: Muslim Personal Law-Concept of
divorce-Whether, on the pronounccments of "talaq" and on the expiry
of the period of iddat a divorced wife ceases to be a wife. Code of Criminal
Procedure Code, 1973 (Act II of 1974) Sections 125(1) (a) and Explanation (b)
thereunder, Section 125 (3) and the Explanation, under the proviso thereto and
section 127 (3) (b), scope and interpretation of-Correctness of three Judges.'
Bench decision reported in (1979) 2 SCR 75 and (1980) 3 SCR 1127 to the effect
that section 125 of the code applies to Muslims and divorced Muslim wife is
entitled to maintenance-Whether there is any conflict between the provisions of
section 125 and that of the Muslim Personal Law on the liability of the Muslim
husband to provide for the maintenance of his divorced wife.
Code of Criminal Procedure, 1973,
section 127 (3) (b) read with section 2 of the Shariat Act XXVI of 1937-Whether
section 127 (3) (b) debars payment of maintenance to a divorced wife, once the
Mahar or dower is paid-Whether the liability of the husband to maintain a
divorced wife is limited to the period of "iddat"
Nature of Mahr or dower-Whether
Mehr is maintenance.
HEADNOTE: Under section 125 (1) (a), if any person, having
sufficient means neglects or refuses to maintain his wife, unable to maintain
herself, a Magistrate of the first class may, upon proof of such neglect or
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.
Under Explanation (b) thereunder ' wife" includes a woman who has been
divorced by, or has obtained a divorce from her husband and has not remarried.
Under the explanation below sub section 3 of section 125, if a husband has
contracted marriage with another woman or keeps a mistress it shall be
considered to be a just ground for his wife's refusal to live with him. Keeping
this in view, if in the trial arising out of 845
an application made under section 125, and if the
husband offers to maintain his wife on condition of living with him, the
Magistrate may consider any of the grounds of the wife's refusal to live with
her husband before ordering the maintenance. Under section 127 (3) (b), the
Magistrate shall cancel the order passed by him under section 125, in favour of
a woman who has been divorced by, or has obtained a divorce from her husband if
the woman who has been divorced by her husband 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.
The appellant. who is an advocate by profession
was married to the respondent in 1932. Three ions 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 of Criminal Procedure, in the Court of
the Judicial Magistrate (First class) Indore
Cont….
\\2//
also and that therefore, the divorced Muslim
wife is entitled to apply for maintenance was doubted, by the Bench consisting
of Fazal Ali and Varadarajan, JJ., since in their opinion the said decisions
required reconsideration by a larger Bench consisting of more than three judges
as the decisions are not only in direct contravention of the plain and
unambiguous language of section 127 (3) (b) of the Code 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 but also militates against the
fundamental concept of divorce by the husband and its consequences under the
Muslim law which has been expressly protected by section 2 of the Muslim
Personal Law (Shariat) Application Act, 1937-an Act which was not noticed in
the said two decisions.
Dismissing the appeals, the Court Held: (Per Chandrachud,
C. J.)
1. The Judgments of the Supreme Court in Bai Tahira (Krishna
lyer, J., Tulzapurkar, J. and Pathak, J.) and Fazlunbi (Krishna pyer, J, Chinnappa
846
Reddy, J. and A.P. Sen, J.) are
correct, except to the extent that the statement at page 80 of the report in
Bal Tahira made in the context of section 127 (3) (b) namely, "payment of
Mahr money, as a customary discharge is within the cognizance of that
provision". Justice Krishna Lyre who spoke for the Court in both these
cases, relied greatly on the teleological and schematic method of
interpretation 90 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.A divorced
Muslim wife is, therefore, entitled to apply for maintenance under section 125
of the Code. [865H, 866A-C]
2.1 Clause (b) of the Explanation
to section 125 (1) of the Code, which defines "wife" as including a
divorced wife, contains no words of limitation to justify the exclusion of
Muslim women from its scope. 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 married, is a wife for the purpose of section 125.
[855A-B: 854B]
2.2 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 re married after the divorce. That is the genesis of
clause (b) of the Explanation to section 125 (I). Section 125 of the Code is
truly secular in character. Section 125 was enacted in order to provide a quick
and summary remedy to a class of persons who are unable to maintain themselves.
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 relations, like
the Hindu Adoptions and Maintenance Act, The Shariat, or the Parsi Matrimonial
Act. It would make no difference as to what ii the religion professed by the
neglected wife, child or parent. [834D-E: 855E-G]
2.3 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 indi- 847 Cont….
viduals' obligation
to the society t a prevent vagrancy and destitution. That is the moral edict of
the law and morality cannot be clubbed With relation.
