FAZLUNBI v. K. KHADER V ALI AND ANR

Citation: [1980] 3 S.C.R. 1127

Court: Supreme Court of India

Bench: V.R. KRISHNA IYER, O. CHINNAPPA REDDY, A.P. SEN

Case summary

The husband challenged the award in the High Court where the unjustified J. 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...

Judgment text

M ____'If.! FAZLUNBI .. v. K. KHADER VALI AND ANR. May 8, 1980 [V. R. KRISHNA ! YER, 0. CmNNAPPA REDDY AND A. P. SEN, JJ. ] CJode of Criminal Procedure Code, 1973, Section 127 (3) (b), scheme and scope of-Whether by the payment of Mahar and Iddat dues, the provisions of s. 127(3)(b) of the Code would be complied with or th• vinculum juris created by the order under s. 125 continues despite the make--believe ritual of miniscule mahar which merely stultified section 127(3) (b) Cr. P. C. -Precede11ts I and binding nature under Article 141 of the Constitution. F'azlunbi, tho appellant, married Khader Vali, the respondent, in 1966, }and during their conjugal life, a son Khader Basha;· was born to them. Tho respondent, husband, an additional accounlt! nt in the Stare Bank of India, drawing a salary of Rs. 1000/-, discarded tho wife and the child, and the tormented woman talaqed out of the conjugal home, -sought shelter in her parent's abode.

Driven by destitution, she prayed for maintenance allowance. for . herself and her son under section 125 Cr. P. C. and tho Magistrate granted · payment of a monthly sum of Rs. 250/r to the wife and Rs. 150/- to the child. The respondent husband challenged the award in the High Court where thC unjustified neglect was upheld, but the quantum of maintenance of the child . was reduced to Rs. 100/- per menscm. Thereafter, the respondent husband resorted to the unilateral technique of talaq and tendered the magnificent sum of Rs. 500/- by way of Mahar and Rs. 750/- towards maintenance for the period of iddat, hopeful thereby, of extricating himself from lhe obligation to maintain the appellant The Addi-· tional First Qass Magistrate vacated the grant of maintenance already granted on the score of divorce coupled with discharge of mahar and Iddat dues. This \ order was unsuccessfully challenged in the Sessions Court.

The desperate appellant reached the High Court end invoked its jurisdiction under section 482 Cr!. P. C. A Division Bench of that High Court, though the revision petitioner banked upon the decision of the Supreme Court in Bai Tahlrris case [1979) '2 SCR 75 in her favour, distinguished that case and dismissed the petition. • Hence the appellant-wife's appeal by special leave. Allowing tho appeal, the Court HELD. : 1. Tho conscience of social justice, the cornerstone of our Consti· tution will be violated and the soul of the scheme of Chapter IX of the Code, a secular safeguard of British India vintage against the outrage 0£ jetsam women and 11otsam children, will be defiled if judicial interpretation sabotagca the true meaning and reduces a benign protection into a damp squib. [1131 E-F] 2. Precedents of the Supreme Court are not to be left on the shelves. Neither could they be brushed aside saying that precedents is an . authority only "on its actual facts".

Such devices are not permissible for the High Courts when decisions of the Supreme Court are cited before them. not merely because of II the jurisprudence of precedents, but because of the imperatives of Article 141. [1134 D·EJ No Judge in India, except a laraer Be:n. eh of the Supreme Court, without departure from judicial discipline can whittle down, wish away or be un.. bound by the ratio in Bai Tahira's case, in which Section 127(3)(b) Of Cr!. P. C. was interpreted. The langual! C used is unmistakable, the logic at play is irresistible, the conClusion reached is inescapable the application of the law as expanded there is an easy task. And yet, the Division Bench, by the fine art .. of skirting the real reasoning laid d-own "unlaw" in the face of th. e law in .. Bail Tahira which is hardly a service and surely a mischief, unintended by the Court may be, but embarrassing to the subordinate Judiciary.

There is no warrant whatever for the High Court to reduce to a busk a decision of this • Court by its doctrinal gloss. [1132 C-E] ' (3) Cr!. P. C. (Sections 125-127) is a secular code deliberately designed to protect destitute women, who are victims of neglect during marriage and after divorce. It is rooted in the State's responsibility for the welfare of the weaker sections of women and children and is not confined to members of one religion or region, but the whole community of womanhood. Secondly muslim law show its -reverence for the wife in the institution of Mehar (dower). It is neither dowry nor price for marriage. [1138 C-E] 4. The quintessence of mehar whether it is prompt or deferred is clearly not a contemplated quantification of a sum of money in lieu of maintenanbc upon divorce. Indeed, dower focusses on marital happiness and -is an incident of connubial joy. Divorce is farthest fron1 the thought of the bride and the bridegroom \Vhen mehar is promised.

