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Code of Criminal Procedure Code, 1973, Section 127 (3) (b), scheme and scope of-Whether by the payment of Mahar and Iddat dues, the provisions of s. 127(3)(b) of the Code would be complied with or the vinculum juris created by the order under s. 125 continues despite the make-believe ritual of miniscule mahar which merely stultified section 127(3) (b) Cr.P.C.-Precedents and binding nature under Article 141 of the Constitution. Fazlunbi, the appellant, married Khader Vali, the respondent, in 1966, and during their conjugal life, a son Khader Basha, was born to them. The respondent, husband, an additional accountant in the State Bank of India, drawing a salary of Rs. 1000/-, discarded the wife and the child, and the tormented woman talaqed out of the conjugal home, sought shelter in her parent's abode. Driven by destitution, she prayed for maintenance allowance for herself and her son under section 125 Cr. P.C. and the Magistrate granted payment of a monthly sum of Rs. 250/- to the wife and Rs. 150/- to the child. The respondent husband challenged the award in the High Court where the unjustified neglect was upheld, but the quantum of maintenance of the child was reduced to Rs. 100/- per mensem. Thereafter, the respondent husband resorted to the unilateral technique of talaq and tendered the magnificent sum of Rs. 500/- by way of Mahar and Rs. 750/- towards maintenance for the period of iddat, hopeful thereby, of extricating himself from the obligation to maintain the appellant. The Additional First Class Magistrate vacated the grant of maintenance already granted on the score of divorce coupled with discharge of mahar and Iddat dues. This order was unsuccessfully challenged in the Sessions Court. The desperate appellant reached the High Court and invoked its jurisdiction under section 482 Crl. P.C. A Division Bench of that High Court, though the revision petitioner banked upon the decision of the Supreme Court in Bai Tahira's case [1979] 2 SCR 75 in her favour, distinguished that case and dismissed the petition. Hence the appellant-wife's appeal by special leave. Allowing the appeal, the Court ^ HELD: 1. The conscience of social justice, the cornerstone of our Constitution will be violated and the soul of the scheme of Chapter IX of the Code, a secular safeguard of British India vintage against the outrage of jetsam women and flotsam children, will be defiled if judicial interpretation sabotages the true meaning and reduces a benign protection into a damp squib. [1131 E-F] 2. Precedents of the Supreme Court are not to be left on the shelves. Neither could they be brushed aside saying that precedents is an authority only "on its actual facts". Such devices are not permissible for the High Courts when decisions of the Supreme Court are cited before them not merely because of the jurisprudence of precedents, but because of the imperatives of Article 141. [1134 D-E] 1128 No Judge in India, except a larger Bench of the Supreme Court, without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio in Bai Tahira's case, in which Section 127(3)(b) of Crl. P.C. was interpreted. The language used is unmistakable, the logic at play is irresistible, the conclusion reached is inescapable the application of the law as expanded there is an easy task. And yet, the Division Bench, by the fine art of skirting the real reasoning laid down "unlaw" in the face of the law in Bail Tahira which is hardly a service and surely a mischief, unintended by the Court may be, but embarrassing to the subordinate judiciary. There is no warrant whatever for the High Court to reduce to a husk a decision of this Court by its doctrinal gloss. [1132 C-E] (3) Crl. P.C. (Sections 125-127) is a secular code deliberately designed to protect destitute women, who are victims of neglect during marriage and after divorce. It is rooted in the State's responsibility for the welfare of the weaker sections of women and children and is not confined to members of one religion or region, but the whole community of womanhood. Secondly muslim law show its reverence for the wife in the institution of Mehar (dower). It is neither dowry nor price for marriage. [1138 C-E] 4. The quintessence of mehar whether it is prompt or deferred is clearly not a contemplated quantification of a sum of money in lieu of maintenance upon divorce. Indeed, dower focusses on marital happiness and is an incident of connubial joy. Divorce is farthest from the thought of the bride and the bridegroom when mehar is promised. Moreover, dower may be prompt and is payable during marriage and cannot, therefore, be a recompense for divorce too distant and unpleasant for the bride and bridegroom to envision on the nuptial bed. May be, some how the masculine obsession of jurisprudence linked up this promise or payment as a consolidated equivalent of maintenance after divorce. [1140 D-F] 5. The language of Section 127(3)(b) suggests that payment of the sum and the divorce should be essential parts of the same transaction so as to make one the consideration for the other. The payment of money contemplated by section 127(3) (b) should be so linked with the divorce as to become payable only in the event of the divorce. Mehar 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. Under s. 127(3) (b) of the Cr. P.C., an order for maintenance may be cancelled if the Magistrate is satisfied that the woman has been divorced by her husband and that she has received, whether before or after the said order, the whole of the sum which, under any customary or personal law applicable to the parties was payable on such divorce. Therefore, even by harmonising payments under personal and customary laws with the obligations under ss. 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 s. 125 to s. 127 of the Criminal Procedure Code. [1140 F-H, 1141 A-C] 1129 Kunhi Moyin v. Pathimma, 1976 KLT 87 at 96; Kamalakshi v. Sankaran, AIR 1979 Kerala 116; Hajabean Sulaiman & Anr. v. Ibrahim Gandhabai and Anr., Guj. L.R. Vol. XVIII 1977 p. 133 at 137-139, referred to. 6. (i) Section 127(3)(b) has a setting, scheme and a purpose and no talaq of the purpose different from the sense is permissible in statutory construction. [1141 C-D] (ii) 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 divorce may need until death or remarriage overtake her. The policy of the law abhors neglected wives and destitute divorcees and s. 127(3)(b) takes care to avoid double payment one under custom at the time of divorce and another under s. 125. [1141 D-E] (iii) Whatever the facts of a particular case, the Code, by enacting ss. 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. [1141 E-F] (iv) Neither personal law nor other salvationary plea will hold against the policy of public law pervading s. 127(3) (b) as much as it does s. 125. So a farthing is no substitute for a fortune nor naive consent equivalent to intelligent acceptance. [1141 F-G] (v) Here the mahar paid is Rs. 500/ and the income therefrom may will be Rs. 5/- a month, too ludicrous to mention as maintenance. The amount earlier awarded is the minimum. [1141 G-H] 1980 AIR 1730, 1980( 3 )SCR1127, 1980( 4 )SCC 125, ,


PETITIONER:
FAZLUNBI

Vs.

