.A MAN MOHAN TULi

MUNICIPAL CORPORATION OF DELHI & ORS.

February 18, 1981 lJ [S. MURTAZA FAZAL ALI, A. D. KosHAL AND A. VARADARAJAN, JJ.I

Delhi Municipal Corporation Act, 1957, section 158 and rule 26 of the Terminal Tax Rule frarned under the Act, interpretation of-Exigibility of Terminal Tax, explained.

Man Mohan Tuli, appellant in C.A. 2004/80, is the owner of a piece of land situate on the Grand Trunk Road near the sixth n1ilestone as one goes from Delhi to Ghaziabad.

Appellant Tuli has constructed various bui1dings on his land for use as godowns and has rented them out to various transport companies engaged in bringing goods from other States and storing them before their transhipment to Delhi and other States beyond Delhi. The trucks carrying the goods for various destinations pass along the G .T. Road and move into Tuli's land.

After the trucks enter the ln, nd, the goods are unloaded into the godowns, sorted out and reloaded into the respective trucks meant for various destinations. Thereafter, the trucks move out of the land and, passing through the Union Territory of Delhi after crossing the border line, proceed to their destinations. The Municipal Corporation of Delhi by is Orders dated May 23, 1975 and July 7, 1975 directed that a Terminal Tax post be set up at the entrance to Tuli's land in order to collect terminal tax on goods carried into that land.

A writ was filed before the High Court by the owners of transport companies as also by Tuli for quashing the orders of the Corporation seeking to levy Terminal Tax on the goods which were not meant for Delhi but for places beyond Delhi. The High Court held that the Corporation was legally entitled to levy Terminal Tax at the point of territory of the Union Territory of Delhi even though the goods were sorted out in the godown of Tuli, resorted out and re-loaded since as they while passing through tlle territory of Delhi undoubtedly entered the said territory.

Hence the appeal'\ by special leave by appellant Tuli and others,

Allowing the appeal in part, the Court

HELD : 1. It is well settled that taxing statutes must be strictly interpreted giving every benefit of doubt to the tax-payer.

A Terminal Tax could be levied only by the Corporation or the State which is the final destination of the goods sent from any other area. A Terminal Tax signifies that there must be a terminus for the journey of the goods.

Terminus means the point to which main action tends, goal, end, finishing point, the point at which some thing comes to an end. [899 D, 901 B-D]

2.1. From a consideration of the decided cases of the Supreme Court, the following propositions emerge :-

(i) Terminal tax and octroi are similar kinds of levies which are closely interlinked with (a) destination of the goods (b) the user in the local area

M. M. TULi v. M.C.D. 895

-on arrival of the goods.

Where the goods merely pass through a local area A without being consumed therein the mere fact that the transport carrying the .goods halt within the local area for transhipment or allied purposes would not justify the levy of either the terminal tax or octroi duty. This is because tho halting of the goods is only for an incidental purpose to effectuate tho journey .of the goods to the final destination by unloading, sorting and reloading them

at a particular place. [803 A-Cl

(ii) There is a very thin margin of difference between a terminal tax. and octroi. In the case of the former (terminal tax) the goods reach their final

destination and their entry into the area of destination immediately, attracts, payment of terminal tax irrespective of their user.

In the case of octroi, however, the tax is levied on goods for their use and consumption. [903 D-El

(iii) But at the same time, the goods while halting at a local area 1 should leave for their destination within a reasonable time which may depend on circumstances of each case and if the goods are kept within the area for such a long and indefinite period that the purpose of reaching the final destination lying in a dicerent area is frustrated or defeated, they may be exigible to terminal tax. [903 E-FJ

(iv) \\'here the goods enter into a local area which is also the destination -Of the goods either temporarily or otherwise, the terminal tax would be leviable.

For instance, if A consigns goods from Patna in Bihar to Delhi in the name of X and X after having received the goods at Delhi rebooks or reloads the same on a transport for Chandigarh in the name of Y, terminal tax would be

Ieviablt~ by the Corporation at Delhi because the destination of the goods in the first instance was Delhi and that by itself would attract the imposition of terminal tax.

The fact that X rebooks them to Chandigarh Would not make any difference because the act of rebooking by X at Delhi would constitute a fresh transaction by which the goods after having been carried into Delhi are further exported to Chandigarh.

On the other hand, when there is one continuous journey of the goods from Patna to Chandigarh without any break, the final destination would be Chandigarh even though the goods may have to be halted in Delhi for the purpose of unloading, sorting and

! reloading and may have to be kept in Delhi for a reasonable time.

In such ~~-a case terminal tax would not be exigible. [903 G-H, 904 A-CJ

Pun; ab Flour & General Mills v. Lahore CorpOraJion, A.I.R. 1947 F.C. 14; The Central India Spinning & Weaving & Manufacturing Co. Ltd., The Empress G Mills, Nagpur v. The Municipal Committee, Wardha, [1958]

SCR 1102; Bangalore Woollen, Cotton & Silk Mills Co. Ltd, Bangalore v. Corporation of the City of Bangalore, [1961] 3 SCR 707; Diamond Sugar Mills Ltd. & Anrv. The State of Uttar Pradesh, [1961] 3 S.C.R. 242; Burmah Shell Oil Storage & • Distributing Co. India Ltd. v. The Belgaum Borough Municipality, [1963] Supp.

2 SCR 216; Khyerbari Tea Co. Ltd. & Anr. v. The State of Assam, [1964] 5 SCR 975, followed.

Champlain Realty Co. v. Town of Brattleboro, 67 L Ed. U.S. 309, quoted with approval.

2.2. What would be a reasonable time for interpretation of the goods or halting, in the instant case, at the godown of Tuli, will naturally depend upon the special features or circumstances of each case, namely, the nature of the goods, the tin1e taken in loading, sorting and unloading, the obstacles or diffi .. culties which may be faed by the transporters and similar other factors. Nor- , mally, a time of two to three days or even a week should be sufficient to clear the goods for its journey to the ultimate destination. It may sometimes happen that goods may have to be kept in the godowns 1n the territory of Delhi for circumstances beyond the control of the consignee or the consignor, for example, a garnishee order. In considering what is reasona.ble time these circumstances would have to be taken into consideration. [906 H, 907 A-C] •

2.3. Rule 26 of the Terminal Tax Rules will have to be interpreted on tho footing that seclion 178 of the Delhi Municipal Corporation Act, 1957 does C not contemplate levy of terminal tax for goods meant for destinations other thain. De1hi.

The v, rord "imn1ediately" appearing in Rule 26 has to be liberally construed so as to imply a reasonable period and if the export is delayed the, rules may apply if a reasonable explanation has been given. So far as niles regarding taking of passes, etc., a•t the barrier are concerned they would, of course, apply but subject to the conditions under which terminal tax can be imposed under section 178 of the Act \vhich is the main charging section. {907

C-EJ

Amtit Banaspati Co. Ltd. v. The. Union of India I.L.R. 1973(1) Delhi 237, distinguished.

3.1. Section 178 of the Dehli Municipal Corporation Act, cannot be interpreted so as to justify imposition of ternllnal tax even on goods which merely passed through the territory of Delhi, although their destination is not Delbi

but places beyond Delhi. [908 F-G]

3.2. I\iferely because the goods after having been unloaded in the gOOown of appellant Tuli are sorted, reloaded in different trucks and thereafter pass through

the territory of Delhi, they do not become exigible to terminal tax. [908 G-H]

3.3. Rule 26 of the Terminal Tax cannot be interpreted so that exemption could be granted only if the goods are exported immediately which means within a very short time irrespective of any other consideration. Terminal tax can br. leviable only if it is proved that the goods remained at the godown for an indefinite and unexplained period which could not be said to be reasonable 1--.

in the circumstances. [908 H, 909 A-Bl

3.4. Whete the goods arc Ca-rried by trucks into the territory of Delhi and G unloaded there and are ah.o 1ncant for Delhi and soon thereafter may be rebooked by the receiver of the gocxls to some other place, terminal tax wou1d be levirble because in this case there are two separate transa-ctions-(i) by which the goods are meant for Delhi and (ii) by which after having reached and having been unloaded at Delhi they are rebooked and reloaded for some other p1ace and which therefore is a fresh and different transaction. In such a case, terminal tax would be leviable at the entry point in theterritory of Delhi. [909 H B-Cl

3.5. The direction given by the High Court to the Terminal Tax Officer to fix a reasonable time for unloading, sorting and reloading the goods which are

' •

r • -

"" '

M. M. TUU '" M.C.D. (Fazal Ali,!.) 897

meant for difercnt destinations takin£ into consideration the quantity of the A goods. the ti1ne for unloading, sorting etc. aud for further reloading and transhipment r; hould be done within a tin1e to be fixed by a Tern1inal Tax. Officer is correct. [909 E-FJ

CIVIL APPELLATE JURISDICTION : Civi, J Appeal Nos. 2004- 2005 of 1980.

Appeals by Special Leave from the Judgment and Order dated

~ 13-10-1978 of the Delhi High Court in LPA Nos. 73/77 and 103177.

Madan Bhatia and Sushi/ Kumar for the Appellant in both the appeals.

R. B. Datar, Lalit Bhardwaj and Miss Madhu Mulchandani for Respondent Nos. 1-3.

P. R. Rao, S. R. Venkataraman, P. C. Kapur, R. C. Bhatia and S. L.

Sharma for Respondent ND. 5 in Civil Appeal No. 2004/80.

N. B. Si"ha and S. K. Sinha for Respondent No. 4.

The Judgment of the Court was delivered by

FAzAL Au, J. These appeals by special leave are directed against a Division-Bench common judgment dated October 13, 1978 of the High Court of Delhi by which the Letters Patent Appeals were allowed and the impugned Orders dated May 23, 1975 and July 7, 1975 passed by the Terminal Tax Officer, Municipal Corporation of Delhi were quashed.

The facts of the case lie within a very narrow compass and may be summarised as follows.

Manmohan Tuli, appellant in C.A. No. 2004/80, is the owner of a piece of land situate on the Grand Trunk Road near the sixth milestone as one goes from Delhi to Ghaziabad.

Appellant Tuli has constructed various buildings on his land for use as godowns and has rented them out to various transport companies ._l_ ~., ngagcd in bringing good from other States and storing them before their transhipment to Delhi and other States beyond Delhi.

