for payment
25. See Allapichai v. Mohidin Bibi, I.L.R. 20 Mad. 3 (1897); Bhiku v. Zahuran, I.L.R.
25 Cal. 291; Karson Ramji, ibid; Moddari Bin, supra note 20.
26. Penubala Muni Krishnayyav. Akulamma, A.I.R. 1940 Mad. 697.
27. Ibid.
28. Sardar Muhammad v. Nur Muhummad, 18 Cr. L J, 811 (3917); Neuritg Sirgh,
supra note 4.
29. Harbhajan Kaur v. Major Sent Singh, A J.R. 19(9 Del. 29% at 3C0.
298 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27. 2
At the time of making any decree for the recovery of any main-
tenance or dowry by any person, to whom a monthly allowance
has been ordered to be paid under section 125, the Civil Court
shall take into account the sum which has been paid to, or
recovered by, such person as monthly allowance in pursuance of
the said order.
The basis of the relief, under section 125 of the Criminal Procedure
Code, is the refusal or neglect to maintain his wife, children, father or
mother by a person who has sufficient means to maintain them. The
criterion is not whether a person is actually having means, but if he is
capable of earning he will be considered to have sufficient means,33 The
burden of proof is on him to show that he has no sufficient means to
maintain and to provide maintenance. In Bai Tahira™ Krishna Iyer J.
very aptly said:
33. Prasad Gareri v. Mt. Kesari, A.I.R. 1941 Pat. 444; In re Gulubdas Bhaidas, I.L.R.
16 Bom. 269 (1892); Sita Devi v. Har Narain, 32 Cr. L.J. 196 (1931); Gunni v. Babu Lai,
53 Cr. LJ. 1164 (1952); Graham v. Graham, 26 Cr. L J. 831 (1925).
34. Supra note 1.
35. Id. at 365.
36. 27Cr.L.J. 350(1925).
300 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27 : 2
49. In re Alia Pichai, 2 Weir 648; Maung Tinu v. Ma HIa. Kyi, 38 Cr. LJ. 913
(1937).
50. Hildephonsurv. Malone, 1885 P.R. 13.
51. In re Kuppa Mudali, 2 Weir 630; Rama Baiv. Bhoja Rao, 1937 M.W.N. 640;
Laxmanna v. Bhojawan, 53 Cr. L.J. 1311 (1952); G. Pandariv. Parkash Rao, 53 Cr. L.J.
350 (1952); Anjayya v. Parutal, 53 Cr. LJ. 577 (1952)
52. A.I.R. 1941 Cal. 558.
53. Kariyadan Pokkar v.Kayat Beeran, I.L.R. 19 Mad. 461 (1896); Lingappa v.
Esudasan, I.L.R. 27 Mad. 13 (1904); U Thiri v. Ma Pwa Yi, 24 Cr. L J. 368 (1923).
54. MiThein v. Nga Po Nyun 15Cr. LJ. 278 (1914).
55. A.I.R. 1941 Lah. 92.
56. I.L.R. 39 Mad. 957(1915).
57. LL.R. 13 Mad. 17(1890).
58. Crown v. Miran, 1 Cr. LJ. 110 (1904); Ram Kaur v. Waryam Singh, 15 Cr. LJ.
511(\9\4);Sohnav. Kartar Kaur, 32 Cr. LJ. 1175; Hemibai v. Kundibai, A.LR. 3940
Sind 222
302 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 27: 2
Proof of marriage
59. NgaHlav. Mi Hla, 11 Cr. LJ. 40 (1910); ^wm//v. Emperor, 25 Cr. LJ. 1249
(1924); Shwe Ba v. Ma Thein, 40 Cr. LJ. 440 (1939).
60. Ma Hnin v. Maung Myat, (1900) L.B.B. 189; Mi Le v. A^ Paw Din, (1905) U B.R
45.