RESPONDENT:
K. KHADER VALI AND ANR.

DATE OF JUDGMENT08/05/1980

BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)

CITATION:
 1980 AIR 1730  1980 SCR  (3)1127
 1980 SCC  (4) 125
 CITATOR INFO :
 F    1985 SC 945 (4,29)


ACT:
     Code of  Criminal Procedure Code, 1973, Section 127 (3)
(b), scheme and scope of-Whether by the payment of Mahar and
Iddat dues, the provisions of s. 127(3)(b) of the Code would
be complied  with or the vinculum juris created by the order
under s.  125 continues despite the  make-believe ritual of
miniscule mahar which merely  stultified section 127(3) (b)
Cr.P.C.-Precedents and binding nature under Article 141 of
the Constitution.



HEADNOTE:
     Fazlunbi, the  appellant, married  Khader  Vali, the
respondent, in 1966, and  during their conjugal life, a son
Khader Basha,  was born to them. The respondent, husband, an
additional accountant  in the State Bank of India, drawing a
salary of  Rs. 1000/-, discarded the wife and the child, and
the tormented woman talaqed out of the conjugal home, sought
shelter in  her parent's  abode. Driven by destitution, she
prayed for  maintenance allowance  for herself and her son
under section  125  Cr. P.C.  and  the Magistrate  granted
payment of  a monthly  sum of  Rs. 250/- to the wife and Rs.
150/- to  the child.  The respondent  husband challenged the
award in  the High  Court where the unjustified neglect was
upheld, but  the quantum  of maintenance  of the  child was
reduced to Rs. 100/- per mensem.
     Thereafter, the  respondent  husband  resorted  to the
unilateral technique  of talaq and tendered the magnificent
sum of Rs. 500/-  by way  of Mahar  and Rs.  750/-  towards
maintenance for the period  of iddat, hopeful thereby,  of
extricating himself  from the  obligation  to  maintain the
appellant. The Additional First Class Magistrate vacated the
grant of maintenance already granted on the score of divorce
coupled with  discharge of  mahar and Iddat dues. This order
was unsuccessfully  challenged in  the Sessions Court. The
desperate appellant  reached the  High Court and invoked its
jurisdiction under section 482 Crl. P.C. A Division Bench of
that High  Court, though the revision petitioner banked upon
the decision  of the  Supreme Court  in Bai  Tahira's case
[1979] 2  SCR 75  in her favour, distinguished that case and
dismissed the petition. Hence the appellant-wife's appeal by
special leave.
     Allowing the appeal, the Court
^
     HELD:  1. The  conscience   of  social  justice, the
cornerstone of our Constitution  will be  violated and the
soul of the scheme  of Chapter IX of the Code,  a secular
safeguard of  British India  vintage against  the outrage of
jetsam women  and  flotsam  children,  will  be defiled  if
judicial  interpretation  sabotages  the  true meaning and
reduces a benign protection into a damp squib. [1131 E-F]
     2. Precedents  of the  Supreme Court are not to be left
on the shelves. Neither  could they be brushed aside saying
that precedents is an authority only "on its actual facts".
