PETITIONER:
FAZLUNBI
Vs.
RESPONDENT:
K. KHADER VALI AND ANR.
DATE OF JUDGMENT08/05/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
CITATION:
1980 AIR 1730 1980 SCR (3)1127
1980 SCC (4) 125
CITATOR INFO :
F 1985 SC 945 (4,29)
ACT:
Code of Criminal Procedure Code, 1973, Section 127 (3)
(b), scheme and scope of-Whether by the payment of Mahar and
Iddat dues, the provisions of s. 127(3)(b) of the Code would
be complied with or the vinculum juris created by the order
under s. 125 continues despite the make-believe ritual of
miniscule mahar which merely stultified section 127(3) (b)
Cr.P.C.-Precedents and binding nature under Article 141 of
the Constitution.
HEADNOTE:
Fazlunbi, the appellant, married Khader Vali, the
respondent, in 1966, and during their conjugal life, a son
Khader Basha, was born to them. The respondent, husband, an
additional accountant in the State Bank of India, drawing a
salary of Rs. 1000/-, discarded the wife and the child, and
the tormented woman talaqed out of the conjugal home, sought
shelter in her parent's abode. Driven by destitution, she
prayed for maintenance allowance for herself and her son
under section 125 Cr. P.C. and the Magistrate granted
payment of a monthly sum of Rs. 250/- to the wife and Rs.
150/- to the child. The respondent husband challenged the
award in the High Court where the unjustified neglect was
upheld, but the quantum of maintenance of the child was
reduced to Rs. 100/- per mensem.
Thereafter, the respondent husband resorted to the
unilateral technique of talaq and tendered the magnificent
sum of Rs. 500/- by way of Mahar and Rs. 750/- towards
maintenance for the period of iddat, hopeful thereby, of
extricating himself from the obligation to maintain the
appellant. The Additional First Class Magistrate vacated the
grant of maintenance already granted on the score of divorce
coupled with discharge of mahar and Iddat dues. This order
was unsuccessfully challenged in the Sessions Court. The
desperate appellant reached the High Court and invoked its
jurisdiction under section 482 Crl. P.C. A Division Bench of
that High Court, though the revision petitioner banked upon
the decision of the Supreme Court in Bai Tahira's case
[1979] 2 SCR 75 in her favour, distinguished that case and
dismissed the petition. Hence the appellant-wife's appeal by
special leave.
Allowing the appeal, the Court
^
HELD: 1. The conscience of social justice, the
cornerstone of our Constitution will be violated and the
soul of the scheme of Chapter IX of the Code, a secular
safeguard of British India vintage against the outrage of
jetsam women and flotsam children, will be defiled if
judicial interpretation sabotages the true meaning and
reduces a benign protection into a damp squib. [1131 E-F]
2. Precedents of the Supreme Court are not to be left
on the shelves. Neither could they be brushed aside saying
that precedents is an authority only "on its actual facts".
Such devices are not permissible for the High Courts when
decisions of the Supreme Court are cited before them not
merely because of the jurisprudence of precedents, but
because of the imperatives of Article 141. [1134 D-E]
1128
No Judge in India, except a larger Bench of the Supreme
Court, without a departure from judicial discipline can
whittle down, wish away or be unbound by the ratio in Bai
Tahira's case, in which Section 127(3)(b) of Crl. P.C. was
interpreted. The language used is unmistakable, the logic at
play is irresistible, the conclusion reached is inescapable
the application of the law as expanded there is an easy
task. And yet, the Division Bench, by the fine art of
skirting the real reasoning laid down "unlaw" in the face of
the law in Bail Tahira which is hardly a service and surely
a mischief, unintended by the Court may be, but embarrassing
to the subordinate judiciary. There is no warrant whatever
for the High Court to reduce to a husk a decision of this
Court by its doctrinal gloss. [1132 C-E]
(3) Crl. P.C. (Sections 125-127) is a secular code
deliberately designed to protect destitute women, who are
victims of neglect during marriage and after divorce. It is
rooted in the State's responsibility for the welfare of the
weaker sections of women and children and is not confined to
