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10. We have been painstakingly drawn into many rulings of the High Courts but none except this one has had the advantage of the pronouncement in Bai Tahira. A Division Bench of the Kerala High Court-a ruling which perhaps advances the purpose more than the Full Bench decision which overruled it-dwelt on Section 127(3)(b) of the Code. Khalid, J. speaking for the court observed, and rightly if we may say so with respect kunhi Moyin v. Pathumma 1976 KLT 87 at 96.

This section provides that the Magistrate shall cancel the order for maintenance if any sum under any customary or personal law applicable to the parties is paid on divorce. This section may be pressed into service by some ingenious husbands to defeat the provisions contained in Section 125. We would like to make ft clear that Section 127(3)(b) refers not to maintenance during the period of iddat or payment of dower. Unfortunately, place of dower is now occupied by dowry, payable by the girl's parents, which till 1-6-1961 was paid in public and thereafter in private; thanks to the Dowry Prohibition Act, 1961. It is therefore not a sum of money which under the personal law is payable on divorce as expressed in Section 127(3)(b). On the other hand, what is impliedly covered by this clause is such sums of money as alimony or compensation made payable on dissolution of the marriage under customary or personal law codified or uncodified, or such amount agreed upon at the time of marriage to be paid at the time of divorce; the wife agreeing not to claim maintenance or any other amount. We thought it necessary to clarify this position lest there be any doubt regarding the scope of Section 127(3)(b), for, at the first blush, it might appear that, it takes away by one hand what is given Under Section 125 by the other hand. This is not so.

xx xx xx ...it is clear that one of the eventualities conferring jurisdiction on the Magistrate to cancel an order of monthly allowance can come into existence only on doing of a voluntary act by the wife of actually accepting the amount offered as contemplated by Clause (b). It is to be noted that the Legislature has not used words indicating mere offer by the husband of the amount contemplated by Clause (b) as sufficient to bring into existence the fact situation contemplated or bring into existence the eventuality on which the power of the Magistrate to cancel the order of maintenance is based. It appears that the Legislature has advisedly used the words "has received" in order to indicate and at the same time restrict the power of cancelling the order of monthly allowance to cases where the wife by a voluntary act on her part of receiving the amount contemplated by Clause (b) brings about the eventuality contemplated for exercise of the said power... We, therefore, hold that in order to exercise power conferred by Clause (b) of Sub-section (3) of Section 127, it has to be found as a fact that the wife has done a voluntary act of receiving the whole sum contemplated to be payable by Clause (b). If the wife shows her unwillingness to receive the amount tendered, the provisions of Clause (b) are not applicable.

17. The quintessence of mahar whether it is prompt or deferred is clearly not a contemplated quantification of a sum of money in lieu of maintenance upon divorce. Indeed, dower focuses on marital happiness and is an incident of connubial joy. Divorce is farthest from the thought of the bride and the bridegroom when mehar is promised Moreover, dower may be prompt and is payable during marriage and cannot, therefore, be a recompense for divorce too distant and unpleasant for the bride and bridegroom to envision on the nuptial bed. Maybe, some how the masculine obsession of jurisprudence linked up this promise or payment as a consolidated equivalent of maintenance after divorce. Maybe, some legislatures might have taken it in that light, but the law is to be read as the law enacted. The language of Section 127(3)(b) appears to suggest that payment of the sum and the divorce should be essentially parts of the same transaction so as to make one the consideration for the other. Such customary divorce on payment of a sum of money among the so called lower castes are not uncommon. At any rate the payment of money contemplated by Section 127(3)(b) should be so linked with the divorce as to become payable only in the event of the divorce. Mahar as understood in Mohammadan Law cannot under any circumstances be considered as consideration for divorce or a payment made in lieu of loss of connubial relationship. Under Section 127(3)(b) of the Cr.P.C., an order for maintenance may be cancelled if the Magistrate is satisfied that the woman has been divorced by her husband and that she has received, whether before or after the said order, the whole of the sum which, under any customary or personal law applicable to the parties was payable on such divorce.