Fuzlunbi v K Khader Vali
Rule established
Payment of mehr does not automatically operate under S.127(3)(b) of the Code of Criminal Procedure to cancel or discharge an order of maintenance under S.125. S.127(3)(b) is attracted only where the sum paid under customary or personal law is in substance a genuine sum adequate to serve the purpose of maintenance and to prevent destitution, so that it can be said to have been paid on divorce in lieu of maintenance. A conventional or illusory mehr does not qualify.
Facts
- Fuzlunbi, a married woman just past thirty, had obtained an order for maintenance under S.125 of the Code of Criminal Procedure. That order was then cancelled under S.127(3)(b) by three courts in succession, each on the footing that payment of mehr on divorce discharged the husband's liability to maintain her.
Issue
- Whether payment of mehr on divorce automatically attracts S.127(3)(b) of the Code of Criminal Procedure so as to cancel an order of maintenance made under S.125.
Held
- The appeal was allowed. Payment of mehr does not automatically operate under S.127(3)(b) to cancel or discharge a maintenance order. The provision is attracted only where the sum paid under customary or personal law is, in substance, a genuine sum adequate to serve the purpose of maintenance and to prevent destitution, so that it can be said to have been paid "on divorce" in lieu of maintenance. A conventional or illusory mehr does not qualify. Bai Tahira was reaffirmed and, by force of Art.141, was binding on the courts below.
Ratio Decidendi
The construction is purposive. S.127(3)(b) exists so that a man who has already made adequate provision on divorce is not made to pay twice. It does not exist to give him an escape route through a nominal payment. So the question under the provision is not the formal one, has a customary payment been made, but the substantive one, is what was paid enough to keep her from destitution. If it is not, the object of S.125 remains unfulfilled and the order should stand. Why the "adequacy" test is the whole of the case: It converts S.127(3)(b) from a mechanical bar into a factual enquiry, and it places the burden on the husband to show that the sum paid actually serves the maintenance purpose. That is what makes the provision workable alongside S.125 rather than destructive of it.
How to use it in an exam
- Cite whenever a husband argues that payment of mehr, or a settlement at divorce, has discharged his maintenance liability. The answer is that the payment must be adequate to prevent destitution, and a conventional mehr is not.
- Name the provision. The mechanism is S.127(3)(b) CrPC, now S.146(3)(b) BNSS, not S.125 itself. Answers that discuss the case without identifying the provision lose precision.
- Read as part of the sequence:
- - Bai Tahira v Ali Hussain Fissalli Chothia (1978, reported 1979): a consent decree and payments at divorce do not automatically extinguish the S.125 right.
- - Fuzlunbi (1980): reaffirms Bai Tahira and states the adequacy test for S.127(3)(b).
- - Mohd Ahmed Khan v Shah Bano Begum (1985): the Constitution Bench upholds both.
- Useful on precedent and Art.141 in Constitutional Law and Interpretation of Statutes answers, as an example of the Supreme Court reprimanding lower courts for evading a binding decision by distinguishing it.
- Links to dower: the case is the clearest demonstration that dower had ceased in practice to perform its protective function, which is the background to the entire post 1985 legislative history.
Source
Source: (1980) 4 SCC 125; AIR 1980 SC 1730. Three Judge Bench, judgment delivered by Krishna Iyer J on 8 May 1980. Bench, date and the S.127(3)(b) mechanism verified on audit of 12 August 2026. The appellant's name appears as Fazlunbi in the body of the judgment and as Fuzlunbi in the reports; both forms circulate.
This is an educational summary, not the judgment itself. Cite the reported version in professional or academic work.