members of one religion or region, but the whole community
of womanhood. Secondly muslim law show its reverence for the
wife in the institution of Mehar (dower). It is neither
dowry nor price for marriage. [1138 C-E]
4. The quintessence of mehar whether it is prompt or
deferred is clearly not a contemplated quantification of a
sum of money in lieu of maintenance upon divorce. Indeed,
dower focusses on marital happiness and is an incident of
connubial joy. Divorce is farthest from the thought of the
bride and the bridegroom when mehar is promised. Moreover,
dower may be prompt and is payable during marriage and
cannot, therefore, be a recompense for divorce too distant
and unpleasant for the bride and bridegroom to envision on
the nuptial bed. May be, some how the masculine obsession of
jurisprudence linked up this promise or payment as a
consolidated equivalent of maintenance after divorce. [1140
D-F]
5. The language of Section 127(3)(b) suggests that
payment of the sum and the divorce should be essential parts
of the same transaction so as to make one the consideration
for the other. The payment of money contemplated by section
127(3) (b) should be so linked with the divorce as to become
payable only in the event of the divorce. Mehar as
understood in Mohammadan Law cannot, under any circumstances
be considered as consideration for divorce or a payment made
in lieu of loss of connubial relationship. Under s. 127(3)
(b) of the Cr. P.C., an order for maintenance may be
cancelled if the Magistrate is satisfied that the woman has
been divorced by her husband and that she has received,
whether before or after the said order, the whole of the sum
which, under any customary or personal law applicable to the
parties was payable on such divorce. Therefore, even by
harmonising payments under personal and customary laws with
the obligations under ss. 125 to 127 of the Cr. P.C., the
conclusion is clear that the liquidated sum paid at the time
of divorce must be a reasonable and not an illusory amount
and will release the quondam husband from the continuing
liability, only if the sum paid is realistically sufficient
to maintain the ex-wife and salvage her from destitution
which is the anathema of the law. This perspective of social
justice alone does justice to the complex of provisions from
s. 125 to s. 127 of the Criminal Procedure Code. [1140 F-H,
1141 A-C]
1129
Kunhi Moyin v. Pathimma, 1976 KLT 87 at 96; Kamalakshi
v. Sankaran, AIR 1979 Kerala 116; Hajabean Sulaiman & Anr.
v. Ibrahim Gandhabai and Anr., Guj. L.R. Vol. XVIII 1977 p.
133 at 137-139, referred to.
6. (i) Section 127(3)(b) has a setting, scheme and a
purpose and no talaq of the purpose different from the sense
is permissible in statutory construction. [1141 C-D]
(ii) The payment of an amount, customary or other,
contemplated by the measure must inset the intent of
preventing destitution and providing a sum which is more or
less the present worth of the monthly maintenance allowances
the divorce may need until death or remarriage overtake her.
The policy of the law abhors neglected wives and destitute
divorcees and s. 127(3)(b) takes care to avoid double
payment one under custom at the time of divorce and another
under s. 125. [1141 D-E]
(iii) Whatever the facts of a particular case, the
Code, by enacting ss. 125 to 127, charges the court with the
humane obligation of enforcing maintenance or its just
equivalent to ill-used wives and castaway ex-wives, only if
the woman has received voluntarily a sum, at the time of
divorce, sufficient to keep her going according to the
circumstances of the parties. [1141 E-F]
(iv) Neither personal law nor other salvationary plea
will hold against the policy of public law pervading s.
127(3) (b) as much as it does s. 125. So a farthing is no
substitute for a fortune nor naive consent equivalent to
intelligent acceptance. [1141 F-G]
(v) Here the mahar paid is Rs. 500/ and the income
therefrom may will be Rs. 5/- a month, too ludicrous to
mention as maintenance. The amount earlier awarded is the
minimum. [1141 G-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
156 of 1980.
Appeal by certificate against the Judgment and Order
dated the 21 Nov., 1979 of the Andhra Pradesh High Court in
Criminal Misc. Petition No. 1351 of 1979.
