Fazlunbi Vs. K. Khader Vali & ANR
[1980] INSC 111 (8 May 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
REDDY, O. CHINNAPPA (J) SEN, A.P. (J)
CITATION: 1980 AIR 1730 1980 SCR (3)1127 1980
SCC (4) 125
CITATOR INFO :
F 1985 SC 945 (4,29)
ACT:
Code of Criminal Procedure Code, 1973,
Section 127 (3) (b), scheme and scope of-Whether by the payment of Mahar and
Iddat dues, the provisions of s. 127(3)(b) of the Code would be complied with
or the vinculum juris created by the order under s. 125 continues despite the
make-believe ritual of miniscule mahar which merely stultified section 127(3)
(b) Cr.P.C.-Precedents and binding nature under Article 141 of the
Constitution.
HEADNOTE:
Fazlunbi, the appellant, married Khader Vali,
the respondent, in 1966, and during their conjugal life, a son Khader Basha,
was born to them. The respondent, husband, an additional accountant in the
State Bank of India, drawing a salary of Rs. 1000/-, discarded the wife and the
child, and the tormented woman talaqed out of the conjugal home, sought shelter
in her parent's abode. Driven by destitution, she prayed for maintenance
allowance for herself and her son under section 125 Cr. P.C. and the Magistrate
granted payment of a monthly sum of Rs. 250/- to the wife and Rs.
150/- to the child. The respondent husband
challenged the award in the High Court where the unjustified neglect was
upheld, but the quantum of maintenance of the child was reduced to Rs. 100/-
per mensem.
Thereafter, the respondent husband resorted
to the unilateral technique of talaq and tendered the magnificent sum of Rs.
500/- by way of Mahar and Rs. 750/- towards maintenance for the period of
iddat, hopeful thereby, of extricating himself from the obligation to maintain
the appellant. The Additional First Class Magistrate vacated the grant of
maintenance already granted on the score of divorce coupled with discharge of
mahar and Iddat dues. This order was unsuccessfully challenged in the Sessions
Court. The desperate appellant reached the High Court and invoked its jurisdiction
under section 482 Crl. P.C. A Division Bench of that High Court, though the
revision petitioner banked upon the decision of the Supreme Court in Bai
Tahira's case [1979] 2 SCR 75 in her favour, distinguished that case and
dismissed the petition. Hence the appellant-wife's appeal by special leave.
Allowing the appeal, the Court
HELD: 1. The conscience of social justice,
the cornerstone of our Constitution will be violated and the soul of the scheme
of Chapter IX of the Code, a secular safeguard of British India vintage against
the outrage of jetsam women and flotsam children, will be defiled if judicial
interpretation sabotages the true meaning and reduces a benign protection into
a damp squib. [1131 E-F]
2. Precedents of the Supreme Court are not to
be left on the shelves. Neither could they be brushed aside saying that precedents
is an authority only "on its actual facts".
Such devices are not permissible for the High
Court’s when decisions of the Supreme Court are cited before them not merely
because of the jurisprudence of precedents, but because of the imperatives of
Article 141. [1134 D-E] 1128 No Judge in India, except a larger Bench of the
Supreme Court, without a departure from judicial discipline can whittle down,
wish away or be unbound by the ratio in Bai Tahira's case, in which Section
127(3)(b) of Crl. P.C. was interpreted. The language used is unmistakable, the
logic at play is irresistible, the conclusion reached is inescapable the
application of the law as expanded there is an easy task. And yet, the Division
Bench, by the fine art of skirting the real reasoning laid down
"unlaw" in the face of the law in Bail Tahira which is hardly a
service and surely a mischief, unintended by the Court may be, but embarrassing
to the subordinate judiciary. There is no warrant whatever for the High Court
to reduce to a husk a decision of this Court by its doctrinal gloss. [1132 C-E]
(3) Crl. P.C. (Sections 125-127) is a secular code deliberately designed to
protect destitute women, who are victims of neglect during marriage and after
divorce. It is rooted in the State's responsibility for the welfare of the
weaker sections of women and children and is not confined to members of one
