Introduction
There issue regarding the applicability of the provision of maintenance to women from her husband and right to recover under Section 125 and 127 of The Code of Criminal Procedure, 1973 for Muslim woman was under consideration, especially when said provision of the legislation is uniform for all and not based on personal law of any religion. The difference, distinction between concept of ‘Mehr’ and ‘consideration’ after divorce. The provision of Uniform Civil Code as expected under Constitution. These issues went upto Supreme Court and was referred to larger bench as there were two different views.
Though was not having constitutional important but certainly involve question of importance that arise under 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.
The aim and object of any legislation or any provisions of legislation shall not violate the rights guaranteed under the highest law of the land, Constitution of India though the legislation or the law may be based on the personal law of any religion. The right of religion shall always be within the four corners of the Constitution as that is its basic structure which cannot be altered, modified and changed in such nature or manner which may change its basic structure.
Points, issues raised
1. Does Muslim Personal Law impose no obligation upon the husband to provide for maintenance of his divorced wife? Muslim husband enjoys 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, 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 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.
2. The question as to whether Section 125 of the Code applies to Muslims also is concluded by two decisions of Supreme Court, reported in Bai Tahira v. Ali Hussain Fidaalli Chothia and Fazlunbi v. K. Khader Vali. Those decisions took the view that the divorced Muslim wife is entitled to apply for maintenance under Section 125. But, a Bench of 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.
3. Substantial questions of law – 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 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.
Relevant legislations, Legal Provisions and precedents relied on
• Relevant Legislations and Provisions
1. Constitution of India
2. The Code of Criminal Procedure, 1973
3. The Muslim Personal Law (Shariat) Application Act, 1937
4. The Code of Criminal Procedure, 1872
5. The Hindu Adoptions and Maintenance Act, 1956
6. Mulla's Mahomedan Law, 18th Edition
7. Baillie's Digest of Moohummudan Law
8. Ameer Ali's Mahomedan Law, 5th Edition,
9. Tyabji's Muslim law (4th Edition)
10. Muslim Law in Modern India, 1982 Edition by Dr. Paras Diwan
11. Holy Quran, (The. Quran - 'Interpreted by Arthur J. Arberry
12. The Running Commentary of The Holy Quran" (1964 Edition) by Dr.Allamah Khadim Rahmani Nuri
13. The Meaning of the Glorious Quran, Text and Explanatory Translation", by Marmaduke Pickthall
14. Proceedings of the Rajya Sabha dt. December 18, 1973 (volume 86, column 186
15. 'Muslim Personal Law' (1977 Edition, pages 200-202) by Dr. Tahir Mahmood
16. Islam and Comparative Law Quarterly, April-June, 1981, page 146).
17. Report of the Commission Marriage and Family Laws, Government of Pakistan
• Precedents relied on
1. Bai Tahira v. Ali Hussain Fidaalli Chothia (1979) 2 SCR 75 : AIR 1979 SC 362 – Overruled
2. Fazlunbi v. K. Khader Vali (1980) 3 SCR 1127 : AIR 1980 SC 1730 – Approved
3. Jagir Kaur v. Jaswant Singh, 1964,12 SCR 73: AIR 1963 SC 1521
4. Nanak Chand v. Chandra Kishore Agarwala (1970) 1 SCR 565 : AIR 1970 SC 446
5. Hamira Bibi v. Zubaide Bibi 43 Ind App 294 : AIR 1916 PC 46
6. Syed Sabir Husain v. Farzand Hasan 65 Ind App 119 at P. 127 : AIR 1938 P C 80
Brief Facts of case and discussion
• Brief Facts
1. The appeal, arising out of an application by 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 belief that mankind has achieved remarkable degree of progress in that direction. The appellant, husband was married to respondent, wife in 1932. In 1975, he drove her out of matrimonial home. In April 1978, she filed a petition under Section 125 of the Code in court of Judicial Magistrate (First Class), Indore, for maintenance. On November 6, 1979, he divorced her by an irrevocable talaq. His defence to her 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 for about two years and that, he had deposited a sum in the court by way of dower during the, period of iddat. In August, 1979 the Magistrate directed appellant to pay princely sum to respondent by way of maintenance. She had alleged that appellant earns a professional income of about Rs. 60,000/- per year. In July, 1980, in a revision filed by her, High Court of Madhya Pradesh enhanced amount of maintenance to Rs. 179.20 per month. The husband challenged it before Supreme Court.