A. Suba Rao for the Appellant.
G. Narasimhulu for Respondent No. 1.
The Judgment of the Court was delivered by
KRISHNA IYER, J.-The last judicial lap of the journey
to gender justice made by Fazulnbi, a married woman just
past 30 years and talaged into destitution, constitutes the
compassionate core of this case. The saga of Fazlunbi, who
had earlier secured an order for maintenance in her favour
under s. 125 Cr. P. C. which was cancelled under s. 127(3)
(b) Cr. P. C., by three courts, tier upon tier in the
vertical system, by concurrent misinterpretation of the
relevant provision, constitutes the kernel of her legal
grievance. If her plea has substance, social justice has
been jettisoned by judicial process and a just and lawful
claim due to a woman in distress has been denied heartlessly
and lawlessly. We say 'heartlessly', because no sensitive
1130
judge with empathy for the weaker sex could have callously
cancelled an order for a monthly allowance already made in
her favour, as has been done here. We say 'lawlessly',
because no disciplined judge bound by the decision of this
Court which lays down the law for the nation under Art. 141
of the Constitution could have defied the crystal clear
ruling of this Court in Bai Tahira v. Ali Hussain Fidaalli
Chothia by the disingenuous process distinguishing the
decision. We are surprised by this process of getting round
the rule in Bai Tahira's case (supra) by the artful art of
concocting a distinction without a difference. The Sessions
Court and the High Court, who had before them the
pronouncement of the Supreme Court, chopped legal logic to
circumvent it. Reading their 'reasoning' we are left to
exclaim how the high Bench argued itself out of Bai Tahira's
case by discovering the strange difference.
"Twixt Tweeldedum and Tweedledee", the discipline of
law, the due process of law and the rule of law become mere
claptrap if judges bound to obey precedent choose to disobey
on untenable alibi. And, behind it all is the unheeded wail
of Fazulnbi's womanhood for the karuna and samata of the law
and we are conscientized into reversing the judgment under
appeal in terms express, explicit and mandatory so that
masculine injustice may not crucify the weaker sex. Small
wonder that many a divorcee, beguiled by Arts. 14 and 15 and
the decision in Bai Tahira's case, may well exclaim, "How
long, O Lord, how long!"
The brief facts which have led to this appeal are that
Fazlunbi, the appellant married Khader Vali, the respondent,
in 1966 and during their conjugal life, a son, Kader Basha,
was born to them. The husband, an Additional Accountant in
the State Bank of India, apparently drawing a salary well
above Rs. 1000/-, discarded the wife and the child, and the
tormented woman, talaged out of the conjugal home, sought
shelter in her parents' abode. Driven by destitution, she
prayed for maintenance allowance for herself and her son
under s. 125 Cr. P. C. and the Magistrate granted payment of
a monthly sum of Rs. 250/- to the wife and Rs. 150/- to the
child. The husband challenged the award in the High Court
where the unjustified neglect was upheld but the quantum of
maintenance of the child was reduced to Rs. 100/- per
mensem.
The respondent-husband resorted to the unilateral
technique of talaq, and tendered the magnificent sum of Rs.
500/- by way of mahar and Rs. 750/- towards maintenance for
the period of iddat, hopeful thereby, of extricating himself
from the obligation to maintain
1131
the appellant. The Additional First Class Magistrate vacated
the grant of maintenance on the score of divorce coupled
with discharge of mahar and iddat dues. This order was
unsuccessfully challenged in the Sessions Court. The
desperate appellant reached the High Court and invoked its
jurisdiction under s. 482 Cr. P.C. A Division Bench of that
Court, however, dismissed the revision petition and Fazlunbi
has landed up in this Court and banks upon the application
of the rule in Bai Tahirai's case (supra).
The facts are clear, the talaq has snapped the marital
tie, the flimsy mahar has been tendered together with the
three months' iddat dues and the divorcee remains neglected.
The question is whether s. 127 (3) (b) of the Code has been
complied with or the vinculum juris created by the order
under s. 125 continues despite the make-believe ritual of
miniscule mahar which merely stultifies s. 127 (3) (b) Cr.
P. C. and hardly fulfils it. The matter is no longer res
integra. No one in his senses can contend that the mahar of
Rs. 500/- will yield income sufficient to maintain a woman
even if she were to live on city pavements! What is the
intendment of s. 127(3)(b)? What is the scheme of relief for
driftwood and destitute wives and divorcees discarded by
heartless husbands? What is the purpose of providing
absolution from the obligation to pay continued maintenance
by lumpsum liquidation? What, in short is the text and
texture of the provision, if read in the light of the
mischief to be avoided, the justice to be advanced? The
conscience of social justice, the cornerstone of our
Constitution will be violated and the soul of the scheme of
Chapter IX of the Code, a secular safeguard of British
Indian vintage against the outrage of jetsam women and
flotsam children, will be defiled if judicial interpretation
sabotages the true meaning and reduces a benign protection
into a damp squib. The holistic art of statutory
construction has not the pettifogging craft of lexical and
literal reading of the text woefully keeping alive the
moribund mores of a bygone age but, in the felicitous
diction of Cardozo, 'the task of a translator, the reading
of signs and symbols given from without (by those) who have
absorbed the spirit, have filled themselves with a love of
the language they must read'. Lord Denning's great tribute
to the task of a judge is never barred by the law of
limitation.
