FAZLUNBI v. K. KHADER VALI & Anr.

The brief facts which have led to this appeal are that Fazlunbi, the appellant married Khader Vali, the respondent, in 1966. and during 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/-, dis· carded the wife and the child,_ and the tormented woman, ta/aged 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 o1' maintenance of the child was reduced to Rs. 100/- per mensem. The respondent-husband 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 resorted to the . unilateral (!) 11979] 2 SCR 75. F G 11 ~ J. ~-f. " • \ FAZLUNBI v. K. K. VALi (Krishna Iyer, J.) 1131 the appellant. The Additio:nal First Class Magistrate vacated the grant A 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 B Bai Tahirai's case (supra). juris C to maintain a woman even intendment o( s. 127(3)(b)? What is the D The facts are clear, the ta/aq 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 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 sutlicient if she were to live on city pavements! What is the scheme of relief for driftwood and destitute wives and divorcees dis carded by heartless husbands? What is the purpose of providing absoc lution from the obligation to pay continued maintenance by Iumpsurn liquidation? What, in short is the text and texture of the provision, if light of the mischief to be avoided, the read in the advm1ced? 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 flotsam children, will be defiled if the outrage of jetsam women and judicial interpretation reduces a benign protection into a damp squib. The holistic art of statutory F 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 love of the language they must read'. Lord Denning's great tribute to the task of G a judge is never barred by .the law of limitation('). true meaning and themselves with a justice to be E sabotages the 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 nat H (I) Foreward by Denning M. R. to Supreme CoUrt of India by Rajeev Dhavan. A B c D E F G H 1132 SUPREME COURT REPORTS [1980] 3 s.c.R. 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 It is on his work that civilised society itself depends. is strong, durable and just. \Ve lay so much emphasis on the functional sensitization of a judge lest what is absurd may be fobbed as obvious by judicial seman ticisation. judge in We need not labour the point because' this Court has already interpreted s. 127(3)(b) in Bai Tahira and no 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 reached is inescapable, the application of irresistible, the conclusion 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 th~ real reasoning 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. the' face of the laid dpwn 'unlaw' in 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 baftlement-- "The decision in Bai Tahira v. Ali Hussain Fassalli (supra) is to be confined only to the fact~ of that case. It falls to be distinguished for the following reasons : (iJ ,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 caBe 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." -~ • I PAZLUNBI v. K. K. VALi (Krishna Iyer, !.) 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 Sectioh 12 7 rescue the respondent from his obligation, payment of mehar money, as a customary dis charge, 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• &ether for a day, even in that city where 40% of the popu lation 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 pro visions !TI-used in Chapter IX has a social purpose. wives and despen1te 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 husbahd, 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 inter pretation, the sociological decoding of text of Sec. 127. The key-note though is adequacy of payment which will take reasonable care of her main~enance. The payment of illusory amounts by way of custo mary or personal law requirement will be COljSidered in the reduction of maintenance rate but cannot annihilate the rate unless it is a reasonable substitute. The legal sanc tity of the payment is certified by the fulfilment of social obligation, not by a ritual exercise rooted in custom. No construdfon 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 construqtion of the section is that Parliament intended divorcees should not derive a double benefit. mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order under Section 125-not mathematical! y but fair! y-then and relieves the Section 127(3)(b) subserves obliger, not pro tanto but wholly. The purpose of 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 If the payment by the goal A B c D E F G H 1134 SUPREME COURT REPORTS (198()] 3 s.C.R. A B c D E F G H of Section 127(3) (b) is mainfestly to recognise the subs titute 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 mea'ning cannot be pedantic but purposeful. The propo- sition, therefore, is that no husband can claim under Sec tion 127(3)(b) abs<Jlution from his obligation under Section 125 towards a divorced wife except on proof of pay- ment 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 the1 latter court wishes, to interpret it a~ nar rowly as possible''. The same learned author notes that some .iudges 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 decbion. Some precedents are continually left on the shelf in this way, as a wag observed, they become very "distinguished''. The limit of the pro cess is reached when a judge says that the precedent is an authority ottly "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 t.he advantage of the pro- nouncement 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 maintena'nce if any sum under any customary or personal law applicable to the parties is paid on divgrce. This section may be pressed into service by some ingenious h1jsbands to defeat the provisions contained in section 125. We would like to make ft clear that section 127(3) . (b) refers riot to maintenance during or payment of dower. Unfortunately, place of dower the period of {fjKunhfMoyin