61. Ambirathu v. Lakshmi Amma, (1937) M.W.N. 985; Baran, supra note 48
62. AI.R. 1985 S.C. 765.
63. After observing this the Supreme Court remanded the case to the trial court for
finding out the factum of marriage. In our submission the Supreme Court should have
decided the case in favour of the wife on these clear observations, instead of perpetuating
the agony of the wife, be it for another three months. (The Supreme Court had directed
that the magistrate should decide the case within six months of the receipt of the record
of the case).
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 303
rebut the presumption.** The Mysore High Court rightly observed that in
proceedings under section 488 of the Criminal Procedure Code 1898 the
standard of proof of marriage need not be so high as required in prosecu-
tions for bigamy or proceedings under the Divorce Act. Thus, even
opinion expressed by conduct of persons who had special means of know-
ledge on the subject may be sufficient to prove the fact of marriage in
proceedings under section 125 of the present code.65 It is true that where
a woman claims maintenance on the basis that she is the wife, the
burden of proof is undoubtedly on her to show that she is the lawfully
wedded wife, but the standard of proof under section 125 is very light. In
Edward Sailendra v. Snehalata™ the Calcutta High Court rightly observed that
the criminal court in proceeding under section 488 ought not to be burdened
with a decision on a point of personal law which did not ordinarily
concern it.67
It appears that even if the marriage is void a 'wife' is entitled to main-
tenance under section 125, if factum of marriage, i.e., proof of required
ceremonies and rites of marriage is established or presumption on account
of prolonged cohabitation is available.68
In this regard the provision contained in sub-section (2) of section 127
should be noticed. It lays down:
One of the implications is that if the civil court declares that the
marriage is invalid on the ground of non-performance of ceremonies and
rites, the magistrate would be justified in cancelling a maintenance
order passed in favour of the "wife".
64. Gokal Chandv. Parvin Kumari, A.I.R. 1952 S.C. 231; Vanajakshammav. P. Gopala
Krishna, A.I.R. 1970 Mys. 305.
65. See proviso to section 50 which lays down that such opinion shall not be sufficient
to prove marriage in proceedings under the Divorce Act or in prosecution for bigamy
under the Indian Penal Code: Vanajakshamma, ibid; K.J.B. David v. Nilamoni Devi,
A.I.R. 1953 Ori. 10; Bebi Bat v. Y. Japamony, 1967 M.L.J. 311.
66. 41 C.W.N. 898(1936-37).
67. See also K.J.B David, supra note 65.
68. Sumitra, supra note 62.
69. Sub-sec. 4 of s. 125.
304 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 27 : 2
Since the objective of section 125 is social, economic and moral, juris-
dictional rules are framed very widely. A wife may sue the person against
whom a claim for maintenance is made:70
The aforesaid alternative forums are available to the wife. The wife's
70. Rajaniv. Prabhakar, A.I.R. 1958 Bom. 264; Bhagwan v. Amar, A.I.R. 1971 Guj.
33; Maganlal v. Bai Dahi, A.I.R. 1971 Guj. 33.
71. Kistav.Amrithammal, A.I.R. 1938 Mad. 833; In re Fulchand, A.I.R. 1928 Bom.
59; Durghatia v. Ayodhya, A.I.R. 1953 V.P. 28.
72 See Paras Diwan, Modern Hindu Law, supra note 10 at 164-65; Paras Diwan,
Muslim Law in Modern India, supra note 10 at 87-88, 96-97; Paras Diwan, Family Law
(1983).
