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Muslim Personal Law-Concept of divorce-Whether, on the pronounccments of “talaq” and on the expiry of the period of iddat a divorced wife ceases to be a wife. Code of Criminal Procedure Code, 1973 (Act II of 1974) Sections 125(1) (a) and Explanation (b) thereunder, Section 125 (3) and the Explanation, under the proviso thereto and section 127 (3) (b), scope and interpretation of-Correctness of three Judges.’ Bench decision reported in (1979) 2 SCR 75 and (1980) 3 SCR 1127 to the effect that section 125 of the code applies to Muslims and divorced Muslim wife is entitled to maintenance-Whether there is any conflict between the provisions of section 125 and that of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife. Code of Criminal Procedure, 1973, section 127 (3) (b) read with section 2 of the Shariat Act XXVI of 1937-Whether section 127 (3) (b) debars payment of maintenance to a divorced wife, once the Mahar or dower is paid-Whether the liability of the husband to maintain a divorced wife is limited to the period of “iddat” Nature of Mahr or dower-Whether Mehr is maintenance. = Under section 125 (1) (a), if any person, having sufficient means neglects or refuses to maintain his wife, unable to maintain 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 at such monthly rate not exceeding five hundred rupees in the whole. Under Explanation (b) thereunder ‘ wife” includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Under the explanation below sub section 3 of section 125, if a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be a just ground for his wife’s refusal to live with him. Keeping this in view, if in the trial arising out of 845 an application made under section 125, and if the husband offers to maintain his wife on condition of living with him, the Magistrate may consider any of the grounds of the wife’s refusal to live with her husband before ordering the maintenance. Under section 127 (3) (b), the Magistrate shall cancel the order passed by him under section 125, in favour of a woman who has been divorced by, or has obtained a divorce from her husband if the woman who has been divorced by her husband 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 the parties was payable on such divorce. The appellant. who is an advocate by profession was married to the respondent in 1932. Three ions and two daughters were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under section 125 of the Code of Criminal Procedure, in the Court of the Judicial Magistrate (First class) Indore, asking for maintenance at the rate of Rs. 500 per month, in view of the professional income of the appellant which was about Rs. 60,000 per annum. On November 6, 1978, the appellant divorced the respondent by an irrevocable “talaq” and took up the defence that she had ceased to be his wife by reason of the divorce granted by him; that he was, therefore, under no obligation to provide maintenance for her; that he had already paid maintenance for her at the rate of Rs. 200 per month for about two years, and that, he had deposited a sum of Rs. 3,000 in the court by way of “dower or Mahr” during the period of “iddat”. In August 1979, the Magistrate directed the appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance. In a revisional application Sled by the respondent the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. Hence the appeal by special leave by the husband. The view taken in the earlier two three Judges’ Benches of the Supreme Court presided over by Krishna Iyer, J. and reported in [1979] 2 SCR 75, and [1980] 3 SCR 1127, to the effect that section 125 of the Code applies to Muslims also and that therefore, the divorced Muslim wife is entitled to apply for maintenance was doubted, by the Bench consisting of Fazal Ali and Varadarajan, JJ., since in their opinion the said decisions required reconsideration by a larger Bench consisting of more than three judges as the decisions are not only in direct contravention of the plain and unambiguous language of section 127 (3) (b) of the Code which far from overriding the Muslim law on the subject protects and applies the same in case where a wife has been divorced by the husband and the dower specified has been paid and the period of iddat has been observed but also militates against the fundamental concept of divorce by the husband and its consequences under the Muslim law which has been expressly protected by section 2 of the Muslim Personal Law (Shariat) Application Act, 1937-an Act which was not noticed in the said two decisions. Dismissing the appeals, the Court ^ Held: (Per Chandrachud, C. J.) 1. The Judgments of the Supreme Court in Bai Tahira (Krishna lyer, J., Tulzapurkar, J. and Pathak, J.) and Fazlunbi (Krishna pyer, J, Chinnappa 846 Reddy, J. and A.P. Sen, J.) are correct, except to the extent that the statement at page 80 of the report in Bal Tahira made in the context of section 127 (3) (b) namely, “payment of Mahr money, as a customary discharge is within the cognizance of that provision”. Justice Krishna Lyre who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation 90 as to advance the purpose of the law. These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society.A divorced Muslim wife is, therefore, entitled to apply for maintenance under section 125 of the Code. [865H, 866A-C] 2.1 Clause (b) of the Explanation to section 125 (1) of the Code, which defines “wife” as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Wife, means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman so long as she has not married, is a wife for the purpose of section 125. [855A-B: 854B] 2.2 Under section 488 of the Code of 1898, the wife’s right to maintenance depended upon the continuance of her married status. Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not re married after the divorce. That is the genesis of clause (b) of the Explanation to section 125 (I). Section 125 of the Code is truly secular in character. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the application of these-provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular relations, like the Hindu Adoptions and Maintenance Act, The Shariat, or the Parsi Matrimonial Act. It would make no difference as to what ii the religion professed by the neglected wife, child or parent. [834D-E: 855E-G] 2.3 Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True that they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the indi- 847 viduals’ obligation to the society t a prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed With relation. [834G-Hl That the right conferred by section 125 can be exercised irrespective of the personal law of the parties, is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125 (3) of the Code. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage leave alone, three or four other marriages, which a Mohammedan may have under the Islamic law. Further it shows unmistakably, that section 125 overrides the personal law, if there is any conflict between the two [836B-C,F-G] Jagir Kaur v. Jaswant Singh, [1964] 2 SCR 73,84, Nanak Chand v. Shri Chandra Kishore Agarwala, 11970] I SCR 56C applied. 3.1 The contention that, according to Muslim Personal Law the husband’s liability to provide for the maintenance of his divorced wife is limited to the period of iddat. despite the fact that she is unable to maintain herself cannot be accepted, since that law does not contemplate or countenance the situation envisaged by section 125 of the Code. Whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances, and at all events is not the subject matter of section 125. Section 125 deals with cases in which a person who is possessed of sufficient means neglects or refuses to maintain amongst others, his wife who is unable to maintain herself. [838H, 851A-B] 3.2 One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and in duration, of the husband’s liability to provide for the maintenance of an indigent wife who has been divorced by him. Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams which is equivalent to three or four rupees. But one must have regard to the realities of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. The application of those statements of law to the contrary in text-books on Muslim Law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. [858D-G] 3.3 The true position is that, if the divorced wife is able to maintain herself, the husband’s liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the Code. Thus there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife 848 who is unable to maintain herself. Aiyat No. 241 and 242 of ‘the Holy Koran’ fortify that the Holy Koran imposed an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teachings of Koran. [859C-D; 862C-D] 3.4 Mahr is not the amount payable by the husband to the wife on divorce and therefore, does not fall within the meaning of section 127 (3) (b) of the Code and the facile answer of the All India Muslim Law Board that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephews and cousins, to support her is a most unreasonable view of law as well as of life. [863E-F, 866E-F] 3.5 It is true under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called ‘prompt” which is payable on demand, and the other is called “deferred”, which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify 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. [863B-D] 3.6 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) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore. no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce. The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce.A man may marry a woman for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark of respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce’. Thus, the payment of Mahr may be deferred to a future date as, for example, death or divorce. But, that does not mean that the payment of the deferred dower is occasioned by these events. [863D-G] Similarly, the provision contained in section 127 (3) (b) may have been introduced because of the misconception that dower is an amount payable ‘on divorce.’ But, that again cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce. [863H] Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294; Syed Sabir Hussain v. Farzand Hasan, 65 Indian Appeal 119 and 127 referred to. 849 OBSERVATION (Article 44 of our Constitution has remained a dead letter. There is no evidence of any official activity for framing a common civil code for the country.A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. It is the State which incharged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.A beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.) =1985 AIR 945, 1985( 3 )SCR 844, 1985( 2 )SCC 556, 1985( 1 )SCALE767 ,

PETITIONER:
Benares 1997 Muslim Gath

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MOHD. AHMED KHAN

 Vs.