v-Pathumma 1976 KLT 87 at96. • ... • I j .. • FAZLUNBI v. K. K. VAL! (Krishna Iyer, l.) 1135 the girl's parents, now occupied by dowry, payable by thereafter in which till 1-6-1961 was paid in public and 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 eirpressed i'n Section 127(3) (b A· On the other hand, what is impliedly covered by this clause is such sums of money as alimony or compen sation made payable on dissolution of the marriage und.er customary or personal law codified 6r uncodified, or such amount agreed upon at the time of marriage to be paid the wife agreeing not to claim at the time of divorce; mainte'nance or any other amount. We thought it neces sary to clarify this position lest there be any doubt regard ing 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. Sar.karan( 1 in so far as it does not insist on an adequate sum the divorcee in which will yield a recurring income future, is bad law and the Division Be:nch, in so far as 'it excuses the huoband if he pays a sum which the ignorant, wife at the of marriage has agreed upon to relinquish maintenance after divorce, does not go far enough. to maintain · A. division Bench of the Gujarat High Court(') has sought, even by literal construction, to reach the conclusion that unless the di vorcee volu'ntarily 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 (b) sub-sec. (3) of sec. 127, more particularly clause thereof. Evi, dently, this provision which seeks to confer power on the court to cancel an order of monthly allowance passed by it in certain specified contingencies, has to be confined strictly within the narrow limits laid down by snb-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. A B c D E F G (!) AIR 1979 Ker. 116. (2) Hajeben Su/eman & Anr. v. Ibrahim Ganadbhai & Aur. Guj. L. R. Vol. xvm 1977 p. 133 at 137-139. H .. • 1136 SUPREME COURT REPORTS [1980] 3 s.c.R. A B c D 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 provi sion shows that three fact situations have been contemp lated by the Legislature in which the Magistrate is given the power to cancel the order for monthly allowance. These fuel situations are shown by the words ( 1) has remarried in clause (a), (2) has received in claiise (b) and (c) and (3) had vo:untarily surrendered in clause (c). Clauses (a) and ( c) of the said provision do not postulate situations difficulty because they contemplate 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) the act of the wife in obtaining divorce contemplates from her husband and surrendering her rights to mainte nance after divorce. Both these eventualities, as observed earlier, are brought abo1.1t by a voluntary and irrevocable act on the part of the wife. the obvious posi tion to be kept in mind with regard to the scope and con tent 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) ; If this E .... it is clear that one of the eventualities conferr ing jurisdiction on the Magistrate to cancel an order of monthly aQowance can come into existence only on doing of a voluntary act by the wife of actually accepting amount offered as contemplated by clause (b). It is to be noted that the Legislature has not used words indicat ing 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 evenfoa the power of the Magistrate to cancel the lity on which order of maintenance is based. It appears that the Legis lature has advisedly used the words "has received" in order to indicate and at the same time restrict the power of can celling 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) bri"ngs about the eventuality contemplated for exercise · of the said power. . . . We, therefore, hold that in order to exercise power conferred by clause (b) of sul:>-sec. (3) of sec. 127, it has to be G H FAZLUNBI v. K. K. VALi (Krishna Iyer, J.) 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 showi> ]Jer unwillingness to receive. the amount tendered, the provisions of clause (b) are not applicable. .. • .i concur, once we grasp the social dynamics of serve the cause of truth and justice. We are Even the literal and the purposive approaches may sometimes interpretation, will 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 interpreta tion. 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 sen tence. They go by the design of . purpose which lies be hind it. When they come upon a situation which is to their minds within the spirit~but not the letter~f 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 Jf you study the decisions of the European Court, you will see that they do it every day. To our eyes-shdrtsight it is legislation, pure and simp:e. But, ed by tradition - to their eyes, it is fulfilling the true role of the courts. They are giving effect' to what the legislature intendfd, or may be presumed to have intended. I see nothing wrong in this. Quite the contrary. legislation ? They Jay down the law accordingly. 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 obli- H gation under s.125. We are aware of the criticism of this conceptual (1) The Discipline of Law, Lord Denning, pp. 20·21. ' ) H · A B c D E F G .,. • 1138 SUPREME COURT REPORTS (1980] 3 S.C.R. A divorce between mahar and post-divorce maintenance by Dr. Tahir Mahmood in his recent book on the 'Muslim Law of india' (see p. l 33) where the learned author. prefers to retain the hexus between mahar and maintenance but has this to say : B C 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 consid~red 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' clailll5 for maintenance. We must first remember that Cr.P. Code, (s. 125·127) is a secular code deliberately designed to protect destitute D women, who are victilll5 of neglect during marrrage 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 ot 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. E As explained i'n 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 tl1e con tract 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 res ponsibility' of the husband. These judicial observations evidence a correct understanding of the Islamic legal coh cept 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 ah effect of the contract, imposed by the law on the hus band as a token in respect, for its respect the woman .... the, usu- Dower being, as already mentioned, opposed to (1) Dr. Tahir Mahmood '~The Muslim Law of India" p. 71. F G H FAZLUNBI. v. K. K. VALi (Kn\<;hna Iyer, !.) 