73. This came up in Bai Tahira, supra note 1.
74. Sub-s. (5) of s. 125 of the code
75. Id., second proviso to sub-s (3), s. 125
76 Id , s . 126(1).
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 305
residence or mere presence of the husband within the forum gives jurisdic-
tion to the court. The expression 'where he is* confers a fairly wide
jurisdiction. As the Supreme Court observed,77 it is not limited by the
animus manendi of the person or the duration or the nature of his stay. If
he is physically present within the district, the magistrate will have jurisdic-
tion. In fact, in Jagir Kaur, the husband had come to India on a flying
visit from Africa where he was employed since 1930. The wife's applica-
tion for maintenance filed against him in the district where he was staying
during the visit was held to be competent. In the words of the Supreme
Court: "The said Magistrate had jurisdiction to entertain the petition, as
the said proceedings can be taken against any person in any district
where he 'is'".78
Thus, what confers jurisdiction on the court is the bare physical pre-
sence of the husband at the time of filing of the petition. It may be a casual
visit or a chance encounter with him. If the wife is able to catch him. the
order passed by the magistrate will be valid and enforceable.79
The petition may also be filed on the basis of the petitioner's or res-
pondent's residence. It would appear that a child or a parent cannot file
a petition on the basis of his own residence since the words used in section
I26(l)(b) are "his wife resides". Similarly, on the basis of last residence
of the respondent with the wife, a child or a parent cannot file a petition
for maintenance, since the words in clause (c) of section 126(1) are "where
he last resided with his wife." The mother of the child, whether
legitimate or illegitimate, can also file a petition under section 125
on the basis of "residence together", as the second part of clause (c) runs
'where he last resided. . . with the mother of the illegitimate child'. This
seems to have happened because sub-section (1) is modelled on sub-
section (8) of section 488 of the old code. Only addition in the jurisdiction
is that a wife now can file a petition on the basis of her own residence.
When needy parents' maintenance was imposed as an obligation on the
son under sub-clause (d) of clause (1) of section 125, the draftsman, by the
time he reached to clause (8) of the old section 488 (which contained
jurisdictional rules), overlooked the fact that parents have also been
included, who can claim maintenance under the provision of the new
code.80 The result has been what it is. Thus, a parent can sue his son only
at the place the son is. Probably he can also sue him on the basis of
residence of his son, since in sub-clause (b) the words are where "he or
his wife resides". It would be interesting to visualize the possibility of a
parent suing his son on the basis of residence of son's wife or on the basis
of last residence together of his son and his daughter-in-law, since the
opening words of clause (1) of section 126(1) are, "proceedings under
section 125 may be taken against any person in any district". It does not
say who can take proceedings. The question is answered by sub-section
(1) of section 125 which includes father and mother as the persons who can
claim maintenance on account of their inability to maintain. Again the
words in sub-clause (d) of clause (1) of section 125 are "father or
mother". The word is not "parent". This means a parent can
claim maintenance only against his legitimate son. Again, if the open-
ing words in clause (1) of section 125 are looked into, viz., "if any person",
it may be considered to mean both a son and a daughter against whom
maintenance by the father or the mother can be claimed but in clause (d)
the word is "his"—"his father or mother"—and "his" here will not include
"her".
The term "residence" has been variously defined, but in all cases it is
a question of fact. Ordinarily 'residence' means the permanent abode or
permanent home or permanent place where a person lives, and does not
include a temporary residence.81 If a person having a permanent place where
he lives, goes to another place for a temporary stay, just for business or
health reasons, the latter place cannot be called his residence.82 However,
where the parties have not set up a permanent home at any place, then the
place where they last stayed together would be considered the place where
they resided together.83
81. Robeyv. Robey, A.I.R. 1931 Cal. 121 (case under the Indian Divorce Act where
this word in the jurisdictional context had come for interpretation).
82. See Janak Dulariv. Narain Das, A.I.R. 1959 Punj. 50.
83. This view has been taken in matrimonial cases, both under the Indian Divorce
Act and the Hindu Marriage Act, and it is submitted that the same meaning should be
given to the words "where he last resided with his wife" in sub-clause (c) of section 126(1)
Some of these cases are: Taraw. Jaipal, I.L.R. (1946) 1 Cal. 604; Clarance v. Raicheat,
A.I.R. 1964 Mys. 67; Saroja v. Emmanuel, A.I.R. 1965 Mys. 12; Bright v. Bright, I.L.R.
