Sabtu, 18 Mei 2013

kes Bangladesh: Hefzur Rahman - Siri 2

Keputusan Mahkamah Agung Bangladesh: makna dan maksud Mut’ah.

Berikut pula ialah keputusan material YAA ATM Afzal CJ dalam kes Hefzur Rahman (Md) v Shamsun Nahar Begum and another 51 DLR (AD) (1999) 172 Supreme Court Appellate Division (sivil). Hakim-Hakim yang terlibat dalam memutuskan kes tersebut adalah terdiri dari: ATM Afzal CJ; Mustafa Kamal J; Latifur Rahman J; Md. Abdur Rouf J; Bimalendu Bikash Roy Choudhury J. Keputusan di beri pada tarikh 03hb Disember 1998.
The Supreme Court of Bangladesh

Penghakiman ATM Afzal CJ.-
12. The learned Judges then suo motu addressed themselves to a legal query as to whether plaintiff No 1 (wife) could have claimed maintenance beyond the period of iddat.

After quoting Sura Baqara verses 240-242 and from Hedaya, Baillie and Verses from Sura Yunus, Sura Qamar, Sura Al Imran and observing that like statutes, the Quran prescribes a literal construction of its verses, the learned Judges referred to the case of Aga Mahomed Iaffer Bindanim vs Koolsoom Beebee and others, ILR 25 (Cal) 9 and held that the dictum of the Privy Council pronounced a hundred years ago in 1887 AD that it would be wrong for the Court to attempt to put their own construction on the Quran in opposition to the express rulings of commentators of great antiquity and high authority which cannot be followed on three grounds, first, the learned Judges of the Privy Council were non- Muslims, secondly, the interpretation is in conflict with Article 8 (1A) of the Constitution of Bangladesh which indicates that Quranic injunctions shall have to be followed strictly and without any deviation and thirdly, the dictum is in derogation of Sura Baqara Verse 121. Relying on observations from the case of Rashida Begum vs Shahan Din and others, PLD 1960 (Lahore) 1142, the learned Judges agreed with the view that if the interpretation of the Holy Quran by the commentators who lived thirteen or twelve hundred years ago is considered as the last word on the subject then the whole Islamic society will be shut up in an iron cage and not allowed to develop along with the time. The learned Judges therefore came to the conclusion that a Civil Court has the jurisdiction to follow the law as in the Holy Quran disregarding any other law contrary thereto even though laid down by the earlier jurists or commentators of great antiquity and high authority and followed for a considerable period. Thereafter the learned Judges considered the literal meaning of the First Part of Verse 241 of Sura Baqara and finally held that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period till she loses the status of a divorcee by re-marrying another person.

13. The learned Judges by the impugned judgment dated 9 January, 1995 restored the judgment and decree of the Family Court with the modification that plaintiff Nos 1 and 2 shall get maintenance at the rate of Taka 1,000.00 each per month from the defendant till plaintiff No 1 and plaintiff No 2 respectively remarries or attains majority.

14. Mr. Md. Hannan, learned Counsel for the appellant, raised several points seeking leave to appeal from the impugned judgment and leave was granted to consider his submissions as follows:

(1)  that as long as a suo motu judicial exercise is per incuriam (perhaps the learned Counsel meant ‘incidental’) and does not affect either party to a suit adversely, the defendant ‘can have no legitimate grievance against such exercise, but if the suo motu exercise is beyond the frame of the suit and the decision after the exercise saddles the defendant with an added liability which even the plaintiffs did not claim in the suit, the exercise is without jurisdiction and assumes the character of judicial excess.

(2)  that the learned Judges of the High Court Division have no authority and jurisdiction to impose their personal views on the defendant at an added cost and liability to him.

(3)  that the suo motu exercise was all the more unacceptable, as it was done behind the back of the appellant, without giving him a notice of the learned Judges’ intention to indulge in an exercise of this kind, so that he could refute the learned Judges’ personal views.

(4) that the learned Judges have expressed their views without inviting expert opinion of lawyers and jurists of Islamic jurisprudence and without hearing the views of others who may have views contrary to the learned Judges.

