Sebelum ujudnya
Undang-Undang Khas yang berjudul The Muslim Women
(Protection of Rights on Divorce) Act 1986 kedudukan
undang-undang keluarga Islam [termasuk mengenai mut’ah] ada ditafsirkan dan
dijelaskan oleh Mahkamah Agung India dalam kes
MOHD AHMED KHAN v SHAH BANO BEGUM & ORS (nama kes ini juga hanya dirujuk atau di
sebut secara ringkas sebagai kes ‘Shah Bano’ sahaja).
Kes Shah Bano ini
menjelaskan bahawa undang-undang yang terpakai di India mengenai pembayaran
oleh suami kepada bekas isterinya yang telah diceraikan adalah tertakluk
sepenuhnya kepada peruntukan seksyen 125 Criminal Procedure Code 1973 (India). Di putuskan oleh Mahkamah Agung dalam kes
ini bahawa Kanun ini adalah merupakan undang-undang umum/am dan dengan itu terpakai
kepada semua orang di India tanpa mengira apajua anutan agama dan kanun ini
juga tiada kaitan hubungan dengan mana-mana undang-undang peribadi/diri
pihak-pihak yang terlibat. Semua pihak/orang adalah sama serta tertakluk kepada
peruntukan kanun tersebut.
Kes Shah Bano itu
juga menafsirkan dan memutuskan bahawa peruntukan seksyen 125 itu adalah selari
pula dengan Hukum Syariat Islam.
Kes Shah Bano ini
banyak dipertikaikan dan diulaskan termasuk di dalam negeri India sendiri.
Komen mengenai alasan penghakiman kes ini akan di kemukakan di posting yang
lain dalam blog ini kelak.
Sebagaimana yang
telah dinyatakan di dalam posting siri 1 kes Shah Bano sebelum ini saya kemukakan
di bawah ini alasan penghakiman kes tersebut oleh Hakim CHANDRACHUD, Y.V.
(CJ).
Selamat membaca.
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| the Supreme Court of India |
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MOHD AHMED KHAN v SHAH BANO BEGUM & ORS [1985] RD-SC 99
(23 April 1985)
The Judgment
of the Court was delivered by CHANDRACHUD, C.J.
This appeal
does not involve any question of constitutional importance but, that is not to
say that it does not involve any question of importance.
Some questions
which arise under the ordinary civil and criminal law are of a far-reaching
significance to large segments of society which have been traditionally
subjected to unjust treatment. Women are one such segment. 'Nastree
swatantramarhati" said Manu, the Law giver: The woman does not deserve
independence. And, it is alleged that the 'fatal 850 point in Islam is the
'degradation of woman'(l). To the Prophet is ascribed the statement,
hopefully wrongly, that 'Woman was made from a crooked rib, and if you try to
bend it straight, it will break; therefore treat your wives kindly.
This appeal,
arising out of an appellation filed by a divorced Muslim woman for maintenance
under section 125 of the Code of Criminal Procedure, raises a straightforward
issue which is of common interest not only to Muslim women, not only to women
generally but, to all those who, aspiring to create an equal society of men and
women, lure themselves into the belief that mankind has achieved a remarkable
degree of progress in that direction.
The appellant,
who is an advocate by profession, was married to the respondent in 1932. Three
sons and two daughters were born of that marriage In 1975, the appellant drove
the respondent out of the matrimonial home. In April 1978, the respondent filed
a petition against the appellant under section 125 of the Code in the court of
the learned Judicial Magistrate (First Class), Indore asking for maintenance at
the rate of Rs 500 per month. On November 6, 1978 the appellant divorced the
respondent by an irrevocable talaq.
His defence to
the respondent's petition for maintenance was that she had ceased to be his
wife by reason of the divorce granted by him, to provide that he was therefore
under no obligation maintenance for her, that he had already paid maintenance
to her at the rate of Rs. 200 per month for about two years and that, he had
deposited a sum of Rs. 3000 in the court by way of dower during the period the
of iddat.
In August,
1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25
per month to the respondent by way of maintenance. It may be mentioned that the
respondent had alleged that the appellant earns a professional income of about
Rs. 60,000 per year. In July, 1980, in a revisional application filed by the
respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance
to Rs. 179.20 per month. The husband is before us by special leave.
