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Zohara Khatoon Mst. v. Mohd. Ibrahim .
Factual and Procedural Background
The appellant and the respondent are Muslims who had one son from their marriage. On January 15, 1973, the appellant secured a civil decree dissolving the marriage under the Dissolution of Muslim Marriages Act, 1939. After the Code of Criminal Procedure, 1973 came into force on April 1, 1974, the appellant filed an application on September 17, 1974 under Section 125 of the Code seeking maintenance for herself and the child.
The Special Judicial Magistrate, Barabanki (U.P.) allowed the application on December 29, 1976 and awarded ₹100 per month in total. The Sessions Judge affirmed that order in revision. However, the respondent obtained relief from the Lucknow Bench of the Allahabad High Court under Section 482 CrPC, which held that a divorced Muslim wife was not entitled to maintenance for herself and reduced the award to ₹40 per month for the child alone.
The appellant obtained special leave to appeal to the Supreme Court. An ex-parte judgment dated February 18, 1981 restored the Magistrate’s order, but on the respondent’s plea that notice had not been served, the Court on September 24, 1981 set aside its own ex-parte decision, restored the appeal, and directed the respondent to pay interim maintenance of ₹140 per month (₹100 for the appellant and ₹40 for the child) with arrears from September 17, 1974. The respondent failed to deposit the ordered amount. The appeal then came up for final hearing, resulting in the present judgment.
Legal Issues Presented
- Whether a Muslim woman whose marriage has been dissolved at her own instance is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973.
- Whether the High Court erred in restricting maintenance to the child alone and denying it to the appellant after dissolution of marriage.
Arguments of the Parties
Appellant's Arguments
- A divorced Muslim wife remains a “wife” within the meaning of Section 125 CrPC and is entitled to maintenance if she cannot maintain herself.
- The Magistrate’s composite award of ₹100 per month for both herself and the child was correctly granted and should be restored.
- Given inflation and passage of time, the maintenance amount should be increased.
Respondent's Arguments
- Because the marriage was dissolved by decree, the appellant ceased to be a “wife” and therefore had no right to claim maintenance under Section 125 CrPC.
- The High Court correctly limited maintenance to the child alone.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556; AIR 1985 SC 945 | A divorced Muslim woman is entitled to maintenance under Section 125 CrPC if she is unable to maintain herself. | The Constitution Bench decision affirmed the legal position relied on by the Court to reject the respondent’s contention and to uphold the appellant’s claim for maintenance. |
Court's Reasoning and Analysis
The Court noted that its earlier (1981) judgments in the same matter had already examined the statutory scheme and concluded that Section 125 CrPC applies to divorced Muslim women. The Constitution Bench decision in Shah Bano subsequently reinforced and settled this interpretation. Consequently, the respondent’s sole defence—that a divorced wife is ineligible for maintenance—had “no substance.” In the absence of any contrary authority or factual change, the Court reinstated the Magistrate’s award. Regarding the request for enhancement, the Court observed that no evidence of the respondent’s current income was available. It therefore advised the appellant to pursue modification before the Magistrate under Section 127(1) CrPC.
Holding and Implications
Appeal Allowed. The Supreme Court reversed the High Court’s judgment and restored the Magistrate’s order, directing the respondent to pay ₹140 per month (₹100 for the appellant and ₹40 for the child) with effect from September 17, 1974, and to clear all arrears within three months.
Implications: The decision re-affirms that a divorced Muslim woman may claim maintenance under Section 125 CrPC, harmonising previous Supreme Court authority and reinforcing the precedent set in Shah Bano. Although no new legal principle was created, the ruling strengthens the uniform application of personal-law-neutral maintenance provisions.
D.P Madon, J.—Both the parties are Muslims On January 15, 1973, the appellant obtained under the Dissolution of Muslim Marriages Act, 1939, a decree of dissolution of her marriage with her husband, the respondent. There was one issue born of the marriage of the appellant with the respondent, namely, a son. On coming into force on April 1, 1974 of the Code of Criminal Procedure, 1973, the appellant filed on September 17, 1974, a petition under Section 125 of the said Code for maintenance for herself and the child of the marriage. The respondent contended that the appellant's marriage with the respondent having been dissolved by a decree of dissolution by a civil court, she was not entitled to any maintenance under the said Section 125. This defence was rejected and the Special Judicial Magistrate, Barabanki, U.P, allowed the said application by his order dated December 29, 1976, and directed the respondent to pay a sum of Rs 100 per month in all as maintenance both for the appellant had been neglected by the respondent without reasonable or probable cause. The order of the learned Magistrate was upheld by the Sessions Judge in revision. Thereafter, the respondent approached the Lucknow Bench of the Allahabad High Court under Section 482 of the Code of Criminal Procedure. The High Court held that being a divorced wife, she was not entitled to maintenance for herself and directed the respondent to pay a sum of Rs 40 per month to the appellant for the maintenance of the child.
2. The appellant thereupon obtained special leave to appeal against the judgment and order of the High Court. The appeal reached hearing before a Division Bench of this Court consisting of S. Murtaza Fazal Ali, A.D Koshal and A. Varadarajan, JJ. and was heard ex parte as the respondent did not appear. On February 18, 1981. S. Murtaza Fazal Ali, J., delivered judgment on behalf of himself and Varadarajan, J., while A.D Koshal, J., delivered a separate but concurring judgment allowing the appeal. All the learned Judges held that the appellant was entitled to maintenance for herself and the child. This Court accordingly set aside the order passed by the High Court and restored the order of the learned Magistrate. Thereafter, the respondent made an application to set aside the judgment and order of this Court on the ground that the notice of lodgment of the appeal had not been served on him. This plea was accepted and the court by its order dated September 24, 1981, restored the appeal to the file and further pending the appeal directed the respondent to pay to the appellant maintenance in the sum of Rs 140 per month, made up of Rs 100 for the appellant and Rs 40 for the child, with effect from September 17, 1974. The Court further directed the respondent to deposit within three months with the Joint Registrar (Lucknow Bench) of the Allahabad High Court the entire amount of maintenance. The Joint Registrar (Lucknow Bench) of the High Court by his report dated January 12, 1982, intimated to this Court that the respondent had failed to deposit the amount as directed.
3. This appeal has now reached hearing before us. In the judgments delivered on February 18, 1981, the learned Judges considered the entire law on the subject and held that a Muslim wife whose marriage was dissolved by a decree of dissolution passed at her instance was entitled to maintenance under Section 125 of the Code of Criminal Procedure. The position in law so far as a divorced Muslim wife is concerned has now been settled by the judgment of a Constitution Bench of this Court in Mohd. Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556, AIR 1985 SC 945.
4. In view of these judgments there is no substance in the contention raised by the respondent and this appeal must succeed. We accordingly allow this appeal, reverse the judgment and set aside the order of the High Court and direct the respondent to pay to the appellant a sum of Rs 140 per month, namely, Rs 100 as maintenance for the appellant and Rs 40 as maintenance for the child, with effect from September 17, 1974. We further direct the respondent to pay to the appellant the arrears of maintenance at the above rate within three months from today.
5. On behalf of the appellant it was urged that in view of the passage of time and the increased cost of living, the amount of maintenance should be increased. No materials, however, have been placed before us to show what the income of the respondent is at present. If the appellant desires the amount of maintenance to be increased, it will be open to her to apply to the concerned Magistrate under Section 127(1) of the Code of Criminal Procedure, 1973, to increase the amount of maintenance.
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