CHANDRACHUD, C.J. - (1.) THIS appeal does not involve any question of constitutional importance but, that is not to say that it does not 559 involve any question of importance.
(2.) 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. "Na stree swatantramarhati" said Manu, the Law giver: The woman does not deserve independence. And, it is alleged that the 'fatal point in Islam is the degradation of woman. 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 application filed by a divorced Muslim woman for maintenance under S. 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 S. 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore, asking for maintenance at the rate of Rs 500.00 per month. On 6/11/1978 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, that he was therefore under no obligation to provide maintenance for her,' that he had already paid maintenance to her at the rate of Rs. 200.00 per month for about two years and that, he had deposited a sum of Rs. 3,000.00 in the court by way of dower during the period of iddat. In August, 1979 the learned Magistrate directed the appellant to pay a princely sum of Rs. 25.00 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. 60,000.00 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 able to discard his wife whenever he chooses to do so, for reasons good, 560 bad or indifferent. Indeed, for no reason at all. But, is the only price of that privilege the dole of 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.
(3.) THE question as to whether S. 125 of the Code applies to Muslims also is concluded by two decision? of this court which are reported in Bai Tahira v. Ali Hussain Fidaalli Chothia and Fudunbi v. K. Khader Vali. Those decisions took the view that the divorced Muslim wife is entitled to apply for maintenance under S. 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 3/02/1981, 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 and Fuzlunbi V. K. Khader Vali require reconsideration because, in our opinion, they are not only in direct contravention of the plain and 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 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 Hon'ble chief justice for being heard by a larger bench consisting of more than three Judges. S. 125 of the Code of Criminal Procedure which deals with the right of maintenance reads thus: 561 125. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain - (a) his wife, unable to maintain herself, or (b) * * * (c) * * * (d) * * * 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, as such Magistrate thinks fit.... Explanation. For the purposes of this Chapter, (a) * * * (6) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) * * * (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 S. 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.;