2. The second plank of husband is that section provides, to the extent material, that Magistrate shall cancel 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 Muslim Personal Law, any sum is payable to the wife 'on divorce'. Court does not have to grope in the dark and speculate as to which kind of a sum this can be because, the only argument advanced 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. Court find it impossible to accept this, argument.
• Discussion
Maintenance amount and its liability
1. Section 125 of Code deals with right of maintenance to wives, children and parents if they are unable to maintain. Under Section 127 it can be modified and procedure for recovery is explained therein. Legislation does not supplant the personal law of the parties but, equally, the religion professed by them or 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.
2. The liability imposed by Section 125 to maintain close relatives who are indigent is founded upon individual's obligation to the society to prevent vagrancy and destitution. That is the moral edict of law and morality cannot be clubbed with religion. Clause (b) of Explanation to section 125(1), which defines 'wife' as including divorced wife, contains no words of limitation to justify exclusion of Muslim women from its scope. Section 125 is truly secular in character. 'Wife' means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, divorced Muslim woman, so long as she has not remarried, is '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.
3. 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". 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.
Different views, observation and ratios
Different views
1. Sir James- Fitz James Stephen – Section 125 occurs, as 'a mode of preventing vagrancy or at least of preventing its consequences’.
2. Jagir Kaur v. Jaswant Singh – Code of 1898 which contained Section 488, corresponding to Section 125, "intends to serve a social purpose".
3. Nanak Chand v. Chandra Kishore Agarwala – While pointing out that scope of 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".
4. Under Muslim Personal Law – Liability of husband to maintain divorced wife is limited to the period of iddat. – Mulla's Mahomedan Law as there is statement to the effect that "After divorce, the wife is entitled to maintenance during the period of, iddat". "Where an order is made for the maintenance of a wife under Section 488 of 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, Mahomedan may defeat an order made against him under Section 488 by divorcing his wife immediately after order is made. His obligation to maintain his wife will cease in that case on completion of her iddat."
5. Tyabji's Muslim law –"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."
6. Dr. Paras Diwan – "When a marriage is dissolved by divorce, the wife is entitled to maintenance during the period of iddat. On 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."
7. Holy Quran (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 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. In Aiyat 242, the Quran says "It is expected that you will use your common sense".
8. Similar is the interpretation of Holy Quran by Muhammed Zafrullah Khan, by the Board of Islamic Publications, Delhi), by Dr.Allamah Khadim Rahmani Nuri, by Marmaduke Pickthall, by Dr. K. R. Nuri
Discussion, observations and ratios
1. These statements in the text books are inadequate to establish the proposition that 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.
2. Husband is bound to pay Mahr to the wife as a mark of respect to her. He may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams, which is equivalent to three or four rupees. But, one must have regard to the realities of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. It not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which divorced wife is unable to maintain herself. 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.
3. The issue was not before court whether 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. Since 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 Muslim husband, as per his personal law, is not under an obligation to provide maintenance, beyond, period of iddat, to his divorced wife who is unable to maintain herself.
4. 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.
5. 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.
6. Aiyats leave no doubt that Quran imposes an obligation on Muslim husband to make provision for or to provide maintenance to divorced wife. The contrary argument does less than justice to the teachings of 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.
Amount of ‘Mehr’ and its liability – Different aspects
1. Mulla's Principles of Mahomedan Law – Mahr or Dower, is defined as "a sum of money or other property which wife is entitled to receive from the husband in consideration of the marriage." The word 'consideration' is not used in sense in which, it is used in Contract Act and that under Mohammedan Law, Dower is an obligation, imposed upon husband as a mark of respect for wife.
2. Dr. Paras Diwan in "Muslim Law in Modem India" – Mahr is not payable "in consideration of marriage" but is an obligation imposed by law on the husband as mark of respect for 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.
