In A. Yousuf v.

Sowramma,1 a case on the Muslim law of divorce, Justice Krishna Iyer made a
critical examination of the traditional law on the subject. In this case a wife who had deserted her
husband without cause was not maintained by her husband for a period of two years and the
learned Judge held that held that under Section 2(1) of the Dissolution of Muslim Marriage Act,
1939 the wife was entitled to sue for dissolution of her marriage on the score that she was not as
a fact maintained by her husband for two years even if there was a good cause for husband's
failure to maintain her. He held that husband was not bound to maintain a wife who refused
herself to him, or was otherwise disobedient, unless the refusal or disobedience was justified by
non-payment of prompt dower, or she left the husband's house on account of cruelty. If a wife
who deserted her husband without a good cause had no right to be maintained by her husband,
the plea of non-maintenance as a ground for dissolution of marriage under Section 2 of the
Dissolution of Muslim Marriage Act, 1939 was not available to her. To hold that a wife was
entitled to sue for dissolution for her marriage for non-maintenance under the provision of statue
when she had no right to be maintained by her husband under Muslim law was not the same
thing as holding that the wife was entitled to obtain divorce as of right and without showing any
cause under the tradition Muslim law. The adjudication of wife's claim for Khula as of right
under Muslim law, and, therefore, under Section 2(ix) of the Dissolution of Muslim Marriage
Act, 1939, far from being supererogatory was directly and appropriately called for in this case.
The learned judge did maintain that the statement that the wife could buy a divorce only with the
consent of or as delegated by the commentaries on Koranic Texts and Hadith dealing with
divorce. Thus this decision may undoubtedly be said a bulwark of liberalism of Muslim wife in
the field of marriage.
The next case on the judicial divorce came up for hearing before the Hon'ble High Court
of Kerala in Aboobaker Haji v. Mamu Koyaa.2 The facts of the case were that a young woman
who, allegedly under instigation from an orthodox father, asked for divorce from a heterodox
husband on the ground that here life with her husband for reasons of neglect and cruelty had
become insufferable and therefore she did not want to cohabit with her husband. Krishna Iyer. J.
1 AIR 1971 Ker 261
2 1971 K.L.T. 663

not only decided that a judicial divorce may be granted in India, under Section 2(ii) of
Dissolution of Muslim Marriage Act, on the grounds that a husband has neglected or failed to
provide maintenance for his wife even in circumstances in which he is under no legal duty to
support her which seems to me, with respect, an wholly unjustifiable interpretation of the statue
but also that a wife is entitled to divorce, unjustifiable interpretation of the statue but also that
a wife is entitled to divorce, under Section 2 (ix) of the Act (i.e. "on any ground which is
recognized as valid for the dissolution of marriage under Muslim Law") if her marriage has
broken down. However, the neglected and cruelty not having been proved the case was remanded
to the court below to find out, as a last resort, whether there was a total breakdown of the
marriage.
In Bhagwan Dutt v. Smt. Kamal Devi,3 an issue was raised before three beach Judge of
the Supreme Court regarding the scope of Section 448 of Criminal Procedure Code 1898 and
Section 23 of Hindu Adoptions and Maintenance Act, 1956 section 23 of the Section 488
provides for the maintenance which a wife can claim from her husband. In this case the main
issue for consideration was that whether the earnings and income of wife should be taken into
consideration while deciding a case in favour of wife who wants maintenance from her husband.
There was a difference of opinion on the issue between the District court and the High Court and
resultantly the case came to the Supreme Court by way of Special leave Petition. While
delivering the judgment on behalf of other two judges Sarkaria J. observed: 4 "Section 488 is
intended to serve a social purpose and to prevent vagrancy and destitution and to find out as to
what is required by the wife to maintain a standard of living which is neither luxurious nor
penurious, but is modestly consistent with the status of the family. The needs and requirements of
the wife for such moderate living can be fairly determined, only if her separate income, also is
taken into account together with the earnings of husband and his commitments." Commenting on
the relationship between Section 488 and Section 23 he further observe that the former provides
a machinery for the summary enforcement of the moral obligation of a man towards his wife and
children so that they may not out of sheer destitution became a hazard to the well-being of
orderly society. As against this the latter provision, provides for the fixation of rate of
3 AIR 1975 SC 83
4 Bhagwan Dutt v. Smt. Kamal Devi, AIR 1975 SC 86