36 Cal. 964 (1906) (cases under the Indian Divorce Act), Lalhthamma v. Kaman, A I.R.
1966 Mys. 179; Jagan v. Swaroop, (1972) 2 M.LJ. 71; Madhavi Sirothia v. N.N. Sirothia,
A.I R. 1974 All. 36; Jeewantiv. Kishan, A.I.R. 1982 S.C. 3.
84 S. 127(1) of the code.
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 307
Well, I will not go into this, but say that we would not like to
interfere with the customary law of Muslims through the Crimi-
nal Procedure Code. If there is a demand for change in the
Muslim Personal Law, it should actually come from the Muslim
Community itself and we should wait for the Muslim public
opinion on these matters to crystallize before we try to change this
customary right or make changes in their personal law. Above
all, this is hardly the place where we could do so.89
89. However, the minister added, "Divorced women have been included and brought
within the ambit of clause J 25, but a limitation is being imposed by this amendment to
clause 127, namely, that the maintenance orders would cease to operate after the amount
due to her under the personal law arc paid to her. This is a healthy compromise between
what has been termed a conservative interpretation of law or a concession to conserva-
tive public opinion and hbeial approach to the problem*'.
90. Supra nott J.
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE 309
mise it was also stated that the husband had paid an amount of
Rs. 5,000, the mahr-money> to the wife. One of the clauses of the
compromise stated, "The plaintiff (wife) declared that she has now no
claim or right whatsoever against the defendant or against the estate and
the properties of the defendant." Sometime later on the relationship
between the two improved but it did not last long, and when the wife
found herself in financial straits and unable to maintain herself, moved
the magistrate under section 125 of the Criminal Procedure Code, for the
monthly allowance for maintenance of herself and the minor son. In her
petition, the wife proceeded on the assumption that she was still the wife,
but her husband contended that she being a divorcee was not entitled to
maintenance under section 125. The wife succeeded in the magistrate's
court but the husband succeeded in the first appellate court91 as well as in
the revision petition before the High Court92 filed by the wife. When the
case came to the Supreme Court, Krishna Iyer J. observed that it was
obvious that a divorced wife was entitled to maintenance under section
125. The two main contentions before the Supreme Court were:
(a) Since parties were living separately by mutual consent, sub-section
(4) of section 125 applied and, therefore, she was not entitled to any
maintenance; and,
(b) since there was a compromise in 1962 under which mahr-money
was paid to the wife and all claims adjusted, no claim of maintenance,
in view of section 127 (3) (b), could survive. Taking recourse to teleological
and schematic method of interpretation, Krishna Iyer J. observed that
the meaning of any provision of law should be discerned keeping in view the
values of society and legal system. Article 15(3) of the Constitution has
compelling, compassionate relevance in the context of section 125 and the
benefit of doubt, if any, in statutory interpretation belongs to the ill-used wife
and the derelict divorcee. Parliament, in keeping with article 15(3) and
with deliberate design, made a special provision to help women in distress,
cast away by divorce or neglect. Protection against moral and material
abandonment manifest in article 39 is part of social and economic justice
specified in article 38. The learned judge then observed:
91. The district and sessions judge took a strange view of the law that under section
125, the court had no jurisdiction to consider the question of marital status.
92. The High Court paying little attention to the, matter summarily dismissed the
revision petition.
