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Muslim Personal Law (Shariat) Application Act 1937, S. 2 - Muslim Women (Protection of Rights on Divorce) Act 1986, S. 3( 1)(a) - Criminal P.C. 1973, Ss.125 & 127( 3)(b) -- S. 2 of Muslim Personal Law (Shariat) Application Act does not inhibit application of S.125 Crl. P.C. or Muslim Women (Protection of Rights on Divorce) Act 1986 to followers of Islam in India.
Summary: Questions arose for determination:-
(i) What is the effect of a claimant's post Iddat remarriage upon her pending claim u/S.3(1)(a) of the Act;
(ii) Is post Iddat remarriage a relevant factor to be reckoned while computing the amount payable;
(iii) Are the rights of a divorced Muslim wife u/S.3(1)(a) of the Act larger and supplemental to the rights u/S.125 of the Code and whether the payment, u/S. 3(1)(a)
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of the Act, by the husband would extinguish the right of a divorced Muslim wife u/S.125 of the Code;
(iv) What are the relevant factors to be reckoned for identifying the “reasonableness” of the amount payable u/S. 3(1)(a) of the Act; and
(v) What are the factors to be reckoned by a Court while computing a claim u/S. 3(1)(a);
The petitioner challenges the legality of an order passed u/S.3(1)(a) of the Act for the reasons inter alia that the court below failed to give due consideration to the factum of remarriage by the claimant wife and also contends that the court below went wrong in reckoning the period beyond her remarriage for computing the amount. While answering the contentions, the High Court held that the formula of Multiplier and Multiplicand cannot have universal application irrespective of factual circumstances, and also made the following observations:
(i) A remarriage of the claimant can have very little effect on her pending claim. The actual date of post iddat remarriage is not a relevant factor to be reckoned for computing the amount payable u/S.3(1)(a) of the Act;
(ii) A divorced Muslim wife's right U/s.125 Crl.P.C. extinguishes as soon as the husband satisfies his obligation u/S.3(1)(a) of the Act in view of S.127(3)(b) of the Crl.P.C. Failure of a husband to meet the obligations u/S. 3(1)(a) of the Act give rise to the right of the divorced wife to resort to the provisions of the Act;
(iii) The right available to a Muslim wife u/S.3(1)(a) of the Act is larger than what is available u/S.125 of theCode;
(iv) The reasonableness of “Mata” has to be ascertained conscious of the time, space, and factual realities of the society in which the claimant, husband and the society around exists and not on the basis of the norms and morals that were available in medieval Arabia;
(v) Inputs to be considered while computing the claim u/S.3(1)(a):-
* Length of the period of matrimony;
* Age at which the relationship began and ruptured;
* The cause of rupture -- whether contumacious or not - Greater the contumaciousness on the part of the husband, greater the amount to be paid;
* The emotional trauma suffered by the victim of rupture;
* Unilateral and arbitrary divorce, at the instance of the husband against an unwilling wife, to be given due weight;
* The support, concern, etc. which the victim partner had offered to the other partner;
* The investment made by the wife in a marriage;
* The degree of financial affluence;
* The material conveniences of life which the partners are used to and the possibility of them being able to pursue an identical life style in future;
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* Possibility of remarriage and all the trauma attendant on a second marriage;
* Quality of life which a remarried woman can aspire to lead vis-à-vis her first marriage.
(vi) Actual date of remarriage may not be a relevant input.
(vii) After the enactment of Muslim Women (Protection of Rights on Divorce) Act, the question with regard to marriage and maintenance of a Muslim women is governed by the Act and not by the Personal Law (Shariat) and in case of a dispute between the two, the former shall prevail;
(viii) Inability to maintain herself is not a condition precedent for a Muslim wife for claiming the benefit u/S.3(1)(a) of the Act.
Held: Muslim Women (Protection of Rights on Divorce) Act is a piece of legislation which deals with the civil rights of Muslim women which they can claim from their husbands at the time of divorce. S.2 of the Muslim Personal Law (Shariat) Application Act, 1937 declares that parties shall be governed by the Muslim Personal Law (Shariat) notwithstanding any custom or usage to the contrary in all questions regarding (inter alia) marriage and maintenance. The Muslim Women (Protection of Rights on Divorce) Act is a piece of statutory law relating to marriage and maintenance which falls within the sweep of their Personal Law. The Muslim Personal Law (Shariat) Application Act declares the Muslim Personal Law (Shariat) would prevail over any custom or usage to the contrary; but be it noted that the same shall not prevail over any piece of statutory law relating to the subject referred to in S. 2. Therefore to ascertain payments due to a divorced wife from her husband it is not necessary after the Act to go back to the Muslim Personal Law (Shariat) and it is the Act which shall prevail over the Muslim Personal Law (Shariat) even assuming that there be a conflict. S. 2of the Act cannot therefore inhibit the application of S. 125 Cr.P.C. or the Act to the followers of Islam in India. Payments to be made under the Personal Law on divorce is clarified in the Act. (paras. 21 & 22)
AIR 1985 SC 945 Referred to
Criminal P.C. 1973, Ss.125 & 127( 3)(b) -- Muslim Women (Protection of Rights on Divorce) Act 1986, S. 3(1)(a) - If amounts payable by a husband to his wife under Protection of Rights on Divorce Act is paid, she cannot thereafter claim maintenance under S.125 in view of specific bar under S.127( 3)(b).
S.127(3)(b) speaks of amounts payable on divorce under any customary or personal law applicable to the parties. If the amounts payable by a husband to his wife under the Muslim Women (Protection of Rights on Divorce) Act are paid, she cannot thereafter claim maintenance under S.125 in view of the specific bar under S.127(3)(b).
(para. 23)
Muslim Women (Protection of Rights on Divorce) Act 1986, S. 3(1)(a) - Actual date of remarriage is not a relevant input while undertaking computation of fair and reasonable provision under S. 3( 1)(a) ordinarily.
Payment under S. 3 (1)(a) is to be effected during the period of Iddat. During the period of Iddat no lawful remarriage of a divorced woman can ever take place as under the Personal
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Law she is bound to observe Iddat and no faithful Muslim is likely not to observe iddat and contract remarriage. The fair and reasonable provision and maintenance has to be made and paid during the period of Iddat when remarriage is an impossibility among the faithful. If that be so, the date of actual remarriage is not an input which a husband contemplating payment under S.3 can ever imagine or ascertain correctly. The date of actual remarriage is thus not a possible input while undertaking the computation of fair and reasonable provision under S.3 ordinarily. If only the payment is not made can and need the wife go to the Magistrate with the claim in which event S.3 (1) (b) declares that the case has to be disposed of within a period of one month. In that event also it is unlikely that even the Magistrate would have the date of remarriage as an available input. All these to my mind are clear indications to suggest that the actual date of remarriage is not a relevant input that would normally be available when the quantification of the amounts payable under S.3 is contemplated by the husband or the court. (para.29)
Muslim Women (Protection of Rights on Divorce) Act 1986, S. 3( 1)(a) - Criminal P.C. 1973, S.125 - Rights under S.3 (1)(a) are larger than rights under S.125 - Payments contemplated under S. 3(1)(a) is a larger benefit to Muslim wife compared to divorced wives of other communities.