maintenance allowances, for the enforcement the rights of Hindu wives of dependents under their
personal law. Thus the scope of two laws in different. Section 488 is applicable to all persons
belonging to all religious and has no relationship with the personal laws of the parties. 5 In this
case the Supreme Court has tried to narrow the gap between the general provision of law
regarding maintenance and the provision under the personal law of the Hindus. Thus through this
decision the Supreme Court by ignoring the personal law stressed that stressed that provisions
under Criminal procedure Coder should be made applicable to all persons irrespective of their
religion.
In Bai Tahira v. Ali Fissalli,6 an issue was raised before the Supreme Court that whether
the compromise deed executed by the husband and the wife can exclude the operation of Section
125 of Criminal Procedure Code of 1973. The facts of the case were that Bai Tahira had been
divorced in 1962 and thereafter the defendant married to a second wife. In the compromise deed
flat and Rs. 5,000 had been adjusted as a mehr money and iddat money. It was also mentioned in
the deed that she had no further claim against her husband. But in 1973, the Criminal Procedure
Code was amended. Thereafter, Bai Tahira filed an application for maintenance under Section
125 in the trial court. Ultimately this case went to the Supreme Court in appeal against the
decision of Bombay High Court. Justice Krishna Iyer delivered the judgement on behalf of
Tulzapurkr, J. and R.S. Pathak, J. and upheld Bai Tahira's right to ask for maintenance despite the
compromise. He opined that a new statutory right was created as a projection of public policy by
the code of 1973, which could not have been in the contemplation of the parties in 1962. No
settlement of claims which does not have the special statutory right of the divorce under Section
125 can operate to negate the claim7.
Justice Iyer then observed that No can, under Section 127, rescue the respondent from his
obligation. Payment of mehr money as a customary discharge is within the cognizance of
that provision. But what was the amount of mehr? Rs. 5000 interest from which could not
keep the woman's body and soul together for a day .. unless she was prepared to sell
5 Bhagwan Dutt v. Smt. Kamal Devi, AIR 1975 SC 87.
6 AIR 1980 SC 362
7 Bai Tahira v. Ali Fissalli, AIR 1980 SC 365

her body and give up 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 material and moral dereliction to seek sanctuary in the
street. Where the husband, by adequately provided for the divorce a subsequent series of
doles is contraindicated. This is the theological interpretation, the sociological decoding
of text of the Section 127. The Keynote thought 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 that rate unless it is reasonable substitute. The
legal sanctity of the payment is certified by the fulfillment of the social obligation, no 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 constitution. 8
The whole scheme of Section 173(3)(b)

is manifestly to recognize the substitute

maintenance arrangement by lump-sum payment organized by the custom of the

community or the personal law of the parties the proposition therefore is that no
husband can claim under Section 127 (3) (b) absolute 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. 9
The court came to the conclusion that the purpose of payment of any kind of maintenance
under any customary or personal law must be to obviate destitution of the divorcee and to
provide her with wherewithal to maintain herself. There must be rational relation between the
sum so paid and its potential as provisions for maintenance and to interpret it otherwise is to
defeat the basic objective of maintenance allowance. Thus neither the compromise deed nor the
lump sum payment made by the husband can not release him liability for maintenance of his wife
until she has not remarried. Thus the court stressed emphatically that the provision contained in
Chapter IX of Criminal Procedure Code read with Part IV of the Indian Constitution and Article

8 Bai Tahira v. Ali Fissalli, AIR 1980 SC pp. 365-66.

9 Bai Tahira v. Ali Fissalli, AIR 1980 SC 366

15 (3) which provides for transforming the values with the changing time should be given
universal application in India.
In Fuzlunbi v. Khader Vali,10 an issue of maintenance under Criminal Procedure Code and
payment of mehr money and iddat allowance was again raised before the Supreme Court. The
facts which led to this appeal were that Fuzlunbi was married to Khader Vali in 1966. Thereafter
she was ill-treated by her husband and ultimately she went to her parent's abode along with child.
Then she filed a petition before the magistrate under Section 125 Cr. P.C. and prayed for
maintenance for herself and her son. The Magistrate granted monthly maintenance allowance.
Thereafter the husband went to the High Court but the decision of Magistrate was upheld. To
save himself from the liability the husband restored to the unilateral technique to talaq and
tendered the sum of Rs. 500/- by way of mehr and Rs. 750 towards maintenance for the period
of Iddat. Thus on the request of respondent the Magistrate cancelled the orders of maintenance
on the ground of divorce and payment of mehr and iddat. The appellant filed a revision petition
in the High Court but was of no use and ultimately this case went up the Supreme Court. Justice
Krishna Iyer while delivering the judgment of the beach for himself and on behalf of Chinnappa
Reddy and A.P. Sen observed. Whatever the facts of a particular case, the code, by enacting
section 125-127, charges the court with humane obligation of enforcing maintenance or its just
equivalent to ill-used wives and cast away 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
parties11. Neither personal law nor other salvationary plea will hold against the policy of public
law pervading Section 127 (3) (b) as much as it does Section 125. So a fathering is no substitute
for a fortune nor naive consent equivalent to intelligent acceptance. The amount earlier awarded
is the minimum12. The Supreme Court concluded that there is no conflict between the provisions
regarding mehar and iddat of Muslim law and provisions under Cr.P.C. regarding maintenance.
The Muslim husband is under obligation to maintain his wife even after divorce is she is unable