310 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol, 27 : 2
It would appear that in this case, the Supreme Court accepted that
section 127(3) (b) relates to payment of dower under Muslim law. This
becomes obvious from the following observation of Krishna I)er J.:
Neither personal law nor other salvationary plea will hold against
the policy of public law pervading S. 127(3)(6) as much as it does
S. 125. So a farthing is no substitute for a fortune nor naive
consent equivalent to intelligent acceptance.99
Both the Supreme Court decisions do seem to lay down that "dower**
is included in section I25(3)(b) and is a sum payable on divorce under
any customary or personal law, if dower amount is sufficient to enable
her to maintain herself, no order of maintenance can be made. If, on
the other hand, it is not sufficient, the court has power to fix the amount
of maintenance as it considers just and proper, though in fixing the
quantum of maintenance, it will take into consideration the amount of
mahr paid to her—it will be considered for the reduction of the amount
of maintenance. Both these decisions do not lay down that on payment
of dower howsoever negligible it may be, the husband is absolved totally
This section [section 127] provides that the Magistrate shall cancel
the order for maintenance if any sum under any customary or
personal law applicable to the parties is paid on divorce. This
section may be pressed into service by some ingenious husbands
to defeat the provisions contained in section 125. We would
like to make it clear that section 127(3)(Z?) refers not to main-
tenance during the period of iddat or payment of dower. . . .It
is therefore not a sum of money which under the personal law
is payable on divorce as expressed in Section 127(3)(£).104
The learned judge did err in reading the words "The wife agreeing
not to claim maintenance or any other amount" in this section. This
seems to have occurred on account of his quest to find out of the meaning
of the clause. Krishna Iyer J. rightly observed that Khalid J. fell short
of going full extent as his exposition of law would excuse the husband if
he pays a sum which the ignorant wife at the time of marriage has agreed
upon to relinquish maintenance after divorce.105 In view of the construc-
tion placed by him on the clause, Krishna Iyer J. felt that the Kerala
full bench decision also fell short as it did not insist on an adequate sum
which would yield a recurring income to maintain the divorcee in future
and, therefore, it laid down a bad law.106
Khalid J.'s view that clause (b) of section 127(3) does not include
dower within its compass has found a clear and unequivocal support from
a unanimous bench offivejudges of the Supreme Court (Y.V. Chandrachud
C.J., D.A. Desai, O. Chinnappa Reddy, E.S. Venkataramiah and Ranga-
nath Mishra JJ.).107 Chandrachud C.J., who delivered the judgment of
the bench, though agreeing with the basic reasoning of Krishna Iyer J. in
Bai Tahira and Fazlunbi, disagreed and overruled the following formu-
lation, "payment of mahr-money, as a customary discharge, is within the
cognizance of section 137(3)(6)".
The unfortunate story of Shah Bano Begum, married to an advocate,
one Mohd. Ahmed Khan, way back in 1932, gave birth to three sons and
two daughters, is that in 1975 she was driven out of the matrimonial home
by her husband. Lacking means of subsistence she knocked at the gates
of a magistrate's court in 1978 claiming maintenance from her husband at the
rate of Rs. 500 per month. On November 6,1978 the husband pronounced
talaq on her in talaq-i-bidai form (irrevocable divorce) and pleaded
before the magistrate's court that since he had divorced his wife, he was
under no obligation to provide maintenance for her. He also averred that
he had paid maintenance to her at the rate of Rs. 200 per month for about
two years and had also deposited a sum of Rs. 3,000 in the court by way
of mahr-money. The magistrate directed the husband to pay a "princely
108. Mulla, Principles of Mahomedan Law, para 279 (18th ed.)i Tyabji, Muslim Law,
para 304 (4th ed.) and Paras Diwan, Muslim Law in Modern India, supra note 10 at 130.
109. S/#r#note3 at 950.
110. Ibid.
1985] CLAIM OF MAINTENANCE UNDER CRIMINAL PROCEDURE CODE M5
and Divorce Act 1936 and the Indian Divorce Act 1867) does not arise.
The question arises only when she has no adequate means to maintain
herself. Otherwise, the question hardly arises (particularly after divorce),
though in some systems of law, including Hindu and Muslim, it is the
personal obligation of a husband to maintain his wife (undivorced wife)
irrespective of the fact whether she has or has not sufficient independent
means to maintain herself. After quoting certain verses from Quran111
to the effect that a Muslim husband has an obligation to maintain his
indigent divorced wife, the Chief Justice said that the argument of the
husband that according to the Muslim personal law his liability to provide
for her maintenance was limited to the period of idda, despite the fact
that she was unable to maintain herself, was to be rejected. He then
observed:
And thus no conflict between the Muslim personal law and section 125
of the Criminal Procedure Code was found.