The rights under S. 3 (1)(a) are larger than the rights under S. 125. Islam in its humanism appears to have stipulated in Ayat 241 of Sura II that the divorced husband has a duty to pay Mata on a reasonable scale to his divorced wife. Whether Mata be - gift, provision or maintenance, it is imperative that Mata must be reasonable. What is reasonable has to be decided with reference to the era and the society in which such divorced husband and wife exist as also the factual situation of a given case. If they exist in a society where under the secular law the husband has the obligation to pay maintenance to his divorced wife, reasonable amount (Mata) must include the amount payable as such maintenance. Reasonableness of the amount payable as Mata cannot be decided in a vacuum. Nor can it be decided on the basis of the norms and morals that were available in medieval Arabia. The elastic expression “reasonable scale” in Ayat 241 which is seen repeated in S.3 by the stipulation that the payment (Mata) has to be reasonable brings with it the obligation to be reasonable in the era and in the context of the society in which one exists. If that be so, the payment has to be reasonable and to be reasonable it cannot be a pittance. It has to be an amount -though not mathematical equivalent at least a reasonable substitute for the right to maintenance. That is the rock bottom of the amount payable under S. 3. The Muslim wife has a larger right under her personal law and that evidently explains why in spite of the equality provisions in Art.14 payment made under S.127(3)(b) exempts a Muslim husband from the obligation to pay maintenance under S.125. Other wives must be unable to maintain themselves to claim relief under S.125. But significantly a Muslim wife need not be unable to maintain herself if she is to claim fair and reasonable provision under S. 3. Even a millionaire wife can claim amounts from her billionaire husband. While the other wives may get maintenance in monthly doles from her former husbands, the Muslim divorced wife can get capitalised payment of amounts under S. 3. While
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remarriage puts an end to the claims of other divorced wives, a Muslim wife can even after remarriage keep the capitalized amounts paid already as reasonable provision and maintenance with herself with no liability to return the same to her former husband. Thus viewed from these angles the payment contemplated under S.3 is certainly a larger benefit to the Muslim wife compared to the divorced wives of other communities. That a larger or higher liability is imposed on a Muslim husband will certainly pass the test of the equality provisions in the Constitution as he has in his armoury a very special right under the Personal law to liquidate the marriage without intervention of the court by unilateral pronouncement of Talaq. Reasonable classification on the basis of the personal law does not also offend the constitutional mandate of equality. In this view of the matter, I am certainly of the opinion that the Muslim wife has a larger right under S.3 than a divorced wife of other communities who have to claim monthly payments under S.125, that too only on proof that she is unable to maintain herself. A Muslim wife who has already obtained amounts under S.3, if she remains unmarried but become under S. 4 of the Act to stake claims for maintenance against her specified relatives as also the Wakf Board. Her vulnerability to the misfortune of arbitrary and unilateral divorce has persuaded the legislature to confer on her superior rights under the Act - a piece of statutory personal law. The Muslim divorced wife has larger rights under S.125 than her counterparts under S.125. This is done only to ascertain whether there is any merit in the contention that a Muslim wife is not entitled to claim anything more than what divorced wives of other communities may have claimed under S.125. Her rights are certainly larger or greater than her counterparts in other religions - on rational and logical grounds. A contention that she cannot ever claim a larger right than her counterparts of other religions cannot hence be countenanced. (paras. 30,31 & 32)
1989 (1) KLT 337 Dissented from
Muslim Women (Protection of Rights on Divorce) Act 1986, S. 3( 1)(a) - Rights of Muslim divorced wife under S.125 is not extinguished by enactment of the Act -- Criminal P.C. 1973, Ss.125 & 127( 3)(b).
There is no merit in the contention that the rights of the Muslim divorced wife under S.125 stand extinguished by the enactment of the Act. The Parliament was aware that Muslim divorced wives have such rights under S.125 read with Explanation (b). Parliament also knew that such right under S.125 can be extinguished under S.127(3)(b) also. Significantly there is not a whisper in the Act which extinguishes such rights of the Muslim divorced wives which they had under S.125 prior to the enactment of the Act. If extinquishment of such a right of the Muslim divorced wife were intended, it would only be reasonable to expect the Parliament to employ specific language. Extinguishment ofexisting rights cannot be lightly assumed. Parliament which created rights for all divorced wives under S.125 Cr.P.C. and also provided for its extinguishment on certain eventualities under S.127(3)(b) cannot lightly be assumed to have extinguished such rights of the Muslim wife impliedly. Clearer indications in favour of such implied extinguishment must certainly be insisted. S.3 opens with the stipulation that “notwithstanding anything contained in any other law for the time being in force”, a divorced
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woman shall be entitled to rights enumerated in Cls. (a) to (d) of S. 3(1). In short, it only says that S. 125 may have conferred many rights but the Act confers these rights under S. 3 on the Muslim divorced women notwithstanding anything under S.125. A non obstante clause has got to be understood fairly and reasonably. The non-obstante clause cannot be lightly assumed to bring in the effect of supercession. In the scheme of the Act, in the scheme of S.125 and S.127(3) (b) and in view of its legislative history, such supercession cannot be inferred. It should not be allowed to demolish or extinguish existing right unless the legislative intention is clear manifest and unambiguous. Nowhere in the Act do we find a specific statement that rights of the Muslim divorced wives under S.125 will stand superseded or extinguished. It cannot lightly be assumed or inferred from the use of the non obstante clause in S.3(1) that the Parliament intended to deprive theMuslim women of the rights under S. 125. If Parliament so intended, clearer, unequivocal and unambiguous language would certainly have been used. That has not been done and that appears to me to be crucially relevant. On the principle that special excludes general it is not possible to lightly to assume that the rights of the Muslim women under S.125 have been taken away. The Act is a piece of personal law whereas the Cr.P.C, is a piece of secular law. They do not belong to the same domain at all. A piece of personal law like the Act cannot hence be readily assumed to have the effect of implied extinguishment of the right of the divorced Muslim women to claim maintenance under S.125 of the general secular Code. (paras. 33, 34 & 36)
Criminal P.C. 1973, Ss.125 & 127( 3)(b) -- Muslim Women (Protection of Rights on Divorce) Act 1986, S. 3 - Mere enactment of Act or passing of an order under S.3 (1)(a) but actual payment under S. 3( 1)(a) alone can absolve a Muslim husband of his liability under S.125.
S.127(3)(b) continues to be available in the Cr.P.C. notwithstanding the enactment of the Act. S.127(3)(b) clearly shows that an order passed under S. 125 will continue to remain in force even after divorce until the amount payable under the customary or personal law applicable to the parties is paid either before or after the order. That clearly shows that an order S.125 can be passed even in respect of a divorced Muslim wife. But her right to claim maintenance under S.125 would come to a grinding halt when the amounts payable under the personal law on divorce are paid. On such payment the order passed under S.125 Cr.P.C. can be cancelled under S.127(3)(b). The Act is a piece of legislation as seen earlier by which amounts payable under the personal law - Muslim Personal Law (Shariat) is identified and declared. The scheme of S.127(3)(b) also shows that there is no extinguishment of the right of the divorced women to claim maintenance under S.125. It is clear that an order can be passed in favour of the divorced wife under S.125 and such order passed in her favour can be cancelled on proof of payment of amounts under the Act. Till such payment under the Act is made her right under S.125 Cr.P.C. must continue to exist. If such extinguishment were intended by the Act. S.127(3)(b) should necessarily have been deleted as irrelevant thereafter. There is no other community other than Muslims which can claim the benefit under S.127(3)(b). An inference that S.127(3)(b) though otiose after the enactment of the Act is
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permitted to continue on the statute book does appear to be untenable. Ss.125 and 127(3)(b) read along with S.3 cannot lead to any other rational inference. A conclusion that the rights under S.125 shall stand impliedly extinguished with the enactment of the Act appears to me to be impermissible. Only whenpayment is made under S.3 of the Act shall such extingishment take place under S.127(3)(b). Not the mere enactment of the Act or even the passing of an order under S. 3, but the actual payment of the amount under S. 3 alone can absolve a Muslim divorced husband of his liability under S.125 Cr.P.C. (para. 35)
Muslim Women (Protection of Rights on Divorce) Act 1986, Ss. 5 & 7 - Legislative assumption that divorced wife may opt for larger and superior relief under S.3 (1)(a) and extending benefit of S.3 (1)(a) to pending claims under Chapter IX of Code cannot be permitted to imply extinguishment of rights under Code.
There is an underlying assumption under the Act that the rights of the Muslim divorced wife are superior to those which she could earlier claim under S.125. S. 7 only makes this assumption and declares that all pending applications under Chapter IX should be treated as petitions under S. 3 of the Act. S. 5 declares that when a divorced wife has chosen to file a petition under S. 3 to claim a larger relief, and her formerhusband succeeds in persuading her to settle for the lesser relief under S.125, the petition filed can be treated as one under S.125 of the Cr.P.C. S. 5 will necessarily apply to pending petitions under Chapter IX of the Cr.P.C. which have been reckoned as one under S.3 as per the stipulation of S. 7. The scheme of Ss.5 and 7 can, according to me, only suggest that in view of the larger rights which Muslim divorced wives have under the Act they would normally prefer to stake a claim under S. 3 unless the opposite party - their divorced husbands prevail upon them to choose the lesser remedy under S.125. S.7 hence declares that all pending applications under Ss.125 and 127 must be reckoned as applications under S.3 unless the claimant is prevailed upon by her divorced husband not to enforce her larger and superior claim under S.3 and to be satisfied with the lesser claim under Chap. IX of the Code. The option given under S.5 of the Act would become illusory if it were to be held that the parties can revert back to S.125 only if the divorced wife agrees to the persuasion of her divorced husband to pursue such a course after filing the petition under S.3 and cannot on her own choose to claim under S.125 at the first instance. It would be harsh and unkind tosail to a conclusion of implied extinguishment of rights under the Code by the mere stipulations regarding transitory provisions. The legislative assumption that the divorced wife may opt for the larger and superior relief under S.3 and extending the benefit of S. 3 to pending claims under Chapter IX of the Code cannot be permitted to imply extinguishment of rights under the Code. In these circumstances, according to me, Ss.5 and 7 cannot also lead to the conclusion that rights under S.125 stand extinguished by the introduction of the Act. (para. 37)
Muslim Women (Protection of Rights on Divorce) Act 1986, S. 3( 1)(a) - Relevant circumstances to decide quantum of fair, reasonable provision and maintenance under S. 3( 1)(a).