Such devices  are not  permissible for the High Courts when
decisions of  the Supreme  Court are  cited before  them not
merely because of  the jurisprudence of  precedents, but
because of the imperatives of Article 141. [1134 D-E]
1128
     No Judge in India, except a larger Bench of the Supreme
Court, without a departure  from  judicial  discipline can
whittle down,  wish away  or be unbound by the ratio in Bai
Tahira's case, in which  Section 127(3)(b) of Crl. P.C. was
interpreted. The language used is unmistakable, the logic at
play is irresistible, the conclusion reached is inescapable
the application of the law as expanded there is an easy
task. And  yet, the  Division Bench,  by  the  fine  art  of
skirting the real reasoning laid down "unlaw" in the face of
the law in Bail Tahira which is hardly a service and surely
a mischief, unintended by the Court may be, but embarrassing
to the subordinate judiciary. There is no warrant whatever
for the High Court  to reduce to a husk a decision of this
Court by its doctrinal gloss. [1132 C-E]
     (3) Crl.  P.C. (Sections  125-127) is  a  secular code
deliberately designed  to protect  destitute women,  who are
victims of  neglect during marriage and after divorce. It is
rooted in  the State's responsibility for the welfare of the
weaker sections of women and children and is not confined to
members of  one religion  or region, but the whole community
of womanhood. Secondly muslim law show its reverence for the
wife in the institution  of Mehar  (dower). It is  neither
dowry nor price for marriage. [1138 C-E]
     4. The  quintessence of  mehar whether  it is prompt or
deferred is  clearly not  a contemplated quantification of a
sum of money in  lieu of  maintenance upon divorce. Indeed,
dower focusses on marital  happiness and  is an incident of
connubial joy. Divorce is  farthest from the thought of the
bride and  the bridegroom  when mehar is promised. Moreover,
dower may  be prompt  and is  payable  during  marriage and
cannot, therefore,  be a  recompense for divorce too distant
and unpleasant for the bride and bridegroom to envision on
the nuptial bed. May be, some how the masculine obsession of
jurisprudence  linked  up  this promise  or  payment  as  a
consolidated equivalent of maintenance after divorce. [1140
D-F]
     5. The  language of  Section  127(3)(b)  suggests that
payment of the sum and the divorce should be essential parts
of the same transaction so as to make one the consideration
for the other. The payment of money contemplated by section
127(3) (b) should be so linked with the divorce as to become
payable only in  the event of  the divorce.  Mehar  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. Under s. 127(3)
(b) of the Cr. P.C., an  order  for maintenance  may  be
cancelled if  the Magistrate is satisfied that the woman has
been divorced  by her  husband and  that she  has  received,
whether before or after the said order, the whole of the sum
which, under any customary or personal law applicable to the
parties was  payable on such divorce. Therefore,  even  by
harmonising payments  under personal and customary laws with
the obligations under ss.  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
s. 125 to s. 127 of the Criminal Procedure Code. [1140 F-H,
1141 A-C]
1129
     Kunhi Moyin  v. Pathimma, 1976 KLT 87 at 96; Kamalakshi
v. Sankaran,  AIR 1979 Kerala 116; Hajabean Sulaiman & Anr.
v. Ibrahim  Gandhabai and Anr., Guj. L.R. Vol. XVIII 1977 p.
133 at 137-139, referred to.
     6. (i)  Section 127(3)(b) has a  setting, scheme and a
purpose and no talaq of the purpose different from the sense
is permissible in statutory construction. [1141 C-D]
     (ii) 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 divorce may need until death or remarriage overtake her.
The policy  of the  law abhors neglected wives and destitute
divorcees and  s.  127(3)(b)  takes  care  to  avoid  double
payment one  under custom at the time of divorce and another
under s. 125. [1141 D-E]
     (iii) Whatever  the facts of a  particular  case, the
Code, by enacting ss. 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. [1141 E-F]
     (iv) Neither  personal law nor other salvationary plea
will hold  against the policy of  public law  pervading  s.
127(3) (b)  as much  as it  does s. 125. So a farthing is no
substitute for a fortune  nor naive  consent equivalent  to
intelligent acceptance. [1141 F-G]
     (v) Here  the mahar  paid is  Rs. 500/  and the  income
therefrom may  will be Rs. 5/- a month,  too ludicrous  to
mention as  maintenance. The  amount earlier  awarded is the
minimum. [1141 G-H]



JUDGMENT:
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
156 of 1980.
     Appeal by certificate against  the Judgment  and Order
dated the  21 Nov., 1979 of the Andhra Pradesh High Court in
Criminal Misc. Petition No. 1351 of 1979.
     A. Suba Rao for the Appellant.
     G. Narasimhulu for Respondent No. 1.
     The Judgment of the Court was delivered by
     KRISHNA IYER,  J.-The last judicial lap of the journey
to gender  justice made by Fazulnbi,  a married  woman just
past 30 years and talaged into destitution, constitutes the
compassionate core  of this  case. The saga of Fazlunbi, who
had earlier  secured an order for maintenance in her favour
under s.  125 Cr.  P. C. which was cancelled under s. 127(3)
(b) Cr. P. C., by three  courts, tier upon  tier  in the
vertical system,  by  concurrent  misinterpretation  of the
relevant provision,  constitutes the  kernel  of  her  legal
grievance. If  her plea has substance, social justice has
been jettisoned by judicial  process and  a just and lawful
claim due to a woman in distress has been denied heartlessly
and lawlessly. We say 'heartlessly', because no sensitive
1130
judge with  empathy for the weaker sex could have callously
cancelled an  order for a monthly allowance already made in
her favour,  as has  been done here.  We  say 'lawlessly',
because no  disciplined judge  bound by the decision of this
Court which  lays down the law for the nation under Art. 141
of the Constitution could  have defied the  crystal  clear
ruling of  this Court  in Bai Tahira v. Ali Hussain Fidaalli
Chothia by  the  disingenuous process distinguishing the
decision. We  are surprised by this process of getting round
the rule  in Bai  Tahira's case (supra) by the artful art of
concocting a  distinction without a difference. The Sessions
Court  and   the  High Court, who  had  before  them the
pronouncement of  the Supreme  Court, chopped legal logic to
circumvent it. Reading their  'reasoning' we  are  left  to
exclaim how the high Bench argued itself out of Bai Tahira's
case by discovering the strange difference.
