Different modes of dissolution of marriage under the Muslim Personal Law (Shariat)

The question which arises is, given the shariat and its various schools, how does a person proceed on an issue which is in dispute? The solution is that in matters which can be settled privately, a person need only consult a mufti (jurisconsult) of his or her school. The mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if a matter is carried to the point of litigation and cannot be settled privately then the qazi (judge) is required to deliver a qaza (judgment) based upon the Shariat (A qazi (or qadi) is a judge appointed by the political authority or state. He or she may pass judgments in his or her jurisdiction in respect of many legal matters, including divorce, inheritance, property, contractual disputes, etc. Schacht, p. 188. A qaza or kada is a judgment, which must be given according to the madhab to which the qadi belongs. Schacht, p. 196. More information on qazis and qazas can be found at pp. 188-198.). The difference between a fatwa and a qaza must be kept in the forefront. A fatwa is merely advisory whereas a qaza is binding. Both, of course, have to be based on the shariat and not on private interpretation de hors the shariat (Abdur Rahim, p. 172′ (in respect of qazis).

The Muslim Personal Law (Shariat) Application Act, 1937 and the various forms of dissolution of marriage recognised by it.

In India, the confusion with regard to application of customary law as part of muslim law was set at rest by the enactment of The Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of the 1937 Act reads as under: 2. Application of Personal Law to Muslims.–Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

The key words are–notwithstanding any customs or usage to the contrary and–the rule of decision in cases where the parties are muslims shall be the muslim personal law (shariat). This provision requires the court before which any question relating to, inter-alia, dissolution of marriage is in issue and where the parties are muslims to apply the muslim personal law (shariat) irrespective of any contrary custom or usage. This is an injunction upon the court (See: C. Mohammed Yunus Vs. Syed Unissa and Others, What is also of great significance is the expression-‘dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat. This gives statutory recognition to the fact that under muslim personal law, a dissolution of marriage can be brought about by various means, only one of which is talaq. Although islam considers divorce to be odious and abominable, yet it is permissible on grounds of pragmatism, at the core of which is the concept of an irretrievably broken marriage. An elaborate lattice of modes of dissolution of marriage has been put in place, though with differing amplitude and width under the different schools, in an attempt to take care of all possibilities. Khula, for example, is the mode of dissolution when the wife does not want to continue with the marital tie. She proposes to her husband for dissolution of the marriage. This may or may not accompany her offer to give something in return. Generally, the wife offers to give up her claim to Mahr (dower). Khula is a divorce which proceeds from the wife which the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. Mubaraat is where both the wife and husband decide to mutually put an end to their marital tie. Since this is divorce by mutual consent there is no necessity for the wife to give up or offer anything to the husband. It is important to note that both under khula and mubaraat there is no need for specifying any reason for the divorce. It takes place if the wife (in the case of khula) or the wife and husband together (in the case of mubaraat) decide to separate on a no fault/no blame basis. Resort to khula (and to a lesser degree, mubaraat) as a mode of dissolution of marriage is quite common in India.

Legal Effects and Consequences of Muta Marriage [Temporary Marriage]

As per Ithna Asharia law :

(1) The cohabitation between the parties is lawful.

(2) The children are legitimate and have rights to inherit the properties of both the parents.

(3) But, the Muta-husband and wife have no mutual rights of inheritance.

(4) The wife is entitled to get full dower even if the husband does not cohabit for the full term and leaves the wife before the expiry of the term. But, if the wife leaves the husband, then husband has a right to deduct the amount of dower proportionate to the unexpired period of the duration.

(5) A Мutа-wife is not entitled to get any maintenance from the husband under the Shia law; but she is entitled to claim maintenance under the Criminal Procedure Code.

(6) Where consummation has not taken place, the wife need not observe any Iddat. If the Мutа-marriage terminates after consummation, the wife is required to undergo an Iddat of two monthly courses. But, where the marriage dissolves due to death of the husband, the Muta-wife is required to observe an Iddat of four months ten days. Where the Мutа-wife is pregnant, the period of Iddat extends till delivery of the child.

(7) There is no divorce in a Muta form of marriage. The marriage in this form dissolves:

(i) By death of either party, or

(ii) On the expiry of the specified period, or

(iii) The husband leaves the wife before expiry of the term.

Where a husband leaves the wife before the term, it is said that he had made a gift of the unexpired period in favour of the wife (Hiba-i-Muddat) because in that case he has to pay the full amount of dower. If wife leaves, her dower is deducted in proportion to the remaining period of the term.

(8) In a Muta form of marriage, if it is not known as to when the term expired but the cohabitation continues till the death of the husband, the proper inference would be that Muta continues throughout the life.

Similar would be the inference where the cohabitation continues after the expiry of a known period. It is submitted that in such cases a life-long Muta is to be presumed. The issues are legitimate and may inherit the properties of the parents, but husband or wife may not mutually inherit each other.


  1. MUTA: Enjoyment
  2. AGE OF PUBERTY: 15 years
  3. GIFT: Hiba

Islamic legal maxims [Al-Qawa’id]

FIVE LEGAL MAXIMS AND THEIR DERIVATIVES

Matters shall be judged by their objectives(Al-Umur bi-maqasidiha)

1- Contractual stipulations are to be understood by their intended meaning, not strictly by their wording or formulation.
2- Intention generalizes the specific, and specifies the general.
3- The intention of the oath-taker determines.

Certainty shall not be removed by doubt(Al-Yaqin la yazulu bi-al-shakk)

1- the presumption that a thing remains as it was originally (unless definitely altered)
2- the presumption of innocence
3- the presumption that what is established with certainty is not altered except with certainty
4- the presumption to regard qualities and things depending on whether they are accidental or essential
5- the presumption to attribute an incident to the nearest occasion
6- that the general presumption in matters for the general populace is permissibility
7- that the general presumption in economic transactions is impermissibility
8- give no weight to evidence in the face of explicit testimony
9- do not attribute speech to the silent
10- give no weight to speculation
11- give no weight to suspicions in offenses
12- a habitual prohibition is like a definite prohibition
13- do not dispute the consequences of a proof

Hardship shall bring alleviation. (Al-Mashaqqah tajlibu al-taysir)

1- If a matter is difficulty, ease it.
2- If a matter is easy, straiten it.
3- Necessity renders the prohibited permissible.
4- What necessity makes permissible is permitted only to the extent of the necessity.
5- What is permitted with due cause is again prohibited without it.
6- A universal need is a necessity.
7- Necessity does not trump the rights of another.
8- If the principle cannot be satisfied, it falls to its equivalent.

 Harm shall be removed. (Al-Darar yuzalu)

1- repel harm to the extent possible
2- remove harm.
3- An greater harm is removed with a lesser harm.
4- A particular harm can repel a general harm.
5- Averting what corrupts is more important than generating what benefits.

Cultural/Custom/ usage shall have the weight of law. 
(Al-' Adah muhakkamah)

1- What is in practice ought to be followed
2- Something becomes custom when it is generally adopted and becomes predominant
3- Weight is given what is predominant and common, not what is rare
4- Writing is considered like an oral expression.
5- A conventional gesture is considered like verbal speech.
6- Custom has the force of a contractual stipulation.
7- Something identified by custom has the force of something identified by a text.
8- The established practice of a community is considered like a stipulation between them.

Adverse possession and Mahomedan law

Muslim Law

Under the Mahomedan law applicable in India, title to a mosque can be lost by adverse possession. If that is the position in law, there can be no reason to hold that mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. A mosque is not an essential part of the practice of the religion of Islam and Namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the constitution of India. Irrespective of the status of a mosque in an Islamic country for the purpose of immunity from acquisition by the purpose of immunity from acquisition by the State in exercise of the sovereign power, its status and immunity from acquisition in the secular ethos of India under the Constitution is the same and equal to that of the places of worship of the other religions, namely, church, temple, etc. It is neither more nor less than that of the places of worship of the other religions. Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice the religion, if the significance of that place be such. subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right.[SUPREME COURT OF INDIA in Dr. M. Ismail Faruqui Versus Union of India and others Before: M. N. Venkatachaliah, C.J.I., A. M. Ahmadi, J. S. Verma, G. N. Ray And S. P. Bharucha, JJ.]

 

 

Indian Muslim Law in Nutshell

KEYWORDS:-Mahomedanism-PERSONAL LAW-

“law is dynamic and its meaning cannot be pandemic but purposeful”

Muslim Law

Sources of Muslim Law

(1) Quran (2) Sunna (3) Ijma (4) Quiyas.

(5) Customs (Urf) (6) Judicial Precedents. (7) Legislation. (8) Good Conscience and Equity.

Indian Commentators

Baillie (1875), Ameer Ali (1912) and Tyabji (1940)

FYZEE .._ : Outlines of Mohammadan Law

‘TYABJI, F. B. : Mohammadan Law

MULLA : Principles of Mohammadan Law

AMEER ALI : Mohammadan Law Vols. 1 and 2

VERMA, B.R. : Mohammadan Law (5th Edition )

Shia School

Sunni School

 Marriage (Nikah)

The consummation of marriage is  of the essential requirements of a valid Muslim marriage
(i) Muta or temporary marriages are lawful. (i) Muta marriages are not lawful.
(ii) Only the father and grandfather are recognised as legal guardians for marriages. Marriages contracted by others have no legal effect. (ii) Besides father and father’s father how highsoever, brothers, other paternal relations, mother and maternal uncle, etc., are also recognised as legal guardians for marriage.
(iii) Presence of two witnesses is essential at the time of dissolution of marriage, while at marriage, they are not essential. (iii) Two witnesses are not necessary at the time of dissolution of marriage, but are necessary at the time of marriage.
(iv) Marriage cannot be cancelled on the ground of inequality between the two parties. (iv) Marriage can be cancelled on the ground of inequality between the two parties.
(v) They do not recognise the doctrine of valid retirement, i.e., the presumption of the consummation of marriage if the husband and wife retire into the nuptial chamber and there is no impediment to sexual intercourse. (v) The doctrine of valid retirement is recognised.
(vi) Re-marriage after the third triple repudiation is never legalised. (vi) Such re-marriages are legalised.
(vii) Ten months is the longest period of gestation. (vii) The period of gestation is two years.
(viii) Marriages are either valid or void. (viii) Marriages may be irregular also besides being valid or void.

 Dower

(i) The minimum amount for dower is not fixed. (i) Ten dirhams is the minimum amount of dower.
(ii) Presumption of 500 dirhams as the maximum in case there is no stipulation. (ii) No upper limit.
(iii) Presumption of prompt dower in absence of any Stipulation. (iii) The part is prompt and the part is deferred.

Talaq

Mulla on principles of Mahomedan law (Nineteenth (SIC)1990) states vide para 310:-

“310. Talak may be oral or in writing.–A talak may be effected (1) orally (by spokenwords) or (2) by a written document called atalaknama (d).

(1) Oral Talak. — No particular form ofwords is prescribed for effecting a talak. If thewords are express (saheeh) or well understoodasimplying divorce no proof of intention is required.If the words are ambiguous (kinayat), the intentionmust be proved (e). It is not necessary that thetalak should be pronounced in the presence of thewife or even addressed to her (f). In a Calcuttacase the husband merely pronounced the word”talak” before a family council and this was heldto be invalid as the wife was not named (g). Thiscase was cited with approval by the JudicialCommittee in a case where the talak was validthough pronounced in the wife’s absence, as thewife was named (h). The Madras High Court hasalso held that the words should refer to the wife (i).The talak pronounced in the absence of the wifetakes effect though not communicated to her, butfor purposes of dower it is not necessary that itshould come to her knowledge (j); and her alimonymay continue till she is informed of the divorce(k). As the divorce becomes effective for purposesof dower only when communicated to the wife,limitation under Article 104 of the wife’s suit fordeferred dower ran from the time when the divorcecomes to her notice (l), under the Act of 1908. Seealso the Limitation Act, 1963.

Words of divorce.–The words of divorcemust indicate an intention to dissolve the marriage.If they are express (saheeh), e.g., “Thou artdivorced.” “I have divorced thee,” or “I divorcemy wife for ever and render her haram from me”(Rashid Ahmad v. Anisa Khatun (1932) 59 I.A.21 they clearly indicate an intention to dissolvethe marriage and no proof of intention isnecessary. But if they are ambiguous (kinavat),e.g., “Thou art my cousin, the daughter of myuncle, if thou guest” (Hamid Ali v. Imtiazan (1878) 2 All. 71 or “I give up all relations and would haveno connection of any sort with you” (Wajid Ali v.Jafar Husain (1932) 7 Luck. 430, 163 L.I.C. 209,(32) A.O. 34 the intention must be proved.

Pronouncement of the word talak in thepresence of the wife or when the knowledge ofsuch pronouncement comes to the knowledge ofthewife, results in the dissolution of the marriage.The intention of the husband is inconsequential,Ghansi Bibi v. Ghulam Dastagir (1968) 1 M.L.J. 566.

If a man says to his wife that she has beendivorced yesterday or earlier, it leads to a divorcebetween them, even if there be no proof of adivorce on the previous day or earlier.”

((f) Ma Mt v. Kallander Ammal, supra;Ahmad Kasim v. Khatoon Bibi (1932) 59Cal. 833, 141 L.I.C. 689, ( 33) A.C. 27;Fulchand v. Nazib Ali (1909) 36 Cal.184, 1 L.I.C. 740; Sarabai v. Rabiabai(1905) 30 Bom. 536 (obiter).

(g) Furzund Hussein v. Janu Bibee (1878) 4 Cal. 588.

(h) Rashid Ahmad v. Anisa Khatoon (1932) 59 I.A. 21, 54 All. 46, 135 L.I.C. 762 ( 32) A.P.C. 25.

(i) Asha Bibi v. Kadir, supra.

(j) Fulchand v. Nazib Ali, supra.

(k) Ma Mt v. Kallandar Ammal, supra;Abdul Khader v. Azeera Bee (1944) 1M.L.J. 17, 214 I.C. 38, (44) A.M. 227.

(l) Kathiyumma v. Urathel Marakkar(1931) 133 L.I.C. 375, (31) A.M. 647.

1) Talaq must be pronounced orally and the words of Arabic language to be used. 1) Talaq can be given orally or in writing
2) Witnesses are required while doing so 2) Witnesses are not required
3) Talaq pronounced in state of intoxication or by force is void 3) Talaq given in state of intoxication or under pressure is not held void.
4) `Talaq-ul-Sunnat’ is recognised as best form of Talaq 4) `Talaq-i- Biddat’ and `Talaq-ul-Sunnat’ both are recognised.

Guardianship

The mother of a daughter upto the age of 7 years and of son upto 2 years is legally entitled as “Guardian” Mother of a daughter upto age of 7 years and of a son upto age of attaining puberty is entitled to guardianship.

Maternity

If a child is born as a result of illicit relation of mother, the child is treated as motherless. Maternity of a child is recognised from such mother who gave birth to child without having any consideration of the reasons of birth.

Waqf

The Wakf Act 1913

Without delivery of possession of property the `Waqf is invalid. Mere declaration is enough for valid `waqf’

Pre-Emption[Shufaa]

Right of pre-emption is recognised only in case of co-sharer who are two in number. Besides co-sharer a participator in the appendages or neighbour owner of property can claim right of Pre-emption.