The trucks carrying the goods for various destinations pass along the G.T. Road and move into Tuli's land.

It is not disputed that after the trucks enter the land, the goods arc unloaded into the godowns, sorted out and reloaded into the respective trucks meant for various destinations. There-

• '

• •

after the trucks move out of the land and passing through the Union

Territory of Delhi after crossing the border line, proceed to their destinations. The Municipal Corporation of Delhi (hereinafter referred to as the 'Corporation') by its Orders dated May 23, 1975 and July 7, 1975 (hereinafter referred to as the 'inpugned orders') directed that a Terminal Tax post be set up at the entrance to Tuli's land in order to collect

I0-214SCI/81

A terminal tax on goods carried into that land The Ghaziabad Nagar Palika also purported to levy terminal tax on such goods but this levy was neither assailed before the High Court nor has been challenged before us and is therefore left out of conideration. A writ was filed before the High Court by the owners of transport compiinies as a.lso by Tull for quashing the orders of the Corporation seeking kl levy terminal tax on the goods which were not meant for Delhi tut for places beyond Delhi. Further details are not necessary for the decision of these appeals and both the appeals (C.A. Nos. 2004 and 2005 of 1980) will be disposed of by a common judgment.

The High Court vide the impugned judgment was of the opinion C that even though the goods were stored in the godown of Tuli, sorted out and reloaded but as they while passing through the territory of Delhi undoubtedly entered the said territory, the Corporation was legally entitled to levy terminal tax at the point of entry into the Union Territory of Delhi. The case of the appellant was that the goods were not

D meant either to be used or consumed in Delhi nor was Delhi the final destination of the goods. It was a different matter that as the goods were to be sent to destination beyond Delhi the transport carrying the goods had perforce to pass through the territory of Delhi. It was thus contended that the goods were not carried into the territory of Delhi but were merely carried through the territory of Delhi to other destinations which were beyond Delhi. It was argued that s. 178 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the 'Act') had in terms no application to the case and that therefore the terminal tax imposed by the impugned orders was legally invalid.

The counsel for the respondent, however, submitted that even though F the goods may have been meant for other destinations but as they were unloaded in the godown and reloaded in various trucks and actually entered into the territory of Delhi, they were factually carried into the

Delhi territory and that was sufficient to empower the Corporation to.~.l. levy the terminal tax. According to the argument of the counsel for the Corporation, the question of destination was not at all germane for G the purpose of adjudicating the competency of the Corporation to levy terminal tax at the point of entry into Delhi.

Thus, the entire question turns upon the interpretation of s. 178 of the Act and some Rules framed under the Act. Relevant portion of section 178 runs thus : B "178 (1). On and from the date of the establishment of the Corporation under section 3, there shall be levied on a11 goods carried by railway or road into the Union Territory of Delhi

M. M. TULi v. M.C.D. (Fazal Ali, J.)

from any place outside thereof, a terminal tax at the rates specified in the Tenth Schedule."

(Emphasis supplied)

The crucial words which have to be interpreted are : 'goods carried by railway or road into the Union Territory of Delhi from any place outside Delhi'. The contention of the appellant is than.the words 'goods carried into the Union Territory' clearly indicate that: the final destination of the goods must be Delhi and by virtue of this fact, the natural consequence would be that the goods should be carried from other places either by rail or by road into the territory of Delhi.

This argument was reinforced by the words 'terminal tax' used in s. 178 which imply that the terminus of the journey of the goods must be Delhi and only in that event the Corporation would be competent to levy a terminal tax.

This argument was sought to be rebutted by the respoo.dents on the ground that the words 'carried into the Union Territory of Delhi' should be interpreted independently and literally so as to indicate that even if the goods passed through Delhi, the moment they entered into the territory of Delhi terminal tax became exigible.

So far as. this aspect of the argument is concerned, we ar(1 unable to accept the same because it is well setlled that taxing statutes must be strictly interpreted giving every benefit of doubt to the tax . payer.

Before, however, examining the respective contentions of the parties it may be necessary to refer to the authorities dealing with the history of terminal tax or octroi duty. To begin with, it is not disputed that the pcwer to subject the goods either to octroi or to terminal tax squarely falls within entries numbers 52 and 56 of List II to the Seventh Schedule of the Constitution.

In Punjab Flour & General Mills v. Lahore Corporation(') the Court while drawing a distinction between the type of taxes referred to as terminal taxes in Entry No. 58

_.of List I of Schedule 7 to the Government of India Act, and those described as cesses in Entry No. 49 of List II thereof observed as follows :

• •

"There appears to us a definite distinction between the type of taxes referred to as terminal truces in Enlry No. 58 of List I of Sch. 7 and the type of taxes referred to as cesses on the entry of goods into a local area in Entry No. 49 of List IL The former taxes must be (a) terminal (b) confined to goods and passengers carried by railway or air.

They must be chargeable at a rail or air terminus and be

(!)_AIR 1947 F.C. 14.

referable to services (whether of carriage or otherwise) rendered or to be rendered by some rail or air transport organisation.

The essential features of the cesses referred to in Entry No. 49 of List II are on the other hand simply

(a) the entry of goods into a ddinite local area and (b) the requirement that the goods should enler for the purpose of consumption, use or sale therein. . . . The grounds of taxation under the two entries are, as indicated above, radically differenl, and there is no case for suggesting that taxation under the one entry limits or interferes in any way with taxation under the other."

In The Central India Spinning & Weaving & Manufacturing Co.

Ltd., The Empress Mills, Nagpur v.

The Municipal Committee, Wardha(') this Coort examined the entire matter exhaustively and after giving the history of terminal tax or oclroi observed as follows :

"ll 'terminal' besides the above meaning has an addi- D tional meaning also and that meaning signifies the termini or the jurisdictional limits of the municipal area even then the construction to be placed on the term should be the one that favours the tax-payer, in accordance with the principle of construction of taxing statutes, which must be strictly construed and in case, of doubt must be construed against E the taxing authorities and doubt resolved in favour of the

tax-payer."

"The legislative history of this tax thus shows that octroi was Jeviable on the entry of goods in a local area when the goods were for consumption, use or sale therein.

The substituted tax was terminal tax on goods imported into or exported from a local area and by rules this tax in the case of Wardha Municipal Committee was imposed on certain class of goods imported and on others exported by railway

or road."

"That by the substitution of tcrn1inal tax on gocxls imported into a local area the nature of the tax had not been altered from what it was when octroi was in force or when instead of "terminal tax" octroi (\vithout refund) was substi~ tuted . . . . . . . Therefore terminal \ax on goods imported or exported is similar in its incidence and is payable on

(t) [1958] S.C.R. 112

XI. M. TULi "' M.C.D. (Foal Ali, J.)

goods 011 their journey e11<ling within the rnunicipal limits or comn1cncing thcreiron1 and not V\i'here the goods v.1ere 1nerely in transit through the municipal limits and had their terminLIS eiscwhere."

90 I

'T!Jcrefore, according to the Federal Court 'terminal" ll has rferencc to the terminus of the railway or air, i.e., the end of journey."

A close "nalysis of this decision, therefore clearly discloses that a tern-iinal tax signified that there must be n tcrn1inus for the journey of the goods.

Thc word 'terminus' according lo Oxford Dictionary C means-a point ituatcd at or forrning the end or extrcrnity of son1e~ thing. situated at the end of a line of railway.

In other words, tenninus 111eansthe point to \Vhich main action tends, goali end, finishing point, the point at which something comes to an end.

In Corpus Juris Vol. 62 at p. 729 the word 'terminal' in connection with transportation means the fixed beginning or ending point of a given run. It D would thus appear that a terminal tax could be levied only by the Corporation or the State which is the final destination of the goads sent from any other area.

A similar view was taken by a later decisiou of this Court in Bangalore Woollen, Cotton & Silk Mill.1 Cu. Ltd. Bangalore v. Corporafio11 oi the Ci1y of Bangalore(') where Kapur, J., speaking for the Court observed as follows :

"The history of these taxes therefore shows that in the Devolut; on Rules under the Government oi India Act, 1915 octroi, terminal tax and taxes on professions and callings

were three distinct heads of taxation. . . Therefore, when s. 142-A was added in the Government of India Act, 1935, its operation was limited to entry 46 of List II and had no reference to entry 49 which deals with cesses on entry of goods.

The position under the Constitution is exactly the samt and therefore neither s. 142-A of the Government of India Act, 1935 nor Art. 276 has any effect on entry 49 in the Government of India Act, 1935 or entry 52 in the Constitution."

In this case also a distinction between a terminal tax and octroi was clcaily brought out.

In Diamond Sugar Mills Ltd. & Anr. v.

• The State oi Utwr Pradesh & Am'.(2) while defining a local area within B

(!) [1961] 3 .>.C.R. 707.

(2) [1961] J S.C.R. 242.

A the meaning of Entry 52 of List II of Seventh Schedule to the Constitution, the Court observed as follows :

"We are of opinion that the proper meaning to be attached to the words 'local area' in Entry 52 of the Constitution, (when the area is a part of the State imposing the B law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like." In Burmah Shell Oil Storage & Distributing Co. India Ltd. v. The Belgaum Borough Municipality(') this Court again fully discussed the matter and Hidayatullah, J., speaking for the Court stressed the essen- C tial distinction between octroi and terminal tax in the following

words:

"Octrois and terminal taxes were different taxes though they resembled in one respect, namely, that they were leviable in respect of goods brought into a local area. While terminal mxes were leviable on goods 'imported or exported' from the Municipal limits denoting thereby that they were connected with the traffic of goods, octrois, according to the legislative practice then obtaining were, Jeviable in respect of goods brought into a Municipal area for consumption or use or sale.

~·~·· ...

The history of these two taxes clearly shows that while terminal taxes were a kind of octroi which were concerned only with the entry of goods in a local area irrespective of whether they would be used there or not; octrois were ta.xes on goods brought into the area for consumption, use or sale.

F They were leviable in respect of goods put to some use or other in the area but only if they were meant for such user." ...,. l ·

In Khyerbari Tea Co. Ltd. & Anr. v. The State of Assam(') Gujendragadkar, J. speaking for the Court drew a very apt distinction regarding the concept of import and observed as follows :-

"In that connection, the legislative history of the octroi duty was examined and it was held that the concept of import requires that the goods which are brought into must mix up with the mass of the property in the local area where the . goods are alleged to have been imported. If the goods are

just carried and not mixed with the mass of the property in the area through which they are carried, they cannot b~ said

(1) [1963] Supp. 2 S.C.R. 216.