religion or region, but the whole community of womanhood. Secondly muslim law
show its reverence for the wife in the institution of Mehar (dower). It is
neither dowry nor price for marriage. [1138 C-E]
4. The quintessence of mehar whether it is
prompt or deferred is clearly not a contemplated quantification of a sum of money
in lieu of maintenance upon divorce. Indeed, dower focusses on marital
happiness and is an incident of connubial joy. Divorce is farthest from the
thought of the bride and the bridegroom when mehar is promised. Moreover, dower
may be prompt and is payable during marriage and cannot, therefore, be a
recompense for divorce too distant and unpleasant for the bride and bridegroom
to envision on the nuptial bed. May be, somehow the masculine obsession of
jurisprudence linked up this promise or payment as a consolidated equivalent of
maintenance after divorce. [1140 D-F]
5. The language of Section 127(3)(b) suggests
that payment of the sum and the divorce should be essential parts of the same
transaction so as to make one the consideration for the other. The payment of
money contemplated by section 127(3) (b) should be so linked with the divorce
as to become payable only in the event of the divorce. Mehar as understood in
Mohammadan Law cannot, under any circumstances be considered as consideration
for divorce or a payment made in lieu of loss of connubial relationship. Under
s. 127(3) (b) of the Cr. P.C., an order for maintenance may be cancelled if the
Magistrate is satisfied that the woman has been divorced by her husband and
that she has received, whether before or after the said order, the whole of the
sum which, under any customary or personal law applicable to the parties was
payable on such divorce. Therefore, even by harmonising payments under personal
and customary laws with the obligations under ss. 125 to 127 of the Cr. P.C.,
the conclusion is clear that the liquidated sum paid at the time of divorce
must be a reasonable and not an illusory amount and will release the quondam
husband from the continuing liability, only if the sum paid is realistically
sufficient to maintain the ex-wife and salvage her from destitution which is
the anathema of the law. This perspective of social justice alone does justice
to the complex of provisions from s. 125 to s. 127 of the Criminal Procedure
Code. [1140 F-H, 1141 A-C] 1129 Kunhi Moyin v. Pathimma, 1976 KLT 87 at 96;
Kamalakshi v. Sankaran, AIR 1979 Kerala 116; Hajabean Sulaiman & Anr. v.
Ibrahim Gandhabai and Anr., Guj. L.R. Vol. XVIII 1977 p. 133 at 137-139,
referred to.
6. (i) Section 127(3)(b) has a setting,
scheme and a purpose and no talaq of the purpose different from the sense is
permissible in statutory construction. [1141 C-D] (ii) The payment of an
amount, customary or other, contemplated by the measure must inset the intent
of preventing destitution and providing a sum which is more or less the present
worth of the monthly maintenance allowances the divorce may need until death or
remarriage overtake her.
The policy of the law abhors neglected wives
and destitute divorcees and s. 127(3)(b) takes care to avoid double payment one
under custom at the time of divorce and another under s. 125. [1141 D-E] (iii)
Whatever the facts of a particular case, the Code, by enacting ss. 125 to 127,
charges the court with the humane obligation of enforcing maintenance or its
just equivalent to ill-used wives and castaway ex-wives, only if the woman has
received voluntarily a sum, at the time of divorce, sufficient to keep her
going according to the circumstances of the parties. [1141 E-F] (iv) Neither
personal law nor other salvationary plea will hold against the policy of public
law pervading s.
127(3) (b) as much as it does s. 125. So a
farthing is no substitute for a fortune nor naive consent equivalent to
intelligent acceptance. [1141 F-G] (v) Here the mahar paid is Rs. 500/ and the
income therefrom may will be Rs. 5/- a month, too ludicrous to mention as
maintenance. The amount earlier awarded is the minimum. [1141 G-H]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No.
156 of 1980.
Appeal by certificate against the Judgment
and Order dated the 21 Nov., 1979 of the Andhra Pradesh High Court in Criminal
Misc. Petition No. 1351 of 1979.