Wills[Vasiyyatnama]

(i) A person in an absolute owner of the one-third of his estate and can bequeath that one-third without the consent of the other heirs. Consent of the heirs essential.
(ii) In case of the legatee’s death in the lifetime of the testator, the legacy passes to his heirs unless it is revoked by the testator. It lapses.

 Inheritance[Faraid]

(i) There are only two classes of heirs namely sharers and residuaries. Three classes :
(a) Sharers,
(b) residuaries
(c) Distant kindered.
(ii) According to the law of primogeniture, the eldest son gets the deceased father’s garment, the signet-ring, the sword and the Quran. The doctrine of primogeniture is not recognised.
(iii) A Shia childless widow is not permitted to take any share in her husband’s immovable property. There is no such distinction between real and personal property and the childless widow can inherit even the immovable property.
(iv) Only the husband and not the wife is entitled to return. Both husband and wife can take by return.
(v) A man is excluded from inheritance if he has intentionally caused the murder of the person whom he is going to inherit. He is excluded from inheritance, no matter, the murder was intentional or unintentional.
  • GIFT(HIBA)
  • Maintenance
  • Restitution of Conjugal Rights
  • Option of Puberty
  • Iddat of `Talaq’
  • Dissolution of Muslim Marriage
  • Institution of adoption
  • Acknowledgement of legitimacy[Acknowledgement under Muslim Law is a rule of substantive law and not a rule of evidence]
  • The power of a guardian on the property of a minor
  • Death Bed Illness (MARZULMAUT) Gift
  • Immediately on the death of a Mohammedan, the property is vested-Explanation
  • Doctrine of increase (Aul) and Radd
Case laws

AIR 2008 SCW 6100 : (2008) 9 SCR 377 : (2008) 8 SCC 12 : JT 2008 (9) SC 37 : (2008) 8 SCALE 557

——————————————————————————–
(SUPREME COURT OF INDIA)
Faqruddin (Dead) through L. Rs.
Appellant

Versus

Tajuddin (Dead) through L. Rs.
Respondent

(Before : S. B. Sinha And Lokeshwar Singh Panta, JJ.)

Civil Appeal No.3643 of 2008 (arising out of SLP (C) No. 20565 of 2006, Decided on : 16-05-2008.

Wakf Act, 1954—Section 5—Rajasthan Jagir Decisions and Proceedings (Validation) Act, 1955—Section 10(d)—Jaipur Matmi Rules, 1945—Rule 13—Constitution of India, 1950—Article 136—Rajasthan Land Reforms and Resumption of Jagirs Act, 1952—Section 2.

AIR 1996 SCW 4032 : JT 1996 (9) SC 278 : (1996) 7 SCALE 330 : (1996) 10 SCC 705 : (1996) 5 Suppl. SCR 602

——————————————————————————–
(SUPREME COURT OF INDIA)
Mohammad
Appellant

Versus

Mohammed Beke
Respondent

(Before : K. Ramaswamy And G. B. Pattanaik, JJ.)

Civil Appeals Nos. 12378-12379 of 19% (arising out of SLP(C) Nos. 12466-66A of 1994) Decided on : 06-09-1996.

Wakf Act, 1954—Sections 2(1) and 2(r).

JT 2011 (8) SC 533 : (2011) 8 SCALE 186

——————————————————————————–
(SUPREME COURT OF INDIA)
Shehammal
Appellant

Versus

Hasan Khani Rawther and Others
Respondent

(Before : Altamas Kabir, Cyriac Joseph and Surinder Singh Nijjar, JJ.)

Special Leave Petition (C) Nos. 7421-7422 and 14303-14304 of 2008 : Decided On: 02-08-2011

Transfer of Property Act, 1882—Section 6—Evidence Act, 1872—Section 115—Spes Successionis (Relinquishment of share in property)—Chance of Mohammedan heir-apparent succeeding to an estate cannot be subject of a valid transfer or release—Ordinarily, there cannot be transfer of spes successionis but same can be avoided either by execution of family settlement or by accepting consideration for a future share—It could then operate as estoppel against expectant heir to claim any share in estate of deceased on account of doctrine of spes successionis—Having accepted consideration for having relinquished a future claim or share in estate of deceased, it would be against public policy if such a claimant be allowed benefit of the doctrine of spes successionis—In such cases, principle of estoppel would be attracted.

Mohammedan law—Succession—General principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by consent of all heirs—In effect, same also amounts to right of relinquishment of future inheritance which is on one hand forbidden and on other accepted in case of testamentary disposition.

(2011) 5 SCALE 371 : AIR 2011 SC 1695 : JT 2011 (6) SC 5 : (2011) 5 SCC 654

——————————————————————————–
(SUPREME COURT OF INDIA)
Hafeeza Bibi and Others
Appellant

Versus

Shaikh Farid (dead) by L.Rs. and Others
Respondent

(Before : R. M. Lodha and S. S. Nijjar, JJ.)

Civil Appeal No. 1714 of 2005 : Decided On: 05-05-2011

Transfer of Property Act, 1882—Sections 123 and 129—Registration Act, 1908—Sections 17 and 49—Gift of property in Mohammedans—Three essentials of gift under Mohammedan law are; (i) declaration of gift by donor; (2) acceptance of gift by donee and (3) delivery of possession—Though, rules of Mohammedan law do not make writing essential to validity of a gift; an oral gift fulfilling all three essentials make gift complete and irrevocable—However, donor may record transaction of gift in writing.

Transfer of Property Act, 1882—Sections 123 and 129—Registration Act, 1908—Sections 17 and 49—Gift of property in Mohammedans—Merely because gift is reduced to writing by a Mohammedan instead of it having been made orally, such writing does not become a formal document or instrument of gift—When a gift could be made by Mohammedan orally, its nature and character is not changed because of it having been made by a written document—What is important for a valid gift under Mohammedan law is that three essential requisites must be fulfilled—Form is immaterial—If all three essential requisites are satisfied constituting valid gift, transaction of gift would not be rendered invalid because it has been written on a plain piece of paper.

Mohammedan law—Gift—Registration—It is not the requirement that in all cases where gift deed is contemporaneous to making of gift then such deed must be registered under Section 17 of Registration Act—Each case would depend on its own facts.

JT 2010 (9) SC 229 : (2010) 10 SCR 717 : (2010) 8 SCALE 577

——————————————————————————–
(SUPREME COURT OF INDIA)
Smt. Ajambi (Dead) by Lrs.
Appellant

Versus

Roshanbi and OTHERS
Respondent

(Before : Mukundakam Sharma and Anil R. Dave, JJ.)

Civil Appeal No. 7237 of 2010 (Arising out of SLP (C) No. 5344 of 2006); Decided On: 30-08-2010

This Court in the case of Abdul Rahim and Ors. v. Sk. Abdul Zabar and Ors. reported in, (2009) 6 SCC 160 held thus: –

15. We may notice the definition of gift as contained in various textbooks. In Mulla’s Principles of Mohammadan law the “hiba” is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of later (sic latter). A.A.A. Fyzee in his Outlines of Muhammadan law defined “gift” in the following terms:

A MAN may lawfully make a gift of his property to another during his lifetime; or he may give it away to someone after his death by will. The first is called a disposition inter vivos; the second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will….

AIR 2010 SC 1414 : JT 2010 (1) SC 86 : (2010) 1 SCALE 95 : (2010) 2 SCC 654 : (2010) 1 SCR 49

——————————————————————————–
(SUPREME COURT OF INDIA)
Athar Hussain
Appellant

Versus

Syed Siraj Ahmed and OTHERS
Respondent

(Before : Tarun Chatterjee and V. S. Sirpurkar, JJ.)

Civil Appeal No. 11 of 2010 (Arising out of SLP (C) No. 24148 of 2007); Decided On: 05-01-2010

Mohammadan law—Appointment of guardian of minor children—Court is not bound by the bar envisaged under Section 19 of Guardian and Wards Act, 1890—In terms of personal law governing the minor girl her maternal relatives has to be given preference.

Guardian and Wards Act, 189—Sections 7, 9, 19 and 17—Civil Procedure Code, 1908—Section 12 and Order 39 Rule 1, Order 39 Rule 2—Mohammedan law—Sections 353 and 236.

(2007) 14 SCALE 627

——————————————————————————–
(SUPREME COURT OF INDIA)
Asokan
Appellant

Versus

Lakshmikutty AND OTHERS
Respondent

(Before : S. B. Sinha and H. S. Bedi, JJ.)

Civil Appeal No. 5942 of 2007 (Arising out of SLP (Civil) No. 20754 of 2003); Decided On: 14-12-2007

Our attention has been drawn to a decision of the Privy Council in Nawab Mirza Mohammad Sadiqu Ali Khan and Ors. v. Nawab Fakr Jahan Begam and Anr. wherein again while dealing with a case of gift governed by Muhammadan law, it was stated:

The first objection being against the tenor of the deed, the burden of proof is clearly upon those who dispute the gift. No possible reason is suggested why Baqar Ali should have desired to put a portion of this property in anyone else’s name except, possibly, an inherent propensity for benami or “ism farzi” transactions. On the other hand, the reason recited in the deed that he desired to provide his favourite wife with an alternative residence at Kairabad is to say the least of it, understandable. The portion assigned to her contained the zenana quarters, where she ordinarily put up when accompanying her husband on his apparently not infrequent visits to the kothi, and it is clear from the evidence of his other gifts to her which are now established, that he had a great desire to provide for her future comfort on a generous SCALE . Against this, all that can be said is that during his life time she exercised no individual acts of proprietorship over any portion of the Kairabad establishment; that in her and her Husband’s absence the serai was occupied by the servants of the estate; that such repairs as were necessary were done at Baqar Ali’s expense, and that no mutation of names was made in the Government records. In their Lordships’ opinion these facts are not sufficient to establish that the transaction was merely colourable. The deed was handed over to the donee and remained in her possession, and their Lordships have no doubt that Baqar Ali intended to make a genuine gift of the property to her.

JT 2002 (7) SC 520 : (2002) 7 SCC 518 : (2002) 3 Suppl. SCR 19

——————————————————————————–
(SUPREME COURT OF INDIA)
Shamim Ara
Versus

State of U.P. and AnOTHER

(Before : R. C. Lahoti and P. Venkatarama Reddi, JJ.)

Decided On: 01-10-2002

Criminal Procedure Code, 1973—Section 125.

We do not agree with the viewpropounded in the decided cases referred to by Mulla and Dr. TahirMahmood in their respective commentaries, wherein a mere plea ofprevious talaq taken in the written statement, though unsubstantiated,has been accepted as proof of talaq bringing to an end the maritalrelationship with effect from the date of filing of the writtenstatement. A plea of previous divorce taken in the written statementcannot at all be treated as pronouncement of talaq by the husband onwife on the date of filing of the written statement in the Courtfollowed by delivery of a copy thereof to the wife.

AIR 2008 SC 1915 : (2008) 5 SCR 1 : (2008) 4 SCC 774 : JT 2008 (3) SC 627 : (2008) 4 SCALE 7

——————————————————————————–
(SUPREME COURT OF INDIA)

Chand Patel
Appellant

Versus

Bismillah Begum and ANOTHER
Respondent

(Before : Altamas Kabir And J. M. Panchal, JJ.)

Criminal Appeal No. 488 of 2008 (@ S.L.P. (Cri.) No.3989 of 2006), Decided on : 14-03-2008.

Criminal Procedure Code, 1973—Section 125—Maintenance—Dispute over validity of marriage—Claimants Muslim wife and her minor daughter—Her marriage was performed with appellant professing Muslim faith, when his earlier marriage with other sister of claimant-wife was still subsisting—Such marriage need to be held irregular and not void—An irregular marriage continues to subsist till terminated in accordance with law—Wife and children of such marriage held entitled to maintenance—Appellant-husband directed to pay to claimants arrears of maintenance and ` 10,000 as cost of litigation.

In M. Ismail Faruqui etc. vs. Union of India and others, (1994) 5 Suppl. SCR 1

Irrespective of the status of a mosque under the Muslim law applicable in the Islamic countries, the status of a mosque under the Mahomedan law applicable in secular India is the same and equal to that of any other place of worship of any religion; and it does not enjoy any greater immunity from acquisition in exercise of the sovereign or prerogative power of the State, than that of the places of worship of the other religions.

AIR 2000 SC 1650 : (2000) 3 SCR 1081 : (2000) 6 SCC 224 : JT 2000 (5) SC 617 : (2000) 4 SCALE 176 : (2000) CriLJ SC 2433

——————————————————————————–
(SUPREME COURT OF INDIA)
Lily Thomas
Appellant

Versus

Union of India and others
Respondent

(Before: S. Saghir Ahmad And R. P. Sethi, JJ.)

Writ Petn. (Civil) No. 798 of 1995 with W. P. (C) No. 1079 of 1989, R. P. (C) No. 1310 of 1995, in W. P. (C) Nos. 509 of 1992, 347 of 1990, 424 of 1992, 503 of 1995, 509 of 1992, 588 of 1995 and 835 of 1995, Decided on: 05-05-2000.

Penal Code, 1860—Section 494—Bigamy—Conversion to Islam—Hindu husband contracting second marriage after conversion to Islam—Mere such conversion would not automatically dissolve his first marriage—Offences under Section 17 of Hindu Marriage Act read with Section 494 IPC made out against him.

If a Hindu wife files a complaint for the offence under Section 494, IPC on the ground that during the subsistence of the marriage, her husband had married a second wife under some other religion after converting to that religion, the offence of bigamy pleaded by her would have to be investigated and tried in accordance with the provisions of the Hindu Marriage Act. It is under this Act that it has to be seen whether the husband, who has married a second wife, has committed the offence of bigamy or not. Since under the Hindu Marriage Act, a bigamous marriage is prohibited and has been constituted as an offence under Section 17 of the Act, any marriage solemnized by the husband during the subsistence of that marriage, in spite of his conversion to another religion, would be an offence triable under Section 17 of the Hindu Marriage Act read with Section 494, IPC. Since taking of cognizance of the offence under Section 494 is limited to the complaints made by the persons specified in Section 198 of the Code of Criminal Procedure, it is obvious that the complaint would have to be decided in terms of the personal law applicable to the complainant and the respondent (accused) as mere conversion does not dissolve the marriage automatically and they continue to be “husband and wife”. Change of religion does not dissolve the marriage performed under the Hindu Marriage Act between two Hindus. Apostasy does not bring to an end the civil obligations or the matrimonial bond, but apostasy is a ground for judicial separation under Section 10 of the Hindu Marriage Act.

Religion is a matter of faith stemming from the depth of the heart and mind. Religion, faith or devotion are not easily interchangeable, if the person feigns to have adopted another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation, as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution, under Hindu law, marriage is a sacrament. Both have to be preserved.

AIR 1997 SC 3614 : (1997) 2 SCR 389 : (1997) 3 SCC 573 : JT 1997 (3) SC 171 : (1997) 2 SCALE 381

——————————————————————————–
(SUPREME COURT OF INDIA)
Ahmedabad Women Action Group (AWAG) and others
Appellant

Versus

Union of India
Respondent

(Before: A. M. Ahmadi, C.J.I., Mrs. Sujata V. Manohar And K. Venkataswami, JJ.)