Does the
Muslim Personal Law impose no obligation upon the husband to provide for the
maintenance of his divorced wife?
Undoubtedly,
the Muslim husband enjoys the privilege of being (1) 'Selections from
Kuran'-Edward William Lane 1843, Reprint 1982, page xc (Introduction) able to
discard his wife whenever he chooses to do so, for reasons good, bad or indifferent.
Indeed, for no reason at all. But, is the only price of that privilege the dole
of a pittance during the period of iddat? And, is the law so ruthless in its
inequality that, no matter how much the husband pays for the maintenance of his
divorced wife during the period of iddat, the mere fact that he has paid
something, no matter how little, absolves him forever from the duty of paying
adequately so as to enable her to keep her body and soul together? Then again,
is there any provision in the Muslim Personal Law under which a sum is payable
to the wife 'on divorce’? These are some of the important, though agonising,
questions which arise for our decision.
The question
as to whether section 125 of the Code applies to Muslims also is concluded by
two decisions of this Court which are reported in Bai Tahira v. Ali Hussain
Fidalli Chothia (1) and Fazlunbi v. K. Khader Vali. (2)
These decisions took the view that the divorced Muslim wife is entitled to
apply for maintenance under section 125.
But, a Bench
consisting of our learned Brethren, Murtaza Fazal Ali and A. Varadarajan, JJ.
were inclined to the view that those cases are not correctly decided.
Therefore, they referred this appeal to a larger Bench by an order dated
February 3, 1981, which reads thus:
"As this case involves substantial
questions of law of far-reaching consequences, we feel that the decisions of
this Court in Bai Tahira v. Ali Hussain Fidaalli Chothia & Anr and
Fuzlunbi v. K. Khader Vali & Anor. require reconsideration because, in
our opinion, they are not only in direct contravention of the plain and an
unambiguous language of s. 127(3)(b) of the Code of Criminal Procedure, 1973
which far from overriding the Muslim Law on the subject protects and applies
the same in case where a wife has been divorced by the husband and the dower
specified has been paid and the period of iddat has been observed. The decision
also appear to us to be against the fundamental concept of divorce by the
husband and its consequences (1) 1979 (2) SCR 75 (2) 1980 (3) SCR 1127 852
under the Muslim law which has been expressly protected by s. 2 of the Muslim
Personal Law (Shariat) Application Act, 1937 - an Act which was not noticed by
the aforesaid decisions. We, therefore, direct that the matter may be placed
before the Honorable Chief Justice for being heard by a larger Bench consisting
of more than three Judges. "
Section 125 of
the Code of Criminal Procedure which deals with the right of maintenance reads
thus:
"Order
for maintenance of wives, children and parents”
125. (1) If any person having sufficient
means neglects or refuses to maintain-
(a) his wife, unable to maintain herself,
(b)...
(c)...
(d)...
a Magistrate of the first class may, upon
proof of such neglecter refusal, order such person to make a monthly allowance
for the maintenance of his wife .. at such monthly rate not exceeding five
hundred rupees in the whole as such Magistrate think fit
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 has not
remarried.
(2) ... .
(3) If any person so ordered fails without
sufficient cause to comply with the order, any such Magistrate may, for every
breach of the order, issue a warrant for levying the amount due in the manner
provided for levying fines, and may sentence such person, for the whole or any
part of each month's allowance remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extend to one month or until
payment if sooner made:
Provided......
Provided further that if such person
offers to maintain his wife on condition of her living with him and she refuses
to live with him, such Magistrate may consider any grounds of refusal stated by
her, and may make an order under this section notwithstanding such offer, if he
is satisfied that there is just ground for so doing.
Explanation - If a husband has contracted
marriage with another woman or keeps a mistress, it shall be considered to be
just ground for his wife's refusal to live with him."
Section 127 (3)
(b), on which the appellant has built up the edifice of his defence reads thus:
"Alteration
in allowance 127.
(1).....
(2)......
(3) Where any order has been made under
section 125 in favour of a woman who has been divorced by, or has obtained a
divorce from her husband, the Magistrate shall, if he is satisfied that –
(a).....
(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."