[834G-Hl
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. The
explanation confers upon the wife the right to refuse to live with her husband
if he contracts another marriage leave alone, three or four other marriages,
which a Mohammedan may have under the Islamic law. Further it shows
unmistakably, that section 125 overrides the personal law, if there is any
conflict between the two [836B-C,F-G]
Jagir Kaur v. Jaswant Singh, [1964] 2 SCR 73,84, Nanak Chand v. Shri
Chandra Kishore Agarwala, 11970] I SCR 56C applied.
3.1 The contention that,
according to Muslim Personal Law the husband's liability to provide for the
maintenance of his divorced wife is limited to the period of iddat. despite the
fact that she is unable to maintain herself cannot be accepted, since that law
does not contemplate or countenance the situation envisaged by section 125 of
the Code. Whether a husband is liable to maintain his wife, which includes a
divorced wife, in all circumstances, and at all events is not the subject
matter of section 125. Section 125 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. [838H, 851A-B]
3.2 One must have regard to the
entire conspectus of the Muslim Personal Law in order to determine the extent,
both in quantum and in duration, 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. 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. The application of those statements of
law to the contrary in text-books on Muslim 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. [858D-G]
3.3 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. Thus 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
848
who is unable to maintain
herself. Aiyat No. 241 and 242 of 'the Holy Koran' fortify that the Holy Koran
imposed 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 Koran. [859C-D; 862C-D]
3.4 Mahr is not
the amount payable by the husband to the wife on divorce and therefore, does
not fall within the meaning of section 127 (3) (b) of the Code and the facile
answer of the All India Muslim Law Board 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 nephews and cousins, to support her
is a most unreasonable view of law as well as of life. [863E-F, 866E-F]
Cont….
3.5 It is true 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 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.
[863B-D]
3.6 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 in 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'. Thus, the payment of Mahr 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. [863D-G]
Similarly, the provision
contained in section 127 (3) (b) may have been introduced because of the
misconception that dower is an amount payable 'on divorce.' But, that again
cannot convert an amount payable as a mark of respect for the wife into an
amount payable on divorce. [863H] Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal
294; Syed Sabir Hussain v. Farzand Hasan, 65 Indian Appeal 119 and 127 referred
to.
849
OBSERVATION
(Article 44 of our Constitution
has remained a dead letter. There is no evidence of any official activity for
framing a common civil code for the country.A common Civil Code will help the
cause of national integration by removing disparate loyalties to laws which
have conflicting ideologies. It is the State which incharged 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 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.)
JUDGMENT:
CRIMINAL APPELLATE
JURISDICTION: Criminal Appeal No. 103 of 1981.
From the Judgment and Order
dated 1. 7. 1980 of the Madhya Pradesh High Court in Crl. Revision No. 320 of
1979. P. Govindan Nair, Ashok Mahajan, Mrs. Kriplani, Ms. Sangeeta and S.K
Gambhir for the Appellant. Danial Latifi Nafess Ahmad Siddiqui, S.N. Singh and
T.N.Singh for the Respondents.
Mohd. Yunus Salim and Shakeel
Ahmed for Muslim Personal Law Board.
S.T. Desai and S.A.
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
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
851
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 for ever 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) andFazlunbi
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 Vnli & Anr. 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)..... .
853
(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, 854
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
855
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 FitzJames 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 Singh,(1) 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.(2) 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 1&98 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
(1) 1964 (2) SCR 73, 84.
(2) 1970 (l) S CR 565.
856
conclusion. 'Wife' means a
wife as defined, irrespective of the religion professed by her or by her
husband. Therefor, 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 not with
standing 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,
857
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
858
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 Dir hams, 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 opinton 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
859
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
MATA UN 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 'Muslminin'. In Aiyat 242, the Quran says:
"It is expected that you will use your commonsense". 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
"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.
861
242. A
Thus Allah makes clear His
commandments for you: It is expected that you will use your commonsense."
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
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
862
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 be cause 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 863
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 tact 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 hl 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.
In an appeal from a Full
Bench decision of the Allahabad High Court, the Privy Council in Hamira Bibi v.
Zubaide Bibi(1) sum-
(1) 43 1. A. 294.
864
med 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.(1) 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
(1) 65 I.A. 119, 127
865
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 crystalise
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 wh lt 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 crystalise 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
866
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
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
868
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. S.R. .Appeal dismissed
k. jagadeesh
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