Writ Petn. (C) Nos. 494 with 496 and 721 of 1996, Decided on: 24-02-1997.

Divorce Act, 1869—Section 10—Validity of—Discrimination—Ground available to wife, not available to husband—Provision is not discriminatory.

Taking into consideration the muscularly weaker physique of the woman, her general vulnerable physical and social condition and her defensive and non aggressive nature and role particularly in this country, the legislature can hardly be faulted if the said two grounds are made available to the wife and not to the husband for seeking dissolution of the marriage. For the same reasons, it can hardly be said that on that account the provisions of Section 10 of the Act are discriminatory as against the husband.

We, therefore, find that there is no substance in the challenge by the petitioner husband to the vires of the provisions of Section 10 as being discriminatory against the husband and, therefore, violative of Article 14 of the Constitution.

Mohammadan law—Gender discrimination—Violation of equality clause under Article 13 of Constitution—Chapter III of Constitution has no application on personal laws—Matter of State policy to be decided by the legislature—Challenge to personal law on the ground of gender discrimination not permissible.

AIR 1997 SC 104 : (1996) 7 Suppl. SCR 148 : (1996) 11 SCC 245 : JT 1996 (9) SC 460 : (1996) 7 SCALE 711

——————————————————————————–
(SUPREME COURT OF INDIA)
Punjab Wakf Board
Appellant

Versus

Shakur Masih
Respondent

(Before: K. Ramaswamy And G. B. Pattanaik, JJ.)

Civil Appeal No. 8225 of 1996, Decided on: 01-10-1996,

Mohammadan law—Wakf—Contingent Wakf—Validity of—Wakf created by Will made contingent to the life time of other beneficiary—Wakf is invalid.

AIR 1995 SC 605 : (1994) 6 SCC 360 : JT 1994 (6) SC 632 : (1994) 2 Suppl. SCALE 100

——————————————————————————–
(SUPREME COURT OF INDIA)
Dr. M. Ismail Faruqui
Appellant

Versus

Union of India and others
Respondent

(Before: M. N. Venkatachaliah, C.J.I., A. M. Ahmadi, J. S. Verma, G. N. Ray And S. P. Bharucha, JJ.)

Transferred Case (C) Nos. 41, 43 and 45 of 1993 With Writ Petn. (Civil) No. 208 of 1993 With Spl. Ref. No. 1 of 1993 With I.A. No. 1 of 1994 in T.C.(C) No. 44 of 1993 WITH Writ Petn. (C) No. 186 of 1994, Decided on: 24-10-1994.

Limitation Act, 1963—Articles 64 and 65—Adverse possession—Mosque—Title to a mosque can be lost by adverse possession.

Mohammadan law—Acquisition of mosque—Permissibility—The State can acquire a place of religious worship—A mosque has no special status—Such acquisition is not unconstitutional or offends the right to practice religion, guaranteed under the constitution. .

Under the Mahomedan law applicable in India, title to a mosque can be lost by adverse possession. If that is the position in law, there can be no reason to hold that mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. A mosque is not an essential part of the practice of the religion of Islam and Namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the constitution of India. Irrespective of the status of a mosque in an Islamic country for the purpose of immunity from acquisition by the purpose of immunity from acquisition by the State in exercise of the sovereign power, its status and immunity from acquisition in the secular ethos of India under the Constitution is the same and equal to that of the places of worship of the other religions, namely, church, temple, etc. It is neither more nor less than that of the places of worship of the other religions. Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice the religion, if the significance of that place be such. subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right.

Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, held as under:

“It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country, and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made in 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 that 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”.

AIR 1991 SC 720 : (1990) 1 Suppl. SCR 433 : (1990) 4 SCC 672 : JT 1991 (5) SC 420 : (1990) 2 SCALE 481

——————————————————————————–
(SUPREME COURT OF INDIA)
P. N. Veetil Narayani
Appellant

Versus

Pathumma Beevi (dead) by L.Rs. and another
Respondent

(Before: A. M. Ahmadi And M. M. Punchhi, JJ.)

Mohammadan law—Ancestral debt—Acknowledgement by legal heirs—Intestate death—The heir making acknowledgement is liable to debt only in respect of his share of entitlement to succeed to the estate of deceased.

The heirs of a muslim dying intestate on whom falls the liability to discharge the debt, proportionate to their respective shares in the estate devolved, can hardly be classified as joint contractors, partners, executors or mortgagees. As held above they are by themselves independent debtors; the debt having been split by operation of law. Inter se they have no jural relationship as co-debtors or joint debtors so as to fall within the shadow of contrators, partners, executors or mortgagees or in a class akin to them. They succeed to the estate as tenants-in-common in specific shares. Even a signed written acknowledgement by the principal or through his agent would bind the principal and not anyone else standing in jural relationship with the principal in accordance with Section 20(2) of Limitation Act. The Muslim heirs inter se have no such relationship. In this view of the matter, we take the view that the High Court was right in confining the acknowledgment of the debts only to respondent No. 2 and not extending the acknowledgment to the other co-heirs for their independent position.

AIR 1985 SC 945 : (1985) 3 SCR 844 : (1985) 2 SCC 556 : (1985) 1 SCALE 767 : (1985) CriLJ SC 875

——————————————————————————–
(SUPREME COURT OF INDIA)
Mohd. Ahmed Khan
Appellant

Versus

Shah Bano Begum and others
Respondent

(Before : Y. V. Chandrachud, C.J.I., D. A. Desai, O. Chinnappa Reddy, E. S. Venkataramiah, And Ranganath Misra, JJ.)

Criminal Appeal No. 103 of 1981 , Decided on : 23-04-1985.

Criminal Procedure Code, 1973—Section 125—Maintenance—Wife meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.

Note: The position of law is not the same after enactment of Muslim Woman (Protection of Rights on Divorce) Act, 1986.

Maintenance—Wife—Meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.

Criminal Procedure Code, 1973—Section 125—Maintenance—Wife meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.

AIR 1981 SC 798 : (1981) 2 SCR 826 : (1981) 2 SCC 226 : (1981) 1 SCALE 304

——————————————————————————–
(SUPREME COURT OF INDIA)
Radhakanta Deb and another
Appellant

Versus

The Commissioner of Hindu Religious Endowments, Orissa
Respondent

(Before : S. Murtaza Fazl Ali, A. Varadarajan And Amarendra Nath Sen, JJ.)

Mohammadan law—Wakf—Private trust—Creation of—Permissibility—Trust for the purpose of supporting the family of settler is permissible.

The Mahomedan law recognises the existence of a private trust which is also of a charitable nature and which is generally called Waqf-allal-Aulad, where the ultimate benefit is reserved to god but the property vests in the beneficiaries and the income from the property is used for the maintenence and support of the family of the founder and his descendants. In case the family becomes extinct then the Waqf becomes a public waqf, the property vesting in God. A public Waqf under the Mahomedan law is called Waqf-fi-sabi-lil-lah.

AIR 1981 SC 1972 : (1982) 1 SCR 695 : (1981) 4 SCC 250 : (1981) 3 SCALE 1400 : (1981) CriLJ SC 1430

——————————————————————————–
(SUPREME COURT OF INDIA)
Sirajmohmedkhan Janmohamadkhan
Appellant

Versus

Hafizunnisa Yasinkhan and another
Respondent

(Before : S. Murtaza Fazl Ali And A. P. Sen, JJ.)

Criminal Appeal No. 602 of 1981 , Decided on : 14-09-1981.

Criminal Procedure Code, 1973—Section 125—Maintenance—Refusal to cohabit—Justification—Impotency of husband would be a just ground for refusal by wife to cohabit with him.

We are of the opinion that if the husband was impotent and unable to discharge his marital obligations, how could be fulfil the main object of marriage, more particularly, under the Mahomedan law where marriage is a sacrosanct contract and not a purely religious ceremony as in the case of Hindu law. This would certainly be a very just and reasonable ground on the part of the wife for refusing to live with her husband, as also in cases under the Hindu law or other laws.

A clear perusal of this provision manifestly shows that it was meant to give a clear instance of circumstances which may be treated as a just ground for refusal of the wife to live with her husband. As already indicated by virtue of this provision, the proviso takes within its sweep all other circumstances similar to the contingencies contemplated in the Amending Provision as also other instances of physical, mental or legal cruelty not excluding the impotence of the husband. These circumstances, therefore, clearly show that the grounds on which the wife refuses to live with her husband should be just and reasonable as contemplated by the proviso. Similarly, where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed due to persistent demands of dowry from her husband’s parents or relations, such apprehension also would be manifestly a reasonable justification for the wife’s refusal to live with her husband. Instances of this nature may be multiplied but was have mentioned some of the circumstances to show the real scope and ambit of the proviso and the Amending provision which is, as already indicated, by no means exhaustive.

In other words, where a husband contracts a marriage with another woman or keeps a mistress this would be deemed to be a just ground within the meaning of the second proviso so as to make the refusal of the wife to live with her husband fully justified and entitled to maintenance.

The matter deserves serious attention from the point of view of the wife. Here is a wife who is forced or compelled to live a life of celibacy while staying with her husband who is unable to have sexual relationship with her. Such a life is one of perpetual torture which is not only mentally or psychologically injurious but even from the medical point of view is detrimental to the health of the woman. Surely, the concept of mental cruelty cannot be different in a civil case and in a criminal case when the attributes of such a cruelty are the same.

AIR 1981 SC 1243 : (1981) 2 SCR 910 : (1981) 2 SCC 509 : (1981) 1 SCALE 370 : (1981) CriLJ SC 754

——————————————————————————–
(SUPREME COURT OF INDIA)
Mst. Zohara Khatoon
Appellant

Versus

Mohd. Ibrahim
Respondent

(Before : S. Murtaza Fazl Ali, A. D. Koshal And A. Varadarajan, JJ.)

Criminal Appeal No. 761 of 1980 , Decided on : 18-02-1981.

Criminal Procedure Code, 1973—Sections 125 and 127—Wife—Meaning of—Muslim woman divorced under Dissolution of Muslim Marriages Act, 1939 is a wife entitled to maintenance.

Criminal Procedure Code, 1973—Section 125—Divorced wife is entitled to maintenance until remarriage.

Criminal Procedure Code, 1973—Section 125—Divorced woman includes a wife who has been granted a decree of dissolution of marriage.

AIR 1978 SC 1362 : (1978) 3 SCR 886 : (1978) 3 SCC 299

——————————————————————————–
(SUPREME COURT OF INDIA)
Bibi Siddique Fatima
Appellant

Versus

Saiyed Mohammad Mahmood Hasan
Respondent

(Before : R. S. Sarkaria, N. L. Untwalia And P. S. Kailasam, JJ.)

Mohammadan law—Wakf—Object of—Maintenance of family of Wakf—Permissibility—The ultimate object of the Wakf to spend income in the service of God—Such wakf is valid under the provisions of Mussalman Wakf Validating Act, 1913.

According to Shia law the waqf is irrevocable after possession is given to the beneficiaries or the Mutawalli. The settlor divests himself of the ownership of the property and of everything in the nature of usufruct from the moment the waqf is created. In purely metaphorical sense the expression “ownership of God” is used but unlike Hindu law, since conception of a personal God is not recognized, there is no ownership of God or no property belongs to God in the jural sence, although “the ownership of the property becomes reverted in God as he is originally the owner of all things”. The Shia authorities considered the property as transferred to the beneficiaries or to the object of the waqf. Strictly speaking, the ownership of the waqf property has no jural conception with any exactitude. The corpus is tied down and is made inalienable. Only the usufruct and the income from the corpus of the waqf property is available for carrying out the objects of the waqf.

The waqf deed that except a portion of money which was to be spent for public, religious or charitable objects the waqf was primarily of a private nature for the benefit of the settlor”s family and their descendants, which is called wakf-alal-aulad. The ultimate object of the waqf was to spend income, if any, in the service of the Almighty God. In Abdul Fata Mohommed v. Russomoy, (1894) 22 Ind. App. 76 (PC) their Lordships of the Privy Council held that the gift to charity was illusory, and that the sole object of the settlor was to create a family settlement in perpetuity. The waqf of this kind was, therefore, invalid. The decision aforesaid caused considerable dissatisfaction in the mohomedan community in India. This led to the passing of the Mussalman Wakf Validating Act, 1913 which was made retrospective in operation by a subsequent Act of 1930. In view of the Validating Act of 1930. In view of the Validating Act of 1913 the validity of the wakf was beyond the pale of challenge.

AIR 1976 SC 1569 : (1976) 3 SCR 721 : (1976) 4 SCC 780

——————————————————————————–
(SUPREME COURT OF INDIA)
Syed Mohd. Salie Labbai (Dead) by Lrs. and others
Appellant

Versus

Mohd. Hanifa (Dead) by Lrs. and others
Respondent

(Before : P. K. Goswami And S. Murtaza Fazl Ali, JJ.)

Civil Appeals Nos. 1223-1224 and 2026 of 1968, Decided on : 22-03-1976

There is some dispute about the right to act as an Imam. We have already pointed out that the Mohomedan law does not favour the hereditary right of being an Imam because an Imam must possess certain special qualities and certain special knowledge of the scriptures before he can be allowed to lead the prayers. The evidence shows that the Labbais have undoubtedly been acting as Imams, though not for a continuous period. This, however, is a matter for the entire Muslim community to decide because an Imam is normally chosen under the Mahomedan law by the Muslim community.

AIR 1973 SC 554 : (1973) 2 SCR 300 : (1973) 1 SCC 1

——————————————————————————–
(SUPREME COURT OF INDIA)
Gulam Abbas
Appellant

Versus

Haji Kayyam Ali and others
Respondent

(Before : A. N. Grover, M. H. Beg And A. K. Mukherjea, JJ.)

Civil Appeal No. 2134 of 1970, Decided on : 18-09-1972.

Mohammadan law—Inheritance—Relinquishment of—Renunciation of expectation to inherit in lieu of consideration received—Promissory estoppel against such heir to enforce such right of succession—Permissibility.

This is a correct statement, so far as it goes, of the law, because a bare renunciation of an expectation to inherit cannot bind the expectant heir’s conduct in future. But, if the expectant heir goes further and receives consideration and so conducts himself as to mislead an owner into not making dispositions of his property inter vivos the expectant heir could be debarred from setting up his right when it does unquestionably vest in him. In other words, the principle of estoppel remains untouched by this statement.

The renunciation of a supposed right, based upon an expectancy, could not, by any test found there, be considered “prohibited”. The binding force in future of such a renunciation would, even according to strict Muslim Jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part. In other words, the principle of an equitable estoppel, far from being opposed to any principle of Muslim law will be found, on investigation, to be completely in consonance with it.

AIR 1972 SC 2162 : (1973) 1 SCR 500 : (1972) 2 SCC 336

——————————————————————————–
(SUPREME COURT OF INDIA)
S. K. Mohammad Rafiq (dead) by his legal representatives
Appellant

Versus

Khalilul Rehman and another
Respondent

(Before : K. S. Hegde And A. N. Grover, JJ.)

