| NAME OF THE CASE | BAI TAHIRA A V. ALI HUSSAIN FISSALLI CHOTHIA AND ANR |
| CITATION | 1979 AIR 362 |
| PETITONER | BAI TAHIRA |
| RESPONDENT | ALI HUSSAIN FISSALLI CHOTHIA AND ANR |
| BENCH | V.R. KRISHNAIYER, V.D TULZAPURKAR, R.S. PATHAK |
| DATE OF THE JUDGEMENT | 6TH OCT 1978 |
FACTS
The appellant, Bai Tahira, was wedded to the respondent, Ali Hussain, as his second wife. She had a child from him. Afterwards, the husband divorced her and gave a Mehr (dower) of Rs. 5,000 under a consent decree in 1962, and Rs. 180 by way of maintenance for iddat period. The decree showed that the wife had no other claim on the husband. After years of suffering, Bai Tahira presented a petition under Section 125 CrPC for maintenance on her and her child’s behalf since she had no source of livelihood. The Magistrate awarded maintenance, which the Sessions Court set aside on the grounds of payment of Mehr and agreement under the consent decree.
ISSUES
- Whether a divorced Muslim woman who has been granted Mehr under a decree of consent is entitled to maintenance under Section 125 CrPC or not?.Â
- Whether payment of such an amount amounts to “a sum received by her under any customary or personal law” under Section 127(3)(b) of CrPC and hence absolves the husband of liability.Â
- Whether a woman can waive her statutory right to maintenance through agreement?Â
PERTINENT LEGAL PROVISIONS
Section 125 CrPC: Enforces maintenance to wives (including divorced wives), children, and parents.
Section 127(3)(b) CrPC: Allows for the revocation of maintenance orders if the woman has already been granted a lump sum under personal or customary law that is “reasonably sufficient” to maintain her.
Explanation (b) to Section 125(1): “Wife” extends to include a divorced woman who has not remarried.
ARGUMENTS PETITIONER (BAI TAHIRA):
Asserted that the Mehr was not intended to be for future maintenance. She had no separate source of income and could not live on her own.
The waiver of claims in the consent decree was not valid, as it went against a statutory right under
Section 125 CrPC. Respondent (Ali Hussain): Contended that payment of Mehr and waiver in the decree absolved him of all future obligations.
Cited Section 127(3)(b) CrPC to seek exemption from maintenance.
Judgment and Reasoning (Ratio Decidendi)
The Supreme Court granted the appeal and maintained the order of the Magistrate granting maintenance, overruling the Sessions Court’s perspective.
FINDINGS OF IMPORTANCE:
Mehr Not a Maintenance Substitute: The Court held that Mehr is not a substitute for maintenance unless it is established to be “reasonably sufficient” for the entire life of the woman. Merely paying an amount of money is not sufficient; it must actually sustain the woman. Consent Decree Cannot Preempt CrPC: A condition in a consent decree that the wife relinquishes future rights to maintenance does not preclude a statutory right under Section 125. Maintenance is a statutory right and not a mere contractual obligation. Secular Nature of Section 125: The Court stressed that Section 125 CrPC is a secular remedy, which applies to all women irrespective of religion, and based on social justice. Purposive Interpretation of Section 127(3)(b): If personal law payment made is insufficient, the husband is still liable under Section 125. Courts need to consider if the payment was made as final maintenance and if it was sufficient.
IMPORTANT OBSERVATIONS (OBITER DICTA)
Justice Krishna Iyer, author of the lead opinion, stressed: “Starvation is a negation of life.” Law should be interpreted for the benefit of the poor and not become an instrument of oppression. The purpose of Section 125 is avoiding destitution, not imposing strict personal laws.
IMPACT AND IMPORTANCE
This case was among the first to construe Section 127(3)(b) in a way that supported women’s welfare and constitutional principles.
It explained that personal law settlements such as Mehr do not automatically override a woman’s statutory right to maintenance. It set the foundation for subsequent judgments like: Shah Bano (1985) Danial Latifi (2001) Shabana Bano (2009).
CONCLUSION
Bai Tahira is a landmark in Indian family law jurisprudence. The judgment was a compromise between upholding Muslim personal law and maintaining women’s right to live with dignity. It reasserted the fact that maintenance is a right based on justice and not on the basis of archaic or symbolic payments. The case continues to be a foundational precedent in interpreting the laws of maintenance in the interest of vulnerable and divorced women, particularly from marginalized groups.