RESPONDENT:
SHAH BANO BEGUM AND ORS.

DATE OF JUDGMENT23/04/1985

BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
MISRA RANGNATH
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
VENKATARAMIAH, E.S. (J)

CITATION:
 1985 AIR 945 1985 SCR (3) 844
 1985 SCC (2) 556 1985 SCALE (1)767
 CITATOR INFO :
 F 1986 SC 587 (4)
 RF 1987 SC1103 (10)
 D 1988 SC 644 (5,6)

ACT:
 Muslim Personal Law-Concept of divorce-Whether, on the
pronounccments of "talaq" and on the expiry of the period of
iddat a divorced wife ceases to be a wife.
 Code of Criminal Procedure Code, 1973 (Act II of 1974)
Sections 125(1) (a) and Explanation (b) thereunder, Section
125 (3) and the Explanation, under the proviso thereto and
section 127 (3) (b), scope and interpretation of-Correctness
of three Judges.' Bench decision reported in (1979) 2 SCR 75
and (1980) 3 SCR 1127 to the effect that section 125 of the
code applies to Muslims and divorced Muslim wife is entitled
to maintenance-Whether there is any conflict between the
provisions of section 125 and that of the Muslim Personal
Law on the liability of the Muslim husband to provide for
the maintenance of his divorced wife.
 Code of Criminal Procedure, 1973, section 127 (3) (b)
read with section 2 of the Shariat Act XXVI of 1937-Whether
section 127 (3) (b) debars payment of maintenance to a
divorced wife, once the Mahar or dower is paid-Whether the
liability of the husband to maintain a divorced wife is
limited to the period of "iddat"
 Nature of Mahr or dower-Whether Mehr is maintenance.

HEADNOTE:
 Under section 125 (1) (a), if any person, having
sufficient means neglects or refuses to maintain his wife,
unable to maintain 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
at such monthly rate not exceeding five hundred rupees in
the whole. Under Explanation (b) thereunder ' wife" includes
a woman who has been divorced by, or has obtained a divorce
from her husband and has not remarried. Under the
explanation below sub section 3 of section 125, if a husband
has contracted marriage with another woman or keeps a
mistress it shall be considered to be a just ground for his
wife's refusal to live with him. Keeping this in view, if in
the trial arising out of
845
an application made under section 125, and if the husband
offers to maintain his wife on condition of living with him,
the Magistrate may consider any of the grounds of the wife's
refusal to live with her husband before ordering the
maintenance. Under section 127 (3) (b), the Magistrate shall
cancel the order passed by him under section 125, in favour
of a woman who has been divorced by, or has obtained a
divorce from her husband if the woman who has been divorced
by her husband 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 the parties was
payable on such divorce.
 The appellant. who is an advocate by profession was
married to the respondent in 1932. Three ions and two
daughters were born of that marriage In 1975, the appellant
drove the respondent out of the matrimonial home. In April
1978, the respondent filed a petition against the appellant
under section 125 of the Code of Criminal Procedure, in the
Court of the Judicial Magistrate (First class) Indore,
asking for maintenance at the rate of Rs. 500 per month, in
view of the professional income of the appellant which was
about Rs. 60,000 per annum. On November 6, 1978, the
appellant divorced the respondent by an irrevocable "talaq"
and took up the defence that she had ceased to be his wife
by reason of the divorce granted by him; that he was,
therefore, under no obligation to provide maintenance for
her; that he had already paid maintenance for her at the
rate of Rs. 200 per month for about two years, and that, he
had deposited a sum of Rs. 3,000 in the court by way of
"dower or Mahr" during the period of "iddat". In August
1979, the Magistrate directed the appellant to pay a
princely sum of Rs. 25 per month to the respondent by way of
maintenance. In a revisional application Sled by the
respondent the High Court of Madhya Pradesh enhanced the
amount of maintenance to Rs. 179.20 per month. Hence the
appeal by special leave by the husband. The view taken in
the earlier two three Judges' Benches of the Supreme Court
presided over by Krishna Iyer, J. and reported in [1979] 2
SCR 75, and [1980] 3 SCR 1127, to the effect that section
125 of the Code applies to Muslims also and that therefore,
the divorced Muslim wife is entitled to apply for
maintenance was doubted, by the Bench consisting of Fazal
Ali and Varadarajan, JJ., since in their opinion the said
decisions required reconsideration by a larger Bench
consisting of more than three judges as the decisions are
not only in direct contravention of the plain and
unambiguous language of section 127 (3) (b) of the Code
which far from overriding the Muslim law on the subject
protects and applies the same in case where a wife has been
divorced by the husband and the dower specified has been
paid and the period of iddat has been observed but also
militates against the fundamental concept of divorce by the
husband and its consequences under the Muslim law which has
been expressly protected by section 2 of the Muslim Personal
Law (Shariat) Application Act, 1937-an Act which was not
noticed in the said two decisions.
 Dismissing the appeals, the Court
^
 Held: (Per Chandrachud, C. J.)
 1. The Judgments of the Supreme Court in Bai Tahira
(Krishna lyer, J., Tulzapurkar, J. and Pathak, J.) and
Fazlunbi (Krishna pyer, J, Chinnappa
846
Reddy, J. and A.P. Sen, J.) are correct, except to the
extent that the statement at page 80 of the report in Bal
Tahira made in the context of section 127 (3) (b) namely,
"payment of Mahr money, as a customary discharge is within
the cognizance of that provision". Justice Krishna Lyre who
spoke for the Court in both these cases, relied greatly on
the teleological and schematic method of interpretation 90
as to advance the purpose of the law. These constructional
techniques have their own importance in the interpretation
of statutes meant to ameliorate the conditions of suffering
sections of the society.A divorced Muslim wife is,
therefore, entitled to apply for maintenance under section
125 of the Code. [865H, 866A-C]
 2.1 Clause (b) of the Explanation to section 125 (1) of
the Code, which defines "wife" as including a divorced wife,
contains no words of limitation to justify the exclusion of
Muslim women from its scope. Wife, means a wife as defined,
irrespective of the religion professed by her or by her
husband. Therefore, a divorced Muslim woman so long as she
has not married, is a wife for the purpose of section 125.