Under section
125 (1) (a), a person who, having sufficient means, neglects or refuses to
maintain his wife who is unable to maintain herself, can be asked by the
court to pay a monthly maintenance to her at a rate not exceeding Five Hundred
rupees.
By clause (b)
of the Explanation to section 125 (1), 'wife' includes a divorced woman who has
not remarried. These provisions are too clear and precise to admit of any doubt
or refinement.
The religion
professed by a spouse or by the spouses has no place in the scheme of these
provisions. Whether the spouses are Hindus or Muslims, Christians or Parsis,
pagans or heathens, is wholly irrelevant in the application of these
provisions. The reason for this is axiomatic, in the sense that section 125 is
a part of the Code of Criminal Procedure, not of the Civil Laws which define
and govern The rights and obligations of the parties belonging to particular,
religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the
Parsi Matrimonial Act.
Section 125
was enacted in order to provide a quick and summary remedy to a class of
persons who are unable to maintain themselves. What difference would it then make as to what is the religion professed
by the neglected wife, child or parent? Neglect by a person of sufficient means
to maintain these and the inability of these persons to maintain themselves are
the objective criteria which determine the applicability of section 125. Such
provisions, which are essentially of a prophylactic nature, cut across the
barriers of religion.
True, that
they do not supplant the personal law of the parties but, equally the religion
professed by the parties or the state of the personal law by which they are
governed, cannot have any repercussion on the applicability of such laws
unless, within the framework of the Constitution, their application is
restricted to a defined category of religious groups or classes. The liability
imposed by section 125 to maintain close relatives who are indigent is founded
upon the individual's obligation to the society to prevent vagrancy and
destitution. That is the moral edict of the law and morality cannot be clubbed
with religion.
Clause (b) of
the Explanation to section
125(1), which defines 'wife' as including a divorced wife, contains no words
of limitation to justify the exclusion of Muslim women from its scope.
Section 125 is
truly secular in character.
Sir James Fitz
James Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal
Member of the Viceroy's Council, described the precursor of Chapter IX of the
Code in which section 125 occurs, as 'a mode of preventing vagrancy or at least
of preventing its consequences.
In Jagir Kaur
v Jaswont Singh1964 (2) SCR 73, 84 Subba Rao, J. speaking for the Court
said that Chapter XXXVI of the Code of 1898 which contained section 488,
corresponding to section 125, "intends to serve a social purpose".
In Nanak
Chand v Shri Chandra Kishore Agarwala 1970 (l) S CR 565 Sikri, J., while
pointing out that the scope of the Hindu Adoptions and Maintenance Act, 1956 and
that of section 488 was different, said that section 488 was "applicable
to all persons belonging to all religions and has no relationship with the
personal law of the parties".
Under section
488 of the Code of 1898, the wife's right to maintenance depended upon the
continuance of her married status. Therefore, that. right could be defeated by
the husband by divorcing her unilaterally as under the Muslim Personal Law, or
by obtaining a decree of divorce against her under the other systems of law.
It was in
order to remove this hardship that the Joint Committee recommended that the
benefit of the provisions regarding maintenance should be, extended to a
divorced woman, so long as she has not remarried after the divorce. That is the
genesis of clause (b) of the Explanation to section 125(1), which provides that
'wife' includes a woman who has been divorced by, or has obtained a divorce
from her husband and has not remarried. Even in the absence of this provision,
the courts had held under the Code of 1898 that the provisions regarding
maintenance were independent of the personal law governing the parties. The
induction of the definition of 'wife, so as to include a divorced woman lends
even greater weight to that.
Conclusion.
'Wife' means a
wife as defined, irrespective of the religion professed by her or by her
husband. Therefore, a divorced Muslim woman, so long as she has not remarried,
is a 'wife' for the purpose of section 125. The statutory right available to
her under that section is unaffected by the provisions of the personal law
applicable to her.
The conclusion
that the right conferred by section 125 can be exercised irrespective of the
personal law of the parties is fortified, especially in regard to Muslims, by
the provision contained in the Explanation to the second proviso to section
125(3) of the Code. That proviso says that if the husband offers to maintain
his wife on condition that she should live with him, and she refuses to live
with him, the Magistrate may consider any grounds of refusal stated by her, and
may make an order of maintenance notwithstanding the offer of the husband, if
he is satisfied that there is a just ground for passing such an order.