(5) that the views on maintenance expressed by the learned Judges are wholly erroneous, contrary to Muslim Law and devoid of any reasoning and authority and

(6) that the reversal of the lower appellate Court’s decree on maintenance is based neither on any evidence nor on any reasoning but on the personal knowledge of the learned Judges which can never be imported into a contentious suit and which is contrary to all judicial norms.

15. From the above it is clear that the aforesaid (main) decision of the High Court Division has been subjected to a two-fold attack— first, the decision is bad because it offends the principles of general or secular law and secondly, it is bad because it offends and is contrary to the personal law of the defendant i.e., Muslim Law. The interpretation given of Ayat 241 (Sura II) is, in any case, untenable and it has wrongly been made the basis of the decision which was bound to be wrong. I shall take up the second line of attack first for consideration.

16. It will be appropriate to begin with a statement of law, without any fear of contradiction and which is assumed by the learned Judges of the High Court Division themselves, that under the traditional Muslim Law a divorced wife is entitled to maintenance from her erstwhile husband only during the period of her iddat. The learned Judges noticed this provision from Hedaya by Charles Hamilton (Book IV, Chapter XV, Sec 3, p 45) and Digest of Mohammadan Law (compiled and translated from authorities in the original Arabic) by Neil B E Baillie Part Second, Book 1!, Chapter VII Section Sixth Pp 169-170). Any textbook on Mohammadan Law will corroborate this proposition vide, Mulla, Principles of Mohammdan Law (Fourteenth Ed) Para 279.

17. Dr Paras Dewan in his Muslim Law in Modern India, 1982 Ed p 130 says-

When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat. On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognise any obligation on the part of a man to maintain a wife whom he had divorced.

18. Indeed this has been the Muslim law since the days of Prophet Muhammad (Allah’s Peace be upon him) and the respondents and the interveners supporting them have not been able to show one instance from the early days of Islam, till the date of the impugned judgment where the view taken by the learned Judges as to maintenance has been upheld even by any authority or Court in any Muslim society/country at any time during the last fourteen hundred years. The nearest that we have been able to come across was the decision of the Indian Supreme Court in the Shah Bano case, AIR 1985 (SC) 945, which, as is well-known, caused a great stir in that country and the result was that the Government of India had to bring about an enactment called “The Muslim Women (Protection of Rights on Divorce) Act, 1986” by which prima facie the said decision was set at naught. It is to be observed that in the said case the Indian Supreme Court was considering an application for maintenance of a divorced Muslim woman filed under section 125 of the Code of Criminal Procedure, 1974 and particularly the provision in the said section which reads:

125 (1) (a). “if any person neglects or refuses to maintain his wife, unable to maintain herself’ (underlined by me).

19. In considering the defence taken by the husband and the interveners including All India Muslim Personal Law Board on the basis of aforesaid personal law of the Muslims, the Court observed:

“We are of the opinion that the application of those statements of law must be restricted to that class of cases in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject matter of section 125.”

20. The Indian Supreme Court then considered the aforesaid Ayats 241 and 242 of the Sura Baqara and observed:
“These Ayats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than Justice to the teachings of the Qur-an”.

21. The Shah Bano decision was thus a limited one given in the context of section 125 Cr.P.C. and the impugned decision before us is a general one and it is agreed by all the parties that it is unique.

22. The question before us is whether by putting the interpretations on Ayat 241 (Sura Baqara) in the manner done by the learned Judges, the traditional Muslim Law as to maintenance of a divorced wife prevalent for centuries was lawfully and legitimately knocked down. During the hearing of the appeal several Tafsirs of the Holy Quran by renowned and famous commentators have been placed before us by the learned Advocates. Mrs. Rabeya Bhuiyan, learned Counsel, who supported the plaintiffs case or cause with commendable zeal cited Imam Shafei on Al Qur-an (11:241) commentary on the Holy Qur-an by Ibn Katheer (d 1373 AC Damas Cus) Translated by Danial Latifi) and Tafsere Tabare Sharif, 4th Volume, Allama Abu Jafar Tabari (published by Islamic Foundation in 1993). In one of the Tafsirs, there is support for the view taken by the learned Judges as to maintenance till remarriage.

