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TMI Blog1980 (5) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... here. We say 'lawlessly', because no disciplined judge bound by the decision of this Court which lays down the law for the nation under Article 141 of the Constitution could have defied the crystal clear ruling of this Court in Bai Tahira v. Ali Hussain Fidaalli Chothia ((1979) 2 SCC 316 1979 SCC (Cri) 473) by the disingenuous process of distinguishing the decision. We are surprised by this process of getting round the rule in Bai Tahira case ((1979) 2 SCC 316 1979 SCC (Cri) 473) by the artful art (sic act) 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 case ((1979) 2 SCC 316 1979 SCC (Cri) 473) by discovering the strange difference. 2. Twixt Twiddledum and Twiddledee. 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 Fazlunbi's womanhood for the Karuna and Samata of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h merely stultifies Section 127(3)(b) CrPC and hardly fulfils it. The matter is no longer res integra. No one in his senses can contend that the mahr of ₹ 500 will yield income sufficient to maintain a woman even if she were to live on city pavements ! What is the intendment of Section 127(3)(b) ? What is he 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 lump sum 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 floatsam 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 as not the pettifogging craft of lexical and literal reading of the text woefully keeping alive the moribund mores of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Fidaalli ((1979) 2 SCC 316 1979 SCC (Cri) 473) 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 Section 125 CrPC, (ii) what was considered to have been paid to the Muslim divorced wife was only the mehar amount and not the maintenance amount payable for the iddat period, (iii) the mehar 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 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 Section 127(3)(b) CrPC. 9. Let us quote a few passages from this Court's ruling in Bai Tahira ((1979) 2 SCC 316 1979 SCC (Cri) 473) to express the untenability of the excuse not to follow the binding ratio (SCC pp. 321-322, paras 11 and 12) Nor can Section 127 rescue the respondent from his obligation. Payment of mehar money, as a customary discharge, is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. Glanville Williams in his LEARNING THE LAW (10th Edn., pp. 70-72) gives one of the reasons persuading judges to distinguish precedents as 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 as 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 bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not go far enough. 12. A Division Bench of the Gujarat High Court (Hajuben Suleman v. Ibrahim Gandabhai, (1977) 18 GLR 133, 137-139) 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 Section 127(3)(b) will not dissolve the liability of the husband. The judges argue We are concerned with the interpretation of sub-section (3) of Section 127, more particularly clause (b) thereof. Evidently, this provision which seeks to confer power on the court to cancel an order of monthly allowance passed by it in certain specified contingencies, has to be confined strictly within the narrow limits laid down by sub-section (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. With the aforesaid background, we will now proceed to examine the provisions of sub-section (3) of Section 127. A bare reading of clause (a), (b) and (c) of that provision shows that three fact situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (b) are not applicable. 13. Even the literal and the purposive approaches may sometimes concur, once we grasp the social dynamics of interpretation, as serving 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 Lord Denning in delightful diction as (Lord Denning THE DISCIPLINE OF LAW, pp. 20-21) 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 or 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 desired effect. This means that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriage As explained in an old judgment by Justice Syed Mahmood, maher 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 . (Abdul Kadir v. Salima, (1986) 8 All 149, 157 6 AWN 53) Giving a correct appraisal of the concept of maher, the Privy Council once described it as an essential incident to the status of marriage . (Hamira Bibi v. Zubaida Bidi, AIR 1916 PC 46) On another occasion it explained that maher was a 'legal responsibility' of the husband. (Syed Sabir Husain v. Farzand Husain, (1937) 65 IA 119, 127) These judicial observations evidence a correct understanding of the Islamic legal concept of maher. (Dr. Tahir Mahmood THE MUSLIM LAW OF INDIA, p. 71) Baillie in his DIGEST OF MOHAMMADEN LAW says (page 91) Dower is not the exchange or consideration given by the man to the 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 usufruct of the woman's person, the right to either i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Mehar 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 kabulnama does not specify the portion that is prompt and that which is deferred, evidence may be given of the custom or usage of wife's family. 17. The quintessence of mahr 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 farthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 divorcee may need until death or remarriage overtake her. The policy of the law abhors neglected wives and destitute divorcees and Section 127(3)(b) takes care to avoid double payment one under custom at the time of divorce and another under Section 125. (3) Whatever the facts of a particular case, the Code, by enacting Sections 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 not other salvationary plea will hold against the policy of public law pervading Section 127(3)(b) as much as it does Section 125. So a farthing is no substitute for a fortune nor naive consent equivalent to intelligent acceptance. (5) Here the mahr paid is ₹ 500 and the income therefrom may well be ₹ 5 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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