     "Twixt Tweeldedum and Tweedledee",  the discipline  of
law, the  due process of law and the rule of law become mere
claptrap if judges bound to obey precedent choose to disobey
on untenable  alibi. And, behind it all is the unheeded wail
of Fazulnbi's womanhood for the karuna and samata of the law
and we are conscientized  into reversing the judgment under
appeal in  terms express,  explicit and mandatory  so that
masculine injustice  may not  crucify the  weaker sex. Small
wonder that many a divorcee, beguiled by Arts. 14 and 15 and
the decision  in Bai  Tahira's case,  may well exclaim, "How
long, O Lord, how long!"
     The brief facts which have led to this appeal are that
Fazlunbi, the appellant married Khader Vali, the respondent,
in 1966 and during their conjugal life, a son, Kader Basha,
was born  to them.  The husband, an Additional Accountant in
the State  Bank of  India, apparently  drawing a salary well
above Rs.  1000/-, discarded the wife and the child, and the
tormented woman,  talaged out  of the  conjugal home, sought
shelter in  her parents'  abode. Driven by destitution, she
prayed for  maintenance allowance  for herself and her son
under s. 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 the award  in the High Court
where the  unjustified neglect was upheld but the quantum of
maintenance of the child  was reduced to  Rs.  100/- per
mensem.
     The  respondent-husband   resorted to  the  unilateral
technique of  talaq, and tendered the magnificent sum of Rs.
500/- by  way of mahar and Rs. 750/- towards maintenance for
the period of iddat, hopeful thereby, of extricating himself
from the obligation to maintain
1131
the appellant. The Additional First Class Magistrate vacated
the grant  of maintenance  on the  score of  divorce coupled
with discharge of mahar  and iddat  dues.  This  order was
unsuccessfully challenged   in the   Sessions Court. The
desperate appellant  reached the  High Court and invoked its
jurisdiction under  s. 482 Cr. P.C. A Division Bench of that
Court, however, dismissed the revision petition and Fazlunbi
has landed  up in  this Court and banks upon the application
of the rule in Bai Tahirai's case (supra).
     The facts are clear, the talaq has snapped the marital
tie, the  flimsy mahar has been  tendered together with the
three months' iddat dues and the divorcee remains neglected.
The question  is whether s. 127 (3) (b) of the Code has been
complied with  or the  vinculum juris  created by  the order
under s.  125 continues despite the  make-believe ritual of
miniscule mahar which merely  stultifies s. 127 (3) (b) Cr.
P. C.  and hardly  fulfils it. The matter  is no longer res
integra. No  one in his senses can contend that the mahar of
Rs. 500/-  will yield  income sufficient to maintain a woman
even if she were  to live  on city  pavements! What  is the
intendment of s. 127(3)(b)? What is the scheme of relief for
driftwood and  destitute wives and divorcees  discarded  by
heartless  husbands?   What  is the  purpose  of  providing
absolution from the obligation to pay continued maintenance
by lumpsum  liquidation? What, in short  is  the  text and
texture of  the provision,  if read  in the  light  of the
mischief to  be avoided,  the justice  to be  advanced? The
conscience  of social justice,  the cornerstone  of our
Constitution will  be violated and the soul of the scheme of
Chapter IX  of the  Code, a  secular  safeguard of  British
Indian vintage against the  outrage  of  jetsam  women and
flotsam children, will be defiled if judicial interpretation
sabotages the  true meaning  and reduces a benign protection
into  a  damp squib. The  holistic art  of   statutory
construction has  not the  pettifogging craft of lexical and
literal reading of the text  woefully keeping  alive the
moribund mores of a  bygone  age  but, in  the  felicitous
diction of  Cardozo, 'the  task of a translator, the reading
of signs  and symbols given from without (by those) who have
absorbed the  spirit, have  filled themselves with a love of
the language  they must read'. Lord Denning's great tribute
to the task of a judge  is never  barred  by the  law  of
limitation.
 Many of  the Judges of England have said that they
     do not  make law. They only  interpret it.  This is an
     illusion which  they have fostered. But it is a notion
     which is  now being  discarded  everywhere.  Every new
     decision-on every new situation-is a development on the
     law. Law does not
1132
     stand  still.   It moves continually.  Once  this  is
     recognised, then  the task of the Judge is  put on  a
     higher plane. He must consciously seek to mould the law
     so as  to serve the needs of the time. He must not be a
     mere mechanic,  a mere  working mason,  laying brick on
     brick, without  thought to the overall design. He must
     be an  architect-thinking of  the structure as a whole-
     building for  society a  system of law which is strong,
     durable and  just. It  is on  his work  that  civilised
     society itself depends.
     We lay so much emphasis on the functional sensitization
of a  judge lest  what is absurd may be fobbed as obvious by
judicial semanticisation.
     We need  not labour  the point  because this  Court has
already interpreted  s. 127(3)(b) in Bai Tahira and no judge
in India, except a larger bench of the Supreme Court without
a departure  from judicial discipline can whittle down, wish
away or be unbound  by the ratio thereof. The language used
is unmistakable,  the logic  at play  is  irresistible, the
conclusion reached  is inescapable,  the application  of the
law as expounded there is  an easy  task.  And  yet, the
Division Bench, if we may with respect say so, has, by the
fine art of skirting the real reasoning laid down 'unlaw' in
the face  of the law in Bai Tahira which is hardly a service
and surely  a mischief, unintended by the Court may be, but
embarrassing to the subordinate judiciary.
