Fuzlunbi v K. Khader Vali

• The appellant married the respondent in 1966 and during their conjugal life, a son was born to them. The respondent husband was an Additional Accountant in the State Bank of India, and was apparently quite wealthy. He neglected the appellant to an extent that she was driven out of her conjugal life and she sought shelter in her parents’ home.

• She prayed for maintenance allowance for herself and her son under Section 125 Cr. P.C. and the Magistrate granted payment of a monthly sum of Rs. 250/- to the wife and Rs. 150/- to the child. The husband challenged this award in the High Court and the wife was refused grant of maintenance under section 127 (3) (b) of the Cr. P. C.. However, the maintenance of the child was reduced to Re. 1.00/- per month.

• Subsequently, the respondent husband divorced the appellant wife unilaterally by pronouncing talaq, and he presented a sum of Rs. 500/- by way of mahar and Rs. 750/- towards maintenance for the period of iddat, and hoped to be relieved from the obligation to maintain the appellant. The Additional First Class Magistrate relieved the husband of the the grant of maintenance on the ground that he had paid the mahar and iddat dues.This order was unsuccessfully challenged in the Sessions Court. Next, the appellant approached the High Court where the Division Bench dismissed the revision petition. Hence, the appellant approached the Supreme Court.

 

Legal Reasoning

1) Whether payment of dower under Mohammedan Law can be taken to be as maintenance money within meaning of Section 125.

Krishna Iyer, J.: […] Cr. P. C. (Section 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 we must realize that Muslim law shows its reverence for the wife in the institution of Mahar (dower). It is neither dowry nor price for marriage. (para 15)

Here, Krishna Iyer, J. puts forth vital pointers about Sections 125-127 Cr. P.C. He clarifies that the theCode is not addressed to the members of one particular religion or area; it is a welfare legislation for the ‘whole community of womanhood’ and it is the responsibility of the State take upon itself the well-being of the weaker sections of women and children. Secondly, he states that dower/mahar is a token for the reverence that Muslim law holds for the wife in the institution of marriage.

Krishna Iyer, J: The quintessence of mahar whether it is prompt or deferred is clearly not a contemplated quantification of a sum of money in lieu of maintenance upon divorce. Mahar as understood in Mohammadan Law cannot under any circumstances be considered as consideration for divorce or a payment made in lieu of loss of connubial relationship.(para 17)

Krishna Iyer points out to the fact that mahr in no way can be considered as replacement for maintenance due to a divorced wife.

2)Whether the payment of an amount by way of customary or personal law requirement will be considered in the annihilation of maintenance under Section 127 (3) (b) of Cr. P. C.

Krishna Iyer, J: Under Sections 125 to 127 of the Cr.P.C. the conclusion is clear that the liquidated sum paid at the time of divorce must be a reasonable and not an illusory amount and will release the quondam husband from the continuing liability, only if the sum paid is realistically sufficient to maintain the ex-wife and salvage her from destitution which is the anathema of the law. This perspective of social justice alone does justice to the complex of provisions from Section 125 to Section 127 of the Criminal Procedure Code. (para 18)

Krishna Iyer, J., in this excerpt, states that the sum of money, paid by way of customary law, should be a reasonable amount, and not an ostensible one. Moreover, such sum paid should be enough to maintain the ex-wife, and should be sufficient for her sustenance. That he says, is the purpose of Sections 125-127 Cr. P.C., to preserve the aspect of social justice.

Krishna Iyer, J: The payment of an amount, customary or other, contemplated by the measure must inset the intent of preventing destitution and providing a sum which is more or less the present worth of the monthly maintenance allowances the divorcee may need until death or remarriage overtake her. The policy of the law abhors neglected wives and destitute divorcees and Section 127(3)(b) takes care to avoid double payment one under custom at the time of divorce and another under Section 125. Whatever the facts of a particular case, the Code, by enacting Sections 125 to 127, charges the court with the humane obligation of enforcing maintenance or its just equivalent to ill-used wives and castaway ex-wives, only if the woman has received voluntarily a sum, at the time of divorce, sufficient to keep her going according to the circumstances of the parties. (para 18)

The above excerpt indicates the importance of the amount given to the wife by the husband post divorce. Justice Krishna Iyer illustrates that the payment of such amount, whether by custom or otherwise, is to prevent the evil of destitution and poverty of women after the termination of marriage. What is also significant is that such amount should be sufficient for the former wife till the end of her life or remarriage alike.

The provisions in Section 125-127 of the Cr. P.C. obliges the court to enforce maintenance to neglected and divorced wives, and also makes provisions to avoid payment by the husband twice, once under custom, and the other under Section 125 (Section 127 (3) (b)).

Conclusion

The appeal was allowed.

‘The conclusion is clear that the liquidated sum paid at the time of divorce must be a reasonable and not an illusory amount and will release the quondam husband from the continuing liability, only if the sum paid is realistically sufficient to maintain the ex-wife and salvage her from destitution which is the anathema of the law.’ (para 18)

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