3. Amount of Mahr is usually split into two parts, 1. "prompt" – which is payable on demand, and 2. "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 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.
4. 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.
5. 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'.
6. "Dower is an essential incident under Mussulman law to status of, marriage; to such an extent that is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called "prompt" payable before the wife can be called upon to enter the conjugal domicil; the other "deferred", payable on the dissolution of the contract by the death of either of the parties or by divorce." – Hamira Bibi v. Zubaide Bibi, Syed Sabir Husain v. Farzand Hasan
7. The proceedings of Rajya Sabha dated December 18, 1973, when the bill which led to the Code of 1973 was an the anvil, would show that the intention of Parliament was to leave provisions of the Muslim Personal Law untouched. However, court was 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 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.
8. 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.
9. Though Bai Tahira was correctly decided, court would like, to draw attention to an error which has crept in the judgment. There is a statement in the context of Section 127(3)(b), that "payment of Mahr money, as a customary discharge, is within the cognizance of that provision". Mahr, not being payable, on divorce, does not fall within the meaning of that provision.
10. 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.
11. 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.
12. Dr. Tahir Mahmood in 'Muslim Personal Law' 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, court should have thought that, lead or no lead, the State must act.
13. Report of Commission Marriage and Family Laws, by Government of Pakistan by Resolution dt. August 4, 1955. The answer of the Commission to Question No. 5 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."
Conclusion and importance of case
• Conclusion
Court dismiss the appeal and confirm the judgment of the High, Court. 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.
• Importance
The judgment is proved to be the mile stone of the ‘Law of Maintenance’ for women, especially for Muslim Women. The provision of the Code of Criminal Procedure, 1973 was declared to be equal for all women of all religions but it the unfortunate event that the view taken by Supreme Court supporting the welfare of women and development of society was turned down by the new enactment as The Muslim Women (Protection of Rights on Divorce) Act, 1986 after the judgment dated 23.4.1985 by five judges of Supreme Court.
There issue regarding the applicability of the provision of maintenance to women from her husband and right to recover under Section 125 and 127 of The Code of Criminal Procedure, 1973 for Muslim woman was under consideration, especially when said provision of the legislation is uniform for all and not based on personal law of any religion. The difference, distinction between concept of ‘Mehr’ and ‘consideration’ after divorce. The provision of Uniform Civil Code as expected under Constitution. These issues went upto Supreme Court and was referred to larger bench as there were two different views.
Though was not having constitutional important but certainly involve question of importance that arise under 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.
The aim and object of any legislation or any provisions of legislation shall not violate the rights guaranteed under the highest law of the land, Constitution of India though the legislation or the law may be based on the personal law of any religion. The right of religion shall always be within the four corners of the Constitution as that is its basic structure which cannot be altered, modified and changed in such nature or manner which may change its basic structure.
Points, issues raised
1. Does Muslim Personal Law impose no obligation upon the husband to provide for maintenance of his divorced wife? Muslim husband enjoys 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, 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 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.
2. The question as to whether Section 125 of the Code applies to Muslims also is concluded by two decisions of Supreme Court, reported in Bai Tahira v. Ali Hussain Fidaalli Chothia and Fazlunbi v. K. Khader Vali. Those decisions took the view that the divorced Muslim wife is entitled to apply for maintenance under Section 125. But, a Bench of 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.
3. Substantial questions of law – 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 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.