"·-·

M. M. TULi v. M.C.D. (Fazal Ali, J.) 903

to have been imported into that area . . . . . . . . . . The word A "carried" is of much wider denotation, and it would be unreasonable to limit its scope by introducing considerations which are relevant in dealing with the question of import."

Thus, from a consideration of the cases cited above, the following prqpositions emerge :- B

(1) Terminal tax and octroi are similar kinds of levies which are closely interlinked with ( 1) destination of the goods,

(2) the user in the local area on arrival of the goods.

Where the goods merely pass through a local area without being consumed therein the mere fact that the transport carrying the goods halt within the local area for transhipment or >allied purposes would not justify the levy of either the terminal tax or octroi duty.

This is because the halting of the goods is only for an incidental purpose to effectuate the journey of the goods to the final destination by unloading, sorting and reloading them at a particular place.

(2) There is a very thin margin of difference between a terminal _tax and octroi. In the case of the former (terminal tax) the goods reach their final destination and their entry into the area of destination immediately attracts payment of terminal tax irrespective of their user. In the case of octroi, however the fax is levied on goods for their nse and consum1Ption.

( 3) But at the same time, the goods while halting at a local area should leave for their destination within a reasonable time which niay depend on circumstances of each case and if the goods are kept within the area for such a long and indefinite period that the purpose of reaching the final destination lying in oa different area is frustrated or defeated, they may be exigible to terminal tax.

( 4) Where the goods enter into a local area which is also the destination of the goods either temporarily or otherwise, G the terminal tax would be leviable. For instance, if A consigns goods from P.afna in Bihar to Delhi in the name of X and X after having received the goods at Delhi rebooks or reloads the same on a transport for Chandigarh in the name of Y, terminal tax would be leviable by the Corporation at Delhi beC'ause the destination of the goods H in the first instance was Delhi and that by itself would attract the imposition of terminal tax.

The fact that X

rebooks them to Chandigarh \VOuid not n1akc any difference because the act of rebooking by X at Delhi would constitute a fresh transaction by \vhich the goods after having been carried into Delhi are further exported to Chandigarh.

On the other hand, when there is one continuou~ journey of 1hc good~ fro1n Patna to Ch',-tndigarh \Vithout any break. the final dctination v.could be Chandigarh even though the gocids lll<t:.r haYe to be halted in Delhi for the purpose o'.' unloading. sorting a!1d reloading and may have to he ke:pt in [)clhi for a reasonable time.

In such a case tcn11i11al tax \vould not he cxigiblc.

These principles arc also spelt out by the American law on the subject \Vhich deals \l\ith intcr-'.--1~1tc tranpllrt of goods.

In A1n.erican Jmispruclence (2d. Vol. 15. p. 689, para 49) the following statem•.:nt is niadc, which is spelt out fron1 various American decisions including those of the U.S. Supreme Court :

"In the determination of whether a transportation of persons or property constitutes interstate or intrastate con1merce, the essc"ntial character or unity of the movement is the decisive factor.

While the intention of the shipper or passenger is probab'.y the most important single factor in determining whether transportation is interstate or intrastate intention alone ha-s b;;:cn aid not to he a controlling factor in making such determination.

Inter-state journeys are to be measured by the commonly awcpted sense of the 1ransport.ati0n concept ...... l"he parties cannot, by dcscriptiY2 tern1s of co'ntract, convert a local business, serving as an agency of a transp~1rt~1tion con1pany. into an interstate con1mercc husiness, nor. conversely, may a through shipment be transformed into intrastate cornnurce

by separating the rate into its co1npone; it parts, charging 1ocal rates, and issuing Jocal \Vaybills''.

Similar observation:; are to be found in th.:: atnc volume of Anierican Jurisprudence (p. 697, para 56) which re:atc to the continuity of t:ansit of goods and may be extracted !hus :

''The cruci; I question to be sctt!eu in determining \Vhcther ;_; ersonal property n1oving 111 intcrtatc co1nmcrce is suhjcct to local taxation l~ that of its continuity of trar.si t and this question IS to be dL'tc:rmin.:J by vanous L1ctors, an1ong which arc the intention nf the owner, the co11trol he retains In change cl i:~ ti 11 a tio ii. the ugei:cy by

\1. M. TULi v. M.C.D. (Fa;.a/ Aii, J.) 905

which the transit is eflcckd. and th•c occasion or purpose A of tht? interruption during v.-hich th~ ax is sought to be levied. fntcnt, \\hile not alone conclusive, is probably the most l1nportant single dctrn1inant of contir:uous carriagl..'.

H a break in the interstate journey is caused by the'

,:xic,1cies or convcnie11cs of the c:hos~11 n1cans of tran~ port:ition. consideration of the safety of the goous during transit. or natural causes over which the taxpayer has no

con1rc'1. the continuity of the transit rcn1ains uni111µaircd".

The tol:owing state-1ncnt of lnv occurs 1n the s;1n1:.· \'olun1l' ( p::ra 57, p. 698) :-

"Ii during transit. property is stored f,,, an indefinite link lor other than natural causes or for lack of facilities for immediate transportation, it is subject to state or lecal laws, including inspection laws ...... On the other hand, if the entry of goods into a warehouse is a convenient ink:rmediate step in the process of getting them to their final destination, they remain in interstate or foreign comn1ercc until they reach those points".

In the case of Champlain Realty Co. v. Town of Brnt!/eboro(') one important aspect of the matter has ken dealt with, viz., the fact that if the goods halt in an intermediate State whilst on their journey to their destination for a Jong period due to circunistanccs beyond the control of the own•er. whether or not the goods lose ', he nature of th:; interstate transaction and could be free fron1 thl? t, ttte taxation, \\'a:-; clearly highlighted by hefollowing observations :-

"'Longs of puip \Vcod which have been plao2d in a river to b2 floated info another state are in interstate co111mercc, so as to be free from state taxation, although, because of the high wat•er in a connecting river into which they \vill ultin1atcly pass. it is unsafe to permit thcn1 to enter that river, and they are tcn1porarily hed in a boon1 'near the mouth of its tributary".

In the sa1nc case, C.J. l'aft indicat12d the various apects of

_.. interruptions in the journey and the incidence thereof and observed as follows :-

''The doubt arises whon there journey, aml when the property,

(1) 67 L Ed. US 309.

ar.:'. int•:rruption:-. in tlil: in its transp0rtatic.11, i.:;

under the complete control of the owner during the passage If the inrerruptions are only to promote the safe or convenient transit, then the continuity of the interstate trip is qot broken.

Chief among these are the intention of the owner, the control he Petains to change destination, the agency by which the transit is effected, the actual continuity of the transportation, and the occasio'n or purpose of the interruption during which the tax is sought to be levied".

In Voume 78 L Ed at p. 13 8 the test laid down was that if the shipment was made in good faith to a destination and the interruption was not indefinite but reasonable the co'ntinuity of the journey cannot be said to be broken. It was also pointed out that where the interruption of the movement of commodities at an intermediate point

is not incidental to the transporation, the shipment loses the character of interstate commerce so as to be exigible to local taxation.

In this connection, the following observations were made :

"If the shipment has been made in good faith to a destination the interruption is not indefinite, but is reasonable and solely in furtherance of the intended transportation of the shipment to its ultimate destination, then the continuity of the jonrney is not broken by the delay nor by the mere power of the owner there to destroy its character as interstate commerce ....... any interruption of the movement of commodities at an inrermediate point between origin and final destination that is not incidental to the transportation or the use of the means of transportation or, being so incidental, is used or extended for purposes of the owner not incidental to the transport transportation or the mea'ns used therefor, breaks the continuity in transit and subjects the shipment to local taxation at the point of interruption".

We have laid special stress on tl1e circumstances under which the terminal tax becomes leviable if the halt or interruption of the goods at an intermediate point is for an indefinite and unexplained period.

The answer to the question as to what would be a reasonable time for interruption of the goods or hlting in the instant case at the godown of Tuli, will naturally depend on the special features or circu1nstances of each cases, .viz., the nature of the goods,

• •

• •

M. M. TULi v. M.C.D. (Fazal Ali,/.) 907

the time taken in loading, sorting and unloading, the obstacles or difficulties which may be faced by the transporters and similar other factors.

Normally, a time of two to three days or even a week should be sufficient to clear the goods for its journey to the ultimate destination. It may sometimes happen that goods may have to be kept in th~ godowns in the territory of Delhi for circumstances beyond the control of the consignee or the consignor, e.g., wl)ile the goods are lying in a godown at Delhi a dispute occurs between the concerned parties as a result of which an injunction is issued by a court restraining the transporters from moving the goods.

In considering what is reasonable time these circumstances would have to be taken into consideration.

It, was, however, argued before us that according to the Terminal tax Ru1es framed under the Act, Rule 26 exempts goods from terminal tax if the same are exported immediately ahd are declared to b~ intended for immediate export.

In view of the interpretation we have placed on s. 178 it is obvious that the word 'immediately' appearing in Rule 26 has to be liberally construed so as to imply a reasonable period and if the export is delayed the rules may apply if a reasonable explanation has been given.

So far as rules regarding taking of passes, etc., at the barrier are concerned they would, of course, apply but subject to the conditions under which terminal tax can be imposed under s. 178 of the Act which is the main charging section.

The High Court appears to have placed some reliance on Amrit Banaspati Co. Ltd. v. The Union of l11dia(') in coming to the conclusion that in the instant case the Corporation was legally entitled to levy terminal tax.

With dTh~ re3pect to the Judges of the High Court who decided the Appeals, we would like to point out that the case just above referred to is clearly distinguishable from the present appeals.

The most crucial fact in the Delhi decision was that the goods were bei'ng carried into the Union Territe>ry of Delhi for the purpose of sale at Delhi. Thus, the case proceeded on the admitted position that the goods were carried from Ghaziabad into the Delhi territory for sale at Delhi.

The final destination of the goods being Delhi, there can be no doubt that the Corporation was fully entitled to levy terminal tax on such goods.