According to the Explanation to the proviso:
"If a husband has contracted marriage
with another woman or keeps a mistress, it shall be considered to be just
ground for his wife's refusal to live with him."
It is too
well-known that "A Mahomedan may have as many as four wives at the same
time but not more. If he marries a fifth wife when he has already four, the
marriage is not void, but merely irregular" (see Mulla's Mahomedan
Law,18th Edition, paragraph 25S, page 285, quoting Baillie's Digest of
Moohummudan Law; and Ameer Ali's Mahomedan Law, 5th Edition, Vol. II, page
280). The explanation confers upon the wife the right to refuse to live with
her husband if he contracts another marriage, leave alone 3 or 4 other
marriages. It shows, unmistakably, that section 125 overrides the personal law,
if is any there conflict between the two.
The whole of
this discussion as to whether the right conferred by section 125 prevails over
the personal law of the parties, has proceeded on the assumption that there is
a conflict between the provisions of that section and those of the Muslim
Personal Law.
The argument
that by reason of section 2 of the Shariat Act, XXVI of 1937, the rule of
decision in matters relating, inter alia, to maintenance "shall be the
Muslim Personal Law" also proceeds upon a similar assumption. We embarked
upon the decision of the question of priority between the Code and the Muslim
Personal Law on the assumption that there was a conflict between the two
because, in so far as it lies in our power, we wanted to set at rest, once for
all, the question whether section 125 would prevail over the personal law of
the parties, in cases where they are in conflict.
The next
logical step to take is to examine the question, on which considerable argument
has been advanced before us, whether there is any conflict between the
provisions of section 125 and those of the Muslim Personal Law on the liability
of the Muslim husband to provide for the maintenance of his divorced wife.
The contention
of the husband and of the interveners who support him is that, under the Muslim
Personal Law, the liability of the husband to maintain a divorced wife is
limited to the period of iddat. In support of this proposition, they rely upon
the statement of law on the point contained in certain text books. In Mulla's
Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the
effect that, "After divorce, the wife is entitled to maintenance during
the period of iddat". At page 302, the learned author says: - 'Where an
order is made for the maintenance of a wife under section 488 of the Criminal
Procedure Code and the wife is afterwards divorced, the order ceases to operate
on the expiration of the period of iddat.
The result is
that a Mahomedan may defeat an order made against him under section 488 by
divorcing his wife immediately after the order is made. His obligation to
maintain his wife will cease in that case on the completion of her iddat,"
Tyabji's Muslim law (4th Edition, para 304, pages 268- 269) contains the
statement that:
"On the expiration of the iddat after
talaq, the wife's right to maintenance ceases, whether based on the Muslim Law,
or on an order under the Criminal Procedure Code-"
According to
Dr Paras Diwan:
"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." (Muslim Law in Modern India, 1982 Edition, page 130).
These
statements in the text book are inadequate to establish the proposition that
the Muslim husband is not under an obligation to provide for the maintenance of
his divorced wife, who is unable to maintain herself. One must have regard to
the entire conspectus of the Muslim Personal Law in order to determine the
extent both, in quantum and induration, of the husband's liability to provide
for the maintenance of an indigent wife who has been divorced by him. Under
that law, the husband is bound to pay Mahr to the wife as a mark of respect to
her. True, that he may settle any amount he likes by way of dower upon his
wife, which cannot be less than 10 Dirhams, which is equivalent to three or
four rupees (Mulla's Mahomedan Law, 18th Edition, para 286, page 308). But, one
must have regard to the realities of life Mahr is a mark of respect to the
wife. The sum settled by way of Mahr is generally expected to take care of the
ordinary requirements of the wife, during the marriage and after. But these
provisions of the Muslim Personal Law do not countenance cases in which the
wife is unable to maintain herself after the divorce. We consider it not only
incorrect but unjust, to extend the scope of the statements extracted above to
cases in which a divorced wife is unable to maintain herself.
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. That section deals with cases in
which, a person who is possessed of sufficient means neglects or refuses to
maintain, amongst others, his wife who is unable to maintain herself. Since the
Muslim Personal Law, which limits the husband's liability to provide for the
maintenance of the divorced wife to the period of iddat, does not contemplate
or countenance the situation envisaged by section 125, it would be wrong to
hold that the Muslim husband, according to his personal law, is not under all
obligation to provide maintenance, beyond the period of iddat, to his divorced
wife who is unable to maintain herself.