     There is  no warrant  whatever for the High  Court  to
reduce to  a husk  a decision of this Court by its doctrinal
gloss. The learned judges observe, to our bafflement-
 "The decision   in  Bai  Tahira  v. Ali  Hussain
     Fassalli (supra) is to be confined only to the facts of
     that  case.  It  falls  to be  distinguished  for the
     following reasons: (i) the compromise of 1962 referred
     to therein was construed as not affecting the rights of
     a Muslim divorced  wife  in  seeking to   recover
     maintenance under Sec. 125  Cr. P.C.,  (ii)  what was
     considered to  have been  paid to the Muslim  divorced
     wife was  only the Mahar amount and not the maintenance
     amount payable  for the  Iddat period,  (iii) The Mahar
     amount paid  revealed a  rate of  interest which  for a
     person  residing  in  Bombay  was held  to  be  wholly
     inadequate to  do duty  for maintenance allowance, (iv)
     there was nothing in that case to show that the amount
     of Rs. 130/- paid towards Iddat represented the payment
     of a sufficient maintenance amount for the three months
     period of Iddat and  (v) the  husband in that case did
     not raise any plea based on sec. 127(3)(b) Cr. P.C."
1133
     Let us quote a few passages from this Court's ruling in
Bai Tahira (supra) to express the untenability of the excuse
not to follow the binding ratio.
 Nor can Section 127 rescue the respondent from his
     obligation, payment  of mehar  money,  as a  customary
     discharge, is  within the cognizance of that provision.
     But what was the amount of mehar ? Rs. 5000/-, interest
     from which could not keep the woman's body and soul to
     wether for a day, even in  that city where 40% of the
     population are  reported to  live on  pavements, unless
     she was  ready to sell her  body and give up her soul!
     The point must be clearly understood that the scheme of
     the complex  of provisions in Chapter  IX has a social
     purpose. III-used wives and  desperate divorcees shall
     not be  driven to mate rial  and moral  dereliction to
     seek sanctuary  in the  streets. This  traumatic horror
     animates the  amplitude  of  Section,  127.  Where the
     husband, by  customary payment  at the time of divorce,
     has adequately  provided for  the divorce, a subsequent
     series of recurrent doles is contra-indicated and the
     husband   liberated.    This   is  the teleological
     interpretation, the  sociological decoding of the text
     of Sec. 127. The key-note though is adequacy of payment
     which; will take reasonable care of her maintenance.
 The  payment of  illusory amounts by  way  of
     customary or   personal  law   requirement   will  be
     considered in  the reduction  of maintenance  rate but
     cannot annihilate the rate  unless it  is a reasonable
     substitute.  The  legal  sanctity of  the payment  is
     certified by  the fulfillment of the social obligation,
     not  by   a  ritual   exercise  rooted  in custom.  No
     construction  which   leads  to   frustration  of the
     statutory project can secure validation if the court is
     to pay  true homage  to the Constitution. The only just
     construction of the section is that Parliament intended
     divorcees should  not derive  a double  benefit. If the
     payment by any mehar  or ordained  by  custom  has  a
     reasonable relation  to the object and is a capitalised
     substitute for   the  order   under  Section   125-not
     mathematically but fairly-then Section 127(3) (b) sub-
     serves the goal and relieves the obliger, not pro tanto
     but wholly.  The purpose  of  the payment 'under any
     customary or   personal  law'   must  be to  obviate
     destitution of  the divorcee  and to  provide her with
     wherewithal to maintain herself. The whole scheme
1134
     of Section 127(3)(b) is  manifestly to  recognise the
     substitute maintenance  arrangement by lump sum so paid
     and  is  potential as  provision for  maintenance  to
     interpret other wise is to stultify the project. Law is
     dynamic  and   its meaning   cannot  be  pedantic but
     purposeful. The  proposition,  therefore, is  that  no
     husband can  claim under  Section 127(3) (b) absolution
     from  his obligation  under  Section  125  towards  a
     divorced wife  except on  proof of payment  of  a sum
     stipulated by  customary or  personal law whose quantum
     is more  or less  sufficient to do duty for maintenance
     allowance.
     Granville Williams in his "Learning the Law" (pp. 77-
78)  gives   one  of   the  reasons   persuading  judges  to
distinguish precedents is "that  the  earlier decision  is
altogether unpalatable to the court in  the later case, so
that the  latter court wishes to interpret it as narrowly as
possible". The same learned  author notes  that some judges
may "in extreme and  unusual circumstances, be apt to seize
on almost  any factual difference between this previous case
and the case before  him in  order to arrive at a different
decision. Some precedents are continually left on the shelf
in  this   way, as   a wag   observed,  they become very
"distinguished". The  limit of the process is reached when a
judge says  that the  precedent is an authority only "on its
actual facts". We need hardly say that these devices are not
permissible for the  High  Courts  when  decisions  of the
Supreme Court  are cited  before them  not merely because of
the  jurisprudence   of precedents,   but  because  of the
imperatives of Art. 141.