[855A-B: 854B]
 2.2 Under section 488 of the Code of 1898, the wife's
right to maintenance depended upon the continuance of her
married status. Therefore, that right could be defeated by
the husband by divorcing her unilaterally as under the
Muslim Personal Law, or by obtaining a decree of divorce
against her under the other systems of law. It was in order
to remove this hardship that the Joint Committee recommended
that the benefit of the provisions regarding maintenance
should be extended to a divorced woman, so long as she has
not re married after the divorce. That is the genesis of
clause (b) of the Explanation to section 125 (I). Section
125 of the Code is truly secular in character. Section 125
was enacted in order to provide a quick and summary remedy
to a class of persons who are unable to maintain themselves.
Whether the spouses are Hindus or Muslims, Christians or
Parsis, Pagans or Heathens, is wholly irrelevant in the
application of these-provisions. The reason for this is
axiomatic, in the sense that section 125 is a part of the
Code of Criminal Procedure not of the Civil Laws which
define and govern the rights and obligations of the parties
belonging to particular relations, like the Hindu Adoptions
and Maintenance Act, The Shariat, or the Parsi Matrimonial
Act. It would make no difference as to what ii the religion
professed by the neglected wife, child or parent. [834D-E:
855E-G]
 2.3 Neglect by a person of sufficient means to maintain
these and the inability of these persons to maintain
themselves are the objective criteria which determine the
applicability of section 125. Such provisions, which are
essentially of a prophylactic nature, cut across the
barriers of religion. True that they do not supplant the
personal law of the parties but, equally, the religion
professed by the parties or the state of the personal law by
which they are governed, cannot have any repercussion on the
applicability of such laws unless, within the framework of
the Constitution, their application is restricted to a
defined category of religious groups or classes The
liability imposed by section 125 to maintain close
relatives who are indigent is founded upon the indi-
847
viduals' obligation to the society t a prevent vagrancy and
destitution. That is the moral edict of the law and morality
cannot be clubbed With relation.
 [834G-Hl
 That the right conferred by section 125 can be
exercised irrespective of the personal law of the parties,
is fortified, especially in regard to Muslims, by the
provision contained in the Explanation to the second proviso
to section 125 (3) of the Code. The explanation confers upon
the wife the right to refuse to live with her husband if he
contracts another marriage leave alone, three or four other
marriages, which a Mohammedan may have under the Islamic
law. Further it shows unmistakably, that section 125
overrides the personal law, if there is any conflict between
the two [836B-C,F-G]
 Jagir Kaur v. Jaswant Singh, [1964] 2 SCR 73,84, Nanak
Chand v. Shri Chandra Kishore Agarwala, 11970] I SCR 56C
applied.
 3.1 The contention that, according to Muslim Personal
Law the husband's liability to provide for the maintenance
of his divorced wife is limited to the period of iddat.
despite the fact that she is unable to maintain herself
cannot be accepted, since that law does not contemplate or
countenance the situation envisaged by section 125 of the
Code. Whether a husband is liable to maintain his wife,
which includes a divorced wife, in all circumstances, and at
all events is not the subject matter of section 125. Section
125 deals with cases in which a person who is possessed of
sufficient means neglects or refuses to maintain amongst
others, his wife who is unable to maintain herself. [838H,
851A-B]
 3.2 One must have regard to the entire conspectus of
the Muslim Personal Law in order to determine the extent,
both in quantum and in duration, of the husband's liability
to provide for the maintenance of an indigent wife who has
been divorced by him. Under that law, the husband is bound
to pay Mahr to the wife as a mark of respect to her. True,
that he may settle any amount he likes by way of dower upon
his wife, which cannot be less than 10 Dirhams which is
equivalent to three or four rupees. But one must have regard
to the realities of life. Mahr is a mark of respect to the
wife. The sum settled by way of Mahr is generally expected
to take care of the ordinary requirements of the wife,
during the marriage and after. But these provisions of the
Muslim Personal Law do not countenance cases in which the
wife is unable to maintain herself after the divorce. The
application of those statements of law to the contrary in
text-books on Muslim Law must be restricted to that class of
cases, in which there is no possibility of vagrancy or
destitution arising out of the indigence of the divorced
wife. [858D-G]
 3.3 The true position is that, if the divorced wife is
able to maintain herself, the husband's liability to provide
maintenance for her ceases with the expiration of the period
of iddat. If she is unable to maintain herself, she is
entitled to take recourse to section 125 of the Code. Thus
there is no conflict between the provisions of section 125
and those of the Muslim Personal Law on the question of the
Muslim husband's obligation to provide maintenance for a
divorced wife
848
who is unable to maintain herself. Aiyat No. 241 and 242 of
'the Holy Koran' fortify that the Holy Koran imposed an
obligation on the Muslim husband to make provision for or to
provide maintenance to the divorced wife. The contrary
argument does less than justice to the teachings of Koran.
[859C-D; 862C-D]
 3.4 Mahr is not the amount payable by the husband to
the wife on divorce and therefore, does not fall within the
meaning of section 127 (3) (b) of the Code and the facile
answer of the All India Muslim Law Board that the Personal
Law has devised the system of Mahr to meet the requirements
of women and if a woman is indigent, she must look to her
relations, including nephews and cousins, to support her is
a most unreasonable view of law as well as of life. [863E-F,
866E-F]
 3.5 It is true under the Muslim Personal Law, the
amount of Mahr is usually split into two parts, one of which
is called 'prompt" which is payable on demand, and the other
is called "deferred", which is payable on the dissolution of
the marriage by death or by divorce. But, the fact that
deferred Mahr is payable at the time of the dissolution of
marriage, cannot justify 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.
 [863B-D]
 3.6 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)
of the Code. If Mahr is an amount which the wife is entitled
to receive from the husband in consideration of the
marriage, that is the very opposite of the amount being
payable in consideration of divorce. Divorce dissolves the
marriage. Therefore. no amount which is payable in
consideration of the marriage can possibly be described as
an amount payable in consideration of divorce. The
alternative premise that Mahr is an obligation imposed upon
the husband as a mark of respect for the wife, is wholly
detrimental to the stance that it is an amount payable to
the wife on divorce.A man may marry a woman for love, looks,
learning or nothing at all. And, he may settle a sum upon
her as a mark of respect for her. But he does not divorce
her as a mark of respect. Therefore, a sum payable to the
wife out of respect cannot be a sum payable on divorce'.
Thus, the payment of Mahr may be deferred to a future date
as, for example, death or divorce. But, that does not mean
that the payment of the deferred dower is occasioned by
these events. [863D-G]
 Similarly, the provision contained in section 127 (3)
(b) may have been introduced because of the misconception
that dower is an amount payable 'on divorce.' But, that
again cannot convert an amount payable as a mark of respect
for the wife into an amount payable on divorce. [863H]
 Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294; Syed
Sabir Hussain v. Farzand Hasan, 65 Indian Appeal 119 and 127
referred to.