In this connection, the High Courc observed as follows :-

"Th•c Petitioner-company was i'ncorporated under the companies Act, 1956, and it had its registered office at G. T. Road, Ghaziabad, in the State of Uttar Pradesh ....

(I) I.LR. 1973 (I) Delhi 237.

~---

It has a factory, intt"r oliu, at Ghaziabad for ntanufacturing the said \lanaspati products.

In the course of its business, lhe company carried <111d still carries its products by railway and/or road into tlic Union -rcrrit~1ry of D1..":lhi from Ghaziabad for th., purpose of sa'.c al DJhi.

The words "shall be :evied on all goods carried by railway or road" i"n sub-section (I) show ckarly that the section imposes terminal tax on the carriage or moven1ent of goods fro1n outside the L'nicn rrcrritory of Delhi into the said Territory.

In other \Vords, the taxable event is the carriage or movcn1cnt of goods into thi: Union "fcrritory of Delhi".

The observations last •extructed must be nndcrstood m the light of the admitted facts in A twit Banaspati Company's case (supra).

We are unable to accept that case as an authority for the proposition that even if the final destination of the goods was not Delhi but as the goods were carried through the territory ol' Delhi, they would still be extgible to terminal tax. fn the impugned judgment the High Court, however, seems to have laid undue emphasis and special stress on th•e fact that the goods were carried into the Union territory of Delhi, the moment they passed through it even though the destinatio"n of the goods may be some other area.

This appeared, according to the High Court. the real purport and intention of s. 178.

We are, however, unable to agree with this view which is patently wrong and does not at all now from the plain and unambiguous language of s. 178 of the Act nor docs s. 178 warrant such an i'ntcrpretation. fhus, our concluions are as fo:Jcnvs :-

(1) The High Court was wrong in interpreting s. 178 of the Act so as to justify imposition of termiml tax even on goods which merely passed through the territory of Delhi, although their destination is i1ot Delhi but places beyond Delhi.

(2) The High Court was wrong in holding that merely

b2causc the goods after having been unloaded in the godown of appellant Tuli arc sorted, reloaded in different trucks and thereafter pass through the territory of Dc:hi, they become exigiblc to t•erminal tax.

(3) The High Court \\as wron~ i"n interpreting Rule 26 literally and hr:!ding that cxcn1ption could be grant-

' •

M. M. TULi v. M.C.D. (Faal Ali, J.) 909

ed only if the goods are exported immediately which means within a very short time irrespective of any other consideration.

In view of our interpretation of s. 178, Rule 26 must be interpreted in the light of the object of s. 178 and terminal tax can be leviable only if it is proved that the goods remained at the godown for an indefinite and unexplained period which could not be said to be reasonable as

discuss•od by us in the circumstances.

( 4) Where the goods are carried by trucks into the territory of Delhi and unloaded there a'nd arc also meant

for Delhi and soon thereafter may be rebooked c by the receiver of the goods to some other place, terminal tax would be leviable becau~2 in this case there are two separate transactions-( 1) by which the goods arc meant for Delhi, and (2) by which after having reached and having been unloaded at Delhi they are rebooked and reloaded for some other D place and which therefore is a fresh and different transaction.

In such a case, terminal tax would be leviable at the entry in the territory of Delhi.

We might mention that the High Court whilo holding that terminal tax is exigible has construed the word 'immediately' in Rule 26 li!erally and directed the Terminal Tax Officer to fix a reasonable time for unloading, sorting and reloading the goods which are mea'nt for different destinations taking into consideration the quantity of the goods, the time for unloading, sorting, etc., and has further directed that reloading or tra'nshipment should be done within a time to be fixed by the Terminal Tax Officer.

Though the directions given are correct but they will ha vc to be construed in the light of the various factors which we have referred to.

Rule 26 will have to be int, orpreted on the footing that s. 178 of the fact does not contemplate levy of terminal tax for goods meant for destinations oth>cr than Delhi.

For the reasons given above, we allow these appeals, set aside the impugned judgment exeo:pt the pmtion quashing the impugned orders.

That portion we uphold (though on grounds different from the ones given by the High Court) in the light of the decision given and the observations made by us regarding the interpretation of s. 178 of the Act.

In the special circumstances of the case there will be no order as to costs,

V.D.K, Appeal allowed

A MAN MOHAN TULi

MUNICIPAL CORPORATION OF DELHI & ORS

February 18, 1981

S. MURTAZA FAZAL ALI

A. D. KosHAL

A. VARADARAJAN, JJ

Delhi Municipal Corporation Act, 1957

section 158

Delhi

Ghaziabad

Tuli

Municipal Corporation of Delhi

May 23, 1975

July 7, 1975

Tuli

Supreme Court

From a consideration of the decided cases of the Supreme Court, the following propositions emerge :-

(i) Terminal tax and octroi are similar kinds of levies which are closely interlinked with (a) destination of the goods (b) the user in the local area

M. M. TULi v. M.C.D. 895
on arrival of the goods.

Patna

Bihar

Chandigarh

[1961] 3 SCR 707

[1961] 3 S.C.R. 242

[1964] 5 SCR 975

S. 309

Delhi Municipal Corporation Act, 1957

section 178

Section 178

Cl

3

Civi

Madan Bhatia

Sushi/ Kumar

R. B. Datar

Lalit Bhardwaj

Madhu Mulchandani

P. R. Rao

S. R. Venkataraman

P. C. Kapur

R. C. Bhatia

S. L.

Sharma

N. B. Si"ha

S. K. Sinha

FAzAL Au

Manmohan Tuli

Ghaziabad Nagar Palika

s. 178

Delhi Municipal Corporation Act, 1957

s. 178

section 178

section 3

Tenth Schedule

s. 178

Seventh Schedule

Schedule 7

Wardha Municipal Committee

Foal Ali

Kapur

s. 142

Government of India Act, 1935

s. 142

Government of India Act, 1935

Art. 276

Government of India Act, 1935

Seventh Schedule

Hidayatullah

Gujendragadkar

P.afna

U.S. Supreme Court

s. 178

s. 178

companies Act

Banaspati Company

s. 178

s. 178

s. 178

s. 178

hi

Faal Ali

s. 178

s. 178

s. 178

s. 178


MST. ZOHARA KHATOON

JI.

MOHD. IBRAHIM

February 18, 1981

(S. MURTAZA FAZAL ALI, A. D. KOSHAL AND A. VARADARAJAN, JJ.]

Crifninal Procedure Code, 1973, Section 125 ( 1 ), Explanation (b )-Whether hfa1.dstrate conipetcnt to award nu1intrna11ce if under the personal law of the' Jl.t!ohornedan.5, tlie lrife obtained a valid divorce and had completed the period oj 1ddar-"wife'' whether includ:es a woman who has been divorced by, or has obtained a divorce froni her husband and has not re1narried.

The appellant was the legally married wife of the respondent. As he wil fully neglected her, she filed an application before the Magistrate for mainte nance under Section 125 of the , Code of Criminal Procedure 1973. The Magis trate accepted the a-llegation of the appellant that she had been neglected by the respondent without reasonable or probable cause and awarded maintenance at Rs. 100/- per n1onth for the appellant and the minor child.

The Hi.h Court held that clause (b) of the explanation to Section 125 (I) of the Code had no application to the facts of the case and that so far as the appellant was concerned, she was not entitled to any maintenance. It however afirmed the order of the Magistrate fixing Rs. 40/- per month as maintenance for her minor son.

fn the appeal, it was contended that the view taken by the High Court is legally erroneous and is based on wrong interpretation of clause (b) of the explanation to Section 125(1) of the Code.

Accepting the. Appeal1,

F (Per Fazal Ali & Vardarajan, JJ.)

HELD : 1. In the instant case Section 127 does not apply at all because the respondent has not filed any application for cancellation of the maintenance on the grounds mentioned in Section I27(3)(b) of the 1973 Ccxle but this case is squarely covered by Clause (b) of the ExplanaHon to S. 125(i) of that Code as a reiult of which the appellant in the eye of law continues to be the wife oi G the respondent, despite the decree for dissolution of marriage. [925 II, 926 A-B]

2. It is clear that the 1898 Code by virtue of S. 488 provided a sUmmary remedy for awarding maintenance to neglected wives irrespective of the caste. creed, community or religion to which they belonged. Sections 488 and 489 were the corresponding provisions of the 1898 Code which were couched almost in the same language as ss. 125 and 127 of the 1973 Code having some important additions that h<!!ve been made under tbe 1971 Code. A provision like clause (b) of the Explanation to S. 125(1) of the 1973 Code was conspicuously absent in s. 488 of the old Code and has been added by the 1973 Code. [914 H,

915 A, D, 917 C.D]

ZOHRA KHATOON V. MOHD. IBRAHIM 911

Nanak Chand v. Shd Chandra Kishare Agarwala & Ors. [1970] I SCR 565, A Ram Singh v. State & Anr. AIR 1963 All. 355, Nalini Ranjan Chakravarty v.

Smt. Kiran Rani Chakravarty AIR 1965 Pat. 442, Mahabir Agarwal/a v. Gita Roy [1962) 2 Cr. L.J. 528, referred to:

3. The ~Iohomedan Law on the subject was that where a woman governed by the Mohon1cdoo. Law was awarded maintenance, the same would cease from the date of divorce given by the husband and the completion of the period of B Jddat.

[917 G-H]

.,.

In re Shckhannzian AIR 1930 Bombay 178, Syed Said v.

A-feera Bee 20

M.L.J. 12, Mohamed Ra/dmul/ah & Anr. AIR 1947 Madras 416, Aahimunnissa & Ors. v. Mohd. Ismail AIR 1956 Hyderabad 14, Din Mohanunad's V.I.L.R. 1883 226, referred to.

4. Although a l\{ohomedan wife had a right to be awarded maintenance by the Magistrate under s. 488 of the old Code, the said right ceased to exist if she \vas divorced by her husband and had observed the period of Iddat. This was the undoubted position of law under the 1898 Code as amended by the 1955 Amending Act. [920 A-BJ

5. Clause (b) has made a distinct departure from the earlier Code in that D it has widened the definition of wife and, to some extent, overruled the personal law of the parties so far &5 proceedings for maintenance under Section 125 arc concerned. Under Clause (b), the wife continued 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. It foJJows, therefore, that the divorce "resulting from the aforesaid dissolution of the 1narriage is also a legal divorce under the Mohomedan Law by virtue of the E statute (1939 Act). [920 E-F, 921 BJ

6. Under the .l'vfohomedan Law the commonest form of divorce is a unila~ teral pronouncerneut of divorce of the wife by the husband according to the various fonns recogniSed by the Jaw.