Moreover, dower MJlY be prompt and is payable ·during marriage and' cannot, therefore, be a recompense for divorce too distant and unpleasant for the bride and bridegroom to envision on the buptial bed. May be, some how the masculine obsessioll of jurisprudence linked up this promise or payment as a consolidated equivalent of maintenance after divorce. [1140 D-F]' ·5. The language of Section 127(3)(b) suggests that payment of the sum and the divorce should be essential parts of the· same transaction so as to make one the consideration for the other. The payment of money contemp• lated by section 127(3) (b) should be so linked with the divorce as to become payable only in the event of the divorce. Mehar as understood in Mohammadan Le. w cannot, under any circumstances be considered as consideration for divorce or a payment made in lieu of loss of connubial relationship. Under s. 127(3) (b) of the Cr. P. C.

, an order for maintenance may be cancelled if the Magistrate is satisfied that the woman has been divorced by her husband and that she has received, whether before or after the said order,_ the whole of the sum which, under any customary or personal law applicable to the parties was payable· on such divorce. Therefore, even by harmonising payments under personal and customary laws with the obligations under ss. 125 to 127 of the Cr. P. C. , the conclusion is clear that the liquidated :sum paid at the time of divorce must be a reasonable and not an illusory amount and will release the -.. quondam husband from the continuing liability, only if the sum paid is roolistically sufficient to maintain the ex-wife and salvage her from destitution which is the anathema of the law. This perspective of social justice alone does iustife to the complex of provisions from s. 125 to s. 127 of the Criminal Procedure Code. [1140 F-H, 1141 A-CJ PAZLUNDI v. K. K. VAL! (Krishna Iyer, !.

) 1129 Kunhi Muyln v. Pathimma, 1976 KLT 87 at 96; Kama/akshi v. Sankaran, AIR 1979 Kerala 116; Hajabean Su/aiman & Anr. v. Ibrahim Gandhabai and Anr. , Guj, L. R. Vol. XVIII 1977 p. 133 at 137-139, referred to. 6. (i) Section 127(3)(b) has a setting, scheme and a purpose and no talaq of the purpose different from tb'e sense is permissible in statutory construction. [1141 C. D] (ii) The payment of an amount, customary or other, contemplated by the measure must inset the intent of preventing destitution and providing a sum which is more or less the present worth of tho monthly maintenance allowances the divorce may need until death or remarriage overtake her. The policy of the law abhors neglected wives and destitute divcrcees and -sec. (3) of sec. 127, it has to be 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. Even the literal and the purposive approaches may sometimes concur, once we grasp the social dynamics of interpretation, will .. serve the cause of truth and justice. We are reminded of Lord • · Denning's fascinating reference in his "The Discipline of the Law" to Portia's plea for the pound of flesh but not a drop of blood; The traditional English view is Yielding to the pressure of the modern European view (which is also the American view) expressed by . i Denning in delightful diction as(') "the 'schematic and teleological' method of interpretation. It is not really so alarming as it sounds. All it means is that the judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design of . purpose which lies behind it.

When they come upon a situation which is to their minds within the spirit~but not the letter~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 the legislation ? They Jay down the law accordingly. Jf you study the decisions of the European Court, you will see that they do it every day. To our eyes-shdrtsight- ' ed by tradition - it is legislation, pure and simp:e. But, ) 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.

Another angle to the subject of Mahar and its impact on liability H · for maintenance after divorce may be briefly considered. Khalid, J. of the Kerala High Court in two cases has taken the view that s. 125 and s. 127 Cr. P. C. are conceptually unconnected with payment of mahar and cannot bail out a muslim husband from his statutory obligation under s. 125. We are aware of the criticism of this conceptual (1) The Discipline of Law, Lord Denning, pp. 20·21. 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 : 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 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.

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 contract imposed by law on the husband as a token of respect for its subject : the woman''. Giving a correct appraisal of the concept of mahar, the Privy Council once described it as "an essential incident to the status of marriage". On another occasion it explained that mahar was a 'legal responsibility' of the husband. These judicial observations evidence a correct understanding of the Islamic legal cohcept 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 husband as a token in respect, for its respect the woman .... Dower being, as already mentioned, opposed to the, usu- (1) Dr. Tahir Mahmood '~The Muslim Law of India" p. 71. FAZLUNBI. v. K. K.