849
OBSERVATION
 (Article 44 of our Constitution has remained a dead
letter. There is no evidence of any official activity for
framing a common civil code for the country.A common Civil
Code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting
ideologies. It is the State which incharged with the duty of
securing a uniform civil code for the citizens of the
country and, unquestionably, it has the legislative
competence to do so.A beginning has to be made if the
Constitution is to have any meaning. Inevitably, the role of
the reformer has to be assumed by the courts because, it is
beyond the endurance of sensitive minds to allow injustice
to be suffered when it is so palpable. But piecemeal
attempts of courts to bridge the gap between personal laws
cannot take the place of a common Civil Code. Justice to
all is a far more satisfactory way of dispensing justice
than justice from case to case.)JUDGMENT:
 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
103 of 1981.
 From the Judgment and Order dated 1. 7. 1980 of the
Madhya Pradesh High Court in Crl. Revision No. 320 of 1979.
 P. Govindan Nair, Ashok Mahajan, Mrs. Kriplani, Ms.
Sangeeta and S.K Gambhir for the Appellant.
 Danial Latifi Nafess Ahmad Siddiqui, S.N. Singh and
T.N.Singh for the Respondents.
 Mohd. Yunus Salim and Shakeel Ahmed for Muslim
Personal Law Board.
 S.T. Desai and S.A. Syed for the Intervener Jamat-
UlemaHind.
 The Judgment of the Court was delivered by
 CHANDRACHUD,C.J. This appeal does not involve any
question of constitutional importance but, that is not to
say that it does not involve any question of importance.
Some questions which arise under the ordinary civil and
criminal law are of a far-reaching significance to large
segments of society which have been traditionally subjected
to unjust treatment. Women are one such segment. ' Nastree
swatantramarhati" said Manu, the Law giver: The woman does
not deserve independence. And, it is alleged that the 'fatal
850
point in Islam is the 'degradation of woman'(l). To the
Prophet is ascribed the statement, hopefully wrongly, that
'Woman was made from a crooked rib, and if you try to bend
it straight, it will break; therefore treat your wives
kindly.
 This appeal, arising out of an appellation filed by a
divorced Muslim woman for maintenance under section 125 of
the Code of Criminal Procedure, raises a straightforward
issue which is of common interest not only to Muslim women,
not only to women generally but, to all those who, aspiring
to create an equal society of men and women, lure
themselves into the belief that mankind has achieved a
remarkable degree of progress in that direction. The
appellant, who is an advocate by profession, was married to
the respondent in 1932. Three sons and two daughters were
born of that marriage In 1975, the appellant drove the
respondent out of the matrimonial home. In April 1978, the
respondent filed a petition against the appellant under
section 125 of the Code in the court of the learned Judicial
Magistrate (First Class), Indore asking for maintenance at
the rate of Rs 500 per month. On November 6, 1978 the
appellant divorced the respondent by an irrevocable talaq.
His defence to the respondent's petition for maintenance was
that she had ceased to be his wife by reason of the divorce
granted by him, to provide that he was therefore under no
obligation maintenance for her, that he had already paid
maintenance to her at the rate of Rs. 200 per month for
about two years and that, he had deposited a sum of Rs. 3000
in the court by way of dower during the period the of iddat.
In August, 1979 the learned Magistrate directed appellant
to pay a princely sum of Rs. 25 per month to the respondent
by way of maintenance. It may be mentioned that the
respondent had alleged that the appellant earns a
professional income of about Rs. 60,000 per year. In July,
1980, in a revisional application filed by the respondent,
the High Court of Madhya Pradesh enhanced the amount of
maintenance to Rs. 179.20 per month. The husband is before
us by special leave.
 Does the Muslim Personal Law impose no obligation upon
the husband to provide for the maintenance of his divorced
wife ? Undoubtedly, the Muslim husband enjoys the privilege
of being
(1) 'Selections from Kuran'-Edward William Lane 1843,
Reprint 1982, page xc (Introduction)
851
able to discard his wife whenever he chooses to do so, for
reasons good, bad or indifferent. Indeed, for no reason at
all. But, is the only price of that privilege the dole of a
pittance during the period of iddat ? And, is the law so
ruthless in its inequality that, no matter how much the
husband pays for the maintenance of his divorced wife during
the period of iddat, the mere fact that he has paid
something, no matter how little, absolves him for ever from
the duty of paying adequately so as to enable her to keep
her body and soul together ? Then again, is there any
provision in the Muslim Personal Law under which a sum is
payable to the wife 'on divorce' ? These are some of the
important, though agonising, questions which arise for our
decision.
 The question as to whether section 125 of the Code
applies to Muslims also is concluded by two decisions of
this Court which are reported in Bai Tahira v. Ali Hussain
Fidalli Chothia(1) and Fazlunbi v. K. Khader Vali.(2) These
decisions took the view that the divorced Muslim wife is
entitled to apply for maintenance under section 125. But, a
Bench consisting of our learned Brethren, Murtaza Fazal Ali
and A. Varadarajan, JJ. were inclined to the view that those
cases are not correctly decided. Therefore, they referred
this appeal to a larger Bench by an order dated February 3,
1981, which reads thus:
 "As this case involves substantial questions of
 law of far-reaching consequences, we feel that the
 decisions of this Court in Bai Tahira v. Ali Hussain
 Fidaalli Chothia & Anr and Fuzlunbi v. K. Khader Vnli &
 Anr. require reconsideration because, in our opinion,
 they are not only in direct contravention of the plain
 and an unambiguous language of s. 127(3)(b) of the Code
 of Criminal Procedure, 1973 which far from overriding
 the Muslim Law on the subject protects and applies the
 same in case where a wife has been divorced by the
 husband and the dower specified has been paid and the
 period of iddat has been observed. The decision also
 appear to us to be against the fundamental concept of
 divorce by the husband and its consequences
 (1) 1979 (2) SCR 75
 (2) 1980 (3)SCR 1127
852
 under the Muslim law which has been expressly protected
 by s. 2 of the Muslim Personal Law (Shariat)
 Application Act, 1937-an Act which was not noticed by
 the aforesaid decisions. We, therefore, direct that the
 matter may be placed before the Honorable Chief Justice
 for being heard by a larger Bench consisting of more
 than three Judges. "
 Section 125 of the Code of Criminal Procedure which
deals with the right of maintenance reads thus: "Order for
maintenance of wives, children and parents
 125. (1) If any person having sufficient means
 neglects or refuses to maintain-
 (a) his wife, unable to maintain herself,
 (b)...
 (c)...
 (d)...
 a Magistrate of the first class may, upon proof of such
 neglecter refusal, order such person to make a monthly
 allowance for the maintenance of his wife .. at such
 monthly rate not exceeding five hundred rupees in the
 whole as such Magistrate think fit
 Explanation-For the purposes of this Chapter,-
 (a)......