A divorce given unilaterally by the hus.-- band is especially peculiar to Mohomedan Law. In no other law has the husband got a unilateral right to divorce his wife by a simple declaration because other Iav.1s, viz., the Hindu Law or the Parsi Marriage and Divorce Act, 1936, contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a court of law. [921 C-D]

7. A wife thus had a statutory right to obtain divorce from the husbruid through the court on proof of the grounds mentioned in the Act.

The Act provided for the wife an independent remedy which could be resorted to by her G without being subjected to a pronouncement of divorce by the husband. It is, therefore, in the background of this Act that the words 'has obtained a divorce from her husband' in clause (b) of the Explanation have to be construed. Thus the High Court in considering the effect of these words seems to have over look ed the dominant object of the statutory remedy that was made available to the wife under the Act of 1939 by which the wife could get a decree for dissolution of marriage on the grounds mentioned in the 1939 Act by petitioning the civil H court without any overt act on the part of the husband in divorcing her. The High Court also failed to consider the legal consequences ll.owing from the

A decree passed by, the Court dissolving the inarriage, viz., a legal di\'orcc under the Mohomedan law. [922 D-F]

8. The interpretation put by the High Court on the second limb of clause

(b) is not correct.

This seems to be borne out fron1 the provisions of tohn medan la\v itself. 1t would appear that under the Mohomedan la\\I there are three distinct modes in which a 1\luslim marriage can be dissolved and the rela- B tionship of the husband and \Vife terminated so as to result in an irrevocable

divorce. [922 F-GJ

9. It is, therefore, manifest that clause (b) of Explanat:on to

S. 125

enviages all the three modes, whet-her a \Vife is divo:rced unilaterally by the husband or whether she obtains divorce under the mode numbers 2 and 3, she continues to be a wife for the purpose of getting maintenance under S. 125 of the 1973 coJc.

In these circumstances the High Court was not at all justified ir. t<1h.ing the two scpar<1.te clauses 'who has been divorced' and 'had obtained a divorce front her husbund' coniunctively so as to indicate <1 divorce proceeding from the. husba.nd anrt the husband alone and in not treating a dissolution of marriage under the 1939 Act as a legal divorce. [924 B-D]

10. A clear distinction has been made beteen dissolution of n1arriage hrought about by 1he husband in exercising: his unilateral right to divorce and the act of .the \Vife in obtaining a decree for dissolution of the marriag:e from a civil court under the Act of 1939. [925 E-F]

11. The two limbs of clause (b) of the Explanation to S. 125(1) have separate and different legal incidents-one is reflected in clause (b) of sub~ Section (3) of S. 127 and the. other in clause (c) of sub-section (3) of S. 127.

[925 G-H]

(Per A. D. Koslial, J. concurrinR)

1. The \.Vord 'divorce' is not defined in the Code of Criminal Procedure and may legitirn.<itely be regarded <is having been used in clause (b) of sub-section 1 of Section 125 in the dictiona•ry sense.

As ordin'.1rily understood, 'divorce' is nothing more nor less than another name for dissolution of marriage, whether the same result from the act of parties or is a consequence of proceedings at law. It would be wrong to regard the v.to terms as not be synonyn1ous v; ith each other, unless the legjslature makes a direction to the contrary. [927A, C-Dl

2. According to Section 125 of the Code of Criminal Proccd11re. a fullfledged wife is entitled to maintenance.

By reason of clause (b) even a divo:ced wife ha<; th<it right provided that she has not re-married.

If that clause envisaged only divorce by voluntary nction of the husband, the second limb of the clause \vhich makes the definition of 'wife' inclusive of a woman \vho has 'obtained a divorce from the husband' would be rendcr.ed otiose.

The word obtained may well be u:oied in the sense of 'procured with effort' :1nd would ccrtainiy describ~ correctly a situation where son1ething is ac, hieved by a person. through his exertion in spite of opposition from others.

[928 E, F-(}]

3. Divorce by the Act of the husband, is not recognised by any system of Jaw except that applicable to Muslims. Members of the other main comrnunities inhabiting India, i.e. Hindus, Sikhs, Buddhists, Jains, Christians, etc. have perforce to go to courts in order to Obtain divorce. If clause (b) was intended to

' •

ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal AU,!.) 913

rn!:lracc only cases of divorce brought about by the Act of the husband, its A applicability would be limited, by and large, only to Muslims, which per se

appears to be an absurd proposition. [929 C-D]

4. The expression 'a \voman who has obtained a divorce from her husband' has therefore tO be interpreted as including a wife who has been granted a decree of dissolution of marriage by the Court. [929 E]

Deacock v. Deacock [1958] 2 All E.R. 633 referred to .

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 761 of 1980.

Apperu by Special Leave from the Judgment and Order dated 20-10-1978 of the Allahabad High Court in Criminal Misc. Case No. 822 of 1978.

Jagdish Kumar Aggarwal for the Appellant.

Nemo for the Respondent.

The Judgment of Murtaza Pazal Ali & A. Varda.rajan JJ was delivered by Fazal Ali, J., A. D. Kasha!, J. gave a concurring Opinion.

FAzAL ALI, J.-This appeal by special leave is directed against a judgment dated October 20, 1978 of the Allahabad High Court (Lucknow Bench) by which a revision filed by the respondent for setting aside an order of maintenance passed by the trial Magistrate was accepted and the said order was quashed.

The facts of the appeal lie within a narrow compass hut the case involves a substantial question of law.

Unfortunately, as the respondent did not appear despite service, we had to rely mainly on the arguments of the learned counsel for the appellant and had also to consider various aspects that could be stressed by the respondent if he had appeared. The appellant, Mst. Zohara Khatoon, wa, s a legally

~-~ married wife of Mohd. Ibrahim.

As Mohd. Ibrahim oon after the marriage wilfully neglected her she filed an application before the trial Magistrate on September 17, 1974 under s. 125 of the Code of Criminal Procedure 1973 (hereinafter referred to as the '1973 Code') in order to fix maintenance for her and her minor son. The Special Judicial Magistrate, Barabanki (U.P.), after hearing the parties, allowed the application by his order dated December 29, 1976 and fixed • •

• •

the maintenance at Rs. 100/- (Rupees one hundred) per month both for the wife and the child. The Magistrate also accepted the a!Jega>- tion of the appellant that she had been neglected by the husband without reasonable or probable cause. The order of the Magistrate was upheld by the Sessions Judge in revision .

11 -!14 SCI/81

Before the Magistrate, the respondent-husband had taken the defence that as the, appellant had brought a suit for dissolution of marriage on the ground of cruelty and wilful neglect which was decreed by the civil court on 15-1-1973 and she was living separately, she ceased to be the wife of the respondent and was, therefore, not entitled to maintenance under s. 125 ors. 127 of the 1973 Code. Ultimately, the husband moved the High Court under s. 482 of the 1973 Code for quashing the order of the Magistrate as it was vitiated by an error of law.

In t~ High Court, the argument of the appellant was that in view of clause (b) of the Explanation to s. 125 (1) of the 1973 Code, she continued to be the wife despite obtaining a decree for dissolution of marriage and thus )ler right to maintenance would not be affected by the decree passed by the civil court.

The High Court after hearing the parties was of the view that clause (b) of the Explanation referred to above would apply only if the divorce proceeded from the husband, that is to say, the said clause would not apply unless the divorce was given unilaterally by the husband or was obtained by the wife from the husband.

In other words, the High Court thought that as, in the instant case, the dissolution of marriage was brought about by the wife uuder the Dissolution of Muslim Marriages Act, 1939 (hereinafter referred to as the '1939 Act') the decree under the said Act did not amount to a divorce by the husb'and because the marriage was dissolved by operation of law only.

Hence clause (b) of the Explanation to s. 125(1) had no application and the appellant was not entitled to any maintenance under s. 125 of the 1973 Code, so far as she was concerned.

The High Court, however, ma'ntained the order of the Magistrate so far as the minor son was concerned and fixed his maintenance at Rs. 40/- per month.

The learned counsel for the appellant submitted before us that the view taken by the High Court is legally erroneous nnd is based on a wrong interpretation of clause (b) of the Explanation to s. 125(1) of the 1973 Code.

After having gone through the var<ous rrovisions of the 1973 Code, particularly ss. 125 and 127 we are mtisfied that the contentions raised by the counsel for the appellant are well founded and must prevail.

ln order to decide the issue in question it may be necessary to give a hricf survey of the corresponding provisions of the Code of Crimin~!

Proce, lurc, 1898 (h<:rcinafter referred to as the '1898 Code') to show the nature and ambit of the provisions relating to the award of maintenance.

Sections 488 and 489 were the corresponding provisions of the 1898 Code which were couched almost in the same language as

• •

• •

ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, !.) 915

ss. 125 and 127 of the 1973 Code minus s.ome important addition§ that A have been made under the 1973 Code.

The relevant portion of s. 488 of the 1898 Code may be extracted thus :-

"If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect Dr refusal, order such person to make a monthly <illowance for the maintenance of his wife or snch child, at such monthly rate, not exceeding (five hundred rupees) in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs."

It is not necessary to refer to the other provisions of s. 488 of the said Code as the same are not germane for the purpose of ckdding this appeal. It may, however, be noted that a provision 'ike clause

{b) of the Explanation to s. 125{1) of the 1973 Code was conspi- I) cuously absent from s. 488 and has been added by :he 1973 Code.

We shall deal with the legal effect of this provision a little later.

A perusal of s. 488 would clearly reveal that it carves out an independent sphere of its own and is a general law providing a summary machinory for determining the maintenance to be awarded by the \1agistrate under the circumstances mentioned in the section. rrh~ provisions E may not be inconsistent with other parallel Acts in so far as '1:laintcnance is concerned, but the section undoubtedly excludes to some extent the application of any other Act.

At the same t.ime, it cannot be said that the personal law of the parties is completely exclt!ded for all purposes. For instance, where the validity of a marriage or mode of divorce or cessation of marriage under the personal law of a party F is concerned that would have to be determined according to the said personal law.