Relevant legislations, Legal Provisions and precedents relied on
• Relevant Legislations and Provisions
1. Constitution of India
2. The Code of Criminal Procedure, 1973
3. The Muslim Personal Law (Shariat) Application Act, 1937
4. The Code of Criminal Procedure, 1872
5. The Hindu Adoptions and Maintenance Act, 1956
6. Mulla's Mahomedan Law, 18th Edition
7. Baillie's Digest of Moohummudan Law
8. Ameer Ali's Mahomedan Law, 5th Edition,
9. Tyabji's Muslim law (4th Edition)
10. Muslim Law in Modern India, 1982 Edition by Dr. Paras Diwan
11. Holy Quran, (The. Quran - 'Interpreted by Arthur J. Arberry
12. The Running Commentary of The Holy Quran" (1964 Edition) by Dr.Allamah Khadim Rahmani Nuri
13. The Meaning of the Glorious Quran, Text and Explanatory Translation", by Marmaduke Pickthall
14. Proceedings of the Rajya Sabha dt. December 18, 1973 (volume 86, column 186
15. 'Muslim Personal Law' (1977 Edition, pages 200-202) by Dr. Tahir Mahmood
16. Islam and Comparative Law Quarterly, April-June, 1981, page 146).
17. Report of the Commission Marriage and Family Laws, Government of Pakistan
• Precedents relied on
1. Bai Tahira v. Ali Hussain Fidaalli Chothia (1979) 2 SCR 75 : AIR 1979 SC 362 – Overruled
2. Fazlunbi v. K. Khader Vali (1980) 3 SCR 1127 : AIR 1980 SC 1730 – Approved
3. Jagir Kaur v. Jaswant Singh, 1964,12 SCR 73: AIR 1963 SC 1521
4. Nanak Chand v. Chandra Kishore Agarwala (1970) 1 SCR 565 : AIR 1970 SC 446
5. Hamira Bibi v. Zubaide Bibi 43 Ind App 294 : AIR 1916 PC 46
6. Syed Sabir Husain v. Farzand Hasan 65 Ind App 119 at P. 127 : AIR 1938 P C 80
Brief Facts of case and discussion
• Brief Facts
1. The appeal, arising out of an application by 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 belief that mankind has achieved remarkable degree of progress in that direction. The appellant, husband was married to respondent, wife in 1932. In 1975, he drove her out of matrimonial home. In April 1978, she filed a petition under Section 125 of the Code in court of Judicial Magistrate (First Class), Indore, for maintenance. On November 6, 1979, he divorced her by an irrevocable talaq. His defence to her 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 for about two years and that, he had deposited a sum in the court by way of dower during the, period of iddat. In August, 1979 the Magistrate directed appellant to pay princely sum to respondent by way of maintenance. She had alleged that appellant earns a professional income of about Rs. 60,000/- per year. In July, 1980, in a revision filed by her, High Court of Madhya Pradesh enhanced amount of maintenance to Rs. 179.20 per month. The husband challenged it before Supreme Court.
2. The second plank of husband is that section provides, to the extent material, that Magistrate shall cancel 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 Muslim Personal Law, any sum is payable to the wife 'on divorce'. Court does not have to grope in the dark and speculate as to which kind of a sum this can be because, the only argument advanced 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. Court find it impossible to accept this, argument.
• Discussion
Maintenance amount and its liability
1. Section 125 of Code deals with right of maintenance to wives, children and parents if they are unable to maintain. Under Section 127 it can be modified and procedure for recovery is explained therein. Legislation does not supplant the personal law of the parties but, equally, the religion professed by them or 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.
2. The liability imposed by Section 125 to maintain close relatives who are indigent is founded upon individual's obligation to the society to prevent vagrancy and destitution. That is the moral edict of law and morality cannot be clubbed with religion. Clause (b) of Explanation to section 125(1), which defines 'wife' as including divorced wife, contains no words of limitation to justify exclusion of Muslim women from its scope. Section 125 is truly secular in character. 'Wife' means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, divorced Muslim woman, so long as she has not remarried, is '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.
3. 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". 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.
Different views, observation and ratios
Different views
1. Sir James- Fitz James Stephen – Section 125 occurs, as 'a mode of preventing vagrancy or at least of preventing its consequences’.
2. Jagir Kaur v. Jaswant Singh – Code of 1898 which contained Section 488, corresponding to Section 125, "intends to serve a social purpose".
3. Nanak Chand v. Chandra Kishore Agarwala – While pointing out that scope of 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".