 (b) "Wife" includes a woman who has been divorced by,
 or has obtained a divorce from, her husband has not
 remarried.
 (2)..... .
853
 (3) If any person so ordered fails without sufficient
 cause to comply with the order, any such Magistrate
 may, for every breach of the order, issue a warrant for
 levying the amount due in the manner provided for
 levying fines, and may sentence such person, for the
 whole or any part of each month's allowance remaining
 unpaid after the execution of the warrant, to
 imprisonment for a term which may extend to one month
 or until payment if sooner made:
 Provided......
 Provided further that if such person offers to
 maintain his wife on condition of her living with him.
 and she refuses to live with him, such Magistrate may
 consider any grounds of refusal stated by her, and may
 make an order under this section notwithstanding such
 offer, if he is satisfied that there is just ground for
 so doing.
 Explanation-If a husband has contracted marriage
 with another woman or keeps a mistress, it shall be
 considered to be just ground for his wife's refusal to
 live with him."
 Section 127(3)(b), on which the appellant has built
up the edifice of his defence reads thus:
 "Alteration in allowance
 127. (1).....
 (2)......
 (3) Where any order has been made under section
 125 in favour of a woman who has been divorced by, or
 has obtained a divorce from her husband, the Magistrate
 shall, if he is satisfied that-
 (a).....
 (b) the woman has been divorced by her husband and
 that she has received, whether before or after the date
 of the said order, the whole of the Sum which,
854
 under any customary or personal law applicable to the
 parties, was payable on such divorce, cancel such
 order,-
 (i) in the case where such sum was paid
 before such order, from the date on which such order
 was made.
 (ii) in any other case, from the date of
 expiry of the period, if any, for Which maintenance has
 been actually paid by the husband to the woman."
 Under section 125(1)(a), a person who, having
sufficient means, neglects or refuses to maintain his wife
who is unable to maintain herself, can be asked by the court
to pay a monthly maintenance to her at a rate not exceeding
Five Hundred rupees. By clause (b) of the Explanation to
section 125(1), 'wife' includes a divorced woman who has not
remarried. These provisions are too clear and precise to
admit of any doubt or refinement. The religion professed by
a spouse or by the spouses has no place in the scheme of
these provisions. Whether the spouses are Hindus or Muslims,
Christians or Parsis, pagans or heathens, is wholly
irrelevant in the application of these provisions. The
reason for this is axiomatic, in the sense that section 125
is a part of the Code of Criminal Procedure, not of the
Civil Laws which define and govern The rights and
obligations of the parties belonging to particular,
religions, like the Hindu Adoptions and Maintenance Act, the
Shariat, or the Parsi Matrimonial Act. Section 125 was
enacted in order to provide a quick and summary remedy to a
class of persons who are unable to maintain themselves. What
difference would it then make as to what is the religion
professed by the neglected wife, child or parent ? Neglect
by a person of sufficient means to maintain these and the
inability of these persons to maintain themselves are the
objective criteria which determine the applicability of
section 125. Such provisions, which are essentially of a
prophylactic nature, cut across the barriers of religion.
True, that they do not supplant the personal law of the
parties but, equally the religion professed by the parties
or the state of the personal law by which they are governed,
cannot have any repercussion on the applicability of such
laws unless, within the framework of the Constitution, their
application is restricted to a defined category of religious
groups or classes. The liability imposed by section 125 to
maintain close relatives who are indigent is founded upon
the individual's obligation to the society to prevent
vagrancy and
855
destitution. That is the moral edict of the law and morality
cannot be clubbed with religion. Clause (b) of the
Explanation to section 125(1), which defines 'wife' as
including a divorced wife, contains no words of limitation
to justify the exclusion of Muslim women from its scope.
Section 125 is truly secular in character.
 Sir James FitzJames Stephen who piloted the Code of
Criminal Procedure, 1872 as a Legal Member of the Viceroy's
Council, described the precursor of Chapter IX of the Code
in which section 125 occurs, as 'a mode of preventing
vagrancy or at least of preventing its consequences. In
Jagir kaur v. Jaswont Singh,(1) Subba Rao, J. speaking for
the Court said that Chapter XXXVI of the Code of 1898 which
contained section 488, corresponding to section 125,
"intends to serve a social purpose". In Nanak Chand v. Shri
Chandra Kishore Agarwala.(2) Sikri, J., while pointing out
that the scope of the Hindu Adoptions and Maintenance Act,
1956 and that of section 488 was different, said that
section 488 was "applicable to all persons belonging to all
religions and has no relationship with the personal law of
the parties".
 Under section 488 of the Code of 1898, the wife's right
to maintenance depended upon the continuance of her married
status. Therefore, that. right could be defeated by the
husband by divorcing her unilaterally as under the Muslim
Personal Law, or by obtaining a decree of divorce against
her under the other systems of law. It was in order to
remove this hardship that the Joint Committee recommended
that the benefit of the provisions regarding maintenance
should be, extended to a divorced woman, so long as she has
not remarried after the divorce. That is the genesis of
clause (b) of the Explanation to section 125(1), which
provides that 'wife' includes a woman who has been divorced
by, or has obtained a divorce from her husband and has not
remarried. Even in the absence of this provision, the courts
had held under the Code of 1&98 that the provisions
regarding maintenance were independent of the personal law
governing the parties. The induction of the definition of
'wife, so as to include a divorced woman lends even greater
weight to that
(1) 1964 (2) SCR 73, 84.
(2) 1970 (l) S CR 565.
856
conclusion. 'Wife' means a wife as defined, irrespective of
the religion professed by her or by her husband. Therefor, a
divorced Muslim woman, so long as she has not remarried, is
a 'wife' for the purpose of section 125. The statutory right
available to her under that section is unaffected by the
provisions of the personal law applicable to her.
 The conclusion that the right conferred by section 125
can be exercised irrespective of the personal law of the
parties is fortified, especially in regard to Muslims, by
the provision contained in the Explanation to the second
proviso to section 125(3) of the Code. That proviso says
that if the husband offers to maintain his wife on condition
that she should live with him, and she refuses to live with
him, the Magistrate may consider any grounds of refusal
stated by her, and may make an order of maintenance not with
standing the offer of the husband, if he is satisfied that
there is a just ground for passing such an order. According
to the Explanation to the proviso:
 "If a husband has contracted marriage with another
 woman or keeps a mistress, it shall be considered to be
 just ground for his wife's refusal to live with him."
 It is too well-known that "A Mahomedan may have as many
as four wives at the same time but not more. If he marries a
fifth wife when he has already four, the marriage is not
void, but merely irregular". (See Mulla's Mahomedan Law,18th
Edition, paragraph 25S, page 285, quoting Baillie's Digest
of Moohummudan Law; and Ameer Ali's Mahomedan Law, 5th
Edition, Vol. II, page 280). The explanation confers upon
the wife the right to refuse to live with her husband if he
contracts another marriage, leave alone 3 or 4 other
marriages. It shows, unmistakably, that section 125
overrides the personal law, if is any there conflict between
the two.