Civil Appeals Nos. 691 and 692 of 1967, Decided on : 03-05-1972.

Mohammedan law—Right of pre-emption—Demands for pre-emption absolutely essential—Such demands to be made within fairly reasonable time.

AIR 1952 SC 358 : (1952) SCR 1133

——————————————————————————–
(SUPREME COURT OF INDIA)
Mohd. Amin and others
Appellant

Versus

Vakil Ahmad and others
Respondent

(Before : Mehr Chand Mahajan, N. Chandrasekhara Aiyar And N. H. Bhagwati, JJ.)

Civil Appeal No. 51 of 1951, Decided on : 22-10-1952.

Family arrangement—Mohammadan law—Void settlement—Effect of—Minor represented through de facto guardian in the family settlement—The settlement is void and not binding on the minor irrespective of the consideration that it benefited him and that the arrangement continued for a long time—The settlement which is void qua the minor is void altogether qua all the parties including those who were sui juris.

Mohammadan law—De facto guardian—Rights of—Transfer of property of minor by a de facto guardian is not permissible.

AIR 1954 SC 417 : (1955) 1 SCR 70

(SUPREME COURT OF INDIA)

Shri Audh Behari Singh Appellant
Versus
Gajadhar Jaipuria and others Respondent

(Before : Mehr Chand Mahajan, C.J.I., B. K. Mukherjea, Vivian Bose, N. H. Bhagwati And T. L. Venkatarama Ayyar, JJ.)

Civil Appeal No. 15 of 1951, Decided on : 23-04-1954.

Evidence Act, 1872—Section 13—Custom—Proof of—It is a matter to be established by proper evidence—Right vested upon custom becomes lex loci i.e. the law of the place affecting all persons irrespective of religion, nationality or domicile unless such incidence are proved to be part of custom.

Mohammadan law—Pre-emption—Right of—Necessity to prove custom—Distinction with Hindus claiming pre-emption—These are questions of facts to be proved on the basis of evidence.

It cannot be and is not disputed that if the right of pre-emption is set up by non-Muslims on the basis of a custom, the existence of the custom is a matter to be established by proper evidence.

When the existence of a custom under which the Hindus claim to have the same rights of pre-emption as Muhammadans, in any district, is generally known and judicially recognised, it is not necessary to prove it by further evidence. A long course of decisions has established the existence of such custom in Bihar, Sylhet and certain parts of Gujarat.

The ambit or extent of a custom is a matter of proof and the defendants were certainly competent to adduce evidence to show that the custom of pre-emption prevailing in the city of Banaras was available not against all persons who held lands within it but only against a particular class of persons.

The correct legal position must be that when a right of pre-emption rests upon custom it becomes the lex loci or the law of the place and affects all lands situated in that place irrespective of the religion or nationality or domicile of the owners of the lands except where such incidents are proved to be a part of the custom itself.

Pre-emption—Nature of right—Effect of right—The right if a personal right—It is a disability upon the ownership of the property whose owner’s unfettered right to alienate the right is affected—It is right and burden attached to land and not a personal right or burden.

The law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owner’s unfettered right of sale and compels him to sell the property of his cosharer or neighbour as the case may be. The person who is a co-sharer in the land or owns lands in the vicinity consequently gets an advantage or benefit corresponding to the burden with which the owner of the property is saddled, even though it does not amount to an actual interest in the property sold.

The benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself. It may be stated here that if the right of pre-emption had been only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restricitng his right of sale in a certain manner, a bona fide purchaser without notice would certainly obtain an absolute title to the property, unhampered by any right of the pre-emptor and in such circumstances there could be no justification for enforcing the right of pre-emption against the purchaser on grounds of justice equity and good conscience on which grounds alone the right could be enforced at the present day. In our opinion the law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser.

AIR 1964 SC 275 : (1964) 4 SCR 549

——————————————————————————–
(SUPREME COURT OF INDIA)
Valia Peedikakkandi Katheessa Umma and others
Appellant

Versus

Pathakkalan Narayanath Kunhamu
Respondent

(Before : A. K. Sarkar, M. Hidayatullah And J. C. Shah, JJ.)

Civil Appeal No. 513 of 1961,Decided on : 23-08-1963.

Muslim law—Hanafi School—Gift—Validity of.

the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mother’s house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother -in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother-in-law, in whose charge his wife was during his illness and afterwards Mammmotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete. The appeal therefore succeeds. The Judgment of the High Court and of the Courts below are set aside and the suit of the plaintiff is ordered to be dismissed with costs throughout.

 

 

 

 

 

 

What is nikah halala?

KEYWORDS:- Muslim Law

Muslim woman

After a woman gets a divorce from her first husband, she marries another man.

In the second marriage, if she realises  and decides that she was better off with her first husband, she can divorce her second husband and then remarry her first husband. It is coming back to the first husband.

That is halala.

In India husbands divorce their wives and then let the women go through this horrendous process for coming back to him. It is if by mistake a Muslim man uttered triple Talaq, then he has left with no other option than to let his wife for marrying with another person and live on his mercy, that he would divorce him immediately and the first husband could get back his wife.

When a Muslim man divorces his wife, she then has to go through halala if she wants to come back to her first husband. That is the twist Indian clerics have given.

 

Danial Latifi & Anr vs Union Of India [ALL SC 2001 SEPTEMBER]

KEYWORDS:- MAINTENANCE OF MUSLIM WIFE

c

DATE: 28 September, 2001

ACTS:- Muslim Women (Protection of Rights on Divorce) Act, 1986-Section 125 CrPC.

Supreme Court of India

Danial Latifi & Anr vs Union Of India

Author: R Babu
Bench: G.B. Pattanaik, S. Rajendra Babu, D.P. Mohapatra, Doraiswamy Raju, Shivaraj V. Patil
CASE NO.: Writ Petition (civil) 868 of 1986

JUDGMENT:
[ With WP(C) Nos. 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86, 1281/86, T.C. (C) 22/87, 86/88, 68/88, T.P. (C) No. 276- 77/87, Crl. A. No. 702/90, SLP (Crl.) Nos. 655/88, 596-97/92, WP(C) No. 12273/84, SLP(Crl.) No. 2513/94, Crl. A. Nos. 508/95, 843/95, 102-103/89, 292/90, SLP (Crl.) Nos. 2165/96, 3786/99, 2462/99]

J U D G M E N T

RAJENDRA BABU, J.:

The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 [hereinafter referred to as the Act] is in challenge before us in these cases.

The facts in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. (1985) 2 SCC 556, are as follows.
The husband appealed against the judgment of the Madhya Pradesh High Court directing him to pay to his divorced wife Rs.179/- per month, enhancing the paltry sum of Rs.25 per month originally granted by the Magistrate. The parties had been married for 43 years before the ill and elderly wife had been thrown out of her husbands residence. For about two years the husband paid maintenance to his wife at the rate of Rs.200/- per month. When these payments ceased she petitioned under Section 125 CrPC. The husband immediately dissolved the marriage by pronouncing a triple talaq. He paid Rs.3000/- as deferred mahr and a further sum to cover arrears of maintenance and maintenance for the iddat period and he sought thereafter to have the petition dismissed on the ground that she had received the amount due to her on divorce under the Muslim law applicable to the parties. The important feature of the case was that the wife had managed the matrimonial home for more than 40 years and had borne and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life – remarriage was an impossibility in that case. The husband, a successful Advocate with an approximate income of Rs.5,000/- per month provided Rs.200/- per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

Thus, the principle question for consideration before this Court was the interpretation of Section 127(3)(b) CrPC that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband from his obligation under the provisions of Section 125 CrPC.

A Five-Judge Bench of this Court reiterated that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties. If there was a conflict between the terms of the Code and the rights and obligations of the individuals, the former would prevail. This Court pointed out that mahr is more closely connected with marriage than with divorce though mahr or a significant portion of it, is usually payable at the time the marriage is dissolved, whether by death or divorce. This fact is relevant in the context of Section 125 CrPC even if it is not relevant in the context of Section 127(3)(b) CrPC. Therefore, this Court held that it is a sum payable on divorce within the meaning of Section 127(3)(b) CrPC and held that mahr is such a sum which cannot ipso facto absolve the husbands liability under the Act.

It was next considered whether the amount of mahr constitutes a reasonable alternative to the maintenance order. If mahr is not such a sum, it cannot absolve the husband from the rigour of Section 127(3)(b) CrPC but even in that case, mahr is part of the resources available to the woman and will be taken into account in considering her eligibility for a maintenance order and the quantum of maintenance. Thus this Court concluded that the divorced women were entitled to apply for maintenance orders against their former husbands under Section 125 CrPC and such applications were not barred under Section 127(3)(b) CrPC. The husband had based his entire case on the claim to be excluded from the operation of Section 125 CrPC on the ground that Muslim law exempted from any responsibility for his divorced wife beyond payment of any mahr due to her and an amount to cover maintenance during the iddat period and Section 127(3)(b) CrPC conferred statutory recognition on this principle. Several Muslim organisations, which intervened in the matter, also addressed arguments. Some of the Muslim social workers who appeared as interveners in the case supported the wife brought in question the issue of mata contending that Muslim law entitled a Muslim divorced woman to claim provision for maintenance from her husband after the iddat period. Thus, the issue before this Court was: the husband was claiming exemption on the basis of Section 127(3)(b) CrPC on the ground that he had given to his wife the whole of the sum which, under the Muslim law applicable to the parties, was payable on such divorce while the woman contended that he had not paid the whole of the sum, he had paid only the mahr and iddat maintenance and had not provided the mata i.e. provision or maintenance referred to in the Holy Quran, Chapter II, Sura 241. This Court, after referring to the various text books on Muslim law, held that the divorced wifes right to maintenance ceased on expiration of iddat period but this Court proceeded to observe that the general propositions reflected in those statements did not deal with the special situation where the divorced wife was unable to maintain herself. In such cases, it was stated that it would be not only incorrect but unjust to extend the scope of the statements referred to in those text books in which a divorced wife is unable to maintain herself and opined 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. This Court concluded that these Aiyats [the Holy Quran, Chapter II, Suras 241-242] leave no doubt that the Holy 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 Holy Quran. On this note, this Court concluded its judgment.

There was a big uproar thereafter and Parliament enacted the Act perhaps, with the intention of making the decision in Shah Banos case ineffective.

The Statement of Objects & Reasons to the bill, which resulted in the Act, reads as follows :
The Supreme Court, in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. [AIR 1985 SC 945), has held that although the Muslim Law limits the husbands liability to provide for maintenance of the divorced wife to the period of iddat, it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973. The Court held that it would be incorrect and unjust to extend the above principle of Muslim Law to cases in which the divorced wife is unable to maintain herself. The Court, therefore, came to the conclusion that if the divorced wife is able to maintain herself, the husbands liability ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 of the Code of Criminal Procedure.

2. This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. The Bill accordingly provides for the following among other things, namely:-
(a) a Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period of iddat by her former husband and in case she maintains the children born to her before or after her divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children. She will also be entitled to mahr or dower and all the properties given to her by her relatives, friends, husband and the husbands relatives. If the above benefits are not given to her at the time of divorce, she is entitled to apply to the Magistrate for an order directing her former husband to provide for such maintenance, the payment of mahr or dower or the deliver of the properties;
(b) where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law in the proportions in which they would inherit her property. If any one of such relatives is unable to pay his or her share on the ground of his or her not having the means to pay, the Magistrate would direct the other relatives who have sufficient means to pay the shares of these relatives also. But where, a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the maintenance or the other relatives who have been asked to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives the Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay.

The object of enacting the Act, as stated in the Statement of Objects & Reasons to the Act, is that this Court, in Shah Banos case held that Muslim Law limits the husbands liability to provide for maintenance of the divorced wife to the period of iddat, but it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973 and, therefore, it cannot be said 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.

As held in Shah Banos case, the true position is that if the divorced wife is able to maintain herself, the husbands liability to provide maintenance for her ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 CrPC. Thus it was held that there is no conflict between the provisions of Section 125 CrPC and those of the Muslim Personal Law on the question of the Muslim husbands obligation to provide maintenance to his divorced wife, who is unable to maintain herself. This view is a reiteration of what is stated in two other decisions earlier rendered by this Court in Bai Tahira vs. Ali Hussain Fidaalli Chothia, (1979) 2 SCC 316, and Fuzlunbi vs. K.Khader Vali & Anr., (1980) 4 SCC 125.