It cannot certainly be the law that if the woman gets remarried on the day on which Iddat period has expired, she will not be entitled to anything more than maintenance during the
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period of Iddat. The fact that the courts have discussed and adopted the multiplier 5, 6, 7 or 10 on the facts of given cases to identify the lump sum amount payable under S. 3 cannot at all lead to the conclusion that the payment under S.3(1)(a) represents only such amount ascertained following the multiplier multiplicandmethod. That may be one criteria. That may be criteria acceptable in a number of cases. But that cannot certainly lead to the conclusion that the Muslim divorced wife is not entitled to anything more than the sum total of monthly maintenance that would have been payable under S.125 Cr.P.C. from the date of divorce to the date of remarriage. That would be denial of the very rationale of Muslim Personal Law -pristine or as stipulated under S. 3 of the Act. The only mandate is that the payment has to be on a reasonable scale as per the pristine Muslim Law and that it has to be a fair and reasonable provision and maintenance under S.3. All relevant inputs can be taken into account. It would be virtually impossible to identify and apply any straight jacket formula that can hold good for all circumstances. In some cases the multiplier multiplicand method may be sufficient. In some others even if the court knows that remarriage has taken place the multiplier multiplicand method cannot be blindly imported. A lot of realism is required for the courts attempting to quantify the compassion under Ayat 241 as explained in S.3 of the Act. (paras.47 & 48)
2001 (3) KLT 651 (SC) &
2004 (2) KLT SN 102 (C.No.123) = 2004 (3) KAJ (Ker.) Referred to
C. Khalid & R.O. Mohamed Shemeem For Petitioner
K.M. Sathianatha Menon &
Jikku George Jacob (Public Prosecutor) For Respondents
ORDER
What is the impact (limited impact as explained by the Division Bench in Abdul Hameed v. Fousiya (2004 (3) KLT 1049) of a post Iddat remarriage on the claim of a divorced wife for fair and reasonable provision and maintenance under S. 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short 'the Act')? Should a post Iddat remarriage during the pendency of the claim under S. 3 of the Act influence the Magistrate while quantifying the amount due? Should remarriage pending revision or post revision persuade the superior courts to make appropriate modification of the amount quantified earlier by the Magistrate? Are the rights of a divorced Muslim woman under S. 3 of the Act larger and supplemental to the rights under S.125 of the Cr.P.C.? Cannot the amount due under S. 3 of the Act in a case of remarriage exceed the arithmetical equivalent of maintenance which would have been payable under S.125 Cr.P.C. between the date of divorce and the date of remarriage? What principles must be followed by the courts while quantifying the fair and reasonable provision and maintenance to be made and paid during the period of Iddat under S.3(1)(a) of the Act when there is a post Iddat remarriage pending proceeding? These thoughts come upfor consideration in this case on the basis of the arguments advanced.
2. To the vitally, relevant and crucial facts first. The parties shall be referred to as the claimant/wife and the respondent/husband for the sake of easy reference. The marriage
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took place when the claimant was in her teens on 3/5/85. She was only 19 years old then. She was a student. The couple lived happily for about 16 years. She continued her education. She was taken to the place of employment of the husband abroad. They returned. The only snag was that no child was born in the matrimony. The wife secured employment. They pooled their income and lived happily. Properties were purchased during matrimony in the name of the husband. A house was built in the property of the husband. Withdrawals were made during the currency of matrimony from the Provident Fund account of the wife. Both of them did the Haj Pilgrimage together. It would appear that both of them were treated for infertility. The wife had conceived once; but the pregnancy did not advance and it was a case of tubular pregnancy. Later, she did not conceive.
3. After about 16 years of such harmonious matrimony, the husband admittedly made a suggestion to the wife that he may be permitted to remarry. She reckoned this as a betrayal of the investment made by her in matrimony in terms of emotions, sentiments, trust, faith and property. Nay she had invested her whole life in the cause of the matrimony. She did not agree to such remarriage. The divorce was effected ultimately on 3.4.2001 by unilateral pronouncement of Talaq on the sole ground that the claimant/wife did not agree for the second marriage. The husband immediately thereafter on 21.4.2001 married another school teacher. The claimant/wife herself is a High School teacher.
4. No payments were made under the Act; nor was any maintenance paid after divorce. The claimant/wife hence went before the learned Magistrate with a claim under S.3 of the Act on 14.5.2001. The learned Magistrate disposed of the claim on 31.7.2003 directing the husband to pay an amount of Rs.2,70,000/-as fair and reasonable provision and maintenance and a further amount of Rs.50,000/- as the amount which the husband is liable to return to the wife.
5. A revision was laid before the Sessions Court and the Sessions Court, by the impugned order dated 30.3.2004, set aside the direction to pay the amount of Rs.50,000/- as amount advanced; but confirmed the direction to pay an amount of Rs.2,70,000/- as fair and reasonable provision and maintenance under S. 3(1)(a) of the Act.
6. The husband has come up with this application under S.482 of the Cr.P.C. to invoke the extraordinary inherent jurisdiction vested in this Court. He advances two contentions. First of all, it is contended that the quantum of fair and reasonable provision and maintenance awarded is excessive. Secondly, it is contended that the wife having remarried post revision on 12.5.2004, she is notentitled for anything more than maintenance for the period from 3.4.2001 to 12.5.2004. It is, in these circumstances, that the above questions arise for consideration.
7. The learned counsel for the respondent does not deny the fact or the date of remarriage. As a measure of strategy, he does not specifically admit either remarriage or the date of remarriage; but contends that the remarriage and the date thereof are irrelevant. At the same time, he contends that even before the Revisional Court there was no contention
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that any remarriage had taken place. In these circumstances, he submits that nothing turns upon the remarriage or the date thereof even if the same be accepted to be true. He contends that the divorced Muslim woman under her personal law (which has now been clarified and explained by the Act) has a right to receive amounts - 'Mata' (whether translated as gift or maintenance or provision). As stipulated and declared under S. 3 of the Act, she is entitled to receive this amount during the period of Iddat when lawful remarriage is an impossibility. What happens post Iddat is irrelevant for ascertainment of the quantum payable under S.3 of the Act during the period of Iddat. The remarriage can have little (or no crucial) impact at all in these circumstances, it is contended. The learned counsel further contends that the divorced Muslim woman has a larger, different and additional right to receive amounts under her personal laws than under S.125 Cr.P.C. and all the precedents and the Act only clarify that the larger right cannot in any case be less than or an inadequate substitute for what she would have received under S.125 of the Crl. P.C.
8. The questions raised are interesting and demand a detailed took at the statutory provisions, precedents, subsequent amendments and the later explanations by way of precedents.
9. The journey must perhaps start from the Code of Criminal Procedure, 1898. The Code contained a stipulation regarding payment of maintenance. A provision relating to payment of maintenance for one's wife and children was incorporated in the secular Code to be applicable equally to all Indians irrespective of their religious persuasion and identity. The rationale underlying such a stipulation regarding maintenance to the claimants (wife and child under the secular 1898 Code) was perhaps the realisation that the plight of such woman and child in distress is too serious a business to be left to religious loyalties. The neglected wife and child, it was declared unambiguously can claim maintenance and avoid vagrancy on the part oftheir husband/father under the secular Code which was applicable to all citizens. S.2 of the Muslim Personal Law (Shariat) Application Act, 1937 it was unambiguously accepted and declared by courts did not at all affect or fetter the applicability of such provision in the secular Code of Criminal Procedure to the followers of Islam.
10. It is with such law well settled in the polity that the Code of Criminal Procedure 1973 was introduced in Parliament and enacted by it. The constitutional compassion in favour of the weak, less fortunate and underprivileged found eloquent and unequivocal expression in S.125 of the Crl.P.C. More persons were brought within the sweep of the compassion of the legislature imbibing the constitutional mandate to show socialist concern for the weak and underprivileged.
11. Constitutional socialism I must alertly note is not a political ideology. If it were so, the pluralist Indian Constitution may not have declared its allegiance to such a competing political ideology in its preamble. Humane humanism is the bedrock of Indian Constitutional Socialism. It transcends politics and political ideology. It declares the commitment of the republic to the cause of the less fortunate, the under privileged and the marginalised. The preambular commitment of the Indian State is to show compassion for the weak, concern for the underprivileged and loyalty to the marginalised. All the limbs of the State - be it the
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law maker, the law enforcer or the law interpreter/adjudicator, cannot afford to ignore this fundamental preambular commitment. All law making, executive action and interpretation - adjudication is to lead the polity of Indian to the promised destination where not only the State but we the people of India will also be truly sovereign, democratic, socialist and secular.