A. Suba Rao for the Appellant.
G. Narasimhulu for Respondent No. 1.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-The last judicial lap of the journey to gender justice made by
Fazulnbi, a married woman just past 30 years and talaged into destitution,
constitutes the compassionate core of this case. The saga of Fazlunbi, who had
earlier secured an order for maintenance in her favour under s. 125 Cr. P. C.
which was cancelled under s. 127(3) (b) Cr. P. C., by three courts, tier upon
tier in the vertical system, by concurrent misinterpretation of the relevant
provision, constitutes the kernel of her legal grievance. If her plea has
substance, social justice has been jettisoned by judicial process and a just
and lawful claim due to a woman in distress has been denied heartlessly and
lawlessly. We say 'heartlessly', because no sensitive 1130 judge with empathy
for the weaker sex could have callously cancelled an order for a monthly
allowance already made in her favour, as has been done here. We say
'lawlessly', because no disciplined judge bound by the decision of this Court
which lays down the law for the nation under Art. 141 of the Constitution could
have defied the crystal clear ruling of this Court in Bai Tahira v. Ali Hussain
Fidaalli Chothia by the disingenuous process distinguishing the decision. We
are surprised by this process of getting round the rule in Bai Tahira's case
(supra) by the artful art of concocting a distinction without a difference. The
Sessions Court and the High Court, who had before them the pronouncement of the
Supreme Court, chopped legal logic to circumvent it. Reading their 'reasoning'
we are left to exclaim how the high Bench argued itself out of Bai Tahira's
case by discovering the strange difference.
"Twixt Tweeldedum and Tweedledee",
the discipline of law, the due process of law and the rule of law become mere
claptrap if judges bound to obey precedent choose to disobey on untenable
alibi. And, behind it all is the unheeded wail of Fazulnbi's womanhood for the
karuna and samata of the law and we are conscientized into reversing the
judgment under appeal in terms express, explicit and mandatory so that
masculine injustice may not crucify the weaker sex. Small wonder that many a
divorcee, beguiled by Arts. 14 and 15 and the decision in Bai Tahira's case,
may well exclaim, "How long, O Lord, how long!" The brief facts which
have led to this appeal are that Fazlunbi, the appellant married Khader Vali,
the respondent, in 1966 and during their conjugal life, a son, Kader Basha, was
born to them. The husband, an Additional Accountant in the State Bank of India,
apparently drawing a salary well above Rs. 1000/-, discarded the wife and the
child, and the tormented woman, talaged out of the conjugal home, sought
shelter in her parents' abode. Driven by destitution, she prayed for
maintenance allowance for herself and her son under s. 125 Cr. P. C. and the
Magistrate granted payment of a monthly sum of Rs. 250/- to the wife and Rs.
150/- to the child. The husband challenged the award in the High Court where
the unjustified neglect was upheld but the quantum of maintenance of the child
was reduced to Rs. 100/- per mensem.
The respondent-husband resorted to the
unilateral technique of talaq, and tendered the magnificent sum of Rs.
500/- by way of mahar and Rs. 750/- towards
maintenance for the period of iddat, hopeful thereby, of extricating himself
from the obligation to maintain 1131 the appellant. The Additional First Class
Magistrate vacated the grant of maintenance on the score of divorce coupled
with discharge of mahar and iddat dues. This order was unsuccessfully
challenged in the Sessions Court. The desperate appellant reached the High
Court and invoked its jurisdiction under s. 482 Cr. P.C. A Division Bench of
that Court, however, dismissed the revision petition and Fazlunbi has landed up
in this Court and banks upon the application of the rule in Bai Tahirai's case
(supra).
The facts are clear, the talaq has snapped
the marital tie, the flimsy mahar has been tendered together with the three
months' iddat dues and the divorcee remains neglected.
The question is whether s. 127 (3) (b) of the
Code has been complied with or the vinculum juris created by the order under s.
125 continues despite the make-believe ritual of miniscule mahar which merely
stultifies s. 127 (3) (b) Cr.
P. C. and hardly fulfils it. The matter is no
longer res integra. No one in his senses can contend that the mahar of Rs.
500/- will yield income sufficient to maintain a woman even if she were to live
on city pavements! What is the intendment of s. 127(3)(b)? What is the scheme
of relief for driftwood and destitute wives and divorcees discarded by
heartless husbands? What is the purpose of providing absolution from the
obligation to pay continued maintenance by lumpsum liquidation? What, in short
is the text and texture of the provision, if read in the light of the mischief
to be avoided, the justice to be advanced? The conscience of social justice,
the cornerstone of our Constitution will be violated and the soul of the scheme
of Chapter IX of the Code, a secular safeguard of British Indian vintage
against the outrage of jetsam women and flotsam children, will be defiled if
judicial interpretation sabotages the true meaning and reduces a benign
protection into a damp squib. The holistic art of statutory construction has
not the pettifogging craft of lexical and literal reading of the text woefully
keeping alive the moribund mores of a bygone age but, in the felicitous diction
of Cardozo, 'the task of a translator, the reading of signs and symbols given
from without (by those) who have absorbed the spirit, have filled themselves with
a love of the language they must read'. Lord Denning's great tribute to the
task of a judge is never barred by the law of limitation.