Smt. Kapila Hingorani and Smt. Indira Jaisingh raised the following contentions in support of the petitioners and they are summarised as follows :
1. Muslim marriage is a contract and an element of consideration is necessary by way of mahr or dower and absence of consideration will discharge the marriage. On the other hand, Section 125 CrPC has been enacted as a matter of public policy.
2. To enable a divorced wife, who is unable to maintain herself, to seek from her husband, who is having sufficient means and neglects or refuses to maintain her, payment of maintenance at a monthly rate not exceeding Rs.500/-. The expression wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. The religion professed by a spouse or the spouses has no relevance in the scheme of these provisions whether they are Hindus, Muslims, Christians or the Parsis, pagans or heathens. It is submitted that Section 125 CrPC is part of the Code of Criminal Procedure and not a civil law, which defines and governs rights and obligations of the parties belonging to a particular religion like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 CrPC, it is submitted, was enacted in order to provide a quick and summary remedy. The basis there being, neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves, these provisions have been made and the moral edict of the law and morality cannot be clubbed with religion.
3. The argument is that the rationale of Section 125 CrPC is to off- set or to meet a situation where a divorced wife is likely to be led into destitution or vagrancy. Section 125 CrPC is enacted to prevent the same in furtherance of the concept of social justice embodied in Article 21 of the Constitution.
4. It is, therefore, submitted that this Court will have to examine the questions raised before us not on the basis of Personal Law but on the basis that Section 125 CrPC is a provision made in respect of women belonging to all religions and exclusion of Muslim women from the same results in discrimination between women and women. Apart from the gender injustice caused in the country, this discrimination further leads to a monstrous proposition of nullifying a law declared by this Court in Shah Banos case. Thus there is a violation of not only equality before law but also equal protection of laws and inherent infringement of Article 21 as well as basic human values. If the object of Section 125 CrPC is to avoid vagrancy, the remedy thereunder cannot be denied to Muslim women.
5. The Act is an un-islamic, unconstitutional and it has the potential of suffocating the muslim women and it undermines the secular character, which is the basic feature of the Constitution; that there is no rhyme or reason to deprive the muslim women from the applicability of the provisions of Section 125 CrPC and consequently, the present Act must be held to be discriminatory and violative of Article 14 of the Constitution; that excluding the application of Section 125 CrPC is violative of Articles 14 and 21 of the Constitution; that the conferment of power on the Magistrate under sub-section (2) of Section 3 and Section 4 of the Act is different from the right of a muslim woman like any other woman in the country to avail of the remedies under Section 125 CrPC and such deprivement would make the Act unconstitutional, as there is no nexus to deprive a muslim woman from availing of the remedies available under Section 125 CrPC, notwithstanding the fact that the conditions precedent for availing of the said remedies are satisfied.
The learned Solicitor General, who appeared for the Union of India, submitted that when a question of maintenance arises which forms part of the personal law of a community, what is fair and reasonable is a question of fact in that context. Under Section 3 of the Act, it is provided that a reasonable and fair provision and maintenance to be made and paid by her former husband within the iddat period would make it clear that it cannot be for life but would only be for a period of iddat and when that fact has clearly been stated in the provision, the question of interpretation as to whether it is for life or for the period of iddat would not arise. Challenge raised in this petition is dehors the personal law. Personal law is a legitimate basis for discrimination, if at all, and, therefore, does not offend Article 14 of the Constitution. If the legislature, as a matter of policy, wants to apply Section 125 CrPC to Muslims, it could also be stated that the same legislature can, by implication, withdraw such application and make some other provision in that regard. Parliament can amend Section 125 CrPC so as to exclude them and apply personal law and the policy of Section 125 CrPC is not to create a right of maintenance dehors the personal law. He further submitted that in Shah Banos case, it has been held that a divorced woman is entitled to maintenance even after the iddat period from the husband and that is how Parliament also understood the ratio of that decision. To overcome the ratio of the said decision, the present Act has been enacted and Section 3(1)(a) is not in discord with the personal law.
Shri Y.H.Muchhala, learned Senior Advocate appearing for the All India Muslim Personal Law Board, submitted that the main object of the Act is to undo the Shah Banos case. He submitted that this Court has harzarded interpretation of an unfamiliar language in relation to religious tenets and such a course is not safe as has been made clear by Aga Mahomed Jaffer Bindaneem vs. Koolsom Bee Bee & Ors., 24 IA 196, particularly in relation to Suras 241 and 242 Chapter II, the Holy Quran.. He submitted that in interpreting Section 3(1)(a) of the Act, the expressions provision and maintenance are clearly the same and not different as has been held by some of the High Courts. He contended that the aim of the Act is not to penalise the husband but to avoid vagrancy and in this context Section 4 of the Act is good enough to take care of such a situation and he, after making reference to several works on interpretation and religious thoughts as applicable to Muslims, submitted that social ethos of Muslim society spreads a wider net to take care of a Muslim divorced wife and not at all dependent on the husband. He adverted to the works of religious thoughts by Sir Syed Ahmad Khan and Bashir Ahmad, published from Lahore in 1957 at p. 735. He also referred to the English translation of the Holy Quran to explain the meaning of gift in Sura 241. In conclusion, he submitted that the interpretation to be placed on the enactment should be in consonance with the Muslim personal law and also meet a situation of vagrancy of a Muslim divorced wife even when there is a denial of the remedy provided under Section 125 CrPC and such a course would not lead to vagrancy since provisions have been made in the Act. This Court will have to bear in mind the social ethos of Muslims, which are different and the enactment is consistent with law and justice.
It was further contended on behalf of the respondents that the Parliament enacted the impugned Act, respecting the personal law of muslims and that itself is a legitimate basis for making a differentiation; that a separate law for a community on the basis of personal law applicable to such community, cannot be held to be discriminatory; that the personal law is now being continued by a legislative enactment and the entire policy behind the Act is not to confer a right of maintenance, unrelated to the personal law; that the object of the Act itself was to preserve the personal law and prevent inroad into the same; that the Act aims to prevent the vagaries and not to make a muslim woman, destitute and at the same time, not to penalise the husband; that the impugned Act resolves all issues, bearing in mind the personal law of muslim community and the fact that the benefits of Section 125 CrPC have not been extended to muslim women, would not necessarily lead to a conclusion that there is no provision to protect the muslim women from vagaries and from being a destitute; that therefore, the Act is not invalid or unconstitutional.

On behalf of the All India Muslim Personal Law Board, certain other contentions have also been advanced identical to those advanced by the other authorities and their submission is that the interpretation placed on the Arabic word mata by this Court in Shah Banos case is incorrect and submitted that the maintenance which includes the provision for residence during the iddat period is the obligation of the husband but such provision should be construed synonymously with the religious tenets and, so construed, the expression would only include the right of residence of a Muslim divorced wife during iddat period and also during the extended period under Section 3(1)(a) of the Act and thus reiterated various other contentions advanced on behalf of others and they have also referred to several opinions expressed in various text books, such as, –
1. The Turjuman al-Quran by Maulana Abul Kalam Azad, translated into English by Dr. Syed Abdul Latif;
2. Persian Translation of the Quran by Shah Waliullah Dahlavi
3. Al-Manar Commentary on the Quran (Arabic);
4. Al-Isaba by Ibne Hajar Asqualani [Part-2]; Siyar Alam-in-Nubla by Shamsuddin Mohd. Bin Ahmed BinUsman Az-Zahbi;
5. Al-Maratu Bayn Al-Fiqha Wa Al Qanun by Dr. Mustafa As- Sabai;
6. Al-Jamil ahkam-il Al-Quran by Abu Abdullah Mohammad Bin Ahmed Al Ansari Al-Qurtubi;
7. Commentary on the Quran by Baidavi (Arabic);
8. Rooh-ul-Bayan (Arabic) by Ismail Haqqi Affendi;
9. Al Muhalla by Ibne Hazm (Arabic);
10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad abu Zuhra Darul Fikrul Arabi.
On the basis of the aforementioned text books, it is contended that the view taken in Shah Banos case on the expression mata is not correct and the whole object of the enactment has been to nullify the effect of the Shah Banos case so as to exclude the application of the provision of Section 125 CrPC, however, giving recognition to the personal law as stated in Sections 3 and 4 of the Act. As stated earlier, the interpretation of the provisions will have to be made bearing in mind the social ethos of the Muslim and there should not be erosion of the personal law.
[ On behalf of the Islamic Shariat Board, it is submitted that except for Mr. M. Asad and Dr. Mustafa-as-Sabayi no author subscribed to the view that the Verse 241 of Chapter II of the Holy Quran casts an obligation on a former husband to pay maintenance to the Muslim divorced wife beyond the iddat period. It is submitted that Mr. M. Asads translation and commentary has been held to be unauthentic and unreliable and has been subscribed by the Islamic World League only. It is submitted that Dr. Mustafa-as-Sabayi is a well-known author in Arabic but his field was history and literature and not the Muslim law. It was submitted that neither are they the theologists nor jurists in terms of Muslim law. It is contended that this Court wrongly relied upon Verse 241 of Chapter II of the Holy Quran and the decree in this regard is to be referred to Verse 236 of Chapter II which makes paying mata as obligatory for such divorcees who were not touched before divorce and whose Mahr was not stipulated. It is submitted that such divorcees do not have to observe iddat period and hence not entitled to any maintenance. Thus the obligation for mata has been imposed which is a one time transaction related to the capacity of the former husband. The impugned Act has no application to this type of case. On the basis of certain texts, it is contended that the expression mata which according to different schools of Muslim law, is obligatory only in typical case of a divorce before consummation to the woman whose mahr was not stipulated and deals with obligatory rights of maintenance for observing iddat period or for breast-feeding the child. Thereafter, various other contentions were raised on behalf of the Islamic Shariat Board as to why the views expressed by different authors should not be accepted.

Dr. A.M.Singhvi, learned Senior Advocate who appeared for the National Commission for Women, submitted that the interpretation placed by the decisions of the Gujarat, Bombay, Kerala and the minority view of the Andhra Pradesh High Courts should be accepted by us. As regards the constitutional validity of the Act, he submitted that if the interpretation of Section 3 of the Act as stated later in the course of this judgment is not acceptable then the consequence would be that a Muslim divorced wife is permanently rendered without remedy insofar as her former husband is concerned for the purpose of her survival after the iddat period. Such relief is neither available under Section 125 CrPC nor is it properly compensated by the provision made in Section 4 of the Act. He contended that the remedy provided under Section 4 of the Act is illusory inasmuch as firstly, she cannot get sustenance from the parties who were not only strangers to the marital relationship which led to divorce; secondly, wakf boards would usually not have the means to support such destitute women since they are themselves perennially starved of funds and thirdly, the potential legatees of a destitute woman would either be too young or too old so as to be able to extend requisite support. Therefore, realistic appreciation of the matter will have to be taken and this provision will have to be decided on the touch stone of Articles 14, 15 and also Article 21 of the Constitution and thus the denial of right to life and liberty is exasperated by the fact that it operates oppressively, unequally and unreasonably only against one class of women. While Section 5 of the Act makes the availability and applicability of the remedy as provided by Section 125 CrPC dependent upon the whim, caprice, choice and option of the husband of the Muslim divorcee who in the first place is sought to be excluded from the ambit of Section 3 of the post-iddat period and, therefore, submitted that this provision will have to be held unconstitutional.

This Court in Shah Banos case held that although Muslim personal law limits the husbands liability to provide maintenance for his divorced wife to the period of iddat, it does not contemplate a situation envisaged by Section 125 CrPC of 1973. The Court held that it would not be incorrect or unjustified to extend the above principle of Muslim Law to cases in which a divorced wife is unable to maintain herself and, therefore, the Court came to the conclusion that if the divorced wife is able to maintain herself the husbands liability ceases with the expiration of the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to recourse to Section 125 CrPC. This decision having imposed obligations as to the liability of Muslim husband to pay maintenance to his divorced wife, Parliament endorsed by the Act the right of a Muslim woman to be paid maintenance at the time of divorce and to protect her rights.

The learned counsel have also raised certain incidental questions arising in these matters to the following effect-
1) Whether the husband who had not complied with the orders passed prior to the enactments and were in arrears of payments could escape from their obligation on the basis of the Act, or in other words, whether the Act is retrospective in effect?
2) Whether Family Courts have jurisdiction to decide the issues under the Act?
3) What is the extent to which the Wakf Board is liable under the Act?
The learned counsel for the parties have elaborately argued on a very wide canvass. Since we are only concerned in this Bench with the constitutional validity of the provisions of the Act, we will consider only such questions as are germane to this aspect. We will decide only the question of constitutional validity of the Act and relegate the matters when other issues arise to be dealt with by respective Benches of this Court either in appeal or special leave petitions or writ petitions.
In interpreting the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief which partakes basic human rights to secure gender and social justice is universally recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life such as the heirs who were likely to inherit the property from her or the wakf boards. Such an approach appears to us to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints. Bearing this aspect in mind, we have to interpret the provisions of the Act in question.

Now it is necessary to analyse the provisions of the Act to understand the scope of the same. The Preamble to the Act sets out that it is an Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. A divorced woman is defined under Section 2(a) of the Act to mean a divorced woman who was married according to Muslim Law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim Law; iddat period is defined under Section 2(b) of the Act to mean, in the case of a divorced woman,-
(i) three menstrual courses after the date of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation; and
(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy whichever is earlier. Sections 3 and 4 of the Act are the principal sections, which are under attack before us. Section 3 opens up with a non-obstante clause overriding all other laws and provides that a divorced woman shall be entitled to –
(a) a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband;
(b) where she maintains the children born to her before or after her divorce, a reasonable provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law; and
(d) all the properties given to her by her before or at the time of marriage or after the marriage by her relatives, friends, husband and any relatives of the husband or his friends.

Where such reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made and paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be. Rest of the provisions of Section 3 of the Act may not be of much relevance, which are procedural in nature.
Section 4 of the Act provides that, with an overriding clause as to what is stated earlier in the Act or in any other law for the time being in force, where the Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim Law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order. If any of the relatives do not have the necessary means to pay the same, the Magistrate may order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them has not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1), the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the divorced woman resides, to pay such maintenance as determined by him as the case may be. It is, however, significant to note that Section 4 of the Act refers only to payment of maintenance and does not touch upon the provision to be made by the husband referred to in Section 3(1)(a) of the Act.

Section 5 of the Act provides for option to be governed by the provisions of Sections 125 to 128 CrPC. It lays down that if, on the date of the first hearing of the application under Section 3(2), a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 CrPC, and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.
A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim woman divorcee by putting them outside the scope of Section 125 CrPC as the divorced woman has been defined as Muslim woman who was married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with the Muslim law. But the Act does not apply to a Muslim woman whose marriage is solemnized either under the Indian Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim wives. The maintenance under the Act is to be paid by the husband for the duration of the iddat period and this obligation does not extend beyond the period of iddat. Once the relationship with the husband has come to an end with the expiry of the iddat period, the responsibility devolves upon the relatives of the divorcee. The Act follows Muslim personal law in determining which relatives are responsible under which circumstances. If there are no relatives, or no relatives are able to support the divorcee, then the Court can order the State Wakf Boards to pay the maintenance.

Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband. The judicial enforceability of the Muslim divorced womans right to provision and maintenance under Section (3)(1)(a) of the Act has been subjected to the condition of husband having sufficient means which, strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during the iddat period is unconditional and cannot be circumscribed by the financial means of the husband. The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat.

A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word provision indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her cloths, and other articles. The expression within should be read as during or for and this cannot be done because words cannot be construed contrary to their meaning as the word within would mean on or before, not beyond and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but no where the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.

The important section in the Act is Section 3 which provides that divorced woman is entitled to obtain from her former husband maintenance, provision and mahr, and to recover from his possession her wedding presents and dowry and authorizes the magistrate to order payment or restoration of these sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. The wordings of Section 3 of the Act appear to indicate that the husband has two separate and distinct obligations : (1) to make a reasonable and fair provision for his divorced wife; and (2) to provide maintenance for her. The emphasis of this section is not on the nature or duration of any such provision or maintenance, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, within the iddat period. If the provisions are so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligations of both reasonable and fair provision and maintenance by paying these amounts in a lump sum to his wife, in addition to having paid his wifes mahr and restored her dowry as per Section 3(1)(c) and 3(1)(d) of the Act. Precisely, the point that arose for consideration in Shah Banos case was that the husband has not made a reasonable and fair provision for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under Section 125 CrPC. This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are a reasonable and fair provision and maintenance to be made and paid as provided under Section 3(1)(a) of the Act and these expressions cover different things, firstly, by the use of two different verbs to be made and paid to her within the iddat period, it is clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly, Section 4 of the Act, which empowers the magistrate to issue an order for payment of maintenance to the divorced woman against various of her relatives, contains no reference to provision. Obviously, the right to have a fair and reasonable provision in her favour is a right enforceable only against the womans former husband, and in addition to what he is obliged to pay as maintenance; thirdly, the words of the Holy Quran, as translated by Yusuf Ali of mata as maintenance though may be incorrect and that other translations employed the word provision, this Court in Shah Banos case dismissed this aspect by holding that it is a distinction without a difference. Indeed, whether mata was rendered maintenance or provision, there could be no pretence that the husband in Shah Banos case had provided anything at all by way of mata to his divorced wife. The contention put forth on behalf of the other side is that a divorced Muslim woman who is entitled to mata is only a single or one time transaction which does not mean payment of maintenance continuously at all. This contention, apart from supporting the view that the word provision in Section 3(1)(a) of the Act incorporates mata as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables a reasonable and fair provision and a reasonable and fair provision as provided under Section 3(3) of the Act would be with reference to the needs of the divorced woman, the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Banos case, actually codifies the very rationale contained therein.

A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support is satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.

Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional.
As on the date the Act came into force the law applicable to Muslim divorced women is as declared by this Court in Shah Banos case. In this case to find out the personal law of Muslims with regard to divorced womens rights, the starting point should be Shah Banos case and not the original texts or any other material all the more so when varying versions as to the authenticity of the source are shown to exist. Hence, we have refrained from referring to them in detail. That declaration was made after considering the Holy Quran, and other commentaries or other texts. When a Constitution Bench of this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material, we do not think, it is open for us to re-examine that position and delve into a research to reach another conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Banos case without mutilating its underlying ratio. We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Banos case. The learned Solicitor General contended that what has been stated in the Objects and Reasons in Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts and the law in Shah Banos case and proceeded to find out the impact of the same on the Act. If the language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in enacting the law will not be of much materiality.

In Shah Banos case this Court has clearly explained as to the rationale behind Section 125 CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman. The contention put forth on behalf of the Muslims organisations who are interveners before us is that under the Act vagrancy or destitution is sought to be avoided but not by punishing the erring husband, if at all, but by providing for maintenance through others. If for any reason the interpretation placed by us on the language of Sections 3(1)(a) and 4 of the Act is not acceptable, we will have to examine the effect of the provisions as they stand, that is, a Muslim woman will not be entitled to maintenance from her husband after the period of iddat once the Talaq is pronounced and, if at all, thereafter maintenance could only be recovered from the various persons mentioned in Section 4 or from the Wakf Board. This Court in Olga Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545, and Maneka Gandhi v. Union of India, 1978 (1) SCC 248, held that the concept of right to life and personal liberty guaranteed under Article 21 of the Constitution would include the right to live with dignity. Before the Act, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Section 125 CrPC until she may re-marry and such a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act depriving the divoced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC. Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. It is well settled that on a rule of construction a given statute will become ultra vires or unconstitutional and, therefore, void, whereas another construction which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that Legislature does not intend to enact unconstitutional laws. We think, the latter interpretation should be accepted and, therefore, the interpretation placed by us results in upholding the validity of the Act. It is well settled that when by appropriate reading of an enactment the validity of the Act can be upheld, such interpretation is accepted by courts and not the other way.

The learned counsel appearing for the Muslim organisations contended after referring to various passages from the text books to which we have adverted to earlier to state that the law is very clear that a divorced Muslim woman is entitled to maintenance only upto the stage of iddat and not thereafter. What is to be provided by way of Mata is only a benevolent provision to be made in case of divorced Muslim woman who is unable to maintain herself and that too by way of charity or kindness on the part of her former husband and not as a result of her right flowing to the divorced wife. The effect of various interpretations placed on Suras 241 and 242 of Chapter 2 of Holy Quran has been referred to in Shah Banos case. Shah Banos case clearly enunciated what the present law would be. It made a distinction between the provisions to be made and the maintenance to be paid. It was noticed that the maintenance is payable only upto the stage of iddat and this provision is applicable in case of a normal circumstances, while in case of a divorced Muslim woman who is unable to maintain herself, she is entitled to get Mata. That is the basis on which the Bench of Five Judges of this Court interpreted the various texts and held so. If that is the legal position, we do not think, we can state that any other position is possible nor are we to start on a clean slate after having forgotten the historical background of the enactment. The enactment though purports to overcome the view expressed in Shah Banos case in relation to a divorced Muslim woman getting something by way of maintenance in the nature of Mata is indeed the statutorily recognised by making provision under the Act for the purpose of the maintenance but also for provision. When these two expressions have been used by the enactment, which obviously means that the Legislature did not intend to obliterate the meaning attributed to these two expressions by this Court in Shah Banos case. Therefore, we are of the view that the contentions advanced on behalf of the parties to the contrary cannot be sustained.

In Arab Ahemadhia Abdulla and etc vs. Arab Bail Mohmuna Saiyadbhai & Ors. etc., AIR 1988 (Guj.) 141; Ali vs. Sufaira, (1988) 3 Crimes 147; K. Kunhashed Hazi v. Amena, 1995 Crl.L.J. 3371; K. Zunaideen v. Ameena Begum, (1998] II DMC 468; Karim Abdul Shaik v. Shenaz Karim Shaik, 2000 Cr.L.J. 3560 and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh & Anr., 1999 (3) Mh.L.J. 694, while interpreting the provision of Sections 3(1)(a) and 4 of the Act, it is held that a divorced Muslim woman is entitled to a fair and reasonable provision for her future being made by her former husband which must include maintenance for future extending beyond the iddat period. It was held that the liability of the former husband to make a reasonable and fair provision under Section 3(1)(a) of the Act is not restricted only for the period of iddat but that divorced Muslim woman is entitled to a reasonable and fair provision for her future being made by her former husband and also to maintenance being paid to her for the iddat period. A lot of emphasis was laid on the words made and paid and were construed to mean not only to make provision for the iddat period but also to make a reasonable and fair provision for her future. A Full Bench of the Punjab and Haryana High Court in Kaka v. Hassan Bano & Anr., II (1998) DMC 85 (FB), has taken the view that under Section 3(1)(a) of the Act a divorced Muslim woman can claim maintenance which is not restricted to iddat period. To the contrary it has been held that it is not open to the wife to claim fair and reasonable provision for the future in addition to what she had already received at the time of her divorce; that the liability of the husband is limited for the period of iddat and thereafter if she is unable to maintain herself, she has to approach her relative or Wakf Board, by majority decision in Umar Khan Bahamami v. Fathimnurisa, 1990 Cr.L.J. 1364; Abdul Rashid v. Sultana Begum, 1992 Cr.L.J. 76; Abdul Haq v. Yasima Talat; 1998 Cr.L.J. 3433; Md. Marahim v. Raiza Begum, 1993 (1) DMC 60. Thus preponderance of judicial opinion is in favour of what we have concluded in the interpretation of Section 3 of the Act. The decisions of the High Courts referred to herein that are contrary to our decision stand overruled.

While upholding the validity of the Act, we may sum up our conclusions:
1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.
2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
In the result, the writ petition Nos. 868/86, 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86 and 1281/86 challenging the validity of the provisions of the Act are dismissed.
All other matters where there are other questions raised, the same shall stand relegated for consideration by appropriate Benches of this Court.

[ G.B. PATTANAIK ]
[ S. RAJENDRA BABU ]
[ D.P. MOHAPATRA ]
[ DORAISWAMY RAJU ]
[ SHIVARAJ V. PATIL ]

NEW DELHI

SEPTEMBER 28, 2001.

Shehammal Vs Hasan Khani Rawther and Others [ALL SC 2011 AUGUST]

Doctrine of spes successionis-

c

DATE :- Decided On: 02-08-2011

JT 2011 (8) SC 533 : (2011) 8 SCALE 186

(SUPREME COURT OF INDIA)

Shehammal Appellant
Versus
Hasan Khani Rawther and Others Respondent

(Before : Altamas Kabir, Cyriac Joseph and Surinder Singh Nijjar, JJ.)

Special Leave Petition (C) Nos. 7421-7422 and 14303-14304 of 2008 : Decided On: 02-08-2011

Transfer of Property Act, 1882—Section 6—Evidence Act, 1872—Section 115—Spes Successionis (Relinquishment of share in property)—Chance of Mohammedan heir-apparent succeeding to an estate cannot be subject of a valid transfer or release—Ordinarily, there cannot be transfer of spes successionis but same can be avoided either by execution of family settlement or by accepting consideration for a future share—It could then operate as estoppel against expectant heir to claim any share in estate of deceased on account of doctrine of spes successionis—Having accepted consideration for having relinquished a future claim or share in estate of deceased, it would be against public policy if such a claimant be allowed benefit of the doctrine of spes successionis—In such cases, principle of estoppel would be attracted.

Mohammedan Law—Succession—General principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by consent of all heirs—In effect, same also amounts to right of relinquishment of future inheritance which is on one hand forbidden and on other accepted in case of testamentary disposition.

Counsel for the Parties:

V. Giri, Sr. Adv., M.T. George, Binoj C. Augustine, Harshad V. Hameed, K. Rajeev, K.N. Madhusoodhan and T.G. Narayanan Nair, Advs.

JUDGMENT

Altamas Kabir, J—Special Leave Petition (Civil) Nos. 7421-7422 of 2008 filed by one Shehammal and Special Leave Petition (Civil) Nos. 14303-14304 of 2008 filed by one Amina and others, both directed against the final judgment and order dated 18.10.2007 passed by the Kerala High Court in R.F.A. No. 75 of 2004 (B) and R.F.A. No. 491 of 2006, have been taken up together for final disposal. The parties to the aforesaid SL Ps, except for the Respondent No. 6, Hassankhan, are siblings. While the Petitioner in SLP(C) Nos. 7421-7422 of 2008 is the daughter of Late Meeralava Rawther, the Respondent No. 1, Hassan Khani Rawther, and the Respondent Nos. 2 and 5 are the sons and the Respondent Nos. 3 and 4 are the daughters of the said Meeralava Rawther. The Respondent No. 6, Hassankhan, is a purchaser of the shares of the Respondent Nos. 2 and 5, both heirs of Late Meeralava Rawther. The remaining Respondents are the legal heirs of Muhammed Rawther, the second Respondent before the High Court. The Petitioner in SLP(C) Nos. 7421-7422 of 2008 is the Plaintiff in O.S. No. 169 of 1994 and the third Defendant in O.S. No. 171 of 1992, filed by Hassan Khani Rawther, is the Respondent No. 1 in all the four SL Ps.

2. Meeralava Rawther died in 1986, leaving behind him surviving three sons and three daughters, as his legal heirs. At the time of his death he possessed 1.70 acres of land in Survey No. 133/1B of Thodupuzha village, which he had acquired on the basis of a partition effected in the family of deceased Meeralava Rawther in 1953 by virtue of Deed No. 4124 of Thodupuzha, Sub-Registrars Office. Meeralava Rawther and his family members, being Mohammedans, they are entitled to succeed to the estate of the deceased in specific shares as tenants in common. Since Meeralava Rawther had three sons and three daughters, the sons were entitled to a 2/9th share in the estate of the deceased, while the daughters were each entitled to a 1/9th share thereof.

3. It is the specific case of the parties that Meeralava Rawther helped all his children to settle down in life. The youngest son, Hassan Khani Rawther, the Respondent No. 1, was a Government employee and was staying with him even after his marriage, while all the other children moved out from the family house, either at the time of marriage, or soon, thereafter. The case made out by the Respondent No. 1 is that when each of his children left the family house Meeralava Rawther used to get them to execute Deeds of Relinquishment, whereby, on the receipt of some consideration, each of them relinquished their respective claim to the properties belonging to Meeralava Rawther. The Respondent No. 1, Hassan Khani Rawther, was the only one of Meeralava Rawther’s legal heirs who was not required by his father to execute such a deed.

4. Meeralava Rawther died intestate in 1986 leaving 1.70 acres of land as his estate. On 31st March, 1992, the Respondent No. 1, Hassan Khani Rawther filed O.S. No. 171 of 1992 before the Court of Subordinate Judge, Thodupuzha, seeking declaration of title, possession and injunction in respect of the said 1.70 acres of land, basing his claim on an oral gift alleged to have been made in his favour by Meeralava Rawther in 1982.

5. On 6th April, 1992, the Respondent No. 2, Muhammed Rawther, one of the brothers, filed O.S. No. 90 of 1992 before the Court of Munsif, Thodupuzha, praying for injunction against his brother, Hassan Khani Rawther, in respect of the suit property. The said suit was subsequently transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered as O.S. No. 168 of 1994.

6. On the basis of her claim to a 1/9th share in the estate of Late Meeralava Rawther the Petitioner, Shehammal filed O.S. No. 126 of 1992 on 25th May, 1992, seeking partition of the plaint properties comprising the same 1.70 acres of land in respect of which the other two suits had been filed. The said suit was also subsequently transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered as O.S. No. 169 of 1994 and was jointly taken up for trial along with O.S. No. 171 of 1992. By a common judgment dated 15.11.1996, the learned Trial Judge dismissed O.S. No. 171 of 1992 filed by the Respondent No. 1, for want of evidence. O.S. No. 169 of 1994 filed by Shehammal was decreed and in view of the findings recorded in O.S. No. 169 of 1994, the trial court dismissed O.S. No. 168 of 1994 filed by Muhammed Rawther, the Respondent No. 2 herein. A subsequent application filed by the Plaintiff in O.S. No. 171 of 1992 for restoration of the said suit and another application for setting aside the decree in O.S. No. 169 of 1994, were dismissed by the trial court.

7. The Respondent No. 1 herein, Hassan Khani Rawther, moved the High Court by way of C.M.A. Nos. 191 of 2000 and 247 of 2000 and the High Court by its judgment dated 17.1.2003 set aside the decree in O.S. Nos. 171 of 1992 and 169 of 1994 and directed the trial court to take back O.S. Nos. 171 of 1992 and 169 of 1994 to file and to dispose of the same on merits. On remand, the learned Subordinate Judge dismissed O.S. No. 171 of 1992, disbelieving the story of oral gift propounded by the Respondent No. 1. The matter was again taken to the High Court against the order of the learned Subordinate Judge. The Respondent No. 1 filed R.F.A. Nos. 75 of 2004 and 491 of 2006 in the Kerala High Court and the same were allowed by the learned Single Judge holding that even if the Plaintiff failed to prove the oral gift in his favour, he could not be non-suited, since he alone was having the rights over the assets of Meeralava Rawther in view of the various Deeds of Relinquishment executed by the other sons and daughters of Meeralava Rawther.

8. Being aggrieved by the judgment of reversal passed by the learned Single Judge of the High Court, the Petitioners herein in the four Special Leave Petitions have questioned the validity of the said judgment.

9. Appearing for the Petitioners in both the SL Ps, Mr. M.T. George, learned Advocate, submitted that the impugned judgment of the High Court was based on an erroneous understanding of the law relating to relinquishment of right in a property by a Mohammedan. It was submitted that the High Court had failed to truly understand the concept of spes successionis which has been referred to in paragraph 54 of Mulla’s “Principles of Mahomedan Law”, which categorically indicates that a Muslim is not entitled in law to relinquish an expected share in a property. Mr. George submitted that the said doctrine was based on the concept that the Mohammedan Law did not contemplate inheritance by way of expectancy during the life time of the owner and that inheritance opened to the legal heirs only after the death of an individual when right to the property of the legal heirs descended in specific shares. Accordingly, all the Deeds of Relinquishment executed by the siblings, except for the Respondent No. 1, were void and were not capable of being acted upon. Accordingly, when succession opened to the legal heirs of Meeralava Rawther on his death, each one of them succeeded to a specified share in his estate.

10. It was also submitted that as a result, the finding of the High Court in R.F.A. No. 491 of 2006 that even if the story of oral gift set up by the Plaintiff was disbelieved, he would still be entitled to succeed to the entire estate of the deceased, on account of the Deeds of Relinquishment executed by the other legal heirs of Meeralava Rawther, was erroneous and was liable to be set aside. Mr. George contended that the High Court wrongly interpreted the decision of this Court in the case of Gulam Abbas v. Haji Kayyum Ali and Ors., AIR 1973 SC 554. In the said decision, this Court held that the applicability of the doctrine of Renunciation of an expectant right depended upon the surrounding circumstances and the conduct of the parties when such a renunciation/relinquishment was made. It was further held that if the expectant heir received consideration for renouncing his expectant share in the property and conducted himself in a manner so as to mislead the owner of the property from disposing of the same during his life time, the expectant heir could be debarred from setting up his right to what he was entitled. Mr. George submitted that the High Court overlooked the fact that this Court had held that mere execution of a document was not sufficient to prevent the legal heirs from claiming their respective shares in the parental property.