12. Not only the neglected wife and the child but also the neglected parents were brought within the sweep of S.125 of the new Code. Considering the plight of the neglected divorcee wife, by a bold introduction of Expln. (b) to S.125, it was declared that not only the wife in current matrimony but the wife in need unable to maintain herself even after divorce will also enjoy the benefits of the stipulations regarding maintenance if she remained without remarriage. A bold step forward considering the plight of the divorcee women in India, the provision was acclaimed to be.
13. Its predecessor S.488 of the old Code was applicable to all the members of the polity. But unfortunately doubts appear to have been raised as to whether all stipulations of S.125 should be made applicable to allcommunities. The legislative history of the provisions may not be very soothing for a secular socialist Parliament. But we find that at some point of time before its final introduction in Parliament S.127(3)(b) was introduced in the Code which took out of the sweep of the compassion of S. 125, divorced wives who had received “the whole of the sum which under any customary or personal law applicable to the parties was payable on such divorce”. This stipulation in S.127(3)(b) was to telescope into the main Section - S.125 Crl.P.C., to be read as a proviso to that section as no court worth its salt would pass an order of maintenance which on the date of the order was liable to be cancelled under S.127(3)(b). For the sake of easy and immediate reference, I extract the relevant portions of Ss.125 and 127(3)(b) of the Crl.P.C. below:
“125. Order for maintenance of wives, children and parents.-- (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
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a Magistrate of the first class may, upon proof of such neglect or refusal order such person to make a monthly allowance.............................
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Explanation.- For the purposes of this Chapter,-
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(b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”
“127. Alteration in allowances,-
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(3) Where any order has been made under S.125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that-
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(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order-
(i) in the case where such sum was paid before such order, from the date on which such order was made,
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;”
The introduction of S.127(3)(b) into the Code at sometime before it was finally passed by the Parliament gave rise to a lot of subsequent litigations. Primarily, the disputes arose in litigations between the divorced Muslim wives and their husbands. What is the amount payable “under any customary or personal law payable on such divorce” (as applied to Muslim husbands and wives)? This question gave rise to a lot of controversies and litigations. The first of the crucially relevant pronouncements came from literate Kerala which has done a lot for the cause of emancipation of women in India. Kunhi Moyin v. Pathumma (1976 KLT 87) clarified that 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 uncodified, 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”.
14. I need not refer to the host of litigations in which different High Courts pronounced different judgments taking different views on this aspect. The controversy was set at rest finally by two epoch making decisions of the Supreme Court, the judgments in which were rendered by the same Judge - Justice V.R. Krishna Iyer. In Bai Tahira v. Ali Hussain Fissalli Chothia (AIR 1979 SC 362) and Fuzlumbi v. K. Khader Vali (AIR 1980 SC 1730), it was laid down beyond the trace of controversy that what must be proved to be paid under S.127(3)(b) is not the pittance by way of deferred Mahr if any and maintenance payable during the three month period of Iddat. It was declared unambiguously that a Muslim divorced husband in order toclaim absolution from liability must prove that he has made such a payment under the personal law which though not a mathematical equivalent, must be a reasonable substitute for the liability to maintain his divorced wife under S.125. The object of S.127(3)(b) it was clarified is not to bail out the Muslim husband - who alone has the extra judicial weapon of unilateral divorce in his armoury and to help him to claim any exclusive benefit under the secular law but only to ensure that a devout Muslim divorced husband, who has already discharged his obligation under the personal law sufficient to discharge such liability under S. 125, is not obliged to pay further amounts under S. 125 Code. No double benefit can be claimed by such a wife, it was declared.
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15. The law appeared to have been well settled beyond controversy for some period of time when we find that a two Judge Bench of the Supreme Court made a reference of the question to a larger Bench of the Supreme Court and the Supreme Court took up that question for consideration in Mohd. Ahmed Khan v. Shah Bano Begum (AIR 1985 SC 945) known popularly as the Shah Bano's case. It is unnecessary to advert to the details of Shah Bano. But in Shah Bano it was clearly held that notwithstanding S. 2 of the Muslim Personal Law (Shariat) Application Act, 1937, S.125 did operate and cover within its sweep all the divorced wives and divorced husbands of India whatever their religious persuasions. Having held so, the Supreme Court proceeded to consider the further question whether this liability to provide for the maintenance of the divorced wife is something unknown to Muslim law. The court proceeded to consider the true implications of Ayat 241 and 242 in Sura II of the Holy Qur'an and took the view that even under the Muslim Personal Law (Shariat) there is an obligation to pay Mata to a divorced wife. A devout Muslim following the Holy Quar'an strictly is liable to pay Mata to his divorced wife, it was held. On that part of the stipulation of the Personal Law there was no dispute whatsoever. Nor can there be any dispute also as it is unambiguously declared by Ayat 241 that “for divorced woman Mata on a reasonable scale shall be paid and this is the duty on the righteous”.
16. Regarding the interpretation/translation of the word “Mata” there was a controversy. Some translations of the Holy Quar'an had referred to Mata as 'maintenance' - See Yusuf Ali. Some others had referred to/translated Mata as “gift” or “provision”. The dispute was whether Mata, according to the religious scholars, is “maintenance”, “provision” or “gift”. There was no dispute that Mata had to be paid and such payment of Mata must be reasonable and this was the duty of all righteous owing allegiance to Islam.
17. In Shah Bano also the court was obliged to decide what was the payment contemplated under S.127(3)(b). The learned Judges of that five Judge Bench after an elaborate consideration speaking through the Hon'ble Chief Justice Chandrachud upheld the decisions in Bai Tahira v. Ali Hussain Fissalli Chothia (AIR 1979 SC 362) and Fuzlunbi v. K. Khader Vali (AIR 1980 SC 1730) with a clarification that payment of Mahr or deferred Mahr cannot be reckoned as a payment contemplated under S.127(3)(b).
18. This led to a furore across the length and breadth of India. There was a grievance that the interpretation of Mata as maintenance is not correct and that the Muslim husband has no obligation to pay maintenance to his divorced wife. There was no quarrel that Mata had to be paid. In the light of the controversy, the legislature was obliged to clarify what the payment contemplated under S.127(3)(b) under customary and personal law applicable to the Muslims on divorce is.
19. It is in this legal and factual background that the Act was born. No understanding and interpretation of this law can be made or undertaken unless this factual and legal background is clearly understood. The purpose of the Act was to clarify and lay down beyond any controversy as to what amount was payable under the customary and personal law applicable to Muslims on divorce to entitle a divorced Muslim husband to claim absolution from liability to pay maintenance under S.127(3)(b) Crl.P.C.
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20. The purpose of the Statute was thus very clear. As the title shows that it is “an Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto”. The statement of objects and reasons makes it clear that in view of the controversy which followed Shah Bano's case, Parliament felt that opportunity has therefore to be taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. Let it be understood clearly that in Shah Bano the controversy was only about the amount payable under S.127(3)(b) to justify the claim for absolution under S.125 and not at all as to whether S.125 was applicable to the divorced Muslim wife. On that aspect there was no controversy whatsoever in Shah Bano. What payment was to be made to avoid liability under S. 127(3)(b) was the only question in Shah Bano. The Parliament had seized the opportunity to resolve the said controversy.
21. The Act therefore is a piece of legislation which deals with the civil rights of Muslim women which they can claim from their husbands at the time of divorce. S.2 of the Muslim Personal Law (Shariat) Application Act, 1937 declares that parties shall be governed by the Muslim Personal Law (Shariat) notwithstanding any custom or usage to the contrary in all questions regarding (inter alia) marriage and maintenance. The Muslim Women (Protection of Rights on Divorce) Act is a piece of statutory law relating to marriage and maintenance which falls within the sweep of their Personal Law. The Muslim Personal Law (Shariat) Application Act declaresthe Muslim Personal Law (Shariat) would prevail over any custom or usage to the contrary; but be it noted that the same shall not prevail over any piece of statutory law relating to the subject referred to in S.2. Therefore to ascertain payments due to a divorced wife from her husband it is not necessary after the Act to go back to the Muslim Personal Law (Shariat) and it is the Act which shall prevail over the Muslim Personal Law (Shariat) even assuming that there be a conflict. S. 2 which I extract below makes the position very clear:
“2. Application of Personal Law to Muslims.-- Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)”. (emphasis supplied)
22. S. 2 of the Act cannot therefore inhibit the application of S. 125 Cr.P.C. or the Act to the followers ofIslam in India. Payments to be made under the Personal Law on divorce is clarified in the Act.