The argument
of the appellant that, according to the Muslim Personal Law, his liability to
provide for the maintenance of his divorced wife is limited to the period of
iddat, despite the fact she is unable to maintain herself, has therefore to be
rejected.
The true
position is that, if the divorced wife is able to maintain herself, the
husband's liability to provide maintenance for her ceases with the expiration
of the period of iddat. If she is unable to maintain herself, she is entitled
to take recourse to section 125 of the Code.
The outcome of
this discussion is that there is no conflict between the provisions of section
125 and those of the Muslim Personal Law on the question of the Muslim
husband's obligation to provide maintenance for a divorced wife who is unable
to maintain herself.
There can be
no greater authority on this question than the Holy Quran, "The Quran, the
Sacred Book of Islam, comprises in its 114 Suras or chapters, the total of
revelations believed to have been communicated to Prophet Muhammed, as a final
expression of God's will". (The Quran- Interpreted by Arthur J. Arberry).
Verses (Aiyats) 241 and 242 of the Quran show that according to the Prophet,
there is an obligation on Muslim husbands to provide for their divorced wives.
The Arabic version of those Aiyats and their English translation are reproduced
below:
Arabic version English version Ayat No.
241 For divorced women WA LIL MOTALLAQATAY Maintenance (should be MATAUN
Provided) BIL MAAROOFAY On a reasonable (Scale) HAQQAN This is a duty ALAL
MUTTAQEENA On the righteous.
Ayat No. 242 KAZALEKA YUBAIYYANULLAHO Thus
doth God 860 LAKUM AYATEHEE LA ALLAKUM Make clear His Signs TAQELOON To you: in
order that ye may understand.
(See 'The Holy Quran' by Yusuf Ali, Page
96).
The
correctness of the translation of these Aiyats is not in dispute except that,
the contention of the appellant is that the word 'Mata' in Aiyat No. 241
means 'provision' and not 'maintenance'. That is a distinction without a
difference. Nor are we impressed by the shuffling plea of the All India Muslim
Personal Law Board that, in Aiyat 241, the exhortation is to the' Mutta
Queena', that is, to the more pious and the more God-fearing, not to the
general run of the Muslims, the 'Muslimin'. In Aiyat 242, the Quran says:
"It is expected that you will use your common sense".
The English
version of the two Aiyats in Muhammad Zafrullah Khan's 'The Quran' (page 38)
reads thus:
"For divorced women also there shall
be provision according to what is fair. This is an obligation binding on the
righteous. Thus does Allah make His commandments clear to you that you may
understand."
The
translation of Aiyats 240 to 242 in 'The Meaning of the Quran' (Vol. I,
published by the Board of Islamic Publications, Delhi) reads thus .
"240-241. Those of you, who shall die
and leave wives behind them, should make a will to the effect that they should
be provided with a year's maintenance and should not be turned out of their
homes. But if they leave their homes of their own accord, you shall not be
answerable for whatever they choose for themselves in a fair way;
Allah is All Powerful, All-wise. Likewise,
the divorced women should also be given something in accordance with the known
fair standard. This is an obligation upon the God-fearing people.
242. A Thus Allah makes clear His
commandments for you: It is expected that you will use your common sense."
In "The
Running Commentary of The Holy Quran" (1964 Edition) by Dr. Allamah Khadim
Rahmani Nuri, Aiyat No. 241 is translated thus:
"241 And for the divorced woman
(also) a provision (should be made) with fairness (in addition to her dower);
(This is) a duty (incumbent) on the reverent."
In "The
Meaning of the Glorious Quran, Text and Explanatory Translation", by
Marmaduke Pickthall, (Taj Company Ltd.,karachi), Aiyat 241 is translated thus:
'241. For divorced women a provision in
kindness: A duty for those who ward off (evil)."
Finally, in
"The Quran Interpreted" by Arthur J Arberry. Aiyat 241 is translated
thus:
"241. There shall be for divorced
women provision honourable-an obligation on the god fearing." So God makes
clear His signs for you: Happily you will understand."