23. On behalf of the Interveners supporting the respondents some translation of Ayat No 241 by some Authors and opinions by some authorities have been referred to where the meaning of the word Mataa has been given as maintenance. They have referred to the translation of Mohammad Asad and the Urdu translation by Shaikul Hind Akiama Mahmood Hasan Deobandi. In his, note to Ayat No 241. Muhammad Asad says:

“This obviously relates to women who are divorced without any legal fault on their part. The amount of alimony-payable unless and until they remarry-has been left unspecified since it must depend on the husband’s financial circumstances on the social consideration of the time”

24. Shaikul Hind in his Urdu translation qualified maintenance “as per provisions of law”.

25. Baidavi in his commentary on the Holy Quran observes: “Maintenance is made obligatory so as to remove despair and grief caused to the woman by separation as a result of divorce. The quantum is to be determined by the Government authority”.

26. Imam Qurtubi in his commentary observes that “payment of maintenance is ordered for the reason that disrespect has been shown against marital contract”.

… …

28. It has been brought to our notice that the translation of the Holy Quran by Abdallah Yusuf Ali (which was relied upon by the High Court Division to read ‘maintenance’ for the word Mataa in Ayat 241) has been revised and corrected by the Presidency of Islamic Researches, IFTA, call and guidance, under a Royal decree issued by the Custodian of the Two Holy Mosques. From the preface of the -said revised translation of the Holy Qur-an it will appear how much care and pains have been taken in revision and correcting the work of Abdallah Yusuf Ali. In this revised Book the meaning of the word Mataa as occurring in Ayats Nos 236 and 241 is found to be the same, that is ‘a suitable gift”. Evidently, the High Court Division had not had the benefit of looking into the revised meaning of Mataa which is different from the original translation done by Abdallah Yusuf Ali.

29. In a well-chronicled Article on “Divorced Muslim Women in India” by Lucy Carrol produced by Mrs. Bhuiyan it has been pointed out that the usual word for maintenance is Nafaqa. This meaning is to be found in the Fatwai-Alamgiri (Indian Ed., 2nd Volume p 144) and has been attributed to as such by both the Alims who appeared before us.

30. The aforesaid Article reads:

“Reading the injunction contained in 11:241 against the background of these verses, the Hanafi jurists concluded that the mataa (provision; gift) is only obligatory when the woman has been divorced before consummation in circumstances where no mahr has been set (i.e., in circumstances where, had the marriage been consummated, she would have been entitled to the proper mahr or the mahr of her equals). It is, however, “laudable” to give the divorced woman a ‘present” in other cases as well. I e it is not contrary to, i.e. or prohibited by, Muslim law, even as narrowly interpreted by the Hanafi jurists, that the husband should make some consolatory offering to his divorced wife. The mandatory mataa or gift due to the woman divorced both before consummation and before an amount of mahr had been settled, is defined by the classical Hanafi jurists in terms of three items of clothing, the fabric of which depends on the economic position of the husband.”

31. The other Sunni Schools and the Shias regard mataa as something (in addition to her mahr) that the husband is obliged to provide to his wife in every case of divorce by talaq. The fourteenth century Shafi jurist, ibn Katheer (as translated and quoted by Danial Latifi) said of mataa in his commentary on the Qur-an:
Said Abdur Rahman bin Zaid bin Aslam:

“When God revealed the Ayat reasonable provision is due from the kindly (11:236), some said’ if I wish to be kind I may pay and otherwise not’. Then God revealed this Ayat:” And for divorcees reasonable provision is due from the righteous (ii: 241).”

32. And because of l this Ayat a group of scholars hold mataa obligatory in all cases whether of divorce by delegation (talaq-i-tafwid) or of mahr paid or of those divorced before consummation or those [divorced] after consummation. So held Imam Al Shafi.” God bless him and his.”

33. The Board of Islamic Publications, Delhi in “The Meaning of the Qur-an” (Vol.1) translated Ayat 241 thus: Likewise, the divorced woman should also be given something in accordance with the known fair standard. This is an obligation upon the God fearing people.