Many of the Judges of England have said that
they do not make law. They only interpret it. This is an illusion which they
have fostered. But it is a notion which is now being discarded everywhere.
Every new decision-on every new situation-is a development on the law. Law does
not 1132 stand still. It moves continually. Once this is recognised, then the
task of the Judge is put on a higher plane. He must consciously seek to mould
the law so as to serve the needs of the time. He must not be a mere mechanic, a
mere working mason, laying brick on brick, without thought to the overall
design. He must be an architect-thinking of the structure as a whole- building
for society a system of law which is strong, durable and just. It is on his
work that civilised society itself depends.
We lay so much emphasis on the functional
sensitization of a judge lest what is absurd may be fobbed as obvious by
judicial semanticisation.
We need not labour the point because this
Court has already interpreted s. 127(3)(b) in Bai Tahira and no judge in India,
except a larger bench of the Supreme Court without a departure from judicial
discipline can whittle down, wish away or be unbound by the ratio thereof. The
language used is unmistakable, the logic at play is irresistible, the
conclusion reached is inescapable, the application of the law as expounded
there is an easy task. And yet, the Division Bench, if we may with respect say
so, has, by the fine art of skirting the real reasoning laid down 'unlaw' in
the face of the law in Bai Tahira which is hardly a service and surely a
mischief, unintended by the Court may be, but embarrassing to the subordinate
judiciary.
There is no warrant whatever for the High
Court to reduce to a husk a decision of this Court by its doctrinal gloss. The
learned judges observe, to our bafflement- "The decision in Bai Tahira v.
Ali Hussain Fassalli (supra) is to be confined only to the facts of that case.
It falls to be distinguished for the following reasons: (i) the compromise of
1962 referred to therein was construed as not affecting the rights of a Muslim
divorced wife in seeking to recover maintenance under Sec. 125 Cr. P.C., (ii)
what was considered to have been paid to the Muslim divorced wife was only the
Mahar amount and not the maintenance amount payable for the Iddat period, (iii)
The Mahar amount paid revealed a rate of interest which for a person residing
in Bombay was held to be wholly inadequate to do duty for maintenance
allowance, (iv) there was nothing in that case to show that the amount of Rs.
130/- paid towards Iddat represented the payment of a sufficient maintenance
amount for the three months period of Iddat and (v) the husband in that case
did not raise any plea based on sec. 127(3)(b) Cr. P.C." 1133 Let us quote
a few passages from this Court's ruling in Bai Tahira (supra) to express the
untenability of the excuse not to follow the binding ratio.
Nor can Section 127 rescue the respondent
from his obligation, payment of mehar money, as a customary discharge, is
within the cognizance of that provision.
But what was the amount of mehar ? Rs.
5000/-, interest from which could not keep the woman's body and soul to wether
for a day, even in that city where 40% of the population are reported to live
on pavements, unless she was ready to sell her body and give up her soul! The
point must be clearly understood that the scheme of the complex of provisions in
Chapter IX has a social purpose. III-used wives and desperate divorcees shall
not be driven to mate rial and moral dereliction to seek sanctuary in the
streets. This traumatic horror animates the amplitude of Section, 127. Where
the husband, by customary payment at the time of divorce, has adequately
provided for the divorce, a subsequent series of recurrent doles is
contra-indicated and the husband liberated. This is the teleological
interpretation, the sociological decoding of the text of Sec. 127. The key-note
though is adequacy of payment which; will take reasonable care of her
maintenance.