Dr. K.R. Nuri
in his book quoted above: 'The Running Commentary of the Holy Quran", says
in the preface:
"Belief in Islam does not mean mere
confession of the existence of something. It really means the translation of
the faith into action. Words without deeds carry no meaning in Islam. Therefore
the term "believe and do good" has been used like a phrase all over
the Quran.
Belief in something means that man should
inculcate the qualities or carry out the promptings or guidance of that thing
in his action. Belief in Allah means that besides acknowledging the existence
of the Author of the Universe, we are to show obedience to His
commandments..."
These Aiyats
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 teaching of the Quran. As observed by
Mr. M. Hidayatullah in his introduction to Mulla's Mahomedan Law, the Quran is
Al-furqan' that is one showing truth from falsehood and right from wrong.
The second
plank of the appellant's argument is that the respondent's application under
section 125 is liable to be dismissed because of the provision contained in
section 127 (3) (b). That section provides, to the extent material, that the
Magistrate shall cancel the order of maintenance, if the wife is divorced by
the husband and, she has received "the whole of the sum which, under any
customary or personal law applicable to the parties, was payable on such
divorce".
That raises
the question as to whether, under the Muslim Personal law, any sum is payable
to the wife 'on divorce'.
We do not have
to grope in the dark and speculate as to which kind of a sum this can be
because, the only argument advanced before us on behalf of the appellant and by
the interveners supporting him, is that Mahr is the amount payable by the
husband to the wife on divorce. We find it impossible to accept this argument.
In Mulla's
principles of Mahomedan Law (18th Edition, page 308), Mahr or Dower is defined
in paragraph 285 as "a sum of money or other property which the wife is
entitled to receive from the husband in consideration of the marriage."
Dr. Paras
Diwan in his book, "Muslim Law in Modern India" (1982 Edition, page
60), criticises this definition on the ground that Mahr is not payable "in
consideration of marriage" but is an obligation imposed by law on the
husband as a mark of respect for the wife, as is evident from the fact that
non-specification of Mahr at the time of marriage does not affect the validity
of the marriage.
We need not
enter into this controversy and indeed, Mulla`s book itself contains the
further statement at page 308 that the word 'consideration' is not used in the
sense in which it is used in the Contract Act and that under the Mohammedan
Law, Dower is an obligation imposed upon the husband as a mark of respect for
the wife.
We are
concerned to find is whether Mahr is an amount payable by the husband to the
wife on divorce.
Some confusion
is caused by the fact that, under the Muslim Personal Law, the amount of Mahr
is usually split into two parts, one of which is called "prompt",
which is payable on demand, and the other is called "deferred", which
is payable on the dissolution of the marriage by death or by divorce. But, the
fact that deferred Mahr is payable at the time of the dissolution of marriage,
cannot justify the conclusion that it is payable 'on divorce'. Even assuming
that, in a given case, the entire amount of Mahr is of the deferred variety
payable on the dissolution of marriage by divorce, it cannot be said that it is
an amount which is payable on divorce. Divorce may be a convenient or
identifiable point of time at which the deferred amount has to be paid by the
husband to the wife. But, the payment of the amount is not occasioned by the
divorce, which is what is meant by the expression 'on divorce', which occurs in
section 127 (3) (b) of the Code. If Mahr is an amount which the wife is
entitled to receive from the husband is consideration of the marriage, that is
the very opposite of the amount being payable in consideration of divorce.
Divorce
dissolves the Marriage. Therefore no amount which is payable in consideration
of the marriage can possibly be described as an amount payable in consideration
of divorce.
The
alternative premise that Mahr is an obligation imposed upon the husband as a
mark of respect for the wife, is wholly detrimental to the stance that it is an
amount payable to the wife on divorce. A man may marry a woman for love, looks,
learning or nothing at all. And. he may settle a sum upon her as a mark of
respect for her. But he does not divorce her as a mark of respect. Therefore, a
sum payable to the wife out of respect cannot be a sum payable 'on divorce'.
