9911796707
TMI Blog1985 (4) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... page xc (Introduction). 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. 2. This appeal, arising out of an application filed by a divorced Muslim woman for maintenance under Section 125 of the CrPC, 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 decree 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 wire born of that marriage. In 1975 the appellant drove the respondent out of the matrimonial home, la April 1978, the respondent filed a petition against the appellant under Section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore asking for maintenance at the rate of Rs. 500 per month. On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq. His defence to the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and Anr. and Fuzlunbi v. K. Khader Vali and Anr. require reconsideration because, in our opinion, they are not only in direct contravention of the plain and an unambiguous language of Section 127(3)(b) of the CrPC, 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 under the Muslim law which has been expressly protected by Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937-:in Act which was not noticed by the aforesaid decisions. We, therefore, direct that the matter may be placed before the Hon'ble Chief Justice for being heard by a larger Bench consisting of more than three Judges. 5. Section 125 of the CrPC which deals with the right of main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 7. 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 provision. 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 right 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law. It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of Clause (b) of the Explanation to Section 125(1), which provides that 'wife' includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Even in the absence of this provision, the courts had held under the Code of 1898 that the provisions regarding maintenance were independent of the personal law governing the parties. The induction of the definition of 'wife, so as to include a divorced woman lends even greater weight to that conclusion. 'Wife' means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a 'wife' for the purpose of Section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject matter of Section 125. That section deals with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain herself. Since the Muslim Personal Law, which limits the husband's liability to provide for the maintenance of the divorced wife to the period of iddat, does not contemplate or countenance the situation envisaged by Section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under an 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 Persona! 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, you shall not be answerable for whatever they choose for themselves in a fair way ; Allah is All-Powerful, All-wise. Likewise, the divorced women should also be given something in accordance with the known fair standard. This is an obligation upon the God-fearing people. 242 Thus Allah makes clear His commandments for you : It is expected that you will use your commonsense. 21. 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. 22. In The Meaning of the Glorious Quran, Text and Explanatory Translation , by Marmaduke Pickthall, (Taj Company Ltd., karachi), Aiyat 241 is translated thus : 241. For divorced women a provision in kindness : A duty for those who ward oil (evil). 23. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that Mahr is not payable in consideration of marriage but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the fact that non-specification of Mahr at the time of marriage does not affect the validity of the marriage. We sued 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 m obligation imposed upon the husband as a mark of respect for the wife. We are concerned to find whether Mahr is an amount payable by the husband to the wife on divorce. Some confusion is caused by the fact that, under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called prompt , which is payable on demand, and the other is called deferred , which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable 'on divorcel. Even assuming that, in a given cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 30. It is contended on behalf of the appellant that the proceedings of the Rajya Sabha dated December 18, 1973 (volume 86, column 186), when the bill which led to the Code of 1973 was on the anvil, would show that the intention of the Parliament was to leave the provisions of the Muslim Personal Law untouched. In this behalf, reliance is placed on the following statement made by Shri Ram Niwas Mirdha, the then Minister of State, Home Affairs : Dr. Vyas very learnedly made certain observations that a divorced wife under the Muslim law deserves to be treated justly and she should get what is her equitable or legal due. Well, I will not go into this, but say that we would not like to interfere with the customary law of the Muslims through the Criminal Procedure Code. If there is a demand for change in the Musli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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. 33. Though Bai Tahira was correctly decided, we would like, respectfully, to draw attention to an error which has crept in the judgment 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 with in 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. 34. It is a matter of deep regret that some of the interveners who supporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all is a far more satisfactory way of dispensing justice than justice from case to case. 36. 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 say: 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 stated 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. 37. At a Seminar held on October 18, 1980 under the auspices of the Department of Islamic and Comparative Law, Indian Institute of Islamic Studies New Delhi he also made and appeal to the Muslim community to displa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
