Bai Tahira v Ali Hussain Fissalli Chothia
Rule established
A settlement or agreement between husband and wife at the time of divorce, even if it purports to be in full and final settlement of all claims, does not bar the wife from claiming maintenance under S.125 CrPC if the amount received is not sufficient to maintain her and she is unable to maintain herself. S.127(3)(b) operates to cancel a maintenance order only where the sum paid under customary or personal law is in substance adequate to serve the purpose of maintenance and prevent destitution.
Facts
- Bai Tahira was divorced by her Muslim husband. At the time of divorce, she received her mehr amount. The husband contended that having paid mehr and any amount agreed upon at divorce, his obligation to maintain her ceased entirely under Muslim personal law. Bai Tahira claimed maintenance under S.125 CrPC arguing she was unable to maintain herself.
Issue
- Whether payment of mehr and a settlement amount at divorce bars a divorced woman from claiming maintenance under S.125 CrPC.
Held
- S.125 CrPC serves a distinct social purpose, preventing vagrancy and destitution. A private agreement or personal law obligation (like mehr) does not bar the statutory remedy if the wife remains unable to maintain herself. The receipt of mehr is relevant but not conclusive; if the amount is inadequate for maintenance, the wife can still seek relief under S.125. The provision is a measure of social justice overriding individual contractual arrangements that leave the wife destitute.
Ratio Decidendi
S.125 CrPC operates independently of personal law rights. A settlement or payment at the time of divorce does not constitute a bar unless it is fair and reasonable and actually enables the woman to maintain herself. The test is whether the woman is actually able to maintain herself, not whether some formal payment was made. The precise statutory mechanism is S.127(3)(b) CrPC (now S.146(3)(b) BNSS), which permits cancellation of a maintenance order where the woman has received the whole of the sum payable "on divorce" under customary or personal law. The Court read that provision purposively: it is attracted only where the sum paid is in substance adequate to serve the purpose of maintenance and to prevent destitution. A conventional, illusory or purely customary payment of mehr does n
How to use it in an exam
- Precursor to Shah Bano (1985); both address S.125 overriding personal law
- Relevant for maintenance problems where husband argues "I already paid mehr/settlement"
- Krishna Iyer J's social justice approach to maintenance
- Compare with S.25 HMA (permanent alimony) and S.18 HAMA (maintenance of wife)
Source
Source: AIR 1979 SC 362; (1979) 2 SCC 316; 1979 SCR (1) 448; 1979 SCC (Cri) 473. Three Judge Bench. Judgment delivered 6 October 1978, so 1979 is the AIR report year and not the decision date. Bench and date verified on audit of 12 August 2026, correcting an earlier entry in this vault that named only Krishna Iyer J.
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.