     We have  been painstakingly  drawn into many rulings of
the High  Courts but  none  except  this  one  has  had the
advantage of  the pronouncement in Bai Tahira. A  Division
Bench of  the  Kerala  High  Court-a  ruling  which  perhaps
advances the purpose more than the Full Bench decision which
overruled it-dwelt  on s. 127(3) (b) of the Code. Khalid, J.
speaking for  the court observed, and rightly if we may say
so with respect,
 This section 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)  (b) refers  not to
     maintenance during the period  of iddat  or payment of
     dower. Unfortunately., place of dower is
1135
     now occupied by dowry, payable by the girl's parents, A
     which till 1-6-1961 was  paid in public and thereafter
     in private;  thanks to the Dowry Prohibition Act, 1961.
     It is  therefore not  a sum  of money  which under the
     personal law  is payable  on divorce  as  expressed  in
     Section  127(3)   (b).  On the  other  hand,  what  is
     impliedly covered by this clause is such sums of money
     as alimony or compensation made payable on dissolution
     of the   marriage under customary  or  personal law
     codified or  unconfined, or  such amount agreed upon at
     the time of marriage to be paid at the time of divorce;
     the wife agreeing not to claim maintenance or any other
     amount.  We   thought  it necessary  to  clarify this
     position lest there be any doubt regarding the scope of
     s. 127(3) (b), for, at the first blush, it might appear
     that, it  takes away  by one  hand what  is given under
     s.125 by the other hand. This is not so.
     While,  in  our  view,  the  Full Bench decision  in
Kamalakshi v. Sankaran in so far as it does not insist on an
adequate sum  1 which  will  yield  a  recurring  income  to
maintain the divorcee in future, is bad law and the Division
Bench, in  so far as it excuses the husband if he pays a sum
which the  ignorant wife  at the time of marriage has agreed
upon to relinquish maintenance after divorce, does not go
far enough.
     A division Bench of the Gujarat High Court has sought,
even by literal construction, to reach the conclusion that
unless the  divorcee voluntarily  accepts a  sum in  lieu of
future maintenance she is still entitled to her claim and s.
127(3) (b)  will not  dissolve the liability of the husband.
The Judges argue:
 We are  concerned with  the interpretation of sub.
     (3) of  sec. 127, more particularly clause (b) thereof.
     Evidently, this  provision which  seeks to confer power
     on the  court to  cancel an  order of monthly allowance
     passe. by it in certain specified contingencies, has to
     be confined strictly within the narrow limits laid down
     by sub-sec.  (3). This  is because the  provision for
     maintenance of  wives, whether married or divorced, who
     are unable to maintain  themselves is a social welfare
     measure applicable to all people irrespective of caste,
     creed, community or nationality.
1136
 With the aforesaid background, we will now proceed
     to examine the provisions of sub-sec. (3) of sec. 127.
     A bare  reading of clauses (a),  (b) and (c) of that
     provision shows  that three  fact situations  have been
     contemplated by the Legislature in which the Magistrate
     is given  the power  to cancel  the order for  monthly
     allowance. These fact situations are shown by the words
     (1) has  remarried in  clause (a), (2) has received in
     clause (b) and (c) and (3) had voluntarily surrendered
     in clause (c).  Clauses (a)  and  (c)  of  the said
     provision do  not postulate any difficulty because they
     contemplate the  fact situations  brought about  by  a
     voluntary and  irrevocable act  on  the  part  of the
     divorced wife. Thus, clause (a) contemplates the act of
     the  wife in  getting   remarried  and clause (c)
     contemplates the  act of  the wife in obtaining divorce
     from  her husband  and  surrendering  her  rights  to
     maintenance after divorce. Both these eventualities, as
     observed earlier, are brought about by a voluntary and
     irrevocable act on the part of the wife. If this is the
     obvious position  to be kept in mind with regard to the
     scope and content of  clauses (a) and (c) of sub-sec.
     (3) of sec. 127, we see no reason why we should adopt a
     different standard   in  ascertaining  the  scope and
     content of clause (b);
      xx xx  xx
 ....it is  clear that one  of  the  eventualities
     conferring jurisdiction  on the Magistrate to cancel an
     order of monthly allowance can come into existence only
     on doing  of a  voluntary act  by the  wife of actually
     accepting the  amount offered as contemplated by clause
     (b). It  is to  be noted  that the Legislature has not
     used words indicating mere offer by the husband of the
     amount contemplated  by clause  (b)  as  sufficient  to
     bring into existence the fact situation contemplated or
     bring into existence the eventuality on which the power
     of the Magistrate to cancel the order of maintenance is
     based. It appears that  the Legislature  has advisedly
     used the  words "has received" in order to indicate and
     at the  same time restrict the power of cancelling the
     order of monthly allowance to cases where the wife by a
     voluntary act  on her  part  of  receiving the  amount
     contemplated by clause (b) brings about the eventuality
     contemplated for  exercise of  the  said power.. We,
     therefore, hold that  in  order to  exercise  power
     conferred by clause (b) of sub-sec. (3) of sec. 127, it
     has to be
1137
     found as  a fact that the wife has done a voluntary act
     of  receiving the who e sum contemplated to be payable
     by clause (b). If the wife shows her unwillingness to
     receive the  amount tendered,  the provisions of clause
     (b) are not applicable.