On the question whether mahr-money was a sum payable to the wife
under Muslim personal law within the meaning of section I25(3)(b)
Criminal Procedure Code, Chandrachud J. observed that mahr was not a
consideration for marriage but an obligation imposed upon the husband
as a mark of respect for his wife, and was, therefore, not a sum payable
on divorce.113 In his words:
But, the fact that deferred Mahr is payable at the time of the
dissolution of marriage, cannot justify the conclusion that it is
payable 'on divorce'. Even assuming that, in a given case, the
entire amount of Mahr is of the deferred variety payable on the
dissolution of marriage by divorce, it cannot be said that it is an
amount which is payable on divorce. Divorce may be a convenient
or identifiable point of time at which the deferred amount has to
be paid by the husband to the wife. But, the payment of the
amount is not occasioned by the divorce, which is what is meant
by the expression 'on divorce', which occurs in section 127 (3)(b)
111. M a t 951-52.
112. Id. at950-5L
113. He quoted from Mulla, supra note 108 at 308; Paras Diwan, supra note 108 at 60
and the following two Privy Council decisions: Hamira Bibi v. Zubaida Bibi, A. I.R. 1916;
P.C. 46; SyedSabir Hussain v. Fazand Hasan, A.I.R. 1938 P.C, 80.
316 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol 27 : 2
No one would disagree with the above observations. But in our submission
the following two propositions of Muslim law have been well settled
(either on account of opinions expressed by text-book writers or on account
of stare decisis):
(a) Muslim husband has no obligation to maintain his divorced wife
after the termination of the period of idda, and
(b) dower—deferred dower, to be more precise—has been considered
to be a sum payable on divorce.
In our submission, under the Muslim personal law a divorced wife
cannot claim maintenance or alimony (to use the expression of English
matrimonial law), though a Christian, Parsi, Hindu wife, or a woman
married under the Special Marriage Act can do so by filing a petition in
the matrimonial court. However, she can claim maintenance under section
125 of the Criminal Procedure Code. In view of this, we should accept that
Muslim personal law to that extent has been abrogated by that section.
Secondly, suppose the entire sum of mahr-money has been paid soon
after the marriage and ultimately and unfortunately, there is divorce
between the parties, there remains no sum of dower to be paid to her on
divorce and thus section 127 (3)(b) cannot be attracted. Now suppose the
entire dower is deferred and it consists of a substantial sum of money—say
Rs. 50,000 or Rs. 80,000—and is paid soon after divorce. Chandrachud
C. J. says that even in such a case it cannot be said that this is an amount
"payable on divorce".113 Whether or not it is regarded as a sum payable
on divorce, since it has been in fact paid on divorce, will the magistrate
not take this sum into consideration whilefixingthe quantum of main-
tenance under section 125? Can he brush aside the payment of this amount
by saying that since dower-money isnot "payable on divorce",115 even if it is
paid on divorce or after divorce, it cannot be taken into consideration? In
our submission the magistrate will have to take this sum into consideration
while fixing the amount of maintenance and if he comes to the conclusion
that this amount is sufficient to maintain her, he will have to give a finding
that she is not unable to maintain herself and, therefore, no maintenance
amount need be given to her. At the same time it would be wrong to say that
any insignificant amount of maintenance—such as 10 dirhams11Q—would be
an amount "payable on divorce" under personal law and in terms of section
127 (3)(b) the husband will stand absolved of his responsibilities and the
magistrate is bound to cancel the maintenance order, if already passed by
him under section 125. It would thus equally be incorrect to say, as the
Bombay High Court said, that section 127 (3)(b) is a sort of exception to
section 125. In our submission the more socially just and palatable to the
average Muslim, would be the view as propounded by Krishna Iyer J. In
his words:
Paras Diwan*