10 AIR 1980 SC 1730

11 Fuzlunbi v. Khader Vali , AIR 1980 SC 1736
12 Fuzlunbi v. Khader Vali , AIR 1980 SC pp 1736-37

to maintain herself and, therefore, the criminal law provisions have overriding effect over the
personal law of any religious community.
In the case Mst. Zohra Khatoon v. Mohd. Ibrahim,13 a substantial question of laws raised
before the Supreme Court. The High Court of Allahabad cancelled the orders of maintenance
allowance passed by the magistrate on the ground that when the divorce proceeds from the wife
side under the dissolution of Muslim Marriage Act, 1939, then wife cannot claim maintenance
from her husband, neither under the Muslim law nor Criminal Procedure Code. Thus this was the
issue whether she can claim maintenance under Section 125 and 127 of Criminal Procedure Code
or not. Before the court text books of Muslim law were referred to support the argument that the
appellant is not entitled to maintenance according to Muslim law. Justice Fazal Ali on behalf of
the majority delivered the judgement and held that the view taken by the High Court is erroneous
and is based on a wrong interpretation of Cl. (1)(b) of the Explanation to Section 125(1) of the
Criminal Procedure Code . Under Cl. (b) the wife continues to be a wife within the meaning of
the provisions of the code even though she has been divorced by her husband or has otherwise
obtained a divorce and has not remarried. 14 He further observed15 that the High Court therefore,
erred in quashing the order of the Magistrate, the appellant in the eyes of law continues to be the
wife of respondent, despite the decree of dissolution of marriage and is entitle to maintenance
allowance awarded by the Magistrate.
The Supreme Court by ignoring the orthodox Muslim law covered the case of appellant
under the decision is a good effort on part of the judiciary towards one civil law.
In 1985 the issue regarding the application of section 125 of Cr.P.C. in case of divorced
Muslim woman was again raised before the Supreme Court in Mohd. Ahmad Khan v. Shah Bano
Begam.16 In this case not only the application of the Section 125 was challenged but as also
argued that earlier decision in this regard were wrongly pronounced by the court and may be
13 AIR 1981 SC 1243
14 Mst. Zohra Khatoon v. Mohd. Ibrahim , AIR 1981 SC 1243 .
15 Mst. Zohra Khatoon v. Mohd. Ibrahim , AIR 1981 SC 1251
16 AIR 1985 SC 945

considered by the larger bench of the court. The brief facts of the case which led to this appeal in
the Supreme Court were that Shah Bano Bengum was married to Mohd. Ahmed Khan in 1932. In
1975, the appellant drove the respondent out the matrimonial home. Thereafter in 1978, the
respondent filed a petition against the appellant under section 125 of the Cr. P.C. before the
judicial magistrate, Indore, for the maintenance Rs. 500 per month. But on November 6, 1978 the
appellant divorced the respondent by an irrevocable talaq. Thus the main defence of the appellant
was that after divorce she has ceased to be his wife and, therefore, he was under no obligation to
provide maintenance for her. He further contended that he had been paying maintenance of Rs.
200 per month for the last two years and had deposited a sum of Rs. 3000 in the court by way of
dower for the period of iddat. But the trial court decreed the suit in favour of respondent and
directed the appellant to pay a princely sum of Rs. 25 per month to the respondent. In July 1980,
the High Court of Madhya Pradesh enhanced the maintenance allowance from Rs. 25 to Rs.
179.20 per month in revision. It is against this decision of the High Court that present appeal by
way of special appeal came before the Supreme Court for the decision. The main issue before the
Supreme Court was that does the Muslim Personal Law impose no obligation upon the husband
to provide for the maintenance of his divorced wife? The appellant to support his case that under
Muslim personal law he is not under obligation to provide maintenance after divorce relied
mainly on the text books and contended that decision in Bai Tahira and Fuzlubi were not
correctly given by this court, and therefore, may be reconsidered by the larger bench along with
this case. He cited the works of well-known authors of the subject in his defence. Mentioning
Mulla's Mohamedan Law "after divorce the wife is entitled to maintenance during the period of
iddat. If an order is made for the maintenance of a wife under Cr.P.C. and the wife is divorced
afterwards, then the other ceases to operate on the expiration of the period of iddat. Furhter,
Tyabji's Mulsim Laws17 contains that on the expiration of the iddat after talaq, the wife's right to
maintenance ceases, whether based on Mulsim Law, or on an order under the Criminal Procedure
Code. Furthermore, Dr. Paras Diwan in his book 18 said, "when a marriage is dissolved by
divorce the wife is entitled to maintenance during the period of iddat and on the expiration of the
period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim law
17 Tyabji's Muslim Law, (4th ed.), para 268-69
18 Paras Diwan, Mulsim Law in Modern India, (1982) p. 130