Many of the Judges of England have said that they
do not make law. They only interpret it. This is an
illusion which they have fostered. But it is a notion
which is now being discarded everywhere. Every new
decision-on every new situation-is a development on the
law. Law does not
1132
stand still. It moves continually. Once this is
recognised, then the task of the Judge is put on a
higher plane. He must consciously seek to mould the law
so as to serve the needs of the time. He must not be a
mere mechanic, a mere working mason, laying brick on
brick, without thought to the overall design. He must
be an architect-thinking of the structure as a whole-
building for society a system of law which is strong,
durable and just. It is on his work that civilised
society itself depends.
We lay so much emphasis on the functional sensitization
of a judge lest what is absurd may be fobbed as obvious by
judicial semanticisation.
We need not labour the point because this Court has
already interpreted s. 127(3)(b) in Bai Tahira and no judge
in India, except a larger bench of the Supreme Court without
a departure from judicial discipline can whittle down, wish
away or be unbound by the ratio thereof. The language used
is unmistakable, the logic at play is irresistible, the
conclusion reached is inescapable, the application of the
law as expounded there is an easy task. And yet, the
Division Bench, if we may with respect say so, has, by the
fine art of skirting the real reasoning laid down 'unlaw' in
the face of the law in Bai Tahira which is hardly a service
and surely a mischief, unintended by the Court may be, but
embarrassing to the subordinate judiciary.
There is no warrant whatever for the High Court to
reduce to a husk a decision of this Court by its doctrinal
gloss. The learned judges observe, to our bafflement-
"The decision in Bai Tahira v. Ali Hussain
Fassalli (supra) is to be confined only to the facts of
that case. It falls to be distinguished for the
following reasons: (i) the compromise of 1962 referred
to therein was construed as not affecting the rights of
a Muslim divorced wife in seeking to recover
maintenance under Sec. 125 Cr. P.C., (ii) what was
considered to have been paid to the Muslim divorced
wife was only the Mahar amount and not the maintenance
amount payable for the Iddat period, (iii) The Mahar
amount paid revealed a rate of interest which for a
person residing in Bombay was held to be wholly
inadequate to do duty for maintenance allowance, (iv)
there was nothing in that case to show that the amount
of Rs. 130/- paid towards Iddat represented the payment
of a sufficient maintenance amount for the three months
period of Iddat and (v) the husband in that case did
not raise any plea based on sec. 127(3)(b) Cr. P.C."
1133
Let us quote a few passages from this Court's ruling in
Bai Tahira (supra) to express the untenability of the excuse
not to follow the binding ratio.
Nor can Section 127 rescue the respondent from his
obligation, payment of mehar money, as a customary
discharge, is within the cognizance of that provision.
But what was the amount of mehar ? Rs. 5000/-, interest
from which could not keep the woman's body and soul to
wether for a day, even in that city where 40% of the
population are reported to live on pavements, unless
she was ready to sell her body and give up her soul!
The point must be clearly understood that the scheme of
the complex of provisions in Chapter IX has a social
purpose. III-used wives and desperate divorcees shall
not be driven to mate rial and moral dereliction to
seek sanctuary in the streets. This traumatic horror
animates the amplitude of Section, 127. Where the
husband, by customary payment at the time of divorce,
has adequately provided for the divorce, a subsequent
series of recurrent doles is contra-indicated and the
husband liberated. This is the teleological
interpretation, the sociological decoding of the text
of Sec. 127. The key-note though is adequacy of payment
which; will take reasonable care of her maintenance.