The payment of illusory amounts by way of
customary or personal law requirement will be considered in the reduction of
maintenance rate but cannot annihilate the rate unless it is a reasonable
substitute. The legal sanctity of the payment is certified by the fulfillment
of the social obligation, not by a ritual exercise rooted in custom. No
construction which leads to frustration of the statutory project can secure validation
if the court is to pay true homage to the Constitution. The only just
construction of the section is that Parliament intended divorcees should not
derive a double benefit. If the payment by any mehar or ordained by custom has
a reasonable relation to the object and is a capitalised substitute for the
order under Section 125-not mathematically but fairly-then Section 127(3) (b)
sub- serves the goal and relieves the obliger, not pro tanto but wholly. The
purpose of the payment 'under any customary or personal law' must be to obviate
destitution of the divorcee and to provide her with wherewithal to maintain
herself. The whole scheme 1134 of Section 127(3)(b) is manifestly to recognise
the substitute maintenance arrangement by lump sum so paid and is potential as
provision for maintenance to interpret other wise is to stultify the project.
Law is dynamic and its meaning cannot be pedantic but purposeful. The
proposition, therefore, is that no husband can claim under Section 127(3) (b)
absolution from his obligation under Section 125 towards a divorced wife except
on proof of payment of a sum stipulated by customary or personal law whose
quantum is more or less sufficient to do duty for maintenance allowance.
Granville Williams in his "Learning the
Law" (pp. 77- 78) gives one of the reasons persuading judges to
distinguish precedents is "that the earlier decision is altogether
unpalatable to the court in the later case, so that the latter court wishes to
interpret it as narrowly as possible". The same learned author notes that
some judges may "in extreme and unusual circumstances, be apt to seize on
almost any factual difference between this previous case and the case before
him in order to arrive at a different decision. Some precedents are continually
left on the shelf in this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a judge
says that the precedent is an authority only "on its actual facts".
We need hardly say that these devices are not permissible for the High Courts
when decisions of the Supreme Court are cited before them not merely because of
the jurisprudence of precedents, but because of the imperatives of Art. 141.
We have been painstakingly drawn into many
rulings of the High Courts but none except this one has had the advantage of
the pronouncement in Bai Tahira. A Division Bench of the Kerala High Court-a
ruling which perhaps advances the purpose more than the Full Bench decision
which overruled it-dwelt on s. 127(3) (b) of the Code. Khalid, J.
speaking for the court observed, and rightly
if we may say so with respect, This section provides that the Magistrate shall
cancel the order for maintenance if any sum under any customary or personal law
applicable to the parties is paid on divorce. This section may be pressed into
service by some ingenious husbands to defeat the provisions contained in
section 125. We would like to make it clear that section 127(3) (b) refers not
to maintenance during the period of iddat or payment of dower. Unfortunately.,
place of dower is 1135 now occupied by dowry, payable by the girl's parents, A
which till 1-6-1961 was paid in public and thereafter in private; thanks to the
Dowry
Prohibition Act, 1961.
It is therefore not a sum of money which
under the personal law is payable on divorce as expressed in Section 127(3)
(b). On the other hand, what is impliedly covered by this clause is such sums
of money as alimony or compensation made payable on dissolution of the marriage
under customary or personal law codified or unconfined, or such amount agreed
upon at the time of marriage to be paid at the time of divorce;
the wife agreeing not to claim maintenance or
any other amount. We thought it necessary to clarify this position lest there
be any doubt regarding the scope of s. 127(3) (b), for, at the first blush, it
might appear that, it takes away by one hand what is given under s.125 by the
other hand. This is not so.
While, in our view, the Full Bench decision
in Kamalakshi v. Sankaran in so far as it does not insist on an adequate sum 1
which will yield a recurring income to maintain the divorcee in future, is bad
law and the Division Bench, in so far as it excuses the husband if he pays a
sum which the ignorant wife at the time of marriage has agreed upon to
relinquish maintenance after divorce, does not go far enough.
A division Bench of the Gujarat High Court
has sought, even by literal construction, to reach the conclusion that unless
the divorcee voluntarily accepts a sum in lieu of future maintenance she is
still entitled to her claim and s.
127(3) (b) will not dissolve the liability of
the husband.
The Judges argue:
We are concerned with the interpretation of
sub.
(3) of sec. 127, more particularly clause (b)
thereof.
Evidently, this provision which seeks to
confer power on the court to cancel an order of monthly allowance passe. by it
in certain specified contingencies, has to be confined strictly within the
narrow limits laid down by sub-sec. (3). This is because the provision for
maintenance of wives, whether married or divorced, who are unable to maintain
themselves is a social welfare measure applicable to all people irrespective of
caste, creed, community or nationality.