does not recognize any obligation on the part of a man to maintain a wife whom he had
divorced."
Chief Justice Chandrachud delivered the judgment from himself and on behalf of D.A.
Deasi, O. Chinnappa Reddy, E.S. Venkataramih and Rangnath Misra, JJ. hnd opined:19
"The statements in the text books viz., Mulla's Mohamendan Law; Tyabji's Muslim Law
and Dr. Paras Diwan Modern Mulsim Law are inadequate to establish the proportion
that the Muslim husband is not under an obligation to provide for the maintenance of his
divorced wife, who is unable to maintain herself. Section 125 deals with ceases 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. Since the Muslim Personal Law, which
limits the husband's liability to provide for maintenance of the divorced wife to the period
of iddat, does not contemplate or countenance the situation envisaged in section 125. it
cannot be said that the Muslim husband, according to his personal law, is not under an
obligation to provide maintenance, beyond the period of iddat, to his divorce wife who is
unable to maintain herself. The true position is that if the divorced wife is unable to
maintain herself, the husband's liability to provide maintenance for her ceases with the
expiration of the period of iddat. But if she is unable to maintain herself, she is entitled to
take recourse to section 125 of the Criminal Procedure Code. Therefore there is no
conflict between section 125 and Muslim Personal Law on he question of maintenance
for a divorced wife who is unable to maintain herself."
The outcome of this decision is that the Muslim husband still enjoys the privilege of
being able to discard his wife whenever he chooses to do so for reasons good, bad or indifferent.
Indeed, for no reason all. But after this decision in which the appellant was an advocate by
profession raised very controversial issue which was already settled by the apex court of the
land, the situation became more clear than it was earlier. In the present case by five judge bench
reaffirmed its earlier decision and held that there is no conflict between the provisions of
Sections 125 and those of the Muslim Personal Law on the question of Muslim Husband's
obligation to provide maintenance for a divorced wife who is unable to maintain herself. Thus
the overriding operation was given to the general law of the land by ignoring the texts of the
19 Mohd. Ahmad Khan v. Shah Bano Begam, AIR 1985 SC 945

personal law. Thus it may be said to be welcome step of the judicial activism to achieve and
encourage the goal of one common code intended to by the makers of our National Charter.
Just after the decision of Shah Bano Begum case the Supreme Court was asked to render
opinion regarding different grounds under different personal laws. This issue was raised before
the Supreme Court in a famous Ms. Jorden Diengdeh v. S.S. Chopra.20 The facts of the case was
that the wife, who was the petitioner belonged to Khasi Tribe of Meghalaya, but was brought up
a Christian. The husband who was respondent in the case, was a Sikh. They were married in
1975 under the Indian Christina Marriage Act, 1972. The petitioner sought nullity of marriage on
the ground of impotency of the husband. It was submitted before the court on behalf of the
petitioner that the marriage had virtually broken down irretrievable. However, the High Court
rejected the plea for the nullity of marriage and ordered for judicial separation. The appeal was
taken to the Supreme Court.21 After analyzing the various laws viz., Indian Divorce Act, 1869;
Hindu Marriage Act, 1955; Parsi Marriage and Divorce Act, 1936; Special Marriage act, 1939
and provisions therein regarding the dissolution of marriage, Justice Chinnappa Reddy
emphasized the need for one common code relating to judicial separation, divorce and nullity of
marriage and opined:22
"The time has now come for a complete reform of the law of marriage and to make a
uniform law applicable to all people irrespective of religion or caste. It is necessary to
introduce irretrievable breakdown of marriage and mutual consent as ground of divorce
in all cases."
The court stressed that now it so for the legislature to taken initiative in this direction and
ordered that a copy of the decision must be supplied to Law Ministry. Because when two persons
cannot remain together then the better way is that they must be separated by law. But if law is
handicapped, then this situation can make the life of both more miserable. It is thus quite evident
from the judicial trend that the legislatures are under obligation to make uniform marriage laws
in the light of the spirit contained in Article 44 of the constitution.
20 AIR 1985 SC 935
21 Section 18, 19, and 22 of the Act .
22 Ms. Jorden Diengdeh v. S.S. Chopra, AIR 1985 SC 935.