Thus, the exclusion by s. 488 extends only to the '4.' !juantum of the maintenance and the circumstances acder which it

, could be granted.

The scope of s. 488 of 1898 Code was w"sidercd by this Court in Nanak Chand v. Shri Chandra Kisho.'e Auw; vala Ill.

Ors.(') where the following observations were made:--· c;

"We are unable to see any inconsistency bet\v•2en i_he Maintenance Act and s. 488 Cr.P.C ....... The hw ··:' substantially similar before and nobody c 0cr sugre , tcd 'k; t Hindu Law, as in force immediately hfrre the "''''Jiw ":ement of this Act, insofar as it dealt with the mahilemr.ce.

of children, was in any way inconsistent withs. 488 Cr. P, C .

(1) [1970] 1 S.C.R. 565.

The scope of the two laws is different.

Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State (AlR 1963 All. 355), before the Calcutta High Court in Mahabir Agarwal/a v. Gita Roy [1962] 2 Cr. L.J. 528 and before the Patna High Court in Nalini Ranjan v. Kiran Rani (AIR 1965 Pat. 442). The three High Courts have, in our views, correctly come to the conclusion that s. 4(b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in s. 488, Cr.P.C."

It would be seen that this Court approved of the decisions in the cases of Ram Singh, Mahabir Agarwal/a and Nalini Ranjan mentioned in the observations extracted above.

In order to undrstand the prqper scope of s. 488 of the 1898 Code which is almost the same as that of s. 125 of the 1973 Code, it may be necessary to examine the decisions which were referred to with approval by this Court in Nanak Chand's case (supra). In Ram Singh v. State & Anr.,(') Kailash Prasad, J. observed as follows :-

"There is nothing in the Hindu Adoptions and Maintenance Act to suggest expressly or by necessary implication that the Act is intended to be a substitute for the provisions of s. 488 Cr. P.C. In fact the provisions of sec. 18 of the Act cannot be a substitute for s. 488 Cr.P.C. The latter provision is general and is 31>plicable to a wife, irrespective of her religion, but the former is applicable to the case of Hindus only. It could not, therefore, be intendd to be a substitute for s. 48 8 Cr. P. C."

To the same effect is the decision of the Patna High Court in Nalini 1,..

Ro•zfan Clwkravarty v. Smt. Kiran Rani Ch"kravarty(2) where the

following observations were made :-

"Before the enactment of 1956, it was well settled that the right conferred by section 488 Cr.P.C. was independent of the personal law of the parties. The right of maintenance under section 488 was irrespective of the nationality or creed of the parties, the only condition precedent to the possession of that right being in the case of a wife the acceptance of the conjugal relation. Further, s. 488 provided for only

(!) AIR 1963 All. 355.

(2) AIR 1965 Pat. 442

• •

• •

ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, J.) 917

a speedy remedy and a summary procedure before a Magis- A trate against starvation of a deserted wife or child.

This section did not cover the civil liability of a husband or a father under his personal law to maintain his wife and children."

The Calcutta High Court also took the same view in Mahabir 8 Agarwalla v. Gita Roy CJ where the following observations were made:-

"An alternative but not inconsistent summary remedy was provided by section 488 of the Code of Criminal Procedure not only to the Hindu wife but generally to wives irrespective of religion for recovery of maintenance from !lie C husband.

The two remedies were, however, not co-extensive."

Thus, on a consideration of the authorities mentioned above, it is clear that the 1898 Code by virtue of s. 488 provided a summary remedy for awarding maintenance to neglected wives irres, pective of D caste, creed, community or religion to which they belonged. It was in this context that the Courts referred to above considered the effect of Hindu Adoption and Maintenance Act and other similar Acts.

This, however, does not conclude the controversy.

The miportant questiQn still remains : Was the Magistrate competent to a.ward maintenance if urider the personal law of the Mahomedans the "life had been validly divorced and had completed the period of ldd; it? In fact, s. 489 of the 1898 Code, as amended by the 1955 Amending Act, had empowered the Magistrate to make any alteration in the payment of the maintenance on proof of a change in the circumstances.

Similarly, s. 489(2), which is extracted below, provided t111t the Magistrate could cancel the maintenance in consequence of a decision

~· .. of any competent court :

"(2) Where it awears to the Magistrate that .. in consequence of any decision of a competent Civil Court, 3 .iy order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly."

Thus, consiJoring the scheme of ss. 488 and 489 it was generally 11ccep- 1ed as geod bw by all the High Courts that where a woman governed

by the Mahomedan law was awarded maintenance, the same would cease from the date of divorce given by the husband and the com- H pletion of the period of Iddat. That this is the Mahomedan law on

(I I 11962] 2 Cr. L.J. 528.

A the subject admits of no doubt and bas not been controverted before us.

We would however, refer to a few decisions on this point to support our point of view.

In Jn re Shekhanmian(') while defining the consequences of a divorce and its impact on s. 488 of the 1898 Cede a division Bench of B the Bombay High Court observed thus :-

"A talak when it becomes irrevocable puts an end to conjugal relationship which had subsisted between :he parties, and the divorced wife would not be entitled to claim maintenance from her husband beyond the period of iJdat from the date of such irrevocable divorce. S. 488 Criminal P.C., has in no manner abrogated this part of the per'C111al law of the parties.

The existence o! conjugal relations in the case of Mahomcdans has to be determined by reference to the provisions of the Mahomedan Law and not by considerations of equity and good conscience as ucde1'tood in any other system of law."

To the same effect is the decision of the Madras High Court in Syed Sold v. Mccram Bee (2) where in division Bench observed thus :

"A ~1agistrat1..:, ho\vcver, exercising summary powers conR fcrrcd on him hy s. 488, Code of Criminal Procedure, can make or enforce an order to that effect only if the relationship of husband and wife exists between the two, but in order to deteymine this, and only to that extent, we must ascertain the effect in Mahomedan law of au irreversible divorce on conjugal relations."

It was further held in that case that a divorce becomes irrevocable after the wife has observed the period of iddat which is usually three months or if she was pregnant, the date of delivery so that she may be free to . '.... marry again.

This view was reiteraled by the Madras High Court in

a later decision in In re Mohamed Rahimullah & Anr. (") where Yahya Ali, J. observed thus :-

"The foundation upon which Ss. 488 & 489, Criminal P .C. rest, so far as granting of maintenance by the husband to the wife is concerned, is that the relationship of husband and wife subsists between them.

When that relationship is lawfully dissolved and there is no marital tie either in reason or upon any canon of justice or even upon the language of

(I) AIR 1930 Bombay 178.

(2) 20 M.L.J. 12

(3) AIR 1947 Madras 461.

• •

ZOHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, !.) 919

Ss. 488 and 489 how the husband can be directed to continue A to maintain his divorced wife."

The Hyderabad High Court also took the same v; ew in Rahimunnissa & Ors. v. Mohd. Ismail(') and after con, idering the entire law on the subject Bilgrami, J. observed thus :-

'"All these grounds can be sullicicnt or valid for refusal of maintenance to a wife with whom the tie of marriage subsists, but when this tie is dissolved, all these defences cannot be set up and the right of the wife to maintenance during the "iddat" period is absolute under the Mahomedan law; the only Pbligation which binds a wife during this period is that she .; liould not remarry."

In a very early case of the AJlahalYad High Court-Di11 lYi<ilwmmad's cwe(')-Mahmood, J. pointed out that while the enactment regarding maintenance was of a general nature being applicable to Mahomedans as also to Hindus, Buddhists, and other communities vet the legislature never intended to restrict the Mahomcdan law of Divorce.

The Judge, further held that the right to maintenance came to a'1 end when the conjugal relationship between the husband and the wife ceased to exist.

In this connection, Mahmood, J. observed as fillows :

"The enactment under which that order was made does

not relate more especiaJly to Muha=adans than to Hindus, E Buddhists, Indo-Britons, Europeans, or any other branch of the general community, and the Legislature could never hayc irtcnded by it to interfere with or restrict the Muhammadan law of divorce ...... The whole of Chapter XLl, Crimi11:1l Procedure Code. so far as it relates to the maintenance of wives, contemplates the existence of the wuiupl relation as a condition precedent to an order of maintenance and, on general principles, it foJlows that as soon "' the conjugal relation ceases, the order of maintenance must aho cease to have any enforceable effect. When and in what manner a cessation of the conjugal relation takes place, is a question which, ex necessitate rei, must be determined according to the personal law fo which the parties concerned arc subject ...... The right to maintenance conferred by s. 536 of the Criminal Procedure Code is a statutory right, which the Legislature has framed irrespective of the nationality er creed of the parties, the only condition precedent to the possession

(l) AIR 1956 Hydrabad 14

(2) V. l.L.R. (1813) 226

A of that right, in the case of a wife, being the existence of the conjugal relation."

Thus, a review of the decisions referred to above clearly reveals that although a Mahomedan wife had a right to be awarded maintenance by the Magistrate under s. 488 of the Code, the said right ceased to exist if she was divorced by her husband and had observed : he period of iddat. This was the undoubted position of law under the 1298 Code as amended by the 1955 Amending Act.

The serious question to be determined in this appeal is as to how far the 1973 Code has made a distinct departure from the previous Code and changed the legal position of a woman after divorce. f>ection

125 of the 1973 Code is couched almost in the same language ass. 488 of the earlier Code with the important exception that an 1:xplanation has been added after sub-clause (1) of s. 125 which runs thus :

"Explanation-For the purposes of this Chapter.-

( a) "minor" means a person who, under the provisions ot the Indian Majority Act, 1875 is deemed not to have attained his majority;

(b) "wife includes a woman whn has been divorced by or has obtained a divorce from, her husband and bis not remarried."

(Emphasis supplied)

We are however not concerned with clause (a) of ihe E"planation.

Clause (b) has made a distinct departure from the earlier Code in that it has widened the definition of wife and, to some extent, overruled the F personal law of the parties so far as the proceedings for maintenance under s. 125 are concerned. Under clause (b), the wife continues to be a wife within the mea0ning of the provisions of the Code even though she has been divorced by her husband or has otherwise ohtained a divorce and has not remarried. The decision in this case turns upon the interpretation of clause (h). The High Court has construec the G words 'who has been divorced or has obtained a divorce from her hus .. band' as signifying that in both cases the divorce must proceed from the husband and should be the act of the husband and not !l , at of the wife.