 The whole of this discussion as to whether the right
conferred by section 125 prevails over the personal law of
the parties, has proceeded on the assumption that there is a
conflict between the provisions of that section and those of
the Muslim Personal Law. The argument that by reason of
section 2 of the Shariat Act,
857
XXVI of 1937, the rule of decision in matters relating,
inter alia, to maintenance "shall be the Muslim Personal
Law" also proceeds upon a similar assumption. We embarked
upon the decision of the question of priority between the
Code and the Muslim Personal Law on the assumption that
there was a conflict between the two because, in so far as
it lies in our power, we wanted to set at rest, once for
all, the question whether section 125 would prevail over the
personal law of the parties, in cases where they are in
conflict.
 The next logical step to take is to examine the
question, on which considerable argument has been advanced
before us, whether there is any conflict between the
provisions of section 125 and those of the Muslim Personal
Law on the liability of the Muslim husband to provide for
the maintenance of his divorced wife.
 The contention of the husband and of the interveners
who support him is that, under the Muslim Personal Law, the
liability of the husband to maintain a divorced wife is
limited to the period of iddat. In support of this
proposition, they rely upon the statement of law on the
point contained in certain text books. In Mulla's Mahomedan
Law (18th Edition, para 279, page 301), there is a statement
to the effect that, "After divorce, the wife is entitled to
maintenance during the period of iddat". At page 302, the
learned author says: -
 'Where an order is made for the maintenance of a
 wife under section 488 of the Criminal Procedure Code
 and the wife is afterwards divorced, the order ceases
 to operate on the expiration of the period of iddat.
 The result is that a Mahomedan may defeat an order made
 against him under section 488 by divorcing his wife
 immediately after the order is made. His obligation to
 maintain his wife will cease in that case on the
 completion of her iddat,"
 Tyabji's Muslim law (4th Edition, para 304, pages 268-
269). contains the statement that:
 "On the expiration of the iddat after talaq, the
 wife's right to maintenance ceases, whether based on
 the Muslim
858
 Law, or on an order under the Criminal Procedure Code-"
According to Dr Paras Diwan:
 "When a marriage is dissolved by divorce the wife
 is entitled to maintenance during the period of
 iddat.... On the expiration of the period of iddat, the
 wife is not entitled to any maintenance under any
 circumstances. Muslim Law does not recognise any
 obligation on the part of a man to maintain a wife whom
 he had divorced."
 (Muslim Law in Modern India, 1982 Edition, page 130)
 These statements in the text book are inadequate to
establish the proposition that the Muslim husband is not
under an obligation to provide for the maintenance of his
divorced wife, who is unable to maintain herself. One must
have regard to the entire conspectus of the Muslim Personal
Law in order to determine the extent both, in quantum and
induration, of the husband's liability to provide for the
maintenance of an indigent wife who has been divorced by
him. Under that law, the husband is bound to pay Mahr to the
wife as a mark of respect to her. True, that he may settle
any amount he likes by way of dower upon his wife, which
cannot be less than 10 Dir hams, which is equivalent to
three or four rupees (Mulla's Mahomedan Law, 18th Edition,
para 286, page 308). But, one must have regard to the
realities of life Mahr is a mark of respect to the wife. The
sum settled by way of Mahr is generally expected to take
care of the ordinary requirements of the wife, during the
marriage and after. But these provisions of the Muslim
Personal Law do not countenance cases in which the wife is
unable to maintain herself after the divorce. We consider it
not only incorrect but unjust, to extend the scope of the
statements extracted above to cases in which a divorced wife
is unable to maintain herself. We are of the opinton that
the application of those statements of law must be
restricted to that class of cases, in which there is no
possibility of vagrancy or destitution arising out of the
indigence of the divorced wife. We are not concerned here
with the broad and general question whether a husband is
liable to maintain his wife, which includes a divorced wife,
in all circumstances and at all events. That is not the
subject matter of section 125. That section deals with cases
in which, a person who is possessed of sufficient means
neglects or refuses to maintain, amongst others, his wife
who is unable to maintain
859
herself. Since the Muslim Personal Law, which limits the
husband's liability to provide for the maintenance of the
divorced wife to the period of iddat, does not contemplate
or countenance the situation envisaged by section 125, it
would be wrong to hold that the Muslim husband, according to
his personal law, is not under all obligation to provide
maintenance, beyond the period of iddat, to his divorced
wife who is unable to maintain herself. The argument of the
appellant that, according to the Muslim Personal Law, his
liability to provide for the maintenance of his divorced
wife is limited to the period of iddat, despite the fact she
is unable to maintain herself, has therefore to be rejected.
The true position is that, if the divorced wife is able to
maintain herself, the husband's liability to provide
maintenance for her ceases with the expiration of the period
of iddat. If she is unable to maintain herself, she is
entitled to take recourse to section 125 of the Code. The
outcome of this discussion is that there is no conflict
between the provisions of section 125 and those of the
Muslim Personal Law on the question of the Muslim husband's
obligation to provide maintenance for a divorced wife who is
unable to maintain herself.
 There can be no greater authority on this question than
the Holy Quran, "The Quran, the Sacred Book of Islam,
comprises in its 114 Suras or chapters, the total of
revelations believed to have been communicated to Prophet
Muhammed, as a final expression of God's will". (The Quran-
Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and
242 . of the Quran show that according to the Prophet, there
is an obligation on Muslim husbands to provide for their
divorced wives. The Arabic version of those Aiyats and their
English translation are reproduced below:
Arabic version English version
Ayat No. 241 For divorced women
WA LIL MOTALLAQATAY Maintenance (should
be
MATA UN Provided)
BIL MAAROOFAY On a reasonable
(Scale)
HAQQAN This is a duty
ALAL MUTTAQEENA On the righteous.
Ayat No. 242
KAZALEKA YUBAIYYANULLAHO Thus doth God
860
LAKUM AYATEHEE LA ALLAKUM Make clear His Signs
 TAQELOON To you: in order
that
 ye may understand.
 (See 'The Holy Quran' by Yusuf Ali, Page 96).
 The correctness of the translation of these Aiyats is
not in dispute except that, the contention of the appellant
is that the word 'Mata' in Aiyat No. 241 means 'provision'
and not 'maintenance'. That is a distinction without a
difference. Nor are we impressed by the shuffling plea of
the All India Muslim Personal Law Board that, in Aiyat 241,
the exhortation is to the' Mutta Queena', that is, to the
more pious and the more God-fearing, not to the general run
of the Muslims, the 'Muslminin'. In Aiyat 242, the Quran
says: "It is expected that you will use your commonsense".
 The English version of the two Aiyats in Muhammad
Zafrullah Khan's 'The Quran' (page 38) reads thus:
 "For divorced women also there shall be provision
 according to what is fair. This is an obligation
 binding on the righteous. Thus does Allah make His
 commandments clear to you that you may understand."
 The translation of Aiyats 240 to 242 in 'The Meaning of
the Quran' (Vol. I, published by the Board of Islamic
Publications, Delhi) reads thus .