In 1986 the Supreme Court23was again asked to certify the position that after the Part B
States Law Act, 1951 the member of the Indian Christina Community will be governed in cases
of intestate succession either by the Travancore Christian Succession Act, 1092 or the Indian
Succession Act, 1925. The petitioner contended before the court that provisions of Travancore
Act, are violative of the Art. 14 of the Constitution and therefore, with the coming into force the
Part-B States Act, her cases is covered under Indian Succession Act. But on the other hand, it
was argued by the respondent that Travancore Act is corresponding law to the Indian Succession
Act and the case may be covered under former Act and hence petitioner is not entitled to any
share in property. But the court after hearing the arguments of both side through Chief Justice
Bhagwati held24 that on coming into force of Part B States (Laws) Act, 1951 the Travancore
Christian Succession Act, 1092 stood repealed, and case is covered under section 6 of the Indian
Succession Act,25 Thus so far as Indian Christians are concerned, Chapter II and Part V contains
rules relating to intestate succession and fortiori on the extension of the Indian Succession Act,
would be applicable equally to Indian Christians in the territories of the former state of
Travancore. It was further observed26 that it was a legislative devices adopted for the sake of
convenience in order to avoid verbatim reproduction of the provisions of an earlier statue in a
latter statue. Thus, the Supreme Court particular religion and made applicable to the law which
also applied to other communities in case of intestate successions of property. This is again
welcome decision of the court and may be helpful to unify the personal laws.
The issue which was decided by the Supreme Court in Shah Bano Begum case was again
raised before the Court in Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor.27 In this case
23 Mary Roy v. State of Kerala, AIR 1986 SC 1011.
24 Mary Roy v. State of Kerala, AIR 1986 SC 1011.
25 Section 6 reads that if immediately before the appointed day i.e. 1st April 1951,
there was in force in any Part B State any law corresponding to any of the Acts or
ordinances extended that State that law shall save as otherwise expressly provided
in Part- B States (Laws) Act, 1951 stand repealed.
26 Mary Roy v. State of Kerala, AIR 1986 SC 1011.
27 AIR 1987 SC 1103

the question that came up for consideration before the Supreme Court was whether a Muslim
wife whose husband has married again in worse off under law than a Muslim wife whose
husband has taken a mistress to claim maintenance from her husband is permitted by Muslim
Law to take more than one wife his second marriage cannot afford a legal ground to the wife to
live separately an claim maintenance. But the Supreme Court reiterated 28 that irrespective of the
husband's right under his personal law to take more than one wife, his first wife would be
entitled to claim maintenance and separate residence if he takes a second wife. The Supreme
Court went a step further in analyzing the provision of Explanations to Sub-section (3) of section
125 and held29 that the explanation has to be construed with reference to the two classes of
injury30 caused to the matrimonial rights of the wife and not with reference to the husband's right
to marry again. Thus the women chosen by the husband to replace the wife is a legally married
wife or a mistress is immaterial. Therefore, the respondent's contention that his taking another
wife will not entitle the appellant to claim separate residence and maintenance cannot be
sustained. The Supreme Court concluded by saying,31 that the Explanation of sub-section (3) of
section 125 is of uniform application to all wives (3) of section 125 is of uniform application to
all wives including Muslim wives whose husbands have either married another wife of taken a
mistress.
Thus the Supreme Court reaffirmed the decision of Shah Bano Begum and laid down
solid foundation for the uniform civil code in spite of Muslim women (Protection of Rights on
Divorce) Act, 1986.
The decision of Shah Bano Begum Case attracted the public interest and there was great
criticism of this decision. Resultantly, the Union Government enacted the Muslim Women
(Protection of Rights on Divorce) Act, 1986. Section 3 of this Act was disputed before the
28 Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor , AIR 1987 SC 1107.
29 Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor , AIR 1987 SC 1108
30 Namely taking of a second wife and by taking of a mistress as contemplated by
the Explanation to the sub-section (3) of section 125.
31 Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor, AIR 1987 SC 1103