The payment of illusory amounts by way of
customary or personal law requirement will be
considered in the reduction of maintenance rate but
cannot annihilate the rate unless it is a reasonable
substitute. The legal sanctity of the payment is
certified by the fulfillment of the social obligation,
not by a ritual exercise rooted in custom. No
construction which leads to frustration of the
statutory project can secure validation if the court is
to pay true homage to the Constitution. The only just
construction of the section is that Parliament intended
divorcees should not derive a double benefit. If the
payment by any mehar or ordained by custom has a
reasonable relation to the object and is a capitalised
substitute for the order under Section 125-not
mathematically but fairly-then Section 127(3) (b) sub-
serves the goal and relieves the obliger, not pro tanto
but wholly. The purpose of the payment 'under any
customary or personal law' must be to obviate
destitution of the divorcee and to provide her with
wherewithal to maintain herself. The whole scheme
1134
of Section 127(3)(b) is manifestly to recognise the
substitute maintenance arrangement by lump sum so paid
and is potential as provision for maintenance to
interpret other wise is to stultify the project. Law is
dynamic and its meaning cannot be pedantic but
purposeful. The proposition, therefore, is that no
husband can claim under Section 127(3) (b) absolution
from his obligation under Section 125 towards a
divorced wife except on proof of payment of a sum
stipulated by customary or personal law whose quantum
is more or less sufficient to do duty for maintenance
allowance.
Granville Williams in his "Learning the Law" (pp. 77-
78) gives one of the reasons persuading judges to
distinguish precedents is "that the earlier decision is
altogether unpalatable to the court in the later case, so
that the latter court wishes to interpret it as narrowly as
possible". The same learned author notes that some judges
may "in extreme and unusual circumstances, be apt to seize
on almost any factual difference between this previous case
and the case before him in order to arrive at a different
decision. Some precedents are continually left on the shelf
in this way, as a wag observed, they become very
"distinguished". The limit of the process is reached when a
judge says that the precedent is an authority only "on its
actual facts". We need hardly say that these devices are not
permissible for the High Courts when decisions of the
Supreme Court are cited before them not merely because of
the jurisprudence of precedents, but because of the
imperatives of Art. 141.
We have been painstakingly drawn into many rulings of
the High Courts but none except this one has had the
advantage of the pronouncement in Bai Tahira. A Division
Bench of the Kerala High Court-a ruling which perhaps
advances the purpose more than the Full Bench decision which
overruled it-dwelt on s. 127(3) (b) of the Code. Khalid, J.
speaking for the court observed, and rightly if we may say
so with respect,
This section provides that the Magistrate shall
cancel the order for maintenance if any sum under any
customary or personal law applicable to the parties is
paid on divorce. This section may be pressed into
service by some ingenious husbands to defeat the
provisions contained in section 125. We would like to
make it clear that section 127(3) (b) refers not to
maintenance during the period of iddat or payment of
dower. Unfortunately., place of dower is
1135
now occupied by dowry, payable by the girl's parents, A
which till 1-6-1961 was paid in public and thereafter
in private; thanks to the Dowry Prohibition Act, 1961.
It is therefore not a sum of money which under the
personal law is payable on divorce as expressed in
Section 127(3) (b). On the other hand, what is
impliedly covered by this clause is such sums of money
as alimony or compensation made payable on dissolution
of the marriage under customary or personal law
codified or unconfined, or such amount agreed upon at
the time of marriage to be paid at the time of divorce;
the wife agreeing not to claim maintenance or any other
amount. We thought it necessary to clarify this
position lest there be any doubt regarding the scope of
s. 127(3) (b), for, at the first blush, it might appear
that, it takes away by one hand what is given under
s.125 by the other hand. This is not so.
While, in our view, the Full Bench decision in
Kamalakshi v. Sankaran in so far as it does not insist on an
adequate sum 1 which will yield a recurring income to
maintain the divorcee in future, is bad law and the Division
Bench, in so far as it excuses the husband if he pays a sum
which the ignorant wife at the time of marriage has agreed
upon to relinquish maintenance after divorce, does not go
far enough.
A division Bench of the Gujarat High Court has sought,
even by literal construction, to reach the conclusion that
unless the divorcee voluntarily accepts a sum in lieu of
future maintenance she is still entitled to her claim and s.
127(3) (b) will not dissolve the liability of the husband.
The Judges argue:
We are concerned with the interpretation of sub.
(3) of sec. 127, more particularly clause (b) thereof.
