Mst Zohara Khatoon v Mohd Ibrahim
Rule established
The expression divorced wife in the Explanation (b) to S.125(1) of the Code of Criminal Procedure is wide enough to cover a wife whose marriage has been dissolved on her own initiative, including by a decree under the Dissolution of Muslim Marriages Act 1939. Such a woman remains a wife for the purposes of S.125 and is entitled to maintenance.
Facts
- Zohara Khatoon applied for maintenance under S.125 of the Code of Criminal Procedure. The dispute concerned whether a wife who has herself obtained a dissolution of the marriage, rather than having been divorced by her husband's talaq, falls within Explanation (b) to S.125(1). The fuller factual background could not be fully verified and should be stated cautiously.
Issue
- Whether a Muslim woman whose marriage has been dissolved by a decree obtained by her under the Dissolution of Muslim Marriages Act 1939 is a "divorced wife" within Explanation (b) to S.125(1) of the Code of Criminal Procedure.
Held
- She is. The Court set out the three modes by which a Muslim marriage may be dissolved and held that the expression "divorced wife" in the Explanation to S.125(1) is wide enough to cover a wife whose marriage has been dissolved on her own initiative, including by a decree under the 1939 Act. Such a woman remains a "wife" for the purposes of the provision and is entitled to maintenance. In an often quoted passage the Court observed that under Mohammedan law the commonest form of divorce is a unilateral pronouncement by the husband, a unilateral right peculiar to Mohammedan law and not found in Hindu law or under the Parsi Marriage and Divorce Act 1936.
Ratio Decidendi
The Explanation is drafted in two limbs, covering a woman "divorced by" her husband and one who "has obtained a divorce from" her husband. The second limb is what disposes of the case: a decree of dissolution obtained by the wife under the 1939 Act is a divorce obtained from her husband. Beyond the text, the purpose of S.125 is to prevent destitution, and a woman who has been driven to seek a decree because her husband failed to maintain her or treated her with cruelty is precisely the person the provision protects. To exclude her because she took the initiative would penalise her for using the statutory remedy.
How to use it in an exam
- Cite where a husband argues that a wife who obtained a decree under the 1939 Act cannot claim maintenance. The answer is that she remains a "divorced wife" within the Explanation.
- Useful in questions linking the 1939 Act to maintenance, because it shows that exercising the statutory right of dissolution does not forfeit the maintenance remedy.
- Part of the pre 1986 body of law establishing the breadth of S.125. Read with Bai Tahira (1978), Fuzlunbi (1980) and Mohd Ahmed Khan v Shah Bano Begum (1985), and note that the whole line was ultimately confirmed as cumulative with the 1986 Act in Mohd Abdul Samad v State of Telangana (2024).
- Cite the observation on the unilateral character of talaq being peculiar to Mohammedan law in comparative and essay questions.
Source
Source: (1981) 2 SCC 509; AIR 1981 SC 1243; 1981 SCR (2) 910; 1981 Cri LJ 754. Three Judge Bench, judgment delivered 18 February 1981. Bench, citation, date and holding verified on audit of 12 August 2026. The full facts were only partly verified and are therefore stated cautiously.
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.