23. S.127(3)(b) which I have already extracted above speaks of amounts payable on divorce under any customary or personal law applicable to the parties. If the amounts payable by a husband to his wife under the Muslim Women (Protection of Rights on
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Divorce) Act are paid, she cannot thereafter claim maintenance under S.125 in view of the specific bar under S.127(3)(b). Controversy was raised in Bai Tahira, Fuzlunbi and Shah Bano as to what is the amount payable under the Personal Law applicable to the Muslims. The Parliament appears to have desired to settle that controversy once and for all by declaring in S. 3 what amounts are payable under the personal law, if liability under S. 125 were to be avoided under S.127(3)(b) Cr.P.C.
24. In Danial Latifi v. Union of India (2001 (3) KLT 651 (SC)) the question has been considered as to the nature of the amounts payable under S. 3. Justice Rajendra Babu speaking for the five Judge Bench had again made it clear that the fair and reasonable provision and maintenance to be made and paid during the period of Iddat is not maintenance during the period of Iddat; but a payment which would effectively discharge the burden on a Muslim husband to provide for the maintenance of his divorced wife till remarriage or death.
25. The crucial contention raised by the learned counsel for the husband is that maintenance from thedate of the divorce to the date of remarriage if paid would absolve the husband of the liability to pay any further amounts as fair and reasonable provision and maintenance under S. 3. This, in turn, would imply that a divorced Muslim woman is not entitled to anything more than what her counter part of other religions would be entitled to claim under S.125. Is this contention correct? This is the question that has to be considered now.
26. The impact of remarriage on the claim under S. 3 has been a subject of controversy in this Court. Two single Judges took two different views on the question. Justice Mohammed Shafi in Nizar v. Hyruneesa (1999 (1) KLT 709) took the view that “the remarriage of the divorced woman is no criterion while determining the reasonable and fair provision to be paid by the former husband to his divorced wife”. Therefore, the fact that the divorced woman had remarried during the pendency of the petition filed by her claiming reasonable and fair provision is not a factor which determines the date to which she is entitled to fair and reasonable provision, it was held. But Justice Hassan Pillai in Rasiya v. State of Kerala (2002 (2) KLT 825) relying on certain observations in Danial Latifi (supra) took the view that “it is clear from the law laid down by the Supreme Court that the divorced wife is entitled to get reasonable and fair provision and maintenance only up to the date she gets “remarried''. The leaned Judge proceeded further to observe that no provision is there in the Act to get back the excess amount paid (reasonable and fair provision received by the divorced wife beyond the period of remarriage) by the erstwhile husband. “It appears, remedy of the erstwhile husband if any lies elsewhere”, it was observed. The learned Judge further proceeded to pose a moot question whether a divorced woman who gets remarried after receiving fair and reasonable provision for whole of her life from her erstwhile husband is entitled to get from her second husband also (on divorce again) fair and reasonable provision till remarriage or death. After posing the question the same was not answered.
27. A reference to a Division Bench became necessary in these circumstances and later in Abdul Hameed v. Fousiya (2004 (3) KLT 1049) a two Judge Bench considered the very
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same question. It was held that the impact of a remarriage can have little effect. The learned Judges proceeded to finally observe in para 26 that “remarriage has only a limited impact on the claim and that too in the matter of fixation of a fair provision”. The observation in Nizar that the husband who has paid the amount may have a right to claim return of the amount paid to his wife who has remarried before other forum was overruled.
28. We have now got to ascertain what is the limited impact which the Division Bench opined that remarriage has on the claim.
29. It must, first of all, be noted that payment under S. 3 is to be effected during the period of Iddat. During the period of Iddat no lawful remarriage of a divorced woman can ever take place as under the Personal Law she is bound to observe Iddat and no faithful Muslim is likely not to observe Iddat and contract remarriage. The fair and reasonable provision and maintenance has to be made and paid during the period of Iddat when remarriage is an impossibility among the faithful. If that be so, the date of actual remarriage is not an input which a husband contemplating payment under S. 3 can ever imagine or ascertain correctly. The date of actual remarriage is thus not a possible input while undertaking the computation of fair and reasonable provision under S. 3 ordinarily. If only the payment is not made can and need the wife go to the Magistrate with the claim in which event S.3(b) declares that the case has to be disposed of within a period of one month. In that event also it is unlikely that even the Magistrate would have the date of remarriage as an available input. All these to my mind are clear indications to suggest that the actual date of remarriage is not a relevant input that would normally be available when the quantification of the amounts payable under S. 3 is contemplated by the husband or the court.
30. That takes me to the next question as to whether the rights under S. 3 are larger than the rights under S.125. I have no hesitation to agree that the rights under S. 3 are larger than the rights under S.125. Islam in its humanism appears to have stipulated in Ayat 241 of Sura II that the divorced husband has a duty to pay Mata on a reasonable scale to his divorced wife. Whether Mata be - gift, provision or maintenance, it is imperative that Mata must be reasonable. What is reasonable has to be decided with reference to the era and the society in which such divorced husband and wife exist as also the factual situation of a given case. If they exist in a society where under the secular law the husband has the obligation to pay maintenance to his divorced wife, reasonable amount (Mata) must include the amount payable as such maintenance. Reasonableness of the amount payable as Mata cannot be decided in a vacuum. Nor can it be decided on the basis of the norms and morals that were available in medieval Arabia. The elastic expression “reasonable scale” in Ayat 241 which is seen repeated in S. 3 by the stipulation that the payment (Mata) has to be reasonable brings with it the obligation to be reasonable in the era and in the context of the society in which one exists. If that be so, the payment has to be reasonable and to be reasonable it cannot be a pittance. It has to be an amount - though not mathematical equivalent at least a reasonable substitutefor the right to maintenance. That is the rock bottom of the amount payable under S. 3.
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31. The Muslim wife has a larger right under her personal law and that evidently explains why in spite of the equality provisions in Art. 14 payment made under S.127(3)(b) exempts a Muslim husband from the obligation to pay maintenance under S.125. Other wives must be unable to maintain themselves to claim relief under S.125. But significantly a Muslim wife need not be unable to maintain herself if she is to claim fair and reasonable provision under S. 3. Even a millionaire wife can claim amounts from her billionaire husband. While the other wives may get maintenance in monthly doles from her former husbands, the Muslim divorced wife can get capitalised payment of amounts under S. 3. While remarriage puts an end to the claims of other divorced wives, a Muslim wife can even after remarriage keep the capitalized amounts paid already as reasonable provision and maintenance with herself with no liability to return the same to her former husband. Thus viewed from these angles the payment contemplated under S. 3 is certainly a larger benefit to the Muslim wife compared to the divorced wives of other communities. That a larger or higher liability is imposed on a Muslim husband will certainly pass the test of the equality provisions in the Constitution as he has in his armoury a very special right under the Personal law to liquidate the marriage without intervention of the court by unilateral pronouncement of Talaq. Reasonable classification on the basis of the personal law does not also offend the constitutional mandate of equality. In this view of the matter, I am certainly of the opinion that the Muslim wife has a larger right under S. 3 than a divorced wife of other communities who have to claim monthly payments under S.125, that too only on proof that she is unable to maintain herself. A Muslim wife who has already obtained amounts under S.3, if she remains unmarried but become under S. 4 of the Act to stake claims for maintenance against her specified relatives as also the Wakf Board. Her vulnerability to the misfortune of arbitrary and unilateral divorce has persuaded the legislature to confer on her superior rights under the Act - a piece of statutory personal law.
32. On the basis of such logical reasoning, I come to the conclusion that the Muslim divorced wife has larger rights under S.125 than her counterparts under S.125. This is done only to ascertain whether there is any merit in the contention that a Muslim wife is not entitled to claim anything more than what divorced wives of other communities may have claimed under S.125. Her rights are certainly larger or greater than her counterparts in other religions - on rational and logical grounds. A contention that she cannot ever claim a larger right than her counterparts of other religions cannot hence be countenanced.
33. Incidentally a question has been raised whether the right under S.3 to receive amounts is additional and supplemental to the right under S. 125 and whether the Act extinguishes the rights of the Muslim divorced wives under S. 125. This question is also interesting and has got to be considered. I find no merit in the contention that the rights of the Muslim divorced wife under S.125 stand extinguished by the enactment of the Act. The Parliament was aware that Muslim divorced wives have such rights under S.125 read with Explanation (b). Parliament also knew that such right under S.125 can be extinguished under S.127(3)(b) also. Significantly there is not a whisper in the Act which extinguishes such rights of the Muslim divorced wives which they had under S.125 prior to the enactment of the Act. If extinquishment of such a right of the Muslim divorced wife were intended, it
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would only be reasonable to expect the Parliament to employ specific language. Extinguishment of existing rights cannot be lightly assumed. Parliament which created rights for all divorced wives under S.125 Cr.P.C. and also provided for its extinguishment on certain eventualities under S.127(3)(b) cannot lightly be assumed to have extinguished such rights of the Muslim wife impliedly. Clearer indications in favour of such implied extinguishment must certainly be insisted.