Calcutta high Court in Mangila Bibi v. Noor Hossain,32 the facts of the case which led to this
appeal to the High Court were that the petitioner were that the petitioner Mangila Bibi was
married to Noor Hussain on March 6, 1986. At the time of marriage or just before marriage they
excluded a Kabinnama. In the Kabinnama the power to give divorce which primarily belongs to
husband, was delegated to his wife in accordance with the personal law. The petitioner contended
that after marriage she was ill-treated at husband's place and ultimately driven away. In this
situation in guise of delegated power she dissolved the marriage and communicated about this to
opposite party (her husband). She also informed in writing about this to the Muslim Marriage
Registrar and Kazi within reasonable time. Thereafter the petitioner filed an application under
section 3 of the Act of 1986 before the competent Magistrate that the opposite party did not pay
an maintenance, dower and other properties given to her at the time of marriage as recorded in
the Kabinnama. But the magistrate refused to grant claim on the ground that the exercise or
power by the petitioner was not according to Kabinnama, and, therefore, the valid marriage still
subsist between the two. The High Court, however, overruled the decision of the lower court and
held:33
"The power to give divorce which primarily belongs to the husband may be delegated to
his wife either absolutely or conditionally. There is no authority which prohibits the wife
to exercise the power of divorce delegated to her by her husband In the instant case,
even though the Kabinnama bears the signature of both the spouses, the groom of his
own will bound himself with the condition that his wife would be in a position to give
talaq ex parte and at her will. Such a stipulation, cannot be regarded as a bilateral
delegation of the power to give talaq. Thus the husband and unilaterally delegated to the
wife a power to divorce unconditionally and since it is not prohibited even by the
personal law of the parties."
Thus the petitioner may be considered as a divorce wife and cannot be said that the
marriage was subsisting between the two. In this way the court interpreted Section 3 of the Act in
the light of sub-section 3 of 125 of the Criminal Procedure code and afforded to give operation to
32 AIR 1992 Cal. p. 92.
33 Mangila Bibi v. Noor Hossain, AIR 1992 Cal. pp. 94-95.

the spirit of Section 125 despite the fact the Muslim Women (Protection of Rights of Divorce)
Act, 1986 had already come into existence. The thorough examination of present cases makes it
quite evident that judiciary has always made earnest efforts to interpret Section 125 with an
intention cover all situations irrespective of religions of litigants. The basic objective that has
loomed large in the mind of judiciary is to curtail the limit of personal law with an intention to
liberalize it in the interest of community at large to use it as a balancing wheel of progress and
dynamism.

Further, the High Court of Kerala and Orissa in latest pronouncements 34 tired to give
harmonious construction to section 125 of Criminal Procedure code and Section 3 and 5 of
Muslim Women (Protection of Right on Divorce) Act, 1986. In M. Alavi v. T.V. Safia, it was
contended before the High Court that the wife who was leading adulterous life after divorce was
not entitled to maintenance either under section 125 of the Criminal Procedure Code or under
Section 3 of the Act of 1986. It was held 35 by the court that a divorce Muslim woman can file an
application under section 3 claiming various relief's provided therein the provisions of the Act do
not say that she would not be entitled to get the relief's if she had been living in adultery. It is not
possible to read something into the Act which is not there. Regarding Section 125(4) the court
observed: 36
"Section 125 (4) itself has no application to a woman who has already been divorced by
her husband. The simple reason is that a divorced women can never be said to be
committing adultery even if she has got promiscuous sexual relationship with other
persons."
Thus, Section 125(4) does not apply to the present case and the wife is entitled for
maintenance under Section 125(3) and Section 3 of the Act of 1986. The High Court was right in
34 M. Alavi v. T.V. Safia, AIR 1993 Ker. 21, Bishnu Charan Mohanty v. Union of India,
AIR 1993 Orissa 176.
35 AIR 1993 Ker. 21
36 M. Alavi v. T.V. Safia, AIR 1993 Ker. 21

giving harmonious construction to personal law provision and the provisions under criminal law
which applies to all communities without any exemption and exception.