34. The interveners (for respondent) have ultimately submitted that whatever meaning be attributed to the word Mataa, i.e. maintenance, reasonable provision, suitable gift or whatever, it cannot be denied that the divorced woman is entitled to something after divorce which is an obligation cast upon the husband. Mr. Amirul Islam in particular upon citing some verses from the Holy Qur-an pointed out that as the revealation progressed the treatment to be meted out to divorced woman has been progressively made more equitable, humane and generous. The concept of Mataa therefore has an essential element of equity and humanity. Both Mr Amirul Islam and Syed Ishtiaq Ahmed argued that maintenance for Iddat period only has lost relevance under the Muslim Family Laws Ordinance 1961 because divorce does not become effective until expiration of 90 days as provided under section 7(3) thereof.

35. That Mataa is something to which a divorced woman is entitled and which the former husband is under an obligation to pay seems to follow naturally from the Ayat itself. But the whole question is whether Mataa can be equated with maintenance as has been done by the High Court Division. We shall see whatever be the meaning of Mataa it is certainly not maintenance as can be claimed within the meaning of maintenance under the Family Court Ordinance.

… …

38. The impugned judgment is unique in the sense that it gives no reason whatsoever for completely ignoring all the lessons and learning of fourteen hundred years and undertakes to declare the law upon the claim that “ a Civil Court has the jurisdiction to follow the law as in the Quran disregarding any other law on the subject, if contrary thereto even though laid down by the earlier jurists or commentators may be of great antiquity and high authority and though followed for a considerable period.” And what is this law in the Quran? The learned Judges say—As we find it to mean by giving a literal construction and ordinary meaning to its words and phrases in as much the same way as we interpret an ordinary statue. This is the entire rationale of the impugned judgment.

39. In my opinion, this attitude, saying with respect, is not only legally wrong but morally despicable and, if I may go further verge on sacrilege. The Qur-an is not a legal draftsman’s work, who is guided by Mr Maxwell’s rules of interpretation. The Qur-an was revealed by the Creator of all Maxwells and the person to whom it was revealed is the Maxwell of that sacred Book.

40. The Qur-an has been revealed in Arabic language and its Author says (Arabic) (Sura Yusuf-Ayat-2)

Though Arabic was the common language of the whole of Arabia, it is accepted that the Qur-an was revealed in the dialect of the Quraish of Makkah. True it is that the Quran invites everyone to read it and get guidance and its verses are “easy to understand”. It will be easy to understand for a person who has got command over the Arabic language. It is not necessarily so for a person who is reading Quran in a different language. For example, the import of the word Mataa should be understood in the sense the holy Prophet (Allah’s peace by upon him) and his companions had understood it and not according to later day translations of the said word which are conflicting. The more important point, however, is that a verse of the Quran has to be understood not in isolation, and less with a shallow knowledge of language and certainly not with the interpretative techniques of man-made laws but with the help of first the Prophet’s (Allah’s peace by upon him) teachings and practices and subsequently by the enunciations of Islamic jurists and scholars. The Hamiltons and Baillies did not give their own interpretations but compiled and translated the Muslim law from authorities in the original Arabic which came down from the early days of Islam. Therefore, it will be totally unwise to discard the views of Islamic Jurists and scholars altogether which held the field for centuries and to rely merely upon one’s own reading and understanding of a verse of the Quran for laying down a law on the basis thereof.

41. The learned Judges in doing so took inspiration from a verse in Sura Al Qamar which has been repeated four times in the said Sura and reads thus:
(arabic) … ?

42. Let us see from one of the Tafsirs what has been said by the Mufassirs about the said verse. Mufti Muhammad Shafi (RA) in Tafsire Maa’reful Quran (translated in Bengali by Moulana Mahiuddin Khan) says:

43. In order to invoke the individual’s right to interpret Quran the learned Judges have referred to PLD 1960 Lahore 1142 referred to before. In that case, the learned Judge not only said that in understanding the Quran one can derive valuable assistance from the commentaries written by different learned people of yore, but also stated particularly about practical aspects which the learned Judges of the High Court Division completely missed. It reads:

“Ijtihad or exercise of judgment is a recognised source from which the laws of Islam are drawn……… Ijtihad by a single individual or by a few individuals was considered even by the Muslim Jurists as dangerous. They, therefore, preferred the exercise of the judgment by the consensus of opinion of the majority of the Mujtahids or an agreement of the Muslim Jurists of a particular age on a question of law. It was perhaps correct for the people of that age to confine Ijithad to a few Jurists because knowledge was not imported to other people so freely and so commonly, but at the present time, I think, this duty should be performed by the representatives of the people because as I have already stated the reading, understanding of the Quran and the application of its general principles is not the privilege of one or two persons but a right and a duty of all Muslims which should be exercised by the persons chosen by them for this purpose”.