In taking this view, the High Court obviously seem' to have been guided by the consideration that a dissolution of marri2ge brought about at the instance of the wife under the 1939 Act does not amount H to a divorce by the husband under the Mahomedan law and henct1 the second limb of clause (b) also does not apply.

Although there may be some substance in the view taken by the High Court yet whst it

' •

WHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, J.) 921

overlooked was whereas a dissolution of marriage under the Hindu Marriage Act may not necessarily end in a divorce but other consequences such as declaration that the marriage was a nullity, a decree for judicial separation, etc. but under the 1939 Act when the marriage is dissolved by the Court at the instance of the wife, the only result that follows is that the wife stands divorced from the husband by operation of law and no other relief can be granted by the court under t, he 1939 Act after a decree for dissolution is passed.

It follows, therefore, that the divorce resulting from the aforesaid dissolution of the marriage is also a legal divorce under the Mahomedan law by virtue of the statute (1939 Act).

That this is so wou.\d be manifest from the circumstances which we shall mention hereafter.

There can be no doubt that under the Mahomedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognised by the law.

A divorce given unilaterally by the husband is especially peculiar to Mahomedan law.

In no other law has the husband got a unilateral right to divcrce his wife by a simple dedaration because other laws, viz., the Hindu law or the Pmsi Marriage and Divorce Act, 1936, contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a Court of law.

Before the enactment of the Act of 1939 a woman under pure Mahomedan law had no right to get a decree for divorce from the husband if he refused to divorce her.

This was undouhtdly the fundamental concept of divorce as laid duwn by the Mahomctian law.

As, however, some of the Muslim Jurists and Theologists were of the view that where a husband becomes importent or disappears for a large number of years or treats his wife with great cruelty, the wife should have some right to approach the Qazi for dissolving the marriage.

Relying on these anthorities the legislature intervenerl and p>assed the Dissolution of Muslim Marriages Act, 1939 under which the wife was conferred a legal right to move the civil court for a decree for dissolution of marriage on the grounds specified in s. 2 of the Act of

1939. This is spelt out from the statement of Objects and Reasons of tl1e Act of 1939, the relevant portion of which may be extracted thus:

"There is no proviso in the Hanafi Code of Muslim Law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leavin~ her unprovid· ed for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumer-

A able Muslim women in British India.

The Hanafi Ju; i<; ts. however, have clearly laid down that in cases in which the application of Hanafi Law causes hardship, it is permissible to apply the provisions of the "Maliki, Shafii or Hambali Law".

Acting on this principle the Ulemas have issued

fatwas to the effect that in cases enumerated in clause 3, Part A of this Bill (now see section ?. of the Act), a married Muslim woman may obtain a decree dissolving her marriage ... As the Courts are "'T to he<itate to apply the Maliki Law to the case cf a :rv1tFlirn. "'on1an, legislation recognizing and enforcing the abovcmcntioncd principle is called for in order to relieve thr suff,?r'.n~; s cf cGunt'lcss Muslim women."

One of the grounds ·.vas that a st1it could be brought if the husband had neglected or failed to provide 111<•1ten1nce for the wife for a period of two years.

After the Act of 1939, a wif: thus had a statntorv right to obtain divorce from the husband through the Court on proof of the grounds mentioned in the Act.

The Act provided for the wife an i'ldependent remedy which could be resorted to by her without being subjected to a pronouncement of divorce by the husband. It is, therefore. in the background of this Act that the words 'has obtained a divorce from her liusband' in clause (b) of the Explanation have to be constructed.

Thus the High Court in considering the effect of these words seems to have overlooked the dominant ob.iect of the statutory remedy that was made available t0 the wife under the Act of 1939 11y • .. , hich the wife could get a dr-rrcc f('r di'-solution of marriage en the ground~ mentioned in the 1939 Act bv petiti0ning the civil court with0ut any overt act on the part of the husband in divorcing her.

The Hih Court also failed to consider the Ieeal consequences flowing from 11-:e decree passed by the court discolvinf! the marriage. viz., a legal div0rce under

the Maho.medan law.

In these circumstances we are. therefore, satisfied that the interpretation put by the High Court on the second limb of clause (b) is not correct.

This seems to be borne out from the provisions ., f Mahomedan law itself.

It wonlr1 arpear that under the Mahorneclan law there are three d:stinct moies in which a muslim marriage can he dissolved and the relations hi!' of the husband and the wife terminated so as to result in an irrevocable divorce.

( 1) Where the hmband unihtcrallv gives a divorce according to any of the forms approved by the Mahomedan law, viz .. Talaq ahsan, which consisss of a single pronounce-

' ,

• A

WHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, /,) 923

ment of divorce during tuhr (Period between menstruations)

followed by abst:nence from sexual intercourse for the period

t1i i<ldat; 01 Talak hasan which consāsts of three prcnounce-

111cn1s 111:!.de during lhc successive tuhrs, no intercourse

taking place between three tuhrs: and lastly Talak-ul-bidaat

er ta/ai:-i-badai which consi<ts of three pronouncements

made during a single tuhr either in one sentence or in

three sentences signifying a clear intention to divorce the

wife, for instance, the husband saying 'I divorce thee irrevocably' or 'l divorce thee, f divorce thee, I divorce thee',

The third form referred to above is however not recognised

by the Shiah law, In the instant case, we are concerned with

the appel'ant who appears to be a Sunni and governed by

the Hanafi law ( vide Mulla's Principles of Mahomedan

Law, Sec, 311, p, 297) .

A divorce or talaq may be given orally or in writing and

it hecomes irrevocable if the period of iddat is observed

though it is not necessary that the woman divorced should D

come to know of the fact that she has been divorced by her

husband.

(2) By an agreement between the husband and tl:ie wife

wherel'ly a wife obtains divorce by relinquishing either her

entire or part of the dower.

This mode of divorce is called

'khula'. or Mubarat.

This form of divorce is initiated by

the wife and comes into existence if the husband gives con

sent to the agreement and releases her from the marriage tie, Where, however, both parties agree and desire a separation

resulting in a divorce, it is called mubarat, The gist of

these modes is that it comes into existence with the consent

of both the parties particularly the husband because with

out his consent this mode of divorce would be incapable

of being enforced, A divorce may also come into existence

by virtue of an agreement either before or after the marriage

by which it is provided that the wife should be at liberty to

divorce herself in specified contingencies which are of a

reasonable nature and which again are agreed to by the

husband.

In such a case the wife can repudiate herself in

the exercise of the power and the divorce would be deemed

to have lleeii pronounced by the husband, This mode of

divorce is called 'Tawfeez' (vide Mulla's Mohmedan Law,

Sec. 3f4, p. 300).

(31 By obtaining a decree from a civil court for disso

Iutinn of marriage under s, 2 of the Act of 1939 which also

amounts to a divorce (under the law) obtained by the wife.

For the purpose of maintenance, this mode is governed not by clause (b) but by clause (c) of sub-section (3) of s. 127 of the 1973 Code; whereas the divorce given under modes

(1) and (2) would be covered by clause (b) of sub-section

(3) of s. 127.

These are the three distinct modes in which a dissolution of marriage can be brought about. It is, therefore, manifest that clause (b) Explanation to s. 125 envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce under mode numbers 2 and 3, she continues to be a wife for the purpose of getting maintenance under s. 125 of the 1973 O<k In these Circumstances the High Court was not at all justified in taking the two separate clauses 'who has been divorced' and 'has obtained a divorce from her husband' conjunclively so as to indicate a divorce proceeding from the husband and the husband alone and in not treating a dissolution of marriage under the 1939 Act as a legal divorce.

We might like to mention here that the 1973 Code has by extending the definition of wife, not excluded the various modes of divorce but has merely abrogated that part of the Mahome.dan law under which the wife ceased to get maintenance if the conjugal relationship of the husband and wife came to an end. Nevertheless, the personal law is applied fully and kept alive by clause (b) of sub-section (3) of s. 127 which may be extracted thus :

"(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was .payable on such divorce, cancel such order :-

(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman."

This clause refers to Mode No. I, that is to say, where the husband unilaterally divorces his wife. For the application of clause (b), two conditions are necessary-

( I) that an application for cancellation of the maintenance is made by the husband under s. 127(2), and

- .. \,, -

' •

... -.i

' •

lUHRA KHATOON v. MOHD. IBRAHIM (Fazal Ali, I.) 925

(2) that after the wife has been divorced by the husband A she has received the whole of the sum which under any customary or personal law applicable to the parties was payable on divorce.

In other words, under the Mahomedan Law the husband could still get the maintenance cancelled after divorcing his wife according B to personal law if he paid the entire dower specified at the time of marriage .

We would however, like to point out one peculiar aspect of the provisions of s. 127. While clause (b) of sub-section (3) of s. 127 does provide for cancellation of the maintenance on payment of dower if a woman has been divorced, the said clause does not contemplate cancellation of maintenance where a woman obtains divorce from her husband through a civil court under the provisions of the Act of 1939.

In this connection clause (c) of subsection (3) of s. 127, which is extracted below, clearly provides that where a woman obtains a divorce from her hnsband the amount of maintenance cannot be cancelled until she voluntarily relinquishes or surrenders her rights to the same:-

"the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof."

Thus, a clear distinction has been made between dissolution of marriage brought about by the husband in exercising his unilateral right to divorce and the act of the wife in obtaining a decree for the dissolution of marriage from a civil court unger the Act of 1939.

We might further add that our conclusion that the second limb of clause (b) of the Explanation to s. 125 applies also to a situation, where a dissolution of marriage resulting in a decree for divorce

brought about by the Act and at the instance of the wife, is fortified and reinforced by the language of clause (c) of sub-section (3) of s. 127 under which maintenance cannot be cancelled on the application of the husband unless the wife voluntarily surrenders her rights to maintenance or relinquishes the same and not otherwise. Thus, the two limbs of clause (b) of the Explanation to s. 125(1) have separate and different legal incidents--one is reflected in clanse (b) of subsection (3) of s. 127 and the other in clause (c) of sub-section (3) of s. 127.

In view o1' the reasons given and the circumstances discu8sed by us, it is manifest that in the instant case s. 127 does not apply at all

because the husband has not given any application for cancellation of the maintenance on the grounds enshrined in s. 127 (3) (b) of the 1973 Code but this case is squarely covered by clause (b) of the Ex planation to s. 125(1) of the 1973 Code as a result of which the appellant in the eye of law continues to be the wife of the respondent,

despite the tkcrce lo,. dissclufon of marr:age.