11. Mr. George submitted that apart form the above, the High Court allowed itself to be misled into accepting a “family arrangement” when such a contingency did not arise. The transactions involving the separate Deeds of Relinquishment executed by each of the heirs of Meeralava Rawther, constituted an individual act and could not be construed to be a family arrangement. Mr. George submitted that even if the story made out on behalf of the Respondent No. 1, that Meeralava Rawther made each of his children execute Deeds of Relinquishment on their leaving the family house, is accepted, the same cannot by any stretch of imagination be said to be a family arrangement which had been accepted by all the legal heirs of Meeralava Rawther. Thus, misled into accepting a concept of “family arrangement”, the High Court erroneously relied on the decision of the Allahabad High Court in Latafat Hussain v. Bidayat Hussain, AIR 1936 All. 573, Kochunni Kochu v. Kunju Pillai 1956 Trav Co 217, Thayyullathil Kunhikannan v. Thayyullathil Kalliani and Ors., AIR 1990 Ker 226 and Hameed v. Jameela, 2004 (1) KLT 586, where it had been uniformly held that when there is a family arrangement binding on the parties, it would operate as stopple by preventing the parties from resiling from the same or trying to revoke it after having taken advantage of such arrangement. Mr. George submitted that having regard to the doctrine of spes successionis, the concept of stopple could not be applied to Muslims on account of the fact that the law of inheritance applicable to Muslims is derived from the Quran, which specifies specific shares to those entitled to inheritance and the execution of a document is not sufficient to bar such inheritance. Accordingly, renunciation by an expectant heir in the life time of his ancestor is not valid or enforceable against him after the vesting of the inheritance. Mr. George reiterated that the Deeds of Relinquishment between A2 to A6 could not be treated as a “family arrangement” since all the members of the family were not parties to the said Deeds and his position not having altered in any way, the Respondent No. 1 is not entitled to claim exclusion of the other heirs of Late Meeralava Rawther from his estate.

12. In this regard, Mr. George also drew our attention to Section 6 of the Transfer of Property Act, 1882, where the concept of spes successionis has been incorporated. It was pointed out that Clause (a) of Section 6 is in pari materia with the doctrine of spes successionis, as incorporated in paragraph 54 of Mulla’s “Principles of Mahomedan Law” and provides that the chance of a person succeeding to an estate cannot be transferred.

13. In view of his aforesaid submissions, Mr. George submitted that the impugned judgment and decree of the High Court was liable to be set aside and that of the learned Subordinate Judge was liable to be restored.

14. Mr. V. Giri, learned Advocate, who appeared for the Respondent No. 1, urged that in view of the three-Judge Bench decision in Gulam Abbas’s case (supra), it was not open to the Petitioner to claim that the doctrine of Stopple would not be applicable in the facts of this case. Mr. Giri submitted that the view expressed in Gulam Abbas’s case (supra) had earlier been expressed by other High Courts to which reference has been made hereinbefore. He urged that all the Courts had taken a consistent view that having relinquished his right to further inheritance, a legal heir could not claim a share in the property once inheritance opened on the death of the owner of the property.

15. Mr. Giri contended that any decision to the contrary would offend the provisions of Section 23 of the Indian Contract Act, 1872, as being opposed to public policy. Mr. Giri urged that the principles of Mahomedan law in relation to the law as incorporated in the Transfer of Property Act and the Indian Contract Act, had been considered in great detail by the three-Judge Bench in Gulam Abbas’s case (supra). Learned Counsel pointed out that on a conjoint reading of Section 6 of the Transfer of Property Act and paragraph 54 of Mulla’s “Principles of Mahomedan Law” it would be quite evident that what was sought to be protected was the right of a Mohammedan to the chance of future succession to an estate. Learned Counsel submitted that neither of the two provisions takes into consideration a situation where a right of spes successionis is transferred for a consideration. Mr. Giri submitted that in Gulam Abbas’s case (supra) the said question was one of the important questions which fell for consideration, since it had a direct bearing on the question in the light of Section 23 of the Indian Contract Act, 1872. Mr. Giri submitted that the bar to a transfer of a right of spes successionis is not an absolute bar and would be dependent on circumstances such as receipt of consideration or compensation for relinquishment of such expectant right in future. Mr. Giri urged that the Special Leave Petitions were wholly misconceived and were liable to be dismissed.

16. From the submissions made on behalf of the respective parties and the facts of the case, three questions of importance emerge for decision, namely:

(i) Whether in view of the doctrine of spes successionis, as embodied in Section 6 of the Transfer of Property Act, 1882, and in paragraph 54 of Mulla’s “Principles of Mahomedan Law”, a Deed of Relinquishment executed by an expectant heir could operate as stopple to a claim that may be set up by the Executor of such Deed after inheritance opens on the death of the owner of the property?

(ii) Whether on execution of a Deed of Relinquishment after having received remuneration for such future share, the expectant heir could be stopped from claiming a share in the inheritance?

(iii) Can a Mohammedan by means of a Family Settlement relinquish his right of spes successionis when he had still not acquired a right in the property?

17. Chapter VI of Mulla’s “Principles of Mahomedan Law” deals with the general rules of inheritance under Mohammedan law. Paragraph 54 which falls within the said Chapter relates to the concept of transfer of spes successionis which has also been termed as “renunciation of a chance of succession”. The said paragraph provides that the chance of a Mohammedan heir-apparent succeeding to an estate cannot be said to be the subject of a valid transfer or release. The same is included in Section 6 of the Transfer of Property Act and the relevant portion thereof, namely, Clause (a) is extracted below:

6. What may be transferred.- Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.

(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.

The provisions of Section 6(a) have to be read along with Section 2 of the Act, which provides for repeal of Acts and saving of certain enactments, incidents, rights, liabilities etc. It specifically provides that nothing in Chapter II, in which Section 6 finds place, shall be deemed to affect any rule of Mohammedan Law.

18. Inspite of the aforesaid provisions, both of the general law and the personal law, the Courts have held that the fetters imposed under the aforesaid provisions are capable of being removed in certain situations. Two examples in this regard are –

(i) When an expectant heir willfully does something which has the effect of attracting the provisions of Section 115 of the Evidence Act, is he stopped from claiming the benefit of the doctrine of spes successionis, as provided for under Section 6(a) of the Transfer of Property Act, 1882, and also under the Mohammedan Law as embodied in paragraph 54 of Mulla’s “Principles of Mahomedan Law”?

(ii) When a Mohammedan becomes a party to a family arrangement, does it also entail that he gives up his right of spes successionis.

The answer to the said two propositions is also the answer to the questions formulated hereinbefore in paragraph 16.

19. The Mohammedan Law enjoins in clear and unequivocal terms that a chance of a Mohammedan heir-apparent succeeding to an estate cannot be the subject of a valid transfer or release. Section 6(a) of the Transfer of Property Act was enacted in deference to the customary law and law of inheritance prevailing among Mohammedans.

20. As opposed to the above, are the general principles of stopple as contained in Section 115 of the Evidence Act and the doctrine of relinquishment in respect of a future share in property. Both the said principles contemplated a situation where an expectant heir conducts himself and/or performs certain acts which makes the two aforesaid principles applicable inspite of the clear concept of relinquishment as far as Mohammedan Law is concerned, as incorporated in Section 54 of Mulla’s “Principles of Mahomedan Law”. Great reliance has been placed by both the parties on the decision in Gulam Abbas’s case (supra). While dealing with a similar situation, this Court watered down the concept that the chance of a Mohammedan heir apparent succeeding to an estate cannot be the subject of a valid transfer on lease and held that renunciation of an expectancy in respect of a future share in a property in a case where the concerned party himself chose to depart from the earlier views, was not only possible, but legally valid. Referring to various authorities, including Ameer Ali’s “Mohammedan Law”, this Court observed that “renunciation implies the yielding up of a right already vested”. It was observed in the facts of that case that during the lifetime of the mother, the daughters had no right of inheritance. Citing the decision in the case of Mt. Khannum Jan v. Mt. Jan Bibi (1827) 4 SDA 210 it was held that renunciation implies the yielding up of a right already vested. Accordingly, renunciation during the mother’s lifetime of the daughters’ shares would be null and void on the ground that an inchoate right is not capable of being transferred as such right was yet to crystallise. This Court also held that “under the Muslim Law an expectant heir may, nevertheless, be part of a course of conduct which may create an stopple against claiming the right at a time when the right of inheritance has accrued”. It was observed by the learned Judges that the Contract Act and the Evidence Act would not strictly apply since they did not involve questions arising out of Mohammedan Law. This Court accordingly held that the renunciation of a supposed right, based upon an expectancy, could not, by any test be considered “prohibited”.

21. This Court ultimately held that the binding force of the renunciation of a supposed right, would depend upon the attendant circumstances and the whole course of conduct of which it formed a part. In other words, the principle of an equitable stopple far from being opposed to any principle of Mohammedan Law, is really in complete harmony with it.

22. On the question of family arrangement, this Court observed that though arrangements arrived at in order to avoid future disputes in the family may not technically be a settlement, a broad concept of a family settlement could not be the answer to the doctrine of spes successionis.

23. There is little doubt that ordinarily there cannot be a transfer of spes successionis, but in the exceptions pointed out by this Court in Gulam Abbas’s case (supra), the same can be avoided either by the execution of a family settlement or by accepting consideration for a future share. It could then operate as stopple against the expectant heir to claim any share in the estate of the deceased on account of the doctrine of spes successionis. While dealing with the various decisions on the subject, which all seem to support the view taken by the learned Judges, reference was made to the decision of Chief Justice Suleman of the Allahabad High Court in the case of Latafat Hussain v. Hidayat Hussain, AIR 1936 All 573, where the question of arrangement between the husband and wife in the nature of a family settlement, which was binding on the parties, was held to be correct in view of the fact that a presumption would have to be drawn that if such family arrangement had not been made, the husband could not have executed a deed of Wakf if the wife had not relinquished her claim to inheritance. It is true that in the case of Mt. Khannum Jan (supra), it had been held by this Court that renunciation implied the yielding up of a right already vested or desisting from prosecuting a claim maintainable against another, and such renunciation during the lifetime of the mother of the shares of the daughters was null and void since it entailed the giving up of something which had not yet come into existence.

24. The High Court after considering the aforesaid views of the different jurists and the decision in connection with the doctrine of relinquishment came to a finding that even if the provisions of the doctrine of spes successionis were to apply, by their very conduct the Petitioners were stopped from claiming the benefit of the said doctrine. In this context, we may refer to yet another principle of Mohammedan Law which is contained in the concept of Wills under the Mohammedan Law. Paragraph 118 of Mulla’s “Principles of Mahomedan Law” embodies the concept of the limit of testamentary power by a Mohammedan. It records that a Mohammedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of one-third cannot take effect unless the heirs consent thereto after the death of the testator. The said principle of testamentary disposition of property has been the subject matter of various decisions rendered by this Court from time to time and it has been consistently stated and reaffirmed that a testamentary disposition by a Mohammedan is binding upon the heirs if the heirs consent to the disposition of the entire property and such consent could either be express or implied. Thus, a Mohammedan may also make a disposition of his entire property if all the heirs signified their consent to the same. In other words, the general principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by the consent of all the heirs. In effect, the same also amounts to a right of relinquishment of future inheritance which is on the one hand forbidden and on the other accepted in the case of testamentary disposition. Having accepted the consideration for having relinquished a future claim or share in the estate of the deceased, it would be against public policy if such a claimant be allowed the benefit of the doctrine of spes successionis. In such cases, we have no doubt in our mind that the principle of stopple would be attracted.

25. We are, however, not inclined to accept that the methodology resorted to by Meeralava Rawther can strictly be said to be a family arrangement. A family arrangement would necessarily mean a decision arrived at jointly by the members of a family and not between two individuals belonging to the family. The five deeds of relinquishment executed by the five sons and daughters of Meeralava Rawther constitute individual agreements entered into between Meeralava Rawther and the expectant heirs. However, notwithstanding the above, as we have held hereinbefore, the doctrine of stopple is attracted so as to prevent a person from receiving an advantage for giving up of his/her rights and yet claiming the same right subsequently. In our view, being opposed to public policy, the heir expectant would be stopped under the general law from claiming a share in the property of the deceased, as was held in Gulam Abbas’s case (supra).

26. We are not, therefore, inclined to entertain the Special Leave Petitions and the same are accordingly dismissed, but without any order as to costs.

Mohd. Ahmed Khan Vs Shah Bano Begum and others[SC 1985 APRIL]

KEYWORDS:-Maintenance to Muslim wife-

c

DATE:- 23-04-1985-

whether the law of Islam is capable of evolution ?

AIR 1985 SC 945 : (1985) 3 SCR 844 : (1985) 2 SCC 556 : (1985) 1 SCALE 767 : (1985) CriLJ SC 875

(SUPREME COURT OF INDIA)

Mohd. Ahmed Khan Appellant
Versus
Shah Bano Begum and others Respondent

(Before : Y. V. Chandrachud, C.J.I., D. A. Desai, O. Chinnappa Reddy, E. S. Venkataramiah, And Ranganath Misra, JJ.)

Criminal Appeal No. 103 of 1981 , Decided on : 23-04-1985.

Criminal Procedure Code, 1973—Section 125—Maintenance—Wife meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.

Note: The position of law is not the same after enactment of Muslim Woman (Protection of Rights on Divorce) Act, 1986.

Maintenance—Wife—Meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.

Criminal Procedure Code, 1973—Section 125—Maintenance—Wife meaning of—Divorced Muslim woman is also entitled to maintenance so long she is not married—Provision of personal law—The amount of Mahr received by the wife is not an amount received on divorce to disentitle her maintenance.

Judgement

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. “Na stree swatantramarhati” said Manu, the law giver:The woman does not deserve independence. And. it is alleged that the ‘fatal point in Islam is the degradation of woman’ ‘Selections from Kuran’ – Edward William Lane 1843, Reprint 1982, 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 Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction. The appellant, who is an advocate by profession, was married to the respondent in 1932. Three sons and two daughters were born of that marriage. In 1975, the appellant drove the respondent out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant under Section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore, asking for maintenance at the rate of ` 500/- per month. On November 6, 1979 the appellant divorced the respondent by an irrevocable talaq. His defence to the respondent’s petition for maintenance was that she had ceased to be wife by reason of the divorce granted by him, that he was therefore under no obligation to provide maintenance for her, that he had already paid maintenance to her at the rate of ` 200/- per month for about two years and that, he had deposited a sum of ` 3000/- in the court by way of dower during the, period of iddat. In August, 1979 the learned Magistrate directed the appellant to pay a princely sum of ` 25/- per month to the respondent by way of maintenance. It. may be mentioned that the respondent had alleged that the appellant earns a professional income of about ` 60,000/- per year. In July, 1980, in a revisional application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to ` 179.20 per month. The husband is before us by special leave.