 "240-241.
 Those of you, who shall die and leave wives behind
 them, should make a will to the effect that they should
 be provided with a year's maintenance and should not be
 turned out of their homes. But if they leave their
 homes of their own accord, you shall not be answerable
 for whatever they choose for themselves in a fair way;
 Allah is All Powerful, All-wise. Likewise, the divorced
 women should also be given something in accordance with
 the known fair standard. This is an obligation upon the
 God-fearing people.
861
 242. A
 Thus Allah makes clear His commandments for you:
 It is expected that you will use your commonsense."
 In "The Running Commentary of The Holy Quran"
 (1964 Edition) by Dr. Allamah Khadim Rahmani Nuri,
 Aiyat No. 241 is translated thus:
 "241
 And for the divorced woman (also) a provision
 (should be made) with fairness (in addition to her
 dower); (This is) a duty (incumbent) on the reverent."
 In "The Meaning of the Glorious Quran, Text and
Explanatory Translation", by Marmaduke Pickthall, (Taj
Company Ltd.,karachi), Aiyat 241 is translated thus:
 '-241.
 For divorced women a provision in kindness: A duty
 for those who ward off (evil)."
 Finally, in "The Quran Interpreted" by Arthur J.
Arberry. Aiyat 241 is translated thus:
 "241.
 There shall be for divorced women provision
 honourable-an obligation on the god fearing."
 So God makes clear His signs for you: Happily you
 will understand."
 Dr. K.R. Nuri in his book quoted above: 'The Running
Commentary of the Holy Quran", says in the preface:
 "Belief in Islam does not mean mere confession of
 the existence of something. It really means the
 translation of
862
 the faith into action. Words without deeds carry no
 meaning in Islam. Therefore the term "believe and do
 good" has been used like a phrase all over the Quran.
 Belief in something means that man should inculcate the
 qualities or carry out the promptings or guidance of
 that thing in his action. Belief in Allah means that
 besides acknowledging the existence of the Author of
 the Universe, we are to show obedience to His
 commandments..."
 These Aiyats leave no doubt that the Quran imposes an
obligation on the Muslim husband to make provision for or to
provide maintenance to the divorced wife. The contrary
argument does less than justice to the teaching of the
Quran. As observed by Mr. M. Hidayatullah in his
introduction to Mulla's Mahomedan Law, the Quran is Al-
furqan' that is one showing truth from falsehood and right
from wrong.
 The second plank of the appellant's argument is that
the respondent's application under section 125 is liable to
be dismissed be cause of the provision contained in section
127 (3) (b). That section provides, to the extent material,
that the Magistrate shall cancel the order of maintenance,
if the wife is divorced by the husband and, she has received
"the whole of the sum which, under any customary or personal
law applicable to the parties, was payable on such divorce".
That raises the question as to whether, under the Muslim
Personal law, any sum is payable to the wife 'on divorce'.
We do not have to grope in the dark and speculate as to
which kind of a sum this can be because, the only argument
advanced before us on behalf of the appellant and by the
interveners supporting him, is that Mahr is the amount
payable by the husband to the wife on divorce. We find it
impossible to accept this argument.
 In Mulla's principles of Mahomedan Law (18th Edition,
page 308), Mahr or Dower is defined in paragraph 285 as "a
sum of money or other property which the wife is entitled to
receive from the husband in consideration of the marriage."
Dr. Paras Diwan in his book, "Muslim Law in Modern India"
(1982 Edition, page 60), criticises this definition on the
ground that Mahr is not payable "in consideration of
marriage" but is an obligation imposed by law on the husband
as a mark of respect for the wife, as is evident from the
863
fact that non-specification of Mahr at the time of marriage
does not affect the validity of the marriage. We need not
enter into this controversy and indeed, Mulla`s book itself
contains the further statement at page 308 that the word
'consideration' is not used in the sense in which it is used
in the Contract Act and that under the Mohammedan Law, Dower
is an obligation imposed upon the husband as a mark of
respect for the wife. We are concerned to find is whether
Mahr is an amount payable by the husband to the wife on
divorce. Some confusion is caused by the fact that, under
the Muslim Personal Law, the amount of Mahr is usually split
into two parts, one of which is called "prompt", which is
payable on demand, and the other is called "deferred ",
which is payable on the dissolution of the marriage by death
or by divorce. But, the tact 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) of the Code. If Mahr is an amount which
the wife is entitled to receive from the husband hl
consideration of the marriage, that is the very opposite of
the amount being payable in consideration of divorce.
Divorce dissolves the Marriage. Therefore no amount which is
payable in consideration of the marriage can possibly be
described as an amount payable in consideration of divorce.
The alternative premise that Mahr is an obligation imposed
upon the husband as a mark of respect for the wife, is
wholly detrimental to the stance that it is an amount
payable to the wife on divorce.A man may marry a woman for
love, looks, learning or nothing at all. And. he may settle
a sum upon her as a mark of respect for her. But he does not
divorce her as a mark of respect. Therefore, a sum payable
to the wife out of respect cannot be a sum payable 'on
divorce'.
 In an appeal from a Full Bench decision of the
Allahabad High Court, the Privy Council in Hamira Bibi v.
Zubaide Bibi(1) sum-
(1) 43 1. A. 294.
864
med up the nature and character of Mahr in these words:
 "Dower is an essential incident under the Muslim
 Law to the status of marriage; to such an extent that
 is so that when it is unspecified at the time the
 marriage is contracted, the law declares that it must
 be adjudged on definite principles. Regarded as a
 consideration for the marriage, it is, in theory,
 payable before consummation; but the law allows its
 division into two parts, one of which is called
 "prompt" payable before the wife can be called upon to
 enter the conjugal domicil; the other " deferred",
 payable on the dissolution of the contract by the death
 of either of the parties or by divorce." (p. 300-301)
 This statement of law was adopted in another decision
of the Privy Council in Syed Sabir Husain v. Farzand
Hasan.(1) It is not quite appropriate and seems invidious to
describe any particular Bench of a court as "strong" but, we
cannot resist the temptation of mentioning that Mr. Syed
Ameer Ali was a party to the decision in Hamira Bibi while
Sir Shadi Lal was a party to the decision in Syed Sabir
Husain. These decisions show that the payment of dower may
be deferred to a future date as, for example, death or
divorce. But, that does not mean that the payment of the
deferred dower is occasioned by these events.
 It is contended on behalf of the appellant that the
proceedings of the Rajya Sabha dated December 18, 1973
(volume 86, column 186), when the bill which led to the Code
of 1973 was on the anvil, would show that the intention of
the Parliament was to leave the provisions of the Muslim
Personal Law untouched. In this behalf, reliance is placed
on the following statement made by Shri Ram Niwas Mirdha,
the then Minister of State, Home Affairs:
 "Dr. Vyas very learnedly made certain observations
 that a divorced wife under the Muslim law deserves to
 be treated justly and she should get what is her
 equitable or legal due. Well, I will not go into this,
 but say that we would not like to interfere with the
 customary law of the Muslims through the Criminal
 Procedure Code. If there is
(1) 65 I.A. 119, 127
865
 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 crystalise 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. But as I tried to explain, the provision
 in the Bill is an advance over the previous situation.