4. Under Muslim Personal Law – Liability of husband to maintain divorced wife is limited to the period of iddat. – Mulla's Mahomedan Law as there is statement to the effect that "After divorce, the wife is entitled to maintenance during the period of, iddat". "Where an order is made for the maintenance of a wife under Section 488 of 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, Mahomedan may defeat an order made against him under Section 488 by divorcing his wife immediately after order is made. His obligation to maintain his wife will cease in that case on completion of her iddat."
5. Tyabji's Muslim law –"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."
6. Dr. Paras Diwan – "When a marriage is dissolved by divorce, the wife is entitled to maintenance during the period of iddat. On 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."
7. Holy Quran (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 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. In Aiyat 242, the Quran says "It is expected that you will use your common sense".
8. Similar is the interpretation of Holy Quran by Muhammed Zafrullah Khan, by the Board of Islamic Publications, Delhi), by Dr.Allamah Khadim Rahmani Nuri, by Marmaduke Pickthall, by Dr. K. R. Nuri
Discussion, observations and ratios
1. These statements in the text books are inadequate to establish the proposition that 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.
2. Husband is bound to pay Mahr to the wife as a mark of respect to her. He may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams, which is equivalent to three or four rupees. But, one must have regard to the realities of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after. But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce. It not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which divorced wife is unable to maintain herself. 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.
3. The issue was not before court whether 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. Since 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 Muslim husband, as per his personal law, is not under an obligation to provide maintenance, beyond, period of iddat, to his divorced wife who is unable to maintain herself.
4. 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.
5. 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.
6. Aiyats leave no doubt that Quran imposes an obligation on Muslim husband to make provision for or to provide maintenance to divorced wife. The contrary argument does less than justice to the teachings of 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.
Amount of ‘Mehr’ and its liability – Different aspects
1. Mulla's Principles of Mahomedan Law – Mahr or Dower, is defined as "a sum of money or other property which wife is entitled to receive from the husband in consideration of the marriage." The word 'consideration' is not used in sense in which, it is used in Contract Act and that under Mohammedan Law, Dower is an obligation, imposed upon husband as a mark of respect for wife.
2. Dr. Paras Diwan in "Muslim Law in Modem India" – Mahr is not payable "in consideration of marriage" but is an obligation imposed by law on the husband as mark of respect for 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.
3. Amount of Mahr is usually split into two parts, 1. "prompt" – which is payable on demand, and 2. "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 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.
4. 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.
5. 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'.
6. "Dower is an essential incident under Mussulman law to status of, marriage; to such an extent that is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles. Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called "prompt" payable before the wife can be called upon to enter the conjugal domicil; the other "deferred", payable on the dissolution of the contract by the death of either of the parties or by divorce." – Hamira Bibi v. Zubaide Bibi, Syed Sabir Husain v. Farzand Hasan
7. The proceedings of Rajya Sabha dated December 18, 1973, when the bill which led to the Code of 1973 was an the anvil, would show that the intention of Parliament was to leave provisions of the Muslim Personal Law untouched. However, court was 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 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.
8. 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.
9. Though Bai Tahira was correctly decided, court would like, to draw attention to an error which has crept in the judgment. There is a statement in the context of Section 127(3)(b), that "payment of Mahr money, as a customary discharge, is within the cognizance of that provision". Mahr, not being payable, on divorce, does not fall within the meaning of that provision.
10. 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.
11. 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.
12. Dr. Tahir Mahmood in 'Muslim Personal Law' 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, court should have thought that, lead or no lead, the State must act.
13. Report of Commission Marriage and Family Laws, by Government of Pakistan by Resolution dt. August 4, 1955. The answer of the Commission to Question No. 5 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."
Conclusion and importance of case
• Conclusion
Court dismiss the appeal and confirm the judgment of the High, Court. 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.
• Importance
The judgment is proved to be the mile stone of the ‘Law of Maintenance’ for women, especially for Muslim Women. The provision of the Code of Criminal Procedure, 1973 was declared to be equal for all women of all religions but it the unfortunate event that the view taken by Supreme Court supporting the welfare of women and development of society was turned down by the new enactment as The Muslim Women (Protection of Rights on Divorce) Act, 1986 after the judgment dated 23.4.1985 by five judges of Supreme Court.
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