Evidently, this provision which seeks to confer power
on the court to cancel an order of monthly allowance
passe. by it in certain specified contingencies, has to
be confined strictly within the narrow limits laid down
by sub-sec. (3). This is because the provision for
maintenance of wives, whether married or divorced, who
are unable to maintain themselves is a social welfare
measure applicable to all people irrespective of caste,
creed, community or nationality.
1136
With the aforesaid background, we will now proceed
to examine the provisions of sub-sec. (3) of sec. 127.
A bare reading of clauses (a), (b) and (c) of that
provision shows that three fact situations have been
contemplated by the Legislature in which the Magistrate
is given the power to cancel the order for monthly
allowance. These fact situations are shown by the words
(1) has remarried in clause (a), (2) has received in
clause (b) and (c) and (3) had voluntarily surrendered
in clause (c). Clauses (a) and (c) of the said
provision do not postulate any difficulty because they
contemplate the fact situations brought about by a
voluntary and irrevocable act on the part of the
divorced wife. Thus, clause (a) contemplates the act of
the wife in getting remarried and clause (c)
contemplates the act of the wife in obtaining divorce
from her husband and surrendering her rights to
maintenance after divorce. Both these eventualities, as
observed earlier, are brought about by a voluntary and
irrevocable act on the part of the wife. If this is the
obvious position to be kept in mind with regard to the
scope and content of clauses (a) and (c) of sub-sec.
(3) of sec. 127, we see no reason why we should adopt a
different standard in ascertaining the scope and
content of clause (b);
xx xx xx
....it is clear that one of the eventualities
conferring jurisdiction on the Magistrate to cancel an
order of monthly allowance can come into existence only
on doing of a voluntary act by the wife of actually
accepting the amount offered as contemplated by clause
(b). It is to be noted that the Legislature has not
used words indicating mere offer by the husband of the
amount contemplated by clause (b) as sufficient to
bring into existence the fact situation contemplated or
bring into existence the eventuality on which the power
of the Magistrate to cancel the order of maintenance is
based. It appears that the Legislature has advisedly
used the words "has received" in order to indicate and
at the same time restrict the power of cancelling the
order of monthly allowance to cases where the wife by a
voluntary act on her part of receiving the amount
contemplated by clause (b) brings about the eventuality
contemplated for exercise of the said power.. We,
therefore, hold that in order to exercise power
conferred by clause (b) of sub-sec. (3) of sec. 127, it
has to be
1137
found as a fact that the wife has done a voluntary act
of receiving the who e sum contemplated to be payable
by clause (b). If the wife shows her unwillingness to
receive the amount tendered, the provisions of clause
(b) are not applicable.
Even the literal and the purposive approaches may
sometimes concur, once we grasp the social dynamics of
interpretation, will serve the cause of truth and justice.
We are reminded of Lord, Denning's fascinating reference in
his "The Discipline of the Law" to Portia's plea for the
pound of flesh but not a drop of blood; The traditional
English view is yielding to the pressure of the modern
European view (which is also the American view) expressed by
Denning in delightful diction as
"the 'schematic and teleological' method of
interpretation. It is not really so alarming as it
sounds. All it means is that the judges do not go by
the literal meaning of the words or by the grammatical
structure of the sentence. They go by the design of
purpose which lies behind it. When they come upon a
situation which is to their minds within the spirit-but
not the letter-of the legislation, they solve the
problem by looking at the design and purpose of the
legislature-at the effect which it was sought to
achieve. They then interpret the legislation so as to
produce the unashamedly, without hesitation. They ask
simply: What is the sensible way of dealing with this
situation so as to give effect to the presumed purpose
of the legislation ? They lay down the law accordingly.
If you study the decisions of the European Court, you
will see that they do it every day. To our eyes-
shortsighted by tradition-it is legislation, pure and
simple. But, to their eyes, it is fulfilling the true
role of the courts. They are giving effect to what the
legislature intended, or may be presumed to have
intended. I see nothing wrong in this Quite the
contrary.
Another angle to the subject of Mahar and its impact on
liability for maintenance after divorce may be briefly
considered. Khalid, J. of the Kerala High Court in two cases
has taken the view that s.125 and s. 127 Cr.P.C. are
conceptually unconnected with payment of mahar and cannot
bail out a muslim husband from his statutory obligation
under s.125. We are aware of the criticism of this
conceptual
1138
divorce between mahar and post-divorce maintenance by Dr.