 Divorced women have been included and brought within
 the admit of clause 125, but a limitation is being
 imposed by this amendment to clause 127, namely, that
 the maintenance orders would ceases to operate after
 the amounts due to her under the personal law are paid
 to her. This is a healthy compromise between wh lt has
 been termed a conservative interpretation of law or a
 concession to conservative public opinion and liberal
 approach to the problem. We have made an advance and
 not tried to transgress what are the personal rights of
 Muslim women. So this, I think, should satisfy Hon.
 Members that whatever advance we have made is in the
 right direction and it should be welcomed."
 lt does appear from this speech that the Government did
not desire to interfere with the personal law of the Muslim
through the Criminal Procedure Code. It wanted the Muslim
community to take the lead and the Muslim public opinion to
crystalise on the reforms in their personal law. However, we
do not concerned with the question whether the Government
did not desire to bring about changes in the Muslim
Personal Law by enacting sections 125 and 127 of the Code.
As we have said earlier and, as admitted by the Minister,
the Government did introduce such a change by defining the
expression 'wife' to include a divorced wife. It also
introduced another significant change by providing that the
fact that the husband has contracted marriage with another
woman is a just ground for the wife's refusal to live with
him. The provision contained in section 127 (3) (b) may have
been introduces because of the misconception that dower is
an amount payable "on divorce". But, that cannot convert an
amount payable as a mark of respect for the wife into an
amount payable on divorce.
 It must follow from this discussion, unavoidably a
little too long, that the judgments of this Court in Bai
Tahira (Krishna
866
Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (Krishna
Iyer, J.,) one of us, Chinnappa Reddy J. and A. P. Sen J.)
are correct. Justice Krishna Iyer who spoke for the Court in
both these cases, relied greatly on the teleological and
schematic method of interpretation so as to advance the
purpose of the law. These constructional techniques have
their own importance in the interpretation of statutes meant
to ameliorate the conditions of suffering sections of the
society. We have attempted to show that taking the language
of the statute as one finds it, there is no escape from the
conclusion that a divorced Muslim wife is entitled to apply
for maintenance under section 125 and that, Mahr is not a
sum which, under the Muslim Personal Law, is payable on
divorce.
 Though Bai Tahira was correctly decided, we would like,
respectfully, to draw attention to an error which has crept
in the judgement There is a statement at page 80 of the
report, in the context of section 127 (3) (b), that "payment
of Mahr money, as a customary discharge, is within the
cognizance of that provision". We have taken the view that
Mahr, not being payable on divorce, does not fall within the
meaning of that provision.
 It is a matter of deep regret that some of the
interveners who supported the appellant, took up an extreme
position by displaying an unwarranted zeal to defeat the
right to maintenance of women who are unable to maintain
themselves. The written submissions of the All India Muslim
Personal Law Board have gone to the length of asserting that
it is irrelevant to inquire as to how a Muslim divorce
should maintain herself. The facile answer of the Board is
(that the Personal Law has devised the system of Mahr to
meet the requirements of women and if a woman is indigent,
she must look to her relations, including nephew and
cousins, to support her. This is a most unreasonable view of
law as well as life. We appreciate that Begum Temur Jehan, a
social worker who has been working in association with the
Delhi City Women's Association for the uplift of Muslim
women, intervened to support Mr. Daniel Latifi who appeared
on behalf of the wife
 It is also a matter of regret that Article 44 of our
Constitution has remained a dead letter. It provides that
"The State shall endeavour to secure for the citizens a
uniform civil code throughout the territory of India". There
is no evidence of any official activity for
867
framing a common civil code for the country.A belief seems
to have gained ground that it is for the Muslim community to
take a lead in the matter of reforms of their personal law.A
common Civil Code will help the cause of national
integration by removing disparate loyalties to laws which
have conflicting ideologies. No community is likely to bell
the cat by making gratuitous concessions on this issue. It
is the State which is charged with the duty of securing a
uniform civil code for the citizens of the country and,
unquestionably, it has the legislative competence to do so.A
counsel in the case whispered, somewhat audibly, that
legislative competence is one thing, the political courage
to use that competence is quite another. We understand the
difficulties involved in bringing persons of different
faiths and persuasions on a common platform But, a beginning
has to be made if the Constitution is to have any meaning.
Inevitably, the role of the reformer has to be assumed by
the courts because, it is beyond the endurance of sensitive
minds to allow injustice to be suffered when it is so
palpable. But piecemeal attempts of courts to bridge the gap
between personal Laws cannot take the place of a common
Civil Code. Justice to all is a far more satisfactory way of
dispensing justice than justice from case to case.
 Dr. Tahir Mahmood in his book 'Muslim Personal Law'
(1977 Edition, pages 200-202), has made a powerful plea for
framing a uniform Civil Code for all citizens of India. He
says: "In pursuance of the goal of secularism, the State
must stop administering religion based personal laws". He
wants the lead to come from the majority community but, we
should have thought that, lead or no lead, the State must
act. It would be useful to quote the appeal made by the
author to the Muslim community:
 "Instead of wasting their energies in exerting
 theological and political pressure in order to secure
 an "immunity" for their traditional personal law from
 the state` legislative jurisdiction, the Muslim will do
 well to begin exploring and demonstrating how the true
 Islamic laws, purged of their time-worn and
 anachronistic interpretations, can enrich the common
 civil code of India."
 At a Seminar held on October 18, 1980 under the
auspices of the Department of Islamic and Comparative Law,
Indian Institute of Islamic Studies New Delhi? he also made
an appeal to the
868
Muslim community to display by their conduct a correct
understanding of Islamic concepts on marriage and divorce
(See Islam and Comparative Law Quarterly, April-June, 1981,
page 146).
 Before we conclude, we would like to draw attention to
the Report of the Commission on marriage and Family Laws,
which was appointed by the Government of Pakistan by a
Resolution dated August 4, 1955. The answer of the
Commission to Question No.5 (page 1215 of the Report) is
that
 "a large number of middle-aged women who are being
 divorced without rhyme or reason should not be thrown
 on the streets without a roof over their heads and
 without any means of sustaining themselves and their
 children."
 The Report concludes thus:
 "In the words of Allama Iqbal, "the question which
 is likely to confront Muslim countries in the near
 future, is whether the law of Islam is capable of
 evolution-a question which will require great
 intellectual effort, and is sure to he answered in the
 affirmative "
 For these reasons, we dismiss the appeal and confirm
the judgment of the High Court. The appellant will pay the
costs of the appeal to respondent 1, which we quantify at
rupees ten thousand. It is needless to add that it would be
open to the respondent to make an application under section
127 (1) of the Code for increasing the allowance of
maintenance granted to her on proof of a change in the
circumstances as envisaged by that section.
S.R. .Appeal dismissed
869

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