The Magistrate was, thcre[ore, fully justified in granting maintenance to the appellant. The High Court, therefore, erred in quashing the order ol the Magistrate, we, therefore, allow this appčal, set aside the order of the High Court and restore that of the Magistrate granting maintenance of a consoli dated amount of Rs. 100/- per month for the appellant and her minor child.

It would be open to the appellant to apply to the Magistrate for a warrant to realise the arrears of 1naintcnance, if any.

KosHAL, J .-I have had the advantage of perusing the judgment prepared by my learned brother Fazal Ali, J ., with whom I find myself in general agreement. However, as I would like to highlight a parti cular aspect of the matter, I am appendiag a short note of my own.

2. Sub-section ( I ) of section 125 of the Code of Criminal Pro cedure (hereinafter referred to as the Code) confers on a Magistrate of the First Class the jurisdiction, inter alia, to order maintenance to be paid by a husband to his wife or his minor or destitute children.

The case propounded by the wife in the present proceedings is Crnt in spite of the decree of dissolution of marriage passed in her favour by a Civil Court on the 15th January, 1973, she continues to be the wife of the respondent for the purposes of the said sub-section (1) by reason of the definition of the term "wife" contained in clause (b) of the Explanation appended to that sub-section.

That clause runs thus: "Explanation :-For the purposes of this chapter,-- '(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . - . . . . .

'(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married." The claim of the wife has been turned down by the High Court on the ground that this clause is inapplicable to her case inasmuch as-

(i) the appellant has obtained only a decree of dissolution of marriage and not a divorce, and

(ii) the expression "from the husband" as used in the clause extracted above envisages divorce by voluntary H action of the husband which is missing in this case, the dissolution of marriage having been obtained from the court, and, therefore, not from the husband.

ZOHRA KHATOON v. MOHD. IBRAHIM (Koshal, J.) 92 7

3. The word 'divorce' is not defined in the Code and may legi- A

timateiy be regarded as having been used in clause (b) above extracted in the dictionary sense.

Webster's Third New International Dic

tionary states it to mean, amongst other things,.-

" (a) legal dissolution in whole or in part of a marriage relation usually by a court or other body having competent B authority;

" (b) an absolute dissolution of a valid marriage made by

decree of court for lawful cause arising after the marriage (distinguished from annulment) ;

"(c) a formal separation of man and wife by the act of one

party or by consent according to established custom."-

As ordinarily understood, therefore, divorce is nothing more nor

less than another name for dissolution of marriage, whether the same

results from act of parties or is a consequence of proceedings at law,

and it would, in our opinion, be wrong to regard the two terms as not being synonymous with each other, unle'8 the legislature makes a direction to the contrary.

We need hardly point out that section 125

of the Code contains no such direction.

4. Deacock v. Deacock, [1958] 2 All. E.R. 633 supports the view just expressed.

In that case the English Court of Appeal was

cBJled upon to interpret sections 16 ( 1) and 19 ( 3) of the Matrimonial E Causes Act, 1950 which posed a similar problem.

The relevant por

tions of those provisions are reproduced below:

"16(1) Any married person who alleges that reasonable

grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have

it presumed that the other party is dead and to have the marriage dissolved, and the court, if satisfied that such

reasonable grounds exist, may make a decree of presumption

of death and of dissolution of the marriage.

"19(3) On any decree for divorce or nullity of marriage,

the court may , if it thinks fit, by order direct the husband to

pay to the wife, during their joint lives, such monthly or

weekly sum for the maintenance and support of the wife as

the court may think reasonable . . . "

An argument was raised that a decree for dissolution of marriage

as envisaged in section 16(1) does not amount to a decree for divorce R mentioned in section 19(3) and that, therefore, there was no juris diction in the Court to direct the husband to pay the wife any main-

SUPREME COURT REPO!~TS

tenance in pursuance of the latter section.

Hodson, L.J., with whom Morris, L.J., and Vaisey J., fully agreed, repelled the argument thus:

'It is said (and I confess that this argument does not produce very much impact on my mind) that there is a distinction between the words "dissolution of marriage" and "divorce", and that, as section 19 contains the word "divorce" and section 16 does not, there is no statutory power to apply for maintenance at all in the case of presnpmption of death .......... In my view the word "dis- solution relates to the marriage bond itself, whereas the word "divorce" relates to the parties to the marriage bond; and it is apt to refer to "divorce" when speaking of parties "and dissolution" when speaking of the bond.

'As the decree in this case shows, what has been done, or what has been purported to be done, by the court was to dissolve the marriage; and the word "dissolved" is used in thls and in all other decrees, as it has been used for years: the word "divorce" is not used'.

Thus according to the Court of Appeal the expressions "divorce" and "dissolution" were really two facets of the same situation.

5. The matter may be looked upon from another angle in so far E as section 125 of the Code is concerned.

According to its provisions a full-fledged wife is obviously entitled to maintenance.

By reason of clause (b) above extracted, even a divorced wife has that right provided that she has not re-married.

Could then it be argued with any plausibility that a wife who h_as been granted a decree of dissolution of marriage by a Civil Court but has not been divorced by a voluntary F act of her husband was intended by the legislature not to be entitled to the benefit of clause (b)? The answer must be an emphatic no and this answer follows from the terms of clause (b) itself. It that clause envisaged only divorce by voluntary action of the husband, the second limb of the clause which makes the definition of "wife" inclusive of a woman who has 'obtained a divorce from the husband' would G be rendered otiose. The word obtained' may well be used in the sense of 'procured with effort' and would certainly describe correctly a situation where something is achieved by a person through his exertion in spite of opposition from others.

According to Webster, again the word 'obtain' signifies:

H "(a) to gain or attain possession or disposal of, usually by some planned action or method, "(b) to bring about or call into hein.g, etc."

' •

> •

I \

i ,.

• ..

...

ZOHRA KHATUN v. MOHD. IBRAHIM (Koshal, J.) 929

If a person sues another person for the recovery of property and the suit is resisted but ultimately decreed and the plaintiff recovers possession of the property from the defendant he may properly be <lescribed as having obtained the property from the defendant although this result has come about not because the defendant obliged the plaintiff but because of the coercive process of the court.

Similarly information contained in a statement brought about by coercive methods used against a helpless person would still be information obtained from him even though he is not a willing party to the statement.

6. There is another good reason why the narrow interpretation placed by the High Court on clause (b) above extracted cannot be accepted.

Divorce by the act of the husband is, broadly speaking, not recognised by any system of law except that applicabie to Muslims (barring variations of personal law by custom).

Members of the other main communities inhabiting India, i.e., Hindus, Sikhs, Buddhists, Jains, Christians, etc., have perforce to go to courts in order to obtain divorce. If clause (b) was intended to embrace only cases of divorce brought about by the act of the husband, its applicability would be limited, by and large, ofrly to Muslims, which per se appears to us to be an absurd proposition.

7. For the reasons stated I would interpret the expression "a woman who has obtained a divorce from her husband" as including E a wife who has been granted a decree of dissolution of marriage by the Court. That snch is the case here is admitted on all hands. In the result, therefore, the appeal is accepted, the judgment of the High Court is set aside and the order of tl1e learned Magistrate granting an amonnt of Rs. 100/- per month as maintenance to the appellant and her minor child is restored.

N.K.A.

Appeal allowed .

• '

" ,

12-214 SCI/81

MST. ZOHARA KHATOON

MOHD. IBRAHIM

February 18, 1981

S. MURTAZA FAZAL ALI

A. D. KOSHAL

A. VARADARAJAN, JJ.

Crifninal Procedure Code, 1973

Section 125

Section 125

Code of Criminal Procedure 1973

Section 125

Section 125(1)

Vardarajan

Section 127

S. 125(i)

S. 488

Sections 488 and 489

ss. 125 and 127

S. 125(1)

s. 488

~Iohomedan Law

Din Mohanunad

s. 488

Section 125

S. 125

S. 125

S. 125(1)

S. 127

S. 127

A. D. Koslial

Code of Criminal Procedure

section 1

Section 125

Section 125

India

Jagdish Kumar Aggarwal

Nemo

Murtaza Pazal Ali

A. Varda.rajan

A. D. Kasha

FAzAL ALI

Zohara Khatoon

Mohd. Ibrahim

September 17, 1974

s. 125

Code of Criminal Procedure 1973

s. 125

s. 482

s. 125

s. 125(1)

s. 125

s. 125(1)

ss. 125 and 127

Sections 488 and 489

ss. 125 and 127

s. 488

s. 488

s. 125

s. 488

s. 488

s. 488

s. 488

s. 488

Cr.P.C

[1970] 1 S.C.R. 565

Section 488

Allahabad High Court

Calcutta High Court

Patna High Court

s. 4(b)

s. 488

Cr.P.C

Ram Singh

Mahabir Agarwal

Nalini Ranjan

s. 488

s. 125

Nanak Chand

Kailash Prasad

Hindu Adoptions and Maintenance Act

s. 488

sec. 18

s. 488

Cr.P.C

s. 48

section 488

Cr.P.C

section 488

s. 488

section 488

Code of Criminal Procedure

s. 488

Mahomedans

s. 489

s. 489(2)

Section 488

ss. 488 and 489

s. 488

Bombay High Court

S. 488

Madras High Court

s. 488

Code of Criminal Procedure

Mahomedan

Yahya Ali

Ss. 488 & 489

Ss. 488 and 489

Hyderabad High Court

Bilgrami

AJlahalYad High Court

Mahmood

s. 536

s. 488

s. 125

Indian Majority Act, 1875

s. 125

Hindu Marriage Act

s. 2

is no proviso in the Hanafi Code

clause 3

Sec. 3

s. 127

s. 127

s. 125

s. 125

s. 127

s. 127(2)

s. 127

s. 127

s. 127

s. 125

s. 127

s. 125(1)

s. 127

s. 127

s. 127

s. 127

s. 125(1)

KosHAL

section 125

15th January, 1973

Webster

section 125

sections 16

Matrimonial E Causes Act, 1950

section 16(1)

section 19(3)

Hodson

Morris

Vaisey

section 19

section 16

section 125

N.K.A.