VALi (Kn\<;hna Iyer, !. ) 1139 fruct of the woman's person, the right to either is not completed without the other. Hence on the one hand, dower is said to be confirmed and made binding 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. " II "' • Justice Mahmood has described the nature of Meharin Abdul Kadir v. Salima and anr. (8 All. 149 at 157-158). According to him: "Dower, under the Muhammadan law, is the sum of money or other property promised by the husba'nd to be paid or delivered to the wife in consideration of the marriage, and even where no . dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife as a necessary effect of marriage.

To use the language of the Hedaya, 'the payment of dower is enjoined by the law merely as a token of respect for its subject (the woman), wherefore the mention of it is not absolutely essential to the validity of a maniage; and, for the same reason, a marriage is also valid, although the man were to engage in the contract on the special condition that there should be no dower" .... (Hamilton's Hedaya by Grady, p. 44). Even after the marriage the dower may be increased by the husband during coverture .... In this sense and in no other can dower under the Muhammadan law be regarqed as the consideration for the connubial intercourse, and if the authors of the Arabic Text-books of Muhammadan law have compared it to price in. the contract of sale, it is simply because marriage is a civil contract under that law...... Such being the nature of the dower, the rules which regulate its payment are necessarily affected by the position· of a married woman under the Muhammadan law.

Under that 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 marriage contract is easily dissoluble, and the freedom of divorce and the rule of polygamy place a power in the hands of the husband which the law-giver intended to restrain by rendering the rules as to payments of dower stringent upon the husband. No limit as to the amount of dower has been imposed, and it may either be prompt, that is, immediately payable upon demand, or deferred, that is payable upon the dissolution of ·marriage, whether by death or divorce. The dower may also be partly prompt and partly deferred; but when at the time of the marriage 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 marriage.

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 dissolution of the contract by the death of either of the parties or by divorce. When the Kabin nama does hot specify the portion that is prompt and that which is deferred, evi- dence may be given of the custom or usage of wife's family". The quintessence of mahar whether it is prompt or deferred is clearly not a contemplated quantification of a sum of money in lieu of maintenance upoh divorce. Indeed, dower focusses on marital - 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 promised.

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 I equivalent of maintenance after divorce. Maybe, some legislatures might have taken it in that light, but the law is to be read as the law enacted. The language of 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 'G other. Such customary divorce on payment of a sum of money among the so called lower castes are not uncommon. At any rate the payment of money contemplated by s. 127(3) (b) should be so 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 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 FAZLUNBI v. IC. IC. VAL! (Krishna Iyer, J. ) 1141 by her husband and that she has received, whether before or after the said order, the whole of the sum which, under any customary or personal law applicable to the parties was payable on such divorce. • We are, therefore, inclined to the view that even by harmonising payments under 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 justice to the complex of provisions from s. 125 to s. 127 of the Criminal Procedure Code. We may· sum up and declare the law fool-proof fashion : (1) Section 127(3)(b) has a setting, scheme and a purpose and. no talaq of the purpose different from the sense is permissible in statutory construction. (2) The paymeut ot'an amount, customary or other, contemplated by the measure must inset the intent of preventing destitution and providing a sum which is more or less the present worth of the monthly maintenance allowances the . divorce may need until death or remarriage overtake her. The policy of the law abhors neglected wives and destitute divorcees and s. 127(3) (b) takes care to avoid double payment one under custom at the time of divorce and another under s. 125.

(3) Whatever the facts of a particular case, the Code, by enacting ss. 125 to 127, charges the court with the humane obligation of enforcing maintenance or its just equivalent to ill-used wives and castaway ex-wives, only if the woman has received voluntarily a sum, at the time of divorce, sufficient to keep her going according to the I circumstances of the parties. (4) Neither personal law nor other salvationary plea will hold against the policy of public law pervading s. 127(3) (b) as much as l it does s. 125. So a farthing is no substitute for a fortune nor naive consent equivalent to intelligent acceptance. (5) Here the mahar paid is Rs. 500/- and the income therefrom may well be Rs. 5/- a month, too ludicrous to mention as maintenance. , The amount earlier awarded is the minimum.

l Before we bid farewell to Faz/unbi it is necessary to mention \ that Chief Justice Baharul Islam, in an elaborate judgment replete, I 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 B 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. " We allow the appeal. • Appeal allowed.. ~ j x.