3. 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 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.

4. 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 Fidaalli Chothia (1979) 2 SCR 75 and Fazlunbi v. K. Khader Vali (1980) 3 SCR 1127. Those 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 and Fuzlunbi v. K. Khader Vali require reconsideration because, in our opinion, they are not only in direct contravention of the plain and 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 appears 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 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 Hon’ble Chief Justice for being heard by a larger Bench consisting of more than three Judges.”

5. 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) to (d) **********

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, as such Magistrate thinks 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 and has not remarried.

(2) …. …. …. ….

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided **********

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated. by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation – If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”

6. Section 127(3)(b), on which the appellant has built up the edifice of his defence reads thus:

“Alteration in allowance

127. (1)-(2) **********

(3) Where any order has been made under Section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that

(a) **********

(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order, –

(i) in the case where such sum was paid before such order, from the date on which such order was made.

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance. has been actually paid by the husband to the woman.”

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 provisions. The reason for this is axiomatic, in the sense that Section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws which define and govern the rights and obligations of the parties belonging to particular religions, like the Hindu. Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain, themselves. What difference would it then make as to what is the religion professed by the neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of Section 125. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. True, that they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes. The liability imposed by Section 125 to maintain close relatives who are indigent is founded upon the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral edict of the law and morality cannot be clubbed with religion. Clause (b) of the Explanation to section 125(1), which defines ‘wife’ as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character.

8. Sir James- Fitz James Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal Member of the Viceroy’s Council, described the precursor of Chapter IX of the Code in which Section 125 occurs, as ‘a mode of preventing vagrancy or at least of preventing its consequences’ . In Jagir Kaur v. Jaswant Singh, (1964) 2 SCR 73 at page No. 84 Subba Rao, J. speaking for the court said that Chapter XXXVI of the Code of 1898 which contained Section 488, corresponding to Section 125, “intends to serve a social purpose”. In Nanak Chand v. Chandra Kishore Agarwala (1970) 1 SCR 565, Sikri, J., while pointing out that the scope of the Hindu Adoptions and Maintenance Act, 1956 and that of Section 488 was different, said that Section 488 was “applicable to all persons belonging to all religions and has no relationship with the personal law of the parties”.

9. 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 provision regarding maintenance should be extended to a divorced woman, so long as she has not remarried after the divorce. That is the genesis of clause (b) of the Explanation to Section 125(1), which provides that ‘wife’ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. Even in the absence of this provision, the courts had held under the Code of 1898 that the provisions regarding maintenance were independent of the personal law governing the parties. The induction of the definition of ‘wife’ so as to include a divorced woman lends even greater weight to that conclusion. ‘Wife’ means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a ‘wife’ for the purpose of Section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.

10. The conclusion that the right conferred by Section 125 can be exercised irrespective. of the personal law of the parties, is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to Section 125(3) of the Code. That proviso says that if the husband offers to maintain his wife on condition that she should live with him, and she refuses to live with him, the’ Magistrate may consider any grounds of refusal stated by her, and may make an order of maintenance, notwithstanding the offer of the husband, if he is satisfied that there is a just ground for passing such an order. According to the Explanation to the proviso:

“If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.”

It is too well-known that “A Mahomedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four; the marriage is not void; but merely irregular”. (see Mulla’s Mahomedan Law, 18th Edition, paragraph 255, 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 there is any conflict between the two.

11. The whole of this discussion as to whether the right conferred by Section 125 prevails over the personal law of the parties, has proceeded on the assumption that there is a conflict between the provisions of that section and those of the. Muslim Personal Law. The argument that by reason of Section 2 of the Shariat Act, XXVI of 1937, the rule of decision in matters relating, inter alia, to maintenance “shall be the Muslim Personal Law” also proceeds upon a similar assumption. We embarked upon the decision of the question of priority between the Code and the Muslim Personal Law on the assumption that there was a conflict between the two because, in so far as it lies in our, power, we wanted to set at rest, once for all, the question whether Section 125 would prevail over the personal law of the parties, in cases where they are in conflict.

12. 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.

13. 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 Jaw on the point contained in certain text books. In Mulla’s Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the effect that “After divorce, the. wife is entitled to maintenance during the period of, iddat”. at page 302, the learned author says:

“Where an order is made for the maintenance of a wife under Section 488 of the Criminal Procedure Code and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of iddat. The result is that a Mahomedan may defeat an order made against him under Section 488 by divorcing his wife immediately after the order is made. His obligation to maintain his wife will cease in that. case. on the ,completion of her iddat.”

Tyabji’s Muslim law (4th Edition, para 304, pages 268-269), contains the statement that:

“On the expiration of the iddat. after talaq, the wife’s right to maintenance ceases, whether based. on the Muslim Law, or on an order under the Criminal Procedure Code.”

According to Dr. Paras Diwan:

“When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat. On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim law does not recognise. any obligation on the part of a man to maintain a wife whom he had divorced.”

(Muslim Law in Modern India, 1982 Edition, page 130)

14. These statements in the text books 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 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 (Mulla’s Mahomedan Law, 18th Edition, para 286, page 308). But, one must have regard to the realities of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We are of the opinion that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject matter of Section 125. That section deals with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain herself. Since the Muslim Personal Law, which limits the husband’s liability to provide for the maintenance of the divorced, wife to the period of iddat, does not contemplate or countenance the situation envisaged by Section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under 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 Personal Law, his 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, 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.

15. 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 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
WA LIL MOTALLAQATAY For divorced women
MATA UN Maintenance (should be 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
LAKUM AYATEHEE LA ALLAKUM Make clear His Signs
TAQELOON To you:in order that you 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”.

16. The English version of the two Aiyats in Muhammed 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.”

17. The translation of Aiyats 240 to 242 in ‘The Meaning of the Quran’ (Vol. 1, published by the Board of Islamic Publications, Delhi) reads thus:

“240-241.

Those of you, who shall die and leave wives behind them, should make a will to the effect that. they should be provided with a year’s maintenance and should not be turned out of their homes. But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way;. Allah is All-Powerful, All-wise. Likewise, the divorced women should also be given something in accordance with the known fair standard. This is an obligation upon the God-fearing people.

242

Thus Allah makes clear His commandments for you:It is expected that you will use your commonsense.”

18. 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.”

19. In “The Meaning of the Glorious Quran, Text and Explanatory Translation”, by Marmaduke Pickthall, (Taj Company Ltd., Karachi), Aiyat 241 is translated thus:

“241

For divorced women a provision in kindness:A duty for those who ward off (evil).”

20. 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 godfearing.

So God makes clear His signs for you:Happily you will understand.”

21. Dr. K. R. Nuri in his book quoted above:

“The Running Commentary of The Holy Quran”, says in the preface:

“Belief in Islam does not mean mere confession of the existence of something. It really means the translation of the faith into action. Words without deeds carry no meaning, in Islam. Therefore the term “believe and do good” has been used like a phrase all over the Quran. Belief in something means that man should inculcate the qualities or carry out the promptings or guidance of that thing in his action. Belief in Allah means that besides acknowledging the existence of the Author of the Universe, we are to show obedience to His commandments . …..”

22. 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 teachings 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.

23. The second plank of the appellant’s argument is that the respondent’s application under Section 125 is liable to be dismissed because of the provision contained, in Section 127(3)(b). That section provides, to the extent material, that the Magistrate shall cancel the order of maintenance, if the wife is divorced by the husband and, she has received “the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce”. That raises the question as to whether, under the Muslim Personal Law, any sum is payable to the wife ‘on divorce’. We do not have to grope in the dark and speculate as to which kind of a sum this can be because, the only argument advanced before us on behalf of the appellant and by the interveners supporting him, is that Mahr is the amount payable by the husband to the wife on divorce. We find it impossible to accept this, argument.

24. 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 Modem India” (1982 Edition, page 60), criticises this definition on the ground that Mahr is not payable “in consideration of marriage” but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the fact that non-specification of Mahr at the time of marriage does not affect the validity of the marriage. We need not enter into this controversy and indeed, Mulla’s book itself contains the further statement at page 308 that the word ‘consideration’ is not used in the sense in which, it is used in the Contract Act and that under the Mohammedan Law, Dower is an obligation, imposed upon the husband as a mark of respect for the wife. We are concerned to find whether Mahr is an amount payable by the husband to the wife on divorce. Some confusion is caused by the fact that, under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called “prompt”, which is payable on demand, and the other is called “deferred”, which is payable on the dissolution of the marriage by death or by divorce. But, the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable ‘on divorce. Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce. Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce, which occurs in Section 127(3)(b) of the Code. If Mahr is an amount which the wife is entitled to receive from the husband 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’.

25. In an appeal from a Full Bench decision of the Allahabad High Court, the Privy Council in Hamira Bibi v. Zubaide Bibi 43 Ind App 294 summed up the nature and character of Mahr in these words:

“Dower is an essential incident under the Mussulman 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 oh 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.” (pp. 300-301).

26. This statement of law was adopted in another decision of the Privy Council in Syed Sabir Husain v. Farzand Hasan 65 Ind App 119 at page No. 127. It is not quite appropriate and seems invidious to, describe any particular Bench of a court as “strong” but, we cannot resist the temptation of mentioning that Mr. Syed Ameer Ali was a party to the decision in Hamira Bibi while Sir Shadi Lal was a party to the decision in Syed Sabir Husain. These decisions show that the payment of dower may he 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.

27. 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 an the anvil, would show that the intention of the Parliament was to leave the provisions of the Muslim Personal Law untouched. In this behalf, reliance is placed on the following statement made by Shri Ram Niwas Mirdha, the then Minister of State, Home Affairs:

“Dr. Vyas very learnedly made certain observations that a divorced wife under the Muslim law deserves to be treated justly and she should get what is her equitable or legal due. Well, I will not go into this, but say that we would not like to interfere with the customary law of the Muslims through the Criminal Procedure Code. If there is a demand for change in the Muslim Personal. Law, it should actually come from the Muslim Community itself and we should wait for the Muslim public opinion on these matters to crystallise before we try to change this customary right or make changes in their personal law. Above all, this is hardly the place where we could do so. But as I tried to explain, the provision in the Bill is an advance over the previous situation. Divorced women have been included and brought within the ambit of clause 125, but a limitation is being imposed by this amendment to clause 127, namely, that the maintenance orders would cease to operate after the amounts due to her under the personal law are paid to her. This is a healthy compromise between what has been termed a conservative interpretation of law or a concession to conservative public opinion and liberal approach to the problem. We have made an advance and not tried to transgress what are the personal rights of Muslim women. So this, I think, should satisfy Hon. Members that whatever advance we have made is in the right direction and it should be welcomed.”

28. It does appear from this speech that the Government did not desire to interfere with the personal law of the Muslims through the Criminal Procedure Code. It wanted the Muslim community to take the lead and the Muslim public opinion to crystallise on the reforms in their personal law. However, we are not concerned with the question whether the Government did or 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 introduced 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.

29. It must follow from this discussion, unavoidably a little too long, that the judgments of this Court in Bai Tahira (supra) (Krishna Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (supra) (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.

30. 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 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.

31. 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 divorcee 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 nephews 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.

32. It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably; it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.

33. 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’s legislative jurisdiction, the Muslims will do well to begin exploring and demonstrating how the true Islamic laws,, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India.”

At a Seminar held on October 18, 1980 under the auspices of the Department of Islamic and Comparative Law, Indian Institute of Islamic Studies, New Delhi, he also made an appeal to the Muslim community to display by their conduct a correct understanding of Islamic concepts on marriage and divorce (See Islam and Comparative Law Quarterly, April-June, 1981, page 146).

34. Before we conclude, we would like to draw attention to the Report of the Commission 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 be answered in the affirmative.”

35. 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.

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2017

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TO BE INTRODUCED IN LOK SABHA

Bill No. 247 of 2017

A BILL to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

BE it enacted by Parliament in the Sixty-eighth Year of the Republic of India as follows:—

 

 

CHAPTER I
PRELIMINARY

Short title, extent and commencement.

1. (1) This Act may be called the Muslim Women (Protection of Rights on Marriage)
Act, 2017.
(2) It shall extend to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

Definitions.

2. In this Act, unless the context otherwise requires,—

(a) “electronic form” shall have the same meaning as assigned to it in clause (r)
of sub-section (1) of section 2 of the Information Technology Act, 2000;

(b) “talaq” means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband; and

(c) “Magistrate” means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973, in the area where a married Muslim woman resides.

CHAPTER II
DECLARATION OF TALAQ TO BE VOID AND ILLEGAL

3. Any pronouncement of talaq by a person upon his wife, by words, either spoken
or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

4. Whoever pronounces talaq referred to in section 3 upon his wife shall be punished
with imprisonment for a term which may extend to three years and fine.

CHAPTER III
PROTECTION OF RIGHTS OF MARRIED MUSLIM WOMEN

5. Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.

6. Notwithstanding anything contained in any other law for the time being in force, a married Muslim woman shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband, in such manner as may be determined by the Magistrate.

7. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code


 

STATEMENT OF OBJECTS AND REASONS

The Supreme Court in the matter of Shayara Bano Vs. Union of India and others and other connected matters, on 22nd August, 2017, in a majority judgement of 3:2, set aside the practice of talaq-e-biddat (three pronouncements of talaq, at one and the same time) practiced by certain Muslim husbands to divorce their wives. This judgement gave a boost to liberate Indian Muslim women from the age-old practice of capricious and whimsical method of divorce, by some Muslim men, leaving no room for reconciliation.

2.The petitioner in the above said case challenged, inter alia, talaq-e-biddat on the ground that the said practice is discriminatory and against dignity of women. The judgement vindicated the position taken by the Government that talaq-e-biddat is against constitutional morality, dignity of women and the principles of gender equality, as also against gender equity guaranteed under the Constitution. The All India Muslim Personal Law Board (AIMPLB), which was the 7th respondent in the above case, in their affidavit, inter alia, contended that it was not for the judiciary to decide matters of religious practices such as talaq-e-biddat, but for the legislature to make any law on  the same. They had also submitted in the Supreme Court that they would issue advisories to the members of the community against this practice.

3. In spite of the Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country. It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.

4. In order to prevent the continued harassment being meted out to the hapless married Muslim women due to talaq-e-biddat, urgent suitable legislation is necessary to give some relief to them. The Bill proposes to declare pronouncement of talaq-e-biddat by Muslim husbands void and illegal in view of the Supreme Court verdict. Further, the illegal act of pronouncing talaq-e-biddat shall be a punishable offence. This is essential to prevent this form of divorce, wherein the wife does not have any say in severing the marital relationship. It is also proposed to provide for matters such as subsistence allowance from the husband for the livelihood and daily supporting needs of the wife, in the event of husband pronouncing talaq-e-biddat, and, also of the dependent children. The wife would also be entitled to custody of minor children.

5. The legislation would help in ensuring the larger Constitutional goals of gender justice and gender equality of married Muslim women and help subserve their fundamental rights of non-discrimination and empowerment.

6. The Bill seeks to achieve the above objects.

NEW DELHI;                                                                                  RAVI SHANKAR PRASAD.

The 15th December, 2017.