1136 With the aforesaid background, we will
now proceed to examine the provisions of sub-sec. (3) of sec. 127.
A bare reading of clauses (a), (b) and (c) of
that provision shows that three fact situations have been contemplated by the
Legislature in which the Magistrate is given the power to cancel the order for
monthly allowance. These fact situations are shown by the words (1) has
remarried in clause (a), (2) has received in clause (b) and (c) and (3) had
voluntarily surrendered in clause (c). Clauses (a) and (c) of the said
provision do not postulate any difficulty because they contemplate the fact
situations brought about by a voluntary and irrevocable act on the part of the
divorced wife. Thus, clause (a) contemplates the act of the wife in getting
remarried and clause (c) contemplates the act of the wife in obtaining divorce
from her husband and surrendering her rights to maintenance after divorce. Both
these eventualities, as observed earlier, are brought about by a voluntary and
irrevocable act on the part of the wife. If this is the obvious position to be
kept in mind with regard to the scope and content of clauses (a) and (c) of
sub-sec.
(3) of sec. 127, we see no reason why we
should adopt a different standard in ascertaining the scope and content of clause
(b);
xx xx xx ....it is clear that one of the
eventualities conferring jurisdiction on the Magistrate to cancel an order of
monthly allowance can come into existence only on doing of a voluntary act by
the wife of actually accepting the amount offered as contemplated by clause
(b). It is to be noted that the Legislature has not used words indicating mere
offer by the husband of the amount contemplated by clause (b) as sufficient to
bring into existence the fact situation contemplated or bring into existence
the eventuality on which the power of the Magistrate to cancel the order of
maintenance is based. It appears that the Legislature has advisedly used the
words "has received" in order to indicate and at the same time
restrict the power of cancelling the order of monthly allowance to cases where
the wife by a voluntary act on her part of receiving the amount contemplated by
clause (b) brings about the eventuality contemplated for exercise of the said
power.. We, therefore, hold that in order to exercise power conferred by clause
(b) of sub-sec. (3) of sec. 127, it has to be 1137 found as a fact that the
wife has done a voluntary act of receiving the who e sum contemplated to be
payable by clause (b). If the wife shows her unwillingness to receive the amount
tendered, the provisions of clause (b) are not applicable.
Even the literal and the purposive approaches
may sometimes concur, once we grasp the social dynamics of interpretation, will
serve the cause of truth and justice.
We are reminded of Lord, Denning's
fascinating reference in his "The Discipline of the Law" to Portia's
plea for the pound of flesh but not a drop of blood; The traditional English
view is yielding to the pressure of the modern European view (which is also the
American view) expressed by Denning in delightful diction as "the
'schematic and teleological' method of interpretation. It is not really so
alarming as it sounds. All it means is that the judges do not go by the literal
meaning of the words or by the grammatical structure of the sentence. They go
by the design of purpose which lies behind it. When they come upon a situation
which is to their minds within the spirit-but not the letter-of the
legislation, they solve the problem by looking at the design and purpose of the
legislature-at the effect which it was sought to achieve. They then interpret
the legislation so as to produce the unashamedly, without hesitation. They ask
simply: What is the sensible way of dealing with this situation so as to give
effect to the presumed purpose of the legislation ? They lay down the law
accordingly.
If you study the decisions of the European
Court, you will see that they do it every day. To our eyes- shortsighted by
tradition-it is legislation, pure and simple. But, to their eyes, it is fulfilling
the true role of the courts. They are giving effect to what the legislature
intended, or may be presumed to have intended. I see nothing wrong in this
Quite the contrary.
Another angle to the subject of Mahar and its
impact on liability for maintenance after divorce may be briefly considered.
Khalid, J. of the Kerala High Court in two cases has taken the view that s.125
and s. 127 Cr.P.C. are conceptually unconnected with payment of mahar and
cannot bail out a muslim husband from his statutory obligation under s.125. We
are aware of the criticism of this conceptual 1138 divorce between mahar and
post-divorce maintenance by Dr.