44. The impugned decision appears to be prima facie ill considered and ill-conceived as it apparently failed to take into consideration riot only the whole conspectus of Muslim law relating to marriage and divorce but even the various other. Ayats on divorce occurring in the same Sura Baqara and Sura At-Talaq and Al Ahjab. The learned Judges held interpreting ‘mataaoon bil maaroof’ in Ayat 241 relying on Yusuf Ali that a divorcee is entitled to maintenance on a reasonable scale till her remarriage. The same phrase ‘mataaoon bill maaroof’ occurs in Ayat 236 which reads:

45. The translation thereof by Yusuf Ali is as follows:

There is no blame on you If ye divorce women Before consummation Or the fixation of their dower; But bestow on them (A suitable gift), The wealthy According to his means, And the poor According to his means: — A gift of a reasonable amount Is due from those Who wish to do the right thing.

It will be seen that the meaning of ‘mataaoon bil maaroof’ given here is—“A gift of a reasonable amount”. How do you then reconcile the two meanings of the same phrase? If the learned Judges are right in their interpretation then there is an obvious conflict between the said two Ayats (Naujubilla hi min Jalik).

46. The opening verses of Sura At Talaq also relate to divorce and consequent provisions and particularly verse No.6 may be referred to which reads: (translation by Yusuf Ali)

Let the women live (In iddat) in the same Style as ye live, According to Your means: Annoy them not, so as to restrict them, And if they carry (life In their wombs), then Spend (your substance) on them Until they deliver Their burden; and if They suckle your (offspring) give them their recompense:

47. It is significant that emphasis has been laid on the period of Iddat and in the opening verse of the said Sura, it has been ordained (translation from Yusuf Ali) Prophet when ye Do divorce women Divorce them at their Prescribed periods And Count (accurately) Their prescribed periods
There is a clear direction in respect of a pregnant woman who has been divorced and the direction is to bear her expenses till she has delivered. In the previous Verse, it has been stated that in the case of a pregnant woman her period of Iddat will be till delivery. It is therefore apparent that the maintenance has been related to the period of Iddat. The interpretation given by the learned Judges is thus apparently in conflict with the aforesaid verse. I am sure the learned Judges will be the last persons to suggest that there are conflicting provisions in the Quran. Allah Almighty, All-knowing proclaims in the Quran:
Arabic (Sura Jumar-Ayat 28)

48. From the above, it is clear that the interpretation given by the learned Judges is not and cannot be acceptable because it brings conflict and even on the general criterion of interpretation as they also would not deny that a document should be read as a whole, the interpretation of the learned Judge must be rejected.

49. Mrs. Rabeya Bhuiyan, learned Counsel for the respondent and some of the interveners supporting the respondent, have referred to some authorities where the word mataa has been interpreted as maintenance, reasonable provision’. They have also quoted from Professor Tahir Mabmood, said to be one of the most eminent scholars of present day India, which, however, does not support the meaning of the word mataa as understood by the learned Judges of the High Court Division. Mrs Bhuiyan submits that Professor Tahir Mahmood in his book ‘Personal Laws in Islamic Countries’, (2nd Ed. 1995) P 261-262 has given examples of different Muslim countries. Mataa has been translated into English as consolatory gift, or ‘compensation’ or ‘indemnity’. Mataa is thus basically different from regular maintenance of the divorcee.

50. There is also a reference to this subject in the written submission of an intervener, Bangladesh Legal Aid and Services Trust, filed in the form of a concise statement. It reads:

That according to Professor Tahir Mahmood (as cited in the forthcoming book titled “Shah Bano and the Muslim Women Act: a Decade on: The right to Divorced Muslim women to mataa”, being published by women living under Muslim Law, for Grabels, France and Bombay, India, 1998 at pp.) a divorced wife is entitled to receive from her former husband what is called mut’a. This concept is referred to in the Qur-an (2:241) and has been rendered into English as ‘consolatory gift’.