34. S. 3 opens with the stipulation that “notwithstanding anything contained in any other law for the time being in force”, a divorced woman shall be entitled to rights enumerated in Cls. (a) to (d) of S. 3(1). In short, it only says that S. 125 may have conferred many rights but the Act confers these rights under S. 3 on the Muslim divorced women notwithstanding anything under S.125. A non obstante clause has got to be understood fairly and reasonably. The non-obstante clause cannot be lightly assumed to bring in the effect of supercession. In the scheme of the Act, in the scheme of S. 125 and S.127(3) (b) and in view of its legislative history, such supercession cannot be inferred. It should not be allowed to demolish or extinguish existing right unless the legislative intention is clear, manifest and unambiguous. Nowhere in the Act do we find a specific statement that rights of the Muslim divorced wives under S.125 will stand superseded or extinguished. It cannot lightly be assumed or inferred from the use of the non obstante clause in S.3(1) that the Parliament intended to deprive the Muslim women of the rights under S. 125. If Parliament so intended, clearer, unequivocal and unambiguous language would certainly have been used. That has not been done and that appears to me to be crucially relevant.
35. S.127(3)(b) continues to be available in the Cr.P.C. notwithstanding the enactment of the Act. S.127(3)(b) clearly shows that an order passed under S. 125 will continue to remain in force even after divorce until the amount payable under the customary or personal law applicable to the parties is paid either before or after the order. That clearly shows that an order S.125 can be passed even in respect of a divorced Muslim wife. But her right to claim maintenance under S.125 would come to a grinding halt when the amounts payable under the personal law on divorce are paid. On such payment the order passed under S.125 Cr.P.C. can be cancelled under S.127(3)(b). The Act is a piece of legislation as seen earlier by which amounts payable under the personal law - Muslim Personal Law (Shariat) is identified and declared. The scheme of S.127(3)(b) also shows that there is no extinguishment of the right of the divorced women to claim maintenance under S. 125. It is clear that an order can be passed in favour of the divorced wife under S.125 and such order passed in her favour can be cancelled on proof of payment of amounts under the Act. Till such payment underthe Act is made her right under S.125 Cr.P.C. must continue to exist. If such extinguishment were intended by the Act, S.127(3)(b) should necessarily have been deleted as irrelevant thereafter. There is no other community other than Muslims which can claim the benefit under S. 127(3)(b). An inference that S. 127(3)(b) though otiose after the enactment of the Act is permitted to continue on the statute book does appear to be untenable. Ss. 125 and 127(3)(b) read along with S. 3 cannot lead to any other rational inference. A conclusion that the rights under S. 125 shall stand impliedly extinguished with the enactment of the Act appears to me to be impermissible. Only when payment is made
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under S. 3 of the Act shall such extingushment take place under S.127(3)(b). Not the mere enactment of the Act or even the passing of an order under S. 3, but the actual payment of the amount under S. 3 alone can absolve a Muslim divorced husband of his liability under S. 125 Cr.P.C., it appears to me.
36. On the principle that special excludes general it is not possible to lightly to assume that the rights of the Muslim women under S.125 have been taken away. The Act is a piece of personal law whereas the Cr.P.C, is a piece of secular law. They do not belong to the same domain at all. It has time and again been repeated, even in Shah Bano's case, that irrespective of the personal law the rights under S.125(488 in the earlier Code) would continue to exist. A piece of personal law like the Act cannot hence be readily assumed to have the effect of implied extinguishment of the right of the divorced Muslim women to claim maintenance under S.125 of the general secular Code.
37. It is contended that Ss.5 and 7 of the Act also suggest that the Muslim divorced women cannot stake a claim under Chapter IX. I am unable to agree. There is an underlying assumption under the Act that the rights of the Muslim divorced wife are superior to those which she could earlier claim under S.125. S. 7 only makes this assumption and declares that all pending applications under Chapter IX should be treated as petitions under S. 3 of the Act. S. 5 declares that when a divorced wife has chosen to file a petition under S. 3 to claim a larger relief, and her former husband succeeds in persuading her to settle for the lesser relief under S.125, the petition filed can be treated as one under S.125 of the Cr.P.C. S. 5 will necessarily apply to pending petitions under Chapter IX of the Cr.P.C. which havebeen reckoned as ones under S. 3 as per the stipulation of S. 7. The scheme of Ss. 5 and 7 can, according to me, only suggest that in view of the larger rights which Muslim divorced wives have under the Act they would normally prefer to stake a claim under S. 3 unless the opposite party - their divorced husbands prevail upon them to choose the lesser remedy under S.125. S. 7 hence declares that all pending applications under Ss.125 and 127 must be reckoned as applications under S. 3 unless the claimant is prevailed upon by her divorced husband not to enforce her larger and superior claim under S. 3 and to be satisfied with the lesser claim under Chap. IX of the Code. The option given under S. 5 of the Act would become illusory if it were to be held that the parties can revert back to S.125 only if the divorced wife agrees to the persuasion of her divorced husband to pursue such a course after filing the petition under S. 3 and cannot on her own choose to claim under S.125 at the first instance. It would be harsh and unkind to sail to a conclusion of implied extinguishment of rights under the Code by the mere stipulations regarding transitory provisions. The legislative assumption that the divorced wife may opt for the larger and superior relief under S. 3 and extending the benefit of S. 3 to pending claims under Chap. IX of the Code cannot be permitted to imply extinguishment of rights under the Code. In these circumstances, according to me, Ss. 5 and 7 cannot also lead tothe conclusion that rights under S. 125 stand extinguished by the introduction of the Act.
38. But certain observations in Danial Latifi are pressed into service to contend that S.125 is out of bounds for Muslim divorced wife now. But having considered the decision
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in Danial Latifi in detail, I am unable to find any specific observations to this effect. At any rate, in Danial Latifi, the Supreme Court had not considered this question specifically; nor did it arise before the Supreme Court. That question was not specifically raised also. Of course, to consider the question whether the Act offends the equality provisions of law, there was an observation that the rights conferred under S. 3 virtually discharges the duty to pay maintenance. I understand those observations in the context of S.127(3)(b) which stipulates that payments made under the personal law (the Act is a piece of statutory personal Law) by a former husband can absolve him of the obligation under S.125. In view of that stipulation in S.127(3)(b) Cr.P.C. the Act certainly had to stand the test of equality under Art. 14. It is only in that context that we find discussion in Danial Latifi and not specifically on the question as to whether there is extinguishment of the right of the divorced Muslim woman except under S.127(3)(b). I am of opinion that Danial Latifi does not conclude this question - as to whether the divorced Muslim wife can still claim maintenance under S.125 until the amountspayable under S.127(3)(b) are actually paid to her by her former husband.
39. I am conscious of the decision in Abdul Gafoor Kunju v. Pathumma Beevi (1989 (1) KLT 337) in which a learned Judge of this Court had taken a contrary view. My attention has been drawn to decisions of some other High Courts which also take similar views. I am in respectful disagreement with the said view. In an appropriate case the said decision may require reconsideration. At any rate, I am satisfied that it is not necessary in this case to refer the matter to a Division Bench as the said question does not directly arise for consideration in this case. I have chosen to make these observations only in the course of my attempt to ascertain whether there is any merit in the contention that the Muslim divorced wife cannot claim, anything in excess of what she could have claimed under S.125. I have already taken the view that the same is larger. A specific decision on the question whether the divorced Muslim wife until the amount under S. 3 of the Act is paid to her can press her claim under S.125 is not required in the facts of the case40. As on today I am bound by Abdul Gafoor Kunju. Bound by the same, I take the view that rights under S.3 are superior and larger than the one under S.125. But in the march towards the ideal law I feel that Abdul Gafoor Kunju may need reconsideration by a larger Bench in an appropriate case. That is all.
41. The upshot of the above discussions is only that the rights under S. 3 can be said to be superior and larger (though not additional or supplemental in view of Abdul Gafoor Kunju) than the rights under S.125 and it can never be contended that the divorced wife under S.3 cannot claim anything in excess of what she could have claimed if S.125 were applicable to her.
42. We now come to the relevant circumstances to decide the quantum of fair, reasonable provision and maintenance under S. 3 of the Act. Sura II Ayat 241 is the foundation of the liability under S.3(1). The translation by Abdulla Yusuf Ali reads as follows:
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“For divorce women maintenance should be provided on a reasonable scale. This is a duty on the righteous.”
In the English translation of the meanings and commentary of the Holy Qur-an revised and edited by the Presidency of Islamic Researches, IFT A, the following translation appears:
“For divorced women is a suitable gift. This is a duty on the righteous.”