Tahir Mahmood in his recent book on the
'Muslim Law of India' (see P. 133) where the learned author prefers to retain
the 'nexus between mahar and maintenance but has this to say:
In a recent case the Supreme Court has held
that the sum paid under personal law-referred to in clause (b) of section
127(3) of the Code-should be "more or less sufficient to do duty for
maintenance allowance";
if it is not so it can be considered by the
court for the reduction of the maintenance rate but cannot annihilate that
rate. This, indeed, is a liberal ruling and conforms to the spirit of Islamic
law on the subject.
Aside from this controversy, we may look
perspicaciously at the legal connotation of 'dower' and the impact of its
payment on divorcees' claims for maintenance.
We must first remember that Cr.P. Code, (s.
125-127) is a secular code deliberately designed to protect destitute women, who
are victims of neglect during marriage and after divorce. It is rooted in the
State's responsibility for the welfare of the weaker sections of women and
children and is not confined to members of one religion or region, but the
whole community of womanhood. Secondly we must realise that Muslim law shows
its reverence for the wife in the institution of Mahar (dower). It is neither
dowry nor price for marriage.
As explained in an old judgment by Justice
Syed Mahmood, mahar is "not the exchange or consideration given by the man
to the woman, but an effect of the contract imposed by law on the husband as a
token of respect for its subject: the woman". Giving a correct appraisal
of the concept of mahar, the Privy Council once described it as "an essential
incident to the status of marriage". On another occasion it explained that
mahar was a 'legal responsibility' of the husband.
These judicial observations evidence a
correct understanding of the Islamic legal concept of mahar Baillie in his
Digest of Mohammaden Law says:
"Dower is not the exchange or
consideration given by the man to woman for entering into the contract; but an
effect of the contract, imposed by the law on the husband as a token in
respect, for its respect the woman Dower being, as already mentioned, opposed
to the use- 1139 fruct of the woman's person, the right to either is not
completed without the other. Hence on the one hand, dower is said to be
confirmed and made binding on the husband by consummation, or by its
substitute, a valid retirement, or by death, which by terminating the marriage,
puts an end to all the contingencies to which it is exposed; and on the other
hand the woman becomes entitled to it as he has surrendered her person."
Justice Mahmood has described the nature of Meharin Abdul Kadir v. Salima and
anr. (8 All. 149 at 157-158).
According to him:
"Dower, under the Muhammadan law, is the
sum of money or other property promised by the husband to be paid or delivered
to the wife in consideration of the marriage, and even where no dower is
expressly fixed or mentioned at the marriage ceremony, the law confers the
right of dower upon the wife as a necessary effect of marriage. To use the
language of the Hedaya, 'the payment of dower is enjoined by the law merely as
a token of respect for its subject (the woman), wherefore the mention of it is
not absolutely essential to the validity of a marriage; and, for the same
reason, a marriage is also valid, although the man were to engage in the con-
tract on the special condition that there should be no dower"....
(Hamilton's Hedaya by Grady, p.
44). Even after the marriage the dower may be
increased by the husband during coverture........In this sense and in no other
can dower under the Muhammadan law be regarded and the consideration for the
connubial intercourse, and if the authors of the Arabic Text- books of
Muhammadan law have compared it to price in the contract of sale, it is simply
because marriage is a civil contract under that law... Such being the nature of
the dower, the rules which regulate its payment are necessarily affected by the
position of a married woman under the Muhammadan law. Under that law marriage
does not make her property the property of the husband, nor does coverture
impose any disability upon her as to freedom of contract. The marriage contract
is easily dissoluble, and the freedom of divorce and the rule of polygamy place
a power in the hands of the husband which the law-giver intended to restrain by
rendering the rules as to payments of dower stringent upon the husband. No
limit as to the amount of dower has 1140 been imposed, and it may either be
prompt, that is, immediately payable upon demand, or deferred, that is payable
upon the dissolution of marriage, whether by death or divorce. The dower may
also be partly prompt and partly deferred; but when at the time of the marriage
ceremony no specification in this respect is made, the whole dower is presumed
to be prompt and due on demand".
In Tyabji's Muslim Law (4th Edn) it is
stated:
"Mahar is an essential incident to the
status of marriage. Regarded as a consideration for the marriage it is . in
theory payable before consummation; but the law allows its division in two
parts, one of which is called 'prompt' payable before the wife can be called
upon to enter the conjugal domicile, the other 'deferred' payable on the
dissolution of the contract by the death of either of the parties or by
divorce.