Tahir Mahmood in his recent book on the 'Muslim Law of
India' (see P. 133) where the learned author prefers to
retain the 'nexus between mahar and maintenance but has this
to say:
In a recent case the Supreme Court has held that
the sum paid under personal law-referred to in clause
(b) of section 127(3) of the Code-should be "more or
less sufficient to do duty for maintenance allowance";
if it is not so it can be considered by the court for
the reduction of the maintenance rate but cannot
annihilate that rate. This, indeed, is a liberal ruling
and conforms to the spirit of Islamic law on the
subject.
Aside from this controversy, we may look
perspicaciously at the legal connotation of 'dower' and the
impact of its payment on divorcees' claims for maintenance.
We must first remember that Cr.P. Code, (s. 125-127) is a
secular code deliberately designed to protect destitute
women, who are victims of neglect during marriage and after
divorce. It is rooted in the State's responsibility for the
welfare of the weaker sections of women and children and is
not confined to members of one religion or region, but the
whole community of womanhood. Secondly we must realise that
Muslim law shows its reverence for the wife in the
institution of Mahar (dower). It is neither dowry nor price
for marriage.
As explained in an old judgment by Justice Syed
Mahmood, mahar is "not the exchange or consideration
given by the man to the woman, but an effect of the
contract imposed by law on the husband as a token of
respect for its subject: the woman". Giving a correct
appraisal of the concept of mahar, the Privy Council
once described it as "an essential incident to the
status of marriage". On another occasion it explained
that mahar was a 'legal responsibility' of the husband.
These judicial observations evidence a correct
understanding of the Islamic legal concept of mahar
Baillie in his Digest of Mohammaden Law says:
"Dower is not the exchange or consideration given
by the man to woman for entering into the contract; but
an effect of the contract, imposed by the law on the
husband as a token in respect, for its respect the
woman Dower being, as already mentioned, opposed to the
use-
1139
fruct of the woman's person, the right to either is not
completed without the other. Hence on the one hand,
dower is said to be confirmed and made binding on the
husband by consummation, or by its substitute, a valid
retirement, or by death, which by terminating the
marriage, puts an end to all the contingencies to which
it is exposed; and on the other hand the woman becomes
entitled to it as he has surrendered her person."
Justice Mahmood has described the nature of Meharin
Abdul Kadir v. Salima and anr. (8 All. 149 at 157-158).
According to him:
"Dower, under the Muhammadan law, is the sum of
money or other property promised by the husband to be
paid or delivered to the wife in consideration of the
marriage, and even where no dower is expressly fixed or
mentioned at the marriage ceremony, the law confers the
right of dower upon the wife as a necessary effect of
marriage. To use the language of the Hedaya, 'the
payment of dower is enjoined by the law merely as a
token of respect for its subject (the woman), wherefore
the mention of it is not absolutely essential to the
validity of a marriage; and, for the same reason, a
marriage is also valid, although the man were to engage
in the con- tract on the special condition that there
should be no dower".... (Hamilton's Hedaya by Grady, p.
44). Even after the marriage the dower may be increased
by the husband during coverture........In this sense
and in no other can dower under the Muhammadan law be
regarded and the consideration for the connubial
intercourse, and if the authors of the Arabic Text-
books of Muhammadan law have compared it to price in
the contract of sale, it is simply because marriage is
a civil contract under that law... Such being the
nature of the dower, the rules which regulate its
payment are necessarily affected by the position of a
married woman under the Muhammadan law. Under that law
marriage does not make her property the property of the
husband, nor does coverture impose any disability upon
her as to freedom of contract. The marriage contract is
easily dissoluble, and the freedom of divorce and the
rule of polygamy place a power in the hands of the
husband which the law-giver intended to restrain by
rendering the rules as to payments of dower stringent
upon the husband. No limit as to the amount of dower
has
1140
been imposed, and it may either be prompt, that is,
immediately payable upon demand, or deferred, that is
payable upon the dissolution of marriage, whether by
death or divorce. The dower may also be partly prompt
and partly deferred; but when at the time of the
marriage ceremony no specification in this respect is
made, the whole dower is presumed to be prompt and due
on demand".
In Tyabji's Muslim Law (4th Edn) it is stated:
"Mahar is an essential incident to the status of
marriage. Regarded as a consideration for the marriage
it is . in theory payable before consummation; but the
law allows its division in two parts, one of which is
called 'prompt' payable before the wife can be called
upon to enter the conjugal domicile, the other
'deferred' payable on the dissolution of the contract
by the death of either of the parties or by divorce.