In an appeal
from a Full Bench decision of the Allahabad High Court, the Privy Council in Hamira
Bibi v Zubaide Bibi 43 1.A. 294 summed up the nature and character of Mahr
in these words:
"Dower is an essential incident under
the Muslim Law to the status of marriage; to such an extent that is so that
when it is unspecified at the time the marriage is contracted, the law declares
that it must be adjudged on definite principles. Regarded as a consideration
for the marriage, it is, in theory, payable before consummation; but the law
allows its division into two parts, one of which is called "prompt"
payable before the wife can be called upon to enter the conjugal domicil; the
other "deferred", payable on the dissolution of the contract by the
death of either of the parties or by divorce." (p. 300-301)
This statement
of law was adopted in another decision of the Privy Council in Syed Sabir
Husain v Farzand Hasan 65 I.A. 119, 127. It is not quite appropriate and
seems invidious to describe any particular Bench of a court as
"strong" but, we cannot resist the temptation of mentioning that Mr.
Syed Ameer Ali was a party to the decision in Hamira Bibi while Sir
Shadi Lal was a party to the decision in Syed Sabir Husain. These
decisions show that the payment of dower may be deferred to a future date as,
for example, death or divorce. But, that does not mean that the payment of the
deferred dower is occasioned by these events.
It is
contended on behalf of the appellant that the proceedings of the Rajya Sabha
dated December 18, 1973 (volume 86, column 186), when the bill which led to the
Code of 1973 was on the anvil, would show that the intention of the Parliament
was to leave the provisions of the Muslim Personal Law untouched. In this
behalf, reliance is placed on the following statement made by Shri Ram Niwas
Mirdha, the then Minister of State, Home Affairs:
"Dr. Vyas very learnedly made certain
observations that a divorced wife under the Muslim law deserves to be treated
justly and she should get what is her equitable or legal due. Well, I will not
go into this, but say that we would not like to interfere with the customary
law of the Muslims through the Criminal Procedure Code. If there is a demand
for change in the Muslim Personal Law, it should actually come from the Muslim
Community itself and we should wait for the Muslim public opinion on these
matters to crystallise before we try to change this customary right or make
changes in their personal law. Above all, this is hardly, the place where we
could do so. But as I tried to explain, the provision in the Bill is an advance
over the previous situation.
Divorced women have been included and
brought within the admit of clause 125, but a limitation is being imposed by
this amendment to clause 127, namely, that the maintenance orders would ceases
to operate after the amounts due to her under the personal law are paid to her.
This is a healthy compromise between what has been termed a conservative
interpretation of law or a concession to conservative public opinion and
liberal approach to the problem. We have made an advance and not tried to
transgress what are the personal rights of Muslim women. So this, I think,
should satisfy Hon. Members that whatever advance we have made is in the right
direction and it should be welcomed."
lt does appear
from this speech that the Government did not desire to interfere with the
personal law of the Muslim through the Criminal Procedure Code. It wanted the
Muslim community to take the lead and the Muslim public opinion to crystallise
on the reforms in their personal law.
However, we do
not concerned with the question whether the Government did not desire to bring
about changes in the Muslim Personal Law by enacting sections 125 and 127 of
the Code.
As we have
said earlier and, as admitted by the Minister, the Government did introduce
such a change by defining the expression 'wife' to include a divorced wife. It
also introduced another significant change by providing that the fact that the
husband has contracted marriage with another woman is a just ground for the
wife's refusal to live with him. The provision contained in section 127 (3) (b)
may have been introduces because of the misconception that dower is an amount
payable "on divorce". But, that cannot convert an amount payable as a
mark of respect for the wife into an amount payable on divorce.
It must follow
from this discussion, unavoidably a little too long, that the judgments of this
Court in Bai Tahira (Krishna Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi
(Krishna Iyer, J.,) one of us, Chinnappa Reddy J. and A. P. Sen J.) are
correct. Justice Krishna Iyer who spoke for the Court in both these cases,
relied greatly on the teleological and schematic method of interpretation so as
to advance the purpose of the law. These constructional techniques have their
own importance in the interpretation of statutes meant to ameliorate the
conditions of suffering sections of the society.
We have
attempted to show that taking the language of the statute as one finds it,
there is no escape from the conclusion that a divorced Muslim wife is entitled
to apply for maintenance under section 125 and that, Mahr is not a sum which,
under the Muslim Personal Law, is payable on divorce.