When the Kabin nama does hot specify the
portion that is prompt and that which is deferred, evidence may be given of the
custom or usage of wife's family".
The quintessence of mahar whether it is
prompt or deferred is clearly not a contemplated qualification of a sum of
money in lieu of maintenance upon divorce. Indeed, dower focusses on marital
happiness and is an incident of connubial joy. Divorce is farthest from the
thought of the bride and the bridegroom when mehar is promised. Moreover, dower
may be prompt and is payable during marriage and cannot, therefore, be a
recompense for divorce too distant and unpleasant for the bride and bridegroom
to envision on the nuptial bed. Maybe, some how the masculine obsession of
jurisprudence linked up this promise or payment as a consolidated equivalent of
maintenance after divorce. Maybe, some legislatures might have taken it in that
light, but the law is to be read as the law enacted. The language of 5.
127(3) (b) appears to suggest that payment of
the sum and the divorce should be essentially parts of the same transaction so
as to make one the consideration tor the other. Such customary divorce on
payment of a sum of money among the so called lower castes are not uncommon. At
any rate the payment of money contemplated by s. 127(3) (b) should be so linked
with the divorce as to become payable only in the event of the divorce Mahar as
understood in Mohammadan Law cannot under any circumstances be considered as
consideration for divorce or a payment made in lieu of loss of connubial
relationship. Under s. 127(3)(b) of the Cr.P.C., an order for maintenance may
be can. called if the Magistrate is satisfied that the woman has been divorced
1141 by her husband and that she has received, whether before or after the said
order, the whole of the sum which, under any customary or personal law
applicable to the parties was payable on such divorce.
We are, therefore, inclined to the view that
even by harmonising payments under person and customary laws with the
obligations under ss. 125 to 127 of the Cr.P.C., the conclusion is clear that
the liquidated sum paid at the time of divorce must be a reasonable and not an
illusory amount and will release the quondam husband from the continuing
liability, only if the sum paid is realistically sufficient to maintain the
ex-wife and salvage her from destitution which is the anathema of the law. This
perspective of social justice alone does justice to the complex of provisions
from s. 125 to s. 127 of the Criminal Procedure Code We may sum up and declare
the law fool-proof fashion:
(1) Section 127(3)(b) has a setting, scheme
and a purpose and no talaq of the purpose different from the sense is
permissible in statutory construction.
(2) The payment of an amount, customary or
other, contemplated by the measure must inset the intent of preventing
destitution and providing a sum which is more or less the present worth of the
monthly maintenance allowances the divorce may need until death or remarriage
overtake her.
The policy of the law abhors neglected wives
and destitute divorcees and s. 127(3)(b) takes care to avoid double payment one
under custom at the time of divorce and another' under s. 125 (3) Whatever the
facts of a particular case, the Code, by enacting ss. 125 to 127, charges the
court with the humane obligation of enforcing maintenance or its just
equivalent to ill-used wives and castaway ex-wives, only if the woman has
received voluntarily a sum, at the time of divorce, sufficient to keep her
going according to the circumstances of-the parties.
(4) Neither personal law nor other
salvationary plea will hold against the policy of public law pervading s. 127(3)(b)
as much as it does s. 125. So a farthing is no substitute for a fortune nor
naive consent equivalent to intelligent acceptance.
(5) Here the mahar paid is Rs. 500/- and the
income there from may well be Rs. 5/- a month, too ludicrous to mention as
maintenance. The amount earlier awarded is the minimum.
Before we bid farewell to Fazlunbi it is
necessary to mention that Chief Justice Baharul Islam, in an elaborate judgment
replete 1142 with quotes from the Holy Quoran, has exposed the error of early
English authors and judges who dealt with talaq in Muslim Law as good even if
pronounced at whim or in tantrum, and argued against the diehard view of
Batchelor. (ILR 30 Bombay 539) that this view 'is good in law, though bad in
theology'. Maybe, when the point directly arises, the question will have to be
considered by this court, but enough unto the day the evil thereof and we do
not express our opinion oh this question as it does not call for a decision in
the present case.
We allow the appeal.
Appeal allowed.
Back