51. Extensive reference has been made by the respondent and the interveners supporting her to the application of mataa in different Muslim countries, such as Malaysia, Egypt, Jordan, Syria, Morocco, Lebanon, Algeria, Kuwait, Tunisia, Turkey, North Yemen, etc.

52. The common feature which is to be found in the relevant provisions of all these countries is that mataa has been made a subject of legislation of the respective countries and invariably it has been subjected to certain conditions, namely, where a divorce has been made arbitrarily, without a just cause, etc. Another invariable feature is that mataa was never considered as maintenance but something as a recompense for some blame on the part of the husband. And in no country there is found to be any provision of granting mataa for a lifetime or till remarriage of the divorcee generally. For example, the Malaysian Law provides that a woman who has been divorced without just cause would be paid an amount that is fair and just. A woman who has been arbitrarily divorced by her husband may be awarded, by way of mataa, maintenance of one year in Jordan, two years in Egypt and three years in Syria payable in a lump sum or in instalments depending on the financial condition of the husband. In Tunisia and Turkey a married person, husband or wife, who insists on divorce against the wishes of the other spouse and without his or her fault, can be directed to suitably indemnify the other spouse. So, the wife also may be liable to pay mataa. I think that is very fair and highly equitable.

53. None of the examples cited supports or is anywhere near to the interpretation given in the impugned judgment in any manner. We are not considering a legislative provision granting mataa as a recompense but whether the High Court Division was right in interpreting Ayat 241 (Sura II). Mr Fazlul Karim, learned Advocate, although appeared for an intervener supporting the wife, submitted that the maintenance allowed by the High Court Division till re-marriage was abrupt and without any reason but he supports the provision of maintenance to a divorcee who is unable to maintain herself (as in the India case of Shah Bano).

54. Mrs Bhuiyan submits that although the period of post-divorce maintenance is not definitely agreed upon by all the authorities the fact of the existence of a reasonable provision, mataa, for, women who are divorced irrevocably by their husbands is indisputable. She submits that the decision of the High Court Division, although, prima facie, too wide, is justifiable, equitable and reasonable for the majority of women in our country who are divorced for no fault of their own, who are no longer of marriageable age and whose economic and educational backgrounds compel them to remain dependent on someone for survival. She submits that this Hon’ble Court can qualify the impugned decision and make observation to provide for a fair, just and reasonable provision for a reasonable period to remove the destitution or extreme hardship of such women who are not at fault in appropriate circumstances like the present case.

55. The line taken by the numerous interveners supporting the respondent echoes more or less the argument of Mrs. Bhuiyan with repeated emphasis that it is open to the Court, rather it is the duty of the Court, to give innovative interpretation of the orthodox norms in the light of the changing notions of justice, equity and equality, particularly when it involves maintenance of divorced Muslim wives who are often victims of easy divorce.

56. The question precisely raised in this appeal is not the right of the Court to give interpretation of Muslim law in the light of changing conditions and notions, but whether the High Court Division correctly interpreted Ayat 241 (Sura II) and laid down a correct law setting at naught the age-old Muslim personal law that a divorced woman is entitled to maintenance from her husband during the period of iddat only. The respondent and her supporters could only show that in different Muslim countries legislative provision has been made in accordance with which mataa or recompense has been provided to divorced women under certain circumstances even after the period of iddat. They have, however, not been able to show one instance from any jurisdiction where Ayat 241 has been interpreted to mean that maintenance is to be provided till remarriage. The High Court Division is at least honest to admit that it has not cared for any support for its decision from any authority or precedent. The learned Judges read the words of Ayat 241 and put a meaning to it according to their own wisdom which is unique and first of its kind. For the reasons stated above I feel no hesitation in rejecting their interpretation and in setting aside the resultant decision which automatically falls through.
 … …
70. For the reasons stated above, the appeal is allowed and the impugned judgment and order of the High Court Division are set aside. There will be no order as to costs.

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