This duty on the righteous to pay amounts “Mata” - whatever be the translation, is crystallised into a legal obligation and right under S. 3 of the Act. That payment hasto be made. That payment under S.3 of the Act is to be made during the period of Iddat. Call it gift, provision or maintenance, the accent in Ayat 241 and S. 3 of the Act is on the payment (making a provision) of a lump sum amount and on that being on a reasonable scale. The payment has to be reasonable. Islam in its vibrant humanism prescribes that the divorced husband has to make payment of a reasonable amount as Mata. That payment must be reasonable. Conscious of the fact that revelations made to the prophet have to stand the test of time and space the elastic expression “reasonable” has been used in the divine law. What that reasonable gift/payment has to be ascertained - whether under the pristine Islamic law or under the personal law explained and amplified under S. 3 of the Act. The suitable gift or reasonable payment has to be ascertained conscious of the time, space and factual realities of the society in which the divorced wife, thedivorced husband and the society around them exist as also the facts of a given case. The piety which Islam expects from the righteous and faithful must be reflected in the ascertainment of the quantum.
43. I shall only attempt to advert to the possible circumstances. It would be myopic to limit the sweep of the expression “suitable” or “reasonable scale” in Ayat 241 and “fair and reasonable provision and maintenance” in S.3 by introduction of any rigid or straight jacket formula. But it is important without intending to be exhaustive that the court must advert to the relevant inputs which must be borne in mind while prescribing the amount to be paid under S.3 of the Act.
44. It will be proper at the very out set to advert to the concern of the law and what the law attempts to achieve by insisting on this payment, to be made. I cannot attempt to out do the most pertinent and beautiful narration of the concern by their Lordships of the Supreme Court in Danial Latifi in para 20 which I extract below:
“20. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and woman. Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life - a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner
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we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood.”
45. This payment to be made on divorce has to compensate the divorcee in distress placed in the unenviable situation narrated above. The best option is not to divorce at all and not to fracture such a sublime institution of marriage. The option, if unavoidable, is to divorce. But in the event of such divorce, there must be a just and honourable settlement. Justice has to be done. Payment has to be made to compensate the victim of the fractured marriage. Islam in its piety mandates that Mata on a reasonable scale has to be paid. Personal law applicable to Muslims in India (the Act is a piece of personal law) mandates in S. 3 of the Act that fair and reasonable provision and maintenance has to be made and paid by a Muslim male to his divorced wife. No amount of money may be sufficient to adequately compensate her; but still the law attempts to work out justice by insisting on the next best - by making payment of reasonable compensation to her.
46. In K.B. Sheeba v. Mr. Shameem C. Hameed & Anr. (2004 (2) KLT SN 102 (C.No.123) = 2004 (3) KAJ 18 (Ker)) an attempt was made to narrate the concerns to which the court must address itself when an attempt is made to quantify the amount payable under S. 3 in para-9 in the following words:
“9. The mandate of S.3 is that a divorce Muslim woman should not be left in the lurch. Notwithstanding termination of marriage, it is the duty of the husband to ensure that his former wife is properly provided for. Precedents galore which mandate that this duty of a sublime husband to make provisions for his former wife to lead a life consistent with the standard of life which she is used to must be discharged by thedirection for payment of fair and reasonable provision under S.3. It cannot be an illusory amount. It cannot be a pittance. It cannot be a bounty too. The totality of circumstances must be alertly considered by the court in its attempt to answer the question as to what amounts must be fixed in a just and reasonable manner. Without intending to be exhaustive it can certainly be stated that the following circumstances would be relevant. What is the age of the wife at the time of marriage and at the time of divorce? What is the total period of marriage? What is the prospects of her remarriage? Is she is likely to get back a life, even after such a remarriage, consistent with the standard, status and affluence which she was used to in her life with her former husband. What are her expenses? What are the conveniences which she was used to when the couple were residing together? What is the income of the husband? What are the commitments? What amount can he, as a reasonable and sublime person, be expected to spare for his wife? It can also be said that the liabilities which the husband and wife are forced to endure because of the marriage and divorce can also be taken into account. The fact that the wife is responsible to look after an infant child after the marriage would certainly fetter and hamper her chances of remarriage. The strata of society to which parties belong will also have to be considered to ascertain whether remarriage within a reasonable time can be expected.”
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47. These are certainly not exhaustive. Over the years, certain misconceptions appear to have crept in and it is now lightly assumed, it appears to me, that the multiplier multiplicand method is the method to be followed while quantifying the amount payable under S.3. I am afraid, this would be a myopic though partially correct attempt to identify the quantum payable under S. 3. It is from this misconception that the problem has arisen in the facts and circumstances of this case. It cannot certainly be the law that if the woman gets remarried on the day on which Iddat period has expired, she will not be entitled to anything more than maintenance during the period of Iddat. The fact that the courts have discussed and adopted the multiplier 5, 6, 7 or 10 on the facts of given cases to identify the lump sum amount payable under S. 3 cannot at all lead to the conclusion that the payment under S. 3(1)(a) represents only such amount ascertained following the multiplier multiplicand method. That may be one criteria. That may be criteria acceptable in a number of cases. But that cannot certainly lead to the conclusion that the Muslim divorced wife is not entitled to anything more than the sum total of monthly maintenance that would have been payable under S.125 Cr.P.C.. from the date of divorce to the date of remarriage. That would be denial of the very rationale of Muslim Personal Law -pristine or as stipulated under S. 3 of the Act.
48. The only mandate is thatthe payment has to be on a reasonable scale as per the pristine Muslim Law and that it has to be a fair and reasonable provision and maintenance under S. 3. All relevant inputs can be taken into account. It would be virtually impossible to identify and apply any straight jacket formula that can hold good for all circumstances. In some cases the multiplier multiplicand method may be sufficient. In some others even if the court knows that remarriage has taken place the multiplier multiplicand method cannot be blindly imported. A lot of realism is required for the courts attempting to quantify the compassion under Ayat 241 as explained in S. 3 of the Act.
49. To undertake that onerous responsibility of quantification it may be necessary to have a correct concept of the institution of marriage in the modern era-in the era in which we live. Matrimony today is not merely an arrangement of convenience for exhausting biological, physical and carnal urges without offending the norms of morality of the given age. Spouses today are not merely machines in the assembly line of production to perpetuate the human race on this planet. Marriage today is not merely a concession of the strong and more powerful male to the women who outnumber men heavily in a war ravaged community where war widows needing protection and safety are rampant. Marriage today is not an arrangement between the master and a slave or domestic maid hired for life for performing the domestic chores of cooking, home management and rearing of children. Matrimony as an institution in the modern era must be reckoned as a serious dimension of the pursuit of the mission of life by equal adult partners seeking perfection, completeness, harmony, happiness and contentment in life. The pursuit has physical, mental, intellectual and spiritual dimensions. Marriage in the modern era can only be reckoned conceptually as an arrangement of lasting friendship, partnership, mutual complementarity, affection, love, support, caring and sharing between two adult equal partners of different sex. Mata, the amount under S.3
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of the Act is to be paid by the dominant male partner to the female when there is rupture or fracture of such relationship. All relevant inputs which may weigh with a reasonable and sublime mind must weigh with the court while considering the quantum of amount payable under S. 3(1)(a).
50. It may not be gratuity known to labour jurisprudence; but certainly the length of the period of matrimony would be crucially relevant. At what age the relationship commenced and at what age the relationship is ruptured will also be certainly relevant. The material conveniences of life which the partners are used to and the possibility of they being able to pursue an identical life style will also be very crucially relevant. The degree of financial affluence is certainly of vital relevance. The cause of the rupture will also certainly be of vital importance. Where it is a unilateral and arbitrary exercise of the extra judicial powers which the Muslim male alone has to liquidate matrimony, against the unwilling wife, that factor will certainly weigh with the judicial mind in fixing the quantum payable under S.3. Contumaciousness for the rupture of the relationship will certainly be relevant. The jurisdiction may not be penal, but greater the contumacious responsibility of the husband for the rupture, greater must be the amount payable - within his financial competence of course. The emotional trauma suffered by the partner who is the victim of such rupture will certainly have to be taken into account. The support, concern etc., which such victim partner had offered to the partner contumaciously responsible for the rupture of the relationship must also certainly be taken into account. The investment of the wife in marriage will also be of relevance. In the case of a working wife where spouses had pooled their resources to live and to acquire property in the name of the dominant male partner that fact must certainly weigh with the court. The wife who has laid trust in her husband may not have insisted that the acquisitions must be in her name or in the name of both. But her helplessness cannot be ignored or forgotten by the court called upon to quantify the amount payable under S.3. Actual remarriage may not be an available input. But the possibility of remarriage will certainly be one relevant input. That possibility has to be realistically evaluated. It isnot as though remarriage on the next day after Iddat would bring to not the claim of a divorced wife for amounts under S.3. Her relatives etc., may be too keen to insist that she must get remarried to someone else so that they can avoid the burden of their responsibility. This does not mean that the wife called upon to serve two husbands in succession is not entitled for any amount under S.3. She is entitled to be compensated for such rupture in relationship and the consequent trauma endured by her. The helpless plight of the spouse obliged to offer her body and mind to different men in quick succession cannot be lost sight of by a compassionate court. The quality of life which a remarried woman can aspire to lead vis-a-vis her first marriage cannot also be ignored or overlooked by courts while undertaking the task of quantification under S.3. Merely because she has been pushed into or has been compelled to accept a second marriage it does not mean that she forfeits her claim under S. 3. All the trauma attendant on a second marriage has also to be realistically taken note of even if there be actual remarriage or imminent possibility of such remarriage when the court attempts to quantify payment under S. 3(1)(a). The quality of life which a woman can
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aspire to achieve in her first marriage and her later marriages would be qualitatively different. The latter would normally be inferior. The girl entitled to a prince in her first marriage may have to settle for a pauper in her remarriage. That she had to settle for the latter later cannot affect or destroy her claim under S. 3 against the former. I do only intend to note that remarriage - either actual or possible, is not the be all or end all or the end of the road in the attempt to quantify the amount under S.3.