1139 fruct of the woman's person, the right to either is not com pleted without the other. Hence on the one hand, dower is said to be confirmed and made binding o'n the husband by consummation, or by its substitute, a valid retirement, or by death, which by terminating the maniage, pnts an end to all the contingencies to which it is exposed; and on the other hand the woman becomes entitled to it as soon as she has surrendered her person." I I Justice Mahmood has described the nature of Meharin Abdul Kadir v. Salima and anr. (8 All. 149 at 157-158). According to him: "' • expressly language of the Hedaya, in consideration of "Dower, under the Muhammadan law, is the sum of money or other property promised by the husba'nd to be paid or delivered to the wife marriage, and even where no . dower is or mentioned at the marriage ceremony, the law confers the right of dower upon the wife as a necessary effect of 'the marriage. To use 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 the vali dity of a maniage; and, for the same reason, a marriage is also valid, although the man were to engage in the con tract on the special condition there should be no dower" .... (Hamilton's Hedaya by Grady, p. 44). Even after the marriage the dower may be increased by the hus band during coverture .... In this sense and in no other can dower under the Muhammadan law be regarqed as the consideration for the connubial intercourse, and if the authors of the Arabic Text-books of Muhammadan have compared it to price in. the contract of sale, 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 Jaw marriage does not make her property the property of the husba'nd, nor does coverture impose any disability upon her as to freedom of 'contract. The marri age 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 A c D E F G H 1140 . SUPREME COURT REPORTS [ l 980 J 3 S.C.R. A B c D and it may either be prompt, been imposed, that is, immediately payable upon demand, or deferred, that is pay able 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 cere mony 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 marri age. Regarded as a consideration for the marriage it is in theory payable before consummation; but the Jaw allows its division in two parts, one of which is called 'prompt' payable before the wife can be called upon to enter the conjugal domicle, the other '.deferred' payable on the disso lution 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, evi- - dence may be given of the custom or usage of wife's family". - E F The quintessence of mahar whether it is prompt or deferred clearly not a contemplated quantification of a sum of money in lieu Indeed, dower focusses on marital of maintenance upoh divorce. happi, ness and is an incident of connubial joy. Divorce is fartl\cst from the thought of the bride and the bridegroom when mehar is pro- mised. Moreover, dower may be prompt and is payable during marriage and cannot, therefore, be a recompense for divorce too dista'nt 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 legislatures equivalent of maintenance after divorce. Maybe, some might have taken it in that light, but the law is to be read as the law enacted. The language of s. 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 the payment of money contemplated by s. 127(3) (b) should be so Jinked with the divorce as to become payable only in the event of the .jivorce. Mahar as understood in Mohammadan Law cannot under any circumstances be considered as consideration for divorce H or a payment made in lieu of Joss of connubial relationship. Under s. 127(3)(b) of the Cr.P.C., an order for maintenahce may be can . celled if the Magistrate is satisfied that the woman has been divorced 'G ' -• ' "' • I FAZLUNBI v. IC. IC. VAL! (Krishna Iyer, J.) 1141 by her husband and that she has received, whether before or after A 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 persona!! and oustomary 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 l!nd salvage her from destitution which is the anathema of the law .. This perspective of social justice alone does from s. 125 to s. 127 of the justice to the complex of provisions Criminal Procedure Code. B c ., • We may· sum up and declare the law fool-proof fashion : (1) Section 127(3)(b) has a setting, scheme and a purpose and. is permissible no talaq of the purpose different from the sense statutory construction. (2) The paymeut ot'an amount, customary or other, contemplat ed 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 re marriage overtake her. The policy of 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 enact ing 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 circumstances of the parties. D E F I - l ( 4) Neither personal law nor other salvationary plea will hold against the policy of public law pervading s. 127 (3) (b) as much as G 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 mainte nance. , The amount earlier awarded is the minimum. Before we bid farewell to Faz/unbi it is necessary to mention replete, that Chief Justice Baharul Islam, in an elaborate judgment H l \ I 1142 . SUPREME COURT REPORTS I [1980] 3 s.c.R. A with quotes from the Holy Quoran, has exposed the error of early English authors and judges who deait with talaq in Muslim Law as good even if pronounced at whim or in tantrum, and argued against the diehard view of Batchelor J. (ILR 30 Bombay 539) that this view 'is good in law, though bad in theology'. Maybe, when th" 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 ex press our opinion o'n this question as it does not call for a decision in the present case. B We allow the appeal. • " • Appeal allowed.. ~ j x.