Though Bai
Tahira was correctly decided, we would like, respectfully, to draw
attention to an error which has crept in the judgement There is a statement at
page 80 of the report, in the context of section 127 (3) (b), that
"payment of Mahr money, as a customary discharge, is within the cognizance
of that provision". We have taken the view that Mahr, not being payable on
divorce, does not fall within the meaning of that provision.
It is a matter
of deep regret that some of the interveners who supported the appellant, took
up an extreme position by displaying an unwarranted zeal to defeat the right to
maintenance of women who are unable to maintain themselves.
The written
submissions of the All India Muslim Personal Law Board have gone to the length
of asserting that it is irrelevant to inquire as to how a Muslim divorce should
maintain herself. The facile answer of the Board is (that the Personal Law has
devised the system of Mahr to meet the requirements of women and if a woman is
indigent, she must look to her relations, including nephew and cousins, to support
her. This is a most unreasonable view of law as well as life.
We appreciate
that Begum Temur Jehan, a social worker who has been working in association
with the Delhi City Women's Association for the uplift of Muslim women,
intervened to support Mr. Daniel Latifi who appeared on behalf of the wife It
is also a matter of regret that Article 44 of our Constitution has remained a
dead letter. It provides that "The State shall endeavour to secure for the
citizens a uniform civil code throughout the territory of India".
There is no
evidence of any official activity for framing a common civil code for the
country. A belief seems to have gained ground that it is for the Muslim
community to take a lead in the matter of reforms of their personal law. A
common Civil Code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies. No community is
likely to bell the cat by making gratuitous concessions on this issue. It is
the State which is charged with the duty of securing a uniform civil code for
the citizens of the country and, unquestionably, it has the legislative
competence to do so. A counsel in the case whispered, somewhat audibly, that
legislative competence is one thing, the political courage to use that
competence is quite another. We understand the difficulties involved in
bringing persons of different faiths and persuasions on a common platform But,
a beginning has to be made if the Constitution is to have any meaning.
Inevitably,
the role of the reformer has to be assumed by the courts because, it is beyond
the endurance of sensitive minds to allow injustice to be suffered when it is
so palpable. But piecemeal attempts of courts to bridge the gap between
personal Laws cannot take the place of a common Civil Code. Justice to all is a
far more satisfactory way of dispensing justice than justice from case to case.
Dr. Tahir
Mahmood in his book 'Muslim Personal Law' (1977 Edition, pages 200-202), has
made a powerful plea for framing a uniform Civil Code for all citizens of
India. He says: "In pursuance of the goal of secularism, the State must
stop administering religion based personal laws". He wants the lead to
come from the majority community but, we should have thought that, lead or no
lead, the State must act. It would be useful to quote the appeal made by the
author to the Muslim community:
"Instead of wasting their energies in
exerting theological and political pressure in order to secure an
"immunity" for their traditional personal law from the state`
legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating
how the true Islamic laws, purged of their time-worn and anachronistic
interpretations, can enrich the common civil code of India."
At a Seminar
held on October 18, 1980 under the auspices of the Department of Islamic and
Comparative Law, Indian Institute of Islamic Studies New Delhi, he also made an
appeal to the Muslim community to display by their conduct a correct
understanding of Islamic concepts on marriage and divorce (See Islam and
Comparative Law Quarterly, April-June, 1981, page 146).
Before we conclude,
we would like to draw attention to the Report of the Commission on marriage and
Family Laws, which was appointed by the Government of Pakistan by a Resolution
dated August 4, 1955.
The answer of
the Commission to Question No.5 (page 1215 of the Report) is that
"a large number of middle-aged women
who are being divorced without rhyme or reason should not be thrown on the
streets without a roof over their heads and without any means of sustaining
themselves and their children."
The Report
concludes thus:
"In the words of Allama Iqbal,
"the question which is likely to confront Muslim countries in the near
future, is whether the law of Islam is capable of evolution-a question which
will require great intellectual effort, and is sure to he answered in the
affirmative "
For these
reasons, we dismiss the appeal and confirm the judgment of the High Court. The
appellant will pay the costs of the appeal to respondent 1, which we quantify
at rupees ten thousand. It is needless to add that it would be open to the
respondent to make an application under section 127 (1) of the Code for
increasing the allowance of maintenance granted to her on proof of a change in
the circumstances as envisaged by that section.
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