BAI TAHIRA versus ALI HUSSAIN FISSALLI CHOTHIA AND ANR .

BAI TAHIRA versus ALI HUSSAIN FISSALLI CHOTHIA AND ANR .

A divorced woman is entitled to maintenance under s. 125 CrPC unless it is proven that she has received, under customary or personal law, a lump-sum payment which is a genuine substitute for maintenance; the mehar amount paid in this case was not adequate to exempt the husband from the statutory obligation. The statutory right under s. 125 cannot be contracted out of by any earlier compromise or decree that does not specifically consider the new right created by the 1973 Code.

Parties
Appellant: Bai Tahira; Respondent No. 1: Ali Hussain Fissalli Chothia; Respondent No. 2: Respondent No. 2
Jurisdiction
India
Judgment Date
06 October 1978
Procedural Posture
Criminal Appeal / Appeal by Special Leave From Bombay High Court Decision
Outcome
Appeal allowed
Legal Topics
Maintenance of Divorced Wife, Interpretation of Cr PC S. 125 and S. 127, Personal Law and Statutory Maintenance, Women and Welfare Legislation
Criminal Law Family Law Constitutional Law Maintenance of Divorced Wife Interpretation of Cr PC S. 125 and S. 127 Personal Law and Statutory Maintenance Women and Welfare Legislation

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Parties

Bai Tahira

Appellant

Ali Hussain Fissalli Chothia

Respondent No. 1

Respondent No. 2

Respondent No. 2

Procedural Posture

Criminal Appeal / Appeal by Special Leave From Bombay High Court Decision

Legal Issues

  1. 1 Whether a divorced Muslim woman is entitled to maintenance under s. 125 CrPC after a mehar settlement and consent decree?
  2. 2 What is the scope of s. 127(3)(b) CrPC in cancelling maintenance when mehar or similar payment has been made?
  3. 3 Does a consent decree settling all claims prior to CrPC 1973 bar a later maintenance claim under s. 125?

Ratio Decidendi

A divorced woman is entitled to maintenance under s. 125 CrPC unless it is proven that she has received, under customary or personal law, a lump-sum payment which is a genuine substitute for maintenance; the mehar amount paid in this case was not adequate to exempt the husband from the statutory obligation. The statutory right under s. 125 cannot be contracted out of by any earlier compromise or decree that does not specifically consider the new right created by the 1973 Code.

Court Disposition

Appeal allowed

Orders

  • Order of the trial court granting maintenance is restored.