     Even the  literal and  the  purposive  approaches may
sometimes concur,  once we  grasp  the social dynamics  of
interpretation, will  serve the cause of truth and justice.
We are reminded of Lord, Denning's fascinating reference in
his "The  Discipline of the Law"  to Portia's plea for the
pound of  flesh but  not a  drop of  blood; The traditional
English view  is yielding  to the  pressure  of the  modern
European view (which is also the American view) expressed by
Denning in delightful diction as
 "the 'schematic   and  teleological'  method  of
     interpretation. It is not really so  alarming  as  it
     sounds. All  it means  is that  the judges do not go by
     the literal  meaning of the words or by the grammatical
     structure of  the sentence.  They go  by the  design of
     purpose which  lies behind it. When  they come  upon a
     situation which is to their minds within the spirit-but
     not the  letter-of the  legislation,  they  solve the
     problem by looking at  the design and purpose  of the
     legislature-at  the  effect  which it  was  sought  to
     achieve. They  then interpret  the legislation so as to
     produce the  unashamedly, without hesitation. They ask
     simply: What  is the  sensible way of dealing with this
     situation so  as to give effect to the presumed purpose
     of the legislation ? They lay down the law accordingly.
     If you  study the decisions of the European Court, you
     will see  that they  do it every day.  To  our  eyes-
     shortsighted by  tradition-it is  legislation, pure and
     simple. But,  to their  eyes, it is fulfilling the true
     role of  the courts. They are giving effect to what the
     legislature  intended,  or may  be  presumed  to have
     intended. I  see nothing wrong in  this  Quite the
     contrary.
     Another angle to the subject of Mahar and its impact on
liability for  maintenance  after  divorce  may be  briefly
considered. Khalid, J. of the Kerala High Court in two cases
has taken  the view  that  s.125  and  s.  127 Cr.P.C. are
conceptually unconnected  with payment of mahar  and cannot
bail out  a muslim  husband from  his  statutory  obligation
under  s.125. We  are aware of  the criticism  of this
conceptual
1138
divorce between mahar and  post-divorce maintenance  by Dr.
Tahir Mahmood  in his  recent book  on the  'Muslim  Law  of
India' (see  P. 133)  where the learned author prefers  to
retain the 'nexus between mahar and maintenance but has this
to say:
 In a recent case  the Supreme Court has held that
     the sum  paid under  personal law-referred to in clause
     (b) of  section 127(3)  of the  Code-should be "more or
     less sufficient  to do duty for maintenance allowance";
     if it  is not  so it can be considered by the court for
     the  reduction  of the  maintenance  rate but  cannot
     annihilate that rate. This, indeed, is a liberal ruling
     and conforms  to the  spirit  of  Islamic law  on the
     subject.
     Aside   from    this   controversy,    we may look
perspicaciously at  the legal connotation of 'dower' and the
impact of  its payment on divorcees' claims for maintenance.
We must first remember that Cr.P.  Code, (s. 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 realise that
Muslim law   shows  its  reverence  for  the  wife  in the
institution of Mahar (dower). It is neither dowry nor price
for marriage.
 As explained in an  old judgment  by Justice Syed
     Mahmood, mahar  is "not  the exchange  or consideration
     given by  the man to the woman, but  an effect of the
     contract imposed  by law  on the  husband as a token of
     respect for  its subject: the woman". Giving a correct
     appraisal of  the concept of mahar,  the Privy Council
     once described  it as  "an essential  incident  to the
     status of marriage". On  another occasion it explained
     that mahar was a 'legal responsibility' of the husband.
     These  judicial   observations   evidence a   correct
     understanding of the Islamic legal concept of mahar
     Baillie in his Digest of Mohammaden Law says:
 "Dower is  not the exchange or consideration given
     by the man to woman for entering into the contract; but
     an effect of the contract, imposed  by the law on the
     husband as a token  in respect,  for its respect the
     woman Dower being, as already mentioned, opposed to the
     use-
1139
     fruct of the woman's person, the right to either is not
     completed without the other.  Hence on  the one  hand,
     dower is  said to be confirmed and made binding on the
     husband by consummation, or by its substitute, a valid
     retirement, or  by death, which by  terminating the
     marriage, puts an end to all the contingencies to which
     it is  exposed; and on the other hand the woman becomes
     entitled to it as he has surrendered her person."
     Justice Mahmood  has described  the nature of  Meharin
Abdul Kadir  v. Salima and anr.  (8 All.  149 at  157-158).
According to him:
 "Dower, under the Muhammadan law, is  the sum of
     money or  other property  promised by the husband to be
     paid or  delivered to  the wife in consideration of the
     marriage, and even where no dower is expressly fixed or
     mentioned at the marriage ceremony, the law confers the
     right of  dower upon  the wife as a necessary effect of
     marriage. To  use the  language  of  the  Hedaya, 'the
     payment of dower is  enjoined by the law merely as a
     token of respect for its subject (the woman), wherefore
     the mention  of it is not absolutely essential to the
     validity of  a marriage;  and, for the same  reason, a
     marriage is also valid, although the man were to engage
     in the  con- tract on the special condition that there
     should be no dower".... (Hamilton's Hedaya by Grady, p.