51. I must alertly remind myself pragmatically of the dangers of insisting that the date of actual remarriage must be reckoned as a vitally relevant input. This would lead to recalcitrant husbands causing deliberate delay and protraction of the proceedings so that he can make use of an input which would not have been available at all at the time when he was obliged to make the payment or when the court is obliged to give its verdict within a period of one month of the date of application. This may oblige the claimants to remain unmarried until the claims are disposed of. This would lead to the divorced husband attempting to delay and protract the proceedings before the first court, the court of revision or before this Court during the pendency of S.482 proceedings. Such consequence would be pernicious from the societal perspective.
52. To sum up, I have no hesitation to hold that ordinarily and normally the date of the actual remarriage must be reckoned as too irrelevant an input to go into the process of identifying the quantum under S. 3 of the Act. At any rate, the input regarding the date of the claimant's remarriage (during the pendency of the proceedings, during the pendency of the revisional proceedings or thereafter) must be reckoned as close to irrelevant. At the first level, the Trial Court called upon to dispose of the claim within one month speculating on the input of the possible period during which the woman may have to remain without remarriage may find the input to be remotely relevant. But at any rate the revisional court or the court exercising jurisdiction under S.482 Crl.P.C. can safely ignore the input regarding the date of actual remarriage. The quantum fixed does not deserve to be recalibrated on the basis of that input. I am conscious of the decision of the Division Bench which has held that it will have a limited impact. Limited impact - yes, when probable period of the claimant remaining without remarriage is taken into account bythe Trial Court as one of the inputs. But certainly not otherwise or later; nor does the claim cease to exist if the wife gets remarried immediately after the period of Iddat.
53. Having so attempted to ascertain the method of quantification of amounts under S. 3 and the impact of the fact and date of remarriage, I will now refer to the crucially relevant facts and circumstances in the instant case.
54. The marriage remained for a long period of 16 years. The wife was a student in her teens when she got married. She completed her education after marriage. The spouses, it appears, lived a happy and contended life. The wife was taken by the husband to his place of employment abroad. She was taken for Haj pilgrimage also. When they came to India, she took up employment as a teacher. They pooled their resources. They purchased property and built a house in such property. The property was purchased in the name of the husband.
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The wife did not raise any objection. She did not evidently expect or anticipate any betrayal. She was not guilty of any contumacious conduct in matrimony even allegedly. They had no children. Both underwent treatment for infertility. They succeeded and she conceived; but they were not blessed with a child. Instead of meeting that reality in life offering mutual support and solace the husband, may I call it unjustifiably looked for comforts outside the matrimony. He wanted another woman to be introduced into their lives. May be thathe did it in the interests of perpetuating himself by a progeny. She was unwilling. Any woman ought to be. For the only crime committed by her of not agreeing to such a second marriage for himself, he threw her out of the matrimonial home and liquidated the matrimony mercilessly. He used the weapon of unilateral divorce against the wife who very much wanted to continue the matrimony. Promptly thereafter he contracted a second marriage also. He did not honourably settle the claim of his wife and admittedly no amount has been paid under S. 3 even though the divorce took place on 3/04/01. The claimant wife remained unmarried for a few years and ultimately persuaded herself to re-enter matrimony on 12.5.2004. There is nothing specific to indicate that her second marriage is unhappy or is not sufficient to help her to lead a life as she used to with the petitioner herein.
55. The learned Magistrate appears to have come to the conclusion that an amount of Rs.3,000/- , Rs.1,500/- towards shelter and Rs.1,500/- towards food, clothing etc., will be required. Thereafter, he had fixed the amount payable at Rs.2.70 lakhs as fair and reasonable provision. This at the monthly purchase of Rs.3,000/- works out to be the lump sum amount payable for a period of 90 months - 71/2 years. The learned counsel for the petitioner urges that an amount of Rs.1,500/- per mensem is not necessary for shelter as she has the shelter of the present husband. She is herself employed and has her present husband to look after her. In these circumstances, no amount is payable after 12.5.2004. It is hence prayed that the order may be modified to a lump sum of Rs.1,500/- per mensem from 3.4.2001 to 12.5.2004.
56. It will be apposite in this context to remind this Court about the nature, quality and contours of its extraordinary inherent jurisdiction under S.482 Crl.P.C. This court must be alert to note that a second revision against the impugned direction at the instance of the petitioner is prescribed under S.397(3) Crl.P.C. That is the only reason why this petition bears the label of S.482 Cr.P.C. Inherent jurisdiction under S.482 Cr.P.C. is reserved for the High Court to act in aid of justice. Satisfactory, convincing and exceptional reasons must be shown to exist before such jurisdiction is invoked and exercised. It must be shown that miscarriage of justice would otherwise result. Invocation of such jurisdiction cannot be a matter of course. Such jurisdiction shall not be lightly invoked to interfere with the discretions exercised by the subordinate courts or with the findings of fact rendered by such courts. Unless such exercise of discretion and findings of fact are grossly erroneous and perverse and unless such vice leads to miscarriage of justice, this Court will not be persuaded to invoke such extraordinary inherent jurisdiction. The question is whether any such vice exists in this case.
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57. For the reasons that I have already adverted to, I am not satisfied, in the facts and circumstances of this case, that the fair and reasonable provision fixed under S. 3(1)(a) deserves to be modified or reduced. The subsequent incident of re-marriage, after disposal of the revision, I am satisfied, can be ignored altogether in the facts and circumstances of this case. I further take note of the fact that this is not a case where the multiplier multiplicand method has to be adopted. The facts and circumstances of this case persuade me to hold that cognizant of all the relevant inputs, it is not necessary to interfere with the discretion exercised by the Trial Court in fixing the quantum of amount payable at Rs.2.70 lakhs though it is true that the relevant criteria have not been adverted to in detail by the Trial Court. The fact that the amount still remains unpaid is a circumstance which also I do take into account in this context. The plight of the wife enumerated above certainly leads me to the conclusion that the quantification done by the learned Magistrate and the acceptance of the same by the Revisional Court do not, at any rate, warrant interference by invocation of the extraordinary inherent jurisdiction under S.482 Crl.P.C.
58. An interesting but painful contention has been raised by the learned counsel for the petitioner that the petitioner had invested amounts to secure employment to the claimant as teacher in a private school. That must also be reckoned as amount invested by him to provide for her post divorce well being, it is submitted. I refer to this contention as it creates anguish and helplessness in my mind. It pains me to note that such a contention of payment of bribe can be boldly and shamelessly raised by a party before a court of law. The wife denies any such payment. She claims that she secured employment by the dint of her own merit only. The learned counsel for the petitioner raises an argument that even a child in Kerala knows that employment in a private school under a Manager can never be secured without payment of bribe/illegal gratification to the Manager of the school. This Court should not hesitate to take note of this reality, submits the learned counsel. I shudder at the thought that the submission of the learned counsel for the petitioner could be true. It is a disgrace to literate Kerala that the educational system could be so corrupt as to embolden a counsel to raise a contention boldly before the High Court that it is impossible that appointment as a teacher in an aided private school can be secured without payment of bribe. It is we the people and the State, who make the payment for such a teacher. But appointment is by the private Manager. The contention is that the court must take note that it is impossible to secure such employment without payment of illegal gratification. The value system which such teachers will be able to inculcate in the students is certainly suspect. It is for the civil society in Kerala to open its eyes against the malady if it be true. Suffice it to say that I am not, at any rate, persuaded to accept the arguments on the basis of this alleged payment of bribe which law cannot countenance as a reality in the absence of better and more satisfying material.
59. In the result:
(a) This Crl.M.C. is dismissed.
(b) The impugned order is upheld. |