When the Kabin nama does hot specify the portion that
is prompt and that which is deferred, evidence may be
given of the custom or usage of wife's family".
The quintessence of mahar whether it is prompt or
deferred is clearly not a contemplated qualification of a
sum of money in lieu of maintenance upon divorce. Indeed,
dower focusses on marital happiness and is an incident of
connubial joy. Divorce is farthest from the thought of the
bride and the bridegroom when mehar is promised. Moreover,
dower may be prompt and is payable during marriage and
cannot, therefore, be a recompense for divorce too distant
and unpleasant for the bride and bridegroom to envision on
the nuptial bed. Maybe, some how the masculine obsession of
jurisprudence linked up this promise or payment as a
consolidated equivalent of maintenance after divorce. Maybe,
some legislatures might have taken it in that light, but the
law is to be read as the law enacted. The language of 5.
127(3) (b) appears to suggest that payment of the sum and
the divorce should be essentially parts of the same
transaction so as to make one the consideration tor the
other. Such customary divorce on payment of a sum of money
among the so called lower castes are not uncommon. At any
rate the payment of money contemplated by s. 127(3) (b)
should be so linked with the divorce as to become payable
only in the event of the divorce Mahar as understood in
Mohammadan Law cannot under any circumstances be considered
as consideration for divorce or a payment made in lieu of
loss of connubial relationship. Under s. 127(3)(b) of the
Cr.P.C., an order for maintenance may be can. called if the
Magistrate is satisfied that the woman has been divorced
1141
by her husband and that she has received, whether before or
after the said order, the whole of the sum which, under any
customary or personal law applicable to the parties was
payable on such divorce.
We are, therefore, inclined to the view that even by
harmonising payments under person and customary laws with
the obligations under ss. 125 to 127 of the Cr.P.C., the
conclusion is clear that the liquidated sum paid at the time
of divorce must be a reasonable and not an illusory amount
and will release the quondam husband from the continuing
liability, only if the sum paid is realistically sufficient
to maintain the ex-wife and salvage her from destitution
which is the anathema of the law. This perspective of social
justice alone does justice to the complex of provisions from
s. 125 to s. 127 of the Criminal Procedure Code
We may sum up and declare the law fool-proof fashion:
(1) Section 127(3)(b) has a setting, scheme and a
purpose and no talaq of the purpose different from the sense
is permissible in statutory construction.
(2) The payment of an amount, customary or other,
contemplated by the measure must inset the intent of
preventing destitution and providing a sum which is more or
less the present worth of the monthly maintenance allowances
the divorce may need until death or remarriage overtake her.
The policy of the law abhors neglected wives and destitute
divorcees and s. 127(3)(b) takes care to avoid double
payment one under custom at the time of divorce and another'
under s. 125
(3) Whatever the facts of a particular case, the Code,
by enacting ss. 125 to 127, charges the court with the
humane obligation of enforcing maintenance or its just
equivalent to ill-used wives and castaway ex-wives, only if
the woman has received voluntarily a sum, at the time of
divorce, sufficient to keep her going according to the
circumstances of-the parties.
(4) Neither personal law nor other salvationary plea
will hold against the policy of public law pervading s.
127(3)(b) as much as it does s. 125. So a farthing is no
substitute for a fortune nor naive consent equivalent to
intelligent acceptance.
(5) Here the mahar paid is Rs. 500/- and the income
therefrom may well be Rs. 5/- a month, too ludicrous to
mention as maintenance. The amount earlier awarded is the
minimum.
Before we bid farewell to Fazlunbi it is necessary to
mention that Chief Justice Baharul Islam, in an elaborate
judgment replete
1142
with quotes from the Holy Quoran, has exposed the error of
early English authors and judges who dealt with talaq in
Muslim Law as good even if pronounced at whim or in tantrum,
and argued against the diehard view of Batchelor. (ILR 30
Bombay 539) that this view 'is good in law, though bad in
theology'. Maybe, when the point directly arises, the
question will have to be considered by this court, but
enough unto the day the evil thereof and we do not express
our opinion oh this question as it does not call for a
decision in the present case.
We allow the appeal.
Appeal allowed.
1143