     44). Even after the marriage the dower may be increased
     by the  husband during  coverture........In this  sense
     and in  no other  can dower under the Muhammadan law be
     regarded  and   the  consideration for  the  connubial
     intercourse, and  if the  authors of  the Arabic  Text-
     books of  Muhammadan law  have compared  it to price in
     the contract  of sale, it is simply because marriage is
     a civil  contract under  that  law...  Such  being the
     nature of the dower,  the rules which  regulate its
     payment are  necessarily affected by the position of a
     married woman  under the Muhammadan law. Under that law
     marriage does not make her property the property of the
     husband, nor  does coverture impose any disability upon
     her as to freedom of contract. The marriage contract is
     easily dissoluble, and the  freedom of divorce and the
     rule of  polygamy place  a power  in the  hands of the
     husband which  the law-giver  intended to restrain  by
     rendering the  rules as  to payments of dower stringent
     upon the  husband. No  limit as  to the amount of dower
     has
1140
     been imposed,  and it  may either be prompt,  that is,
     immediately payable  upon demand, or deferred, that is
     payable upon  the dissolution  of marriage,  whether by
     death or  divorce. The  dower may also be partly prompt
     and partly deferred; but when  at  the  time  of the
     marriage ceremony no specification  in this respect is
     made, the whole dower is presumed to be prompt and due
     on demand".
     In Tyabji's Muslim Law (4th Edn) it is stated:
 "Mahar is  an essential  incident to the status of
     marriage. Regarded as a consideration for the marriage
     it is  . in theory payable before consummation; but the
     law allows its division  in two parts, one of which is
     called 'prompt'  payable before  the wife can be called
     upon  to enter  the   conjugal  domicile,  the  other
     'deferred' payable on the dissolution of the contract
     by the  death of  either of  the parties or by divorce.
     When the  Kabin nama  does hot specify the portion that
     is prompt and that  which is deferred, evidence may be
     given of the custom or usage of wife's family".
     The quintessence  of mahar whether  it  is  prompt  or
deferred is  clearly not  a contemplated  qualification of a
sum of money in  lieu of  maintenance upon divorce. Indeed,
dower focusses on marital  happiness and  is an incident of
connubial joy. Divorce is  farthest from the thought of the
bride and  the bridegroom  when mehar is promised. Moreover,
dower may  be prompt  and is  payable  during  marriage and
cannot, therefore,  be a  recompense for divorce too distant
and unpleasant for the bride and bridegroom to envision on
the nuptial  bed. Maybe, some how the masculine obsession of
jurisprudence  linked  up  this promise  or  payment  as  a
consolidated equivalent of maintenance after divorce. Maybe,
some legislatures might have taken it in that light, but the
law is to be  read as the law enacted. The language of 5.
127(3) (b)  appears to suggest that  payment of the sum and
the  divorce   should  be  essentially parts  of  the same
transaction so as to  make one the consideration  tor the
other. Such  customary divorce on payment of a sum of money
among the  so called  lower castes  are not uncommon. At any
rate the  payment of  money contemplated  by s. 127(3) (b)
should be  so linked  with the divorce as to become payable
only in the event  of the  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.  Under s.  127(3)(b) of the
Cr.P.C., an  order for maintenance may be can. called if the
Magistrate is satisfied that the woman has been divorced
1141
by her husband and that she has received, whether before or
after the  said order, the whole of the sum which, under any
customary or  personal law  applicable to  the parties was
payable on such divorce.
     We are,  therefore, inclined  to the  view that even by
harmonising payments  under person  and customary  laws with
the obligations under ss.  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
s. 125 to s. 127 of the Criminal Procedure Code
     We may sum up and declare the law fool-proof fashion:
     (1) Section  127(3)(b) has a  setting,  scheme  and  a
purpose and no talaq of the purpose different from the sense
is permissible in statutory construction.
     (2) 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 divorce may need until death or remarriage overtake her.
The policy  of the  law abhors neglected wives and destitute
divorcees and  s.  127(3)(b)  takes  care  to  avoid  double
payment one under custom at the time of divorce and another'
under s. 125
     (3) Whatever  the facts of a particular case, the Code,
by enacting  ss. 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.
     (4) Neither  personal law nor other  salvationary plea
will hold  against the policy of  public law  pervading  s.
127(3)(b) as  much as  it does s. 125. So a farthing is no
substitute for a fortune  nor naive  consent equivalent  to
intelligent acceptance.
     (5) Here  the mahar  paid is  Rs. 500/-  and the income
therefrom may  well be Rs. 5/- a month,  too ludicrous  to
mention as  maintenance. The  amount earlier  awarded is the
minimum.
     Before we bid farewell  to Fazlunbi it is necessary to
mention that  Chief Justice  Baharul Islam,  in an elaborate
judgment replete
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with quotes  from the  Holy Quoran, has exposed the error of
early English  authors and  judges who dealt with  talaq in
Muslim Law as good even if pronounced at whim or in tantrum,
and argued  against the diehard view  of Batchelor. (ILR 30
Bombay 539)  that this view 'is  good in law, though bad in
theology'.  Maybe,  when  the  point  directly arises, the
question will  have to be considered  by  this court, but
enough unto  the day  the evil thereof and we do not express
our opinion  oh this  question as  it does  not call  for  a
decision in the present case.
     We allow the appeal.
    Appeal allowed.
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