IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 RPFC.No. 53 of 2006() --------------------- AGAINST THE ORDER DATED 01/08/2005 IN CMP.1006/04 IN MC.870/1999 of THE FAMILY COURT, MANJERI. .................... PETITIONER/RESPONDENT ----------------------------------------- KUNHIMOHAMMED, S/O.MAMMIKKANAKATH MITTAVA, MAMMIKKANAKATH HOUSE, P.O TANUR, TIRUR TALUK, RAYIRIMANGALAM AMSOM DESOM. BY ADV. SRI.K.P.SUDHEER RESPONDENT(S): RESPONDENT/PETITIONER ------------------------------------ AYISHAKUTTY, D/O.ALAVI, ARAKKALAKATH HOUSE, MOOLAKKAL P.O., K.PURAM, TIRUR TALUK, RAYIRIMANGLAM AMSOM DESOM, MALAPPURAM DISTRICT. ADV. SRI.K.P.MUJEEB FOR R1 ADV.V.G.ARUN(AMICUS CURIAE) ADV. M.P.M. ASLAM (AMICUS CURIAE) ADV.S.SREEKUMAR(AMICUS CURIAE) ADV. C.S. REJITH (AMICUS CURIAE) ADV.MAYANKUTTY MATHER(AMICUS CURIAE) ADV.C.S.DIAZ(AMICUS CURIAE) ADV.P.K.IBRAHIM(AMICUS CURIAE) THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON 17/03/2010 PASSED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- R.P.(FC) No. 53 of 2006 ------------------------------------------------- Dated this the 17th day of March, 2010 ORDER Basant,J. (i) Does a divorce valid under the Muslim Law ipso facto extinguish the liability of the husband under Sec.125 of the Code of Criminal Procedure (hereinafter referred to as `the Code') to pay maintenance to his wife even when it is admitted or proved that amounts due under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as `the Act') have not been paid? (ii) Is unilateral pronouncement of divorce without offering any reason and without any attempt for reconciliation by the arbiters as mandated by Ayat 35 of Sura IV of the Holy Quran valid under the Muslim Law after the decision of the Supreme Court in Shamim Ara v. State of U.P. (2002 (3) RP.(FC) No.53 of 2006 -: 2 :- KLT 537 SC)? 2. These two questions of crucial relevance and contextual significance arise for consideration in this RP(FC) which has been referred to a Division Bench under Sec.3 of the Kerala High Court Act by a Single Judge (one of us). The learned counsel for the contestants have been heard in detail. As it was felt that larger questions of public importance are involved, we had requested the learned counsel who are willing, to offer assistance to us as amicus curiae and accordingly M/s M.P.M. Aslam, K.I. Mayankutty Mather, P.K. Ibrahim, C.S. Dias, Rajith and V.G. Arun have offered assistance to us. We record our appreciation for the valuable assistance rendered to us by the learned counsel appearing for the parties as also the learned counsel who rendered assistance to us as amicus curiae. 3. The relevant facts can be summarised in a nutshell. Marriage between the petitioner/husband and respondent/wife is admitted. They are referred to hereinafter as the `husband and wife'. There was acrimony in their matrimony and as early as in the early eighties the learned Judicial Magistrate of the First Class, Tirur, in M.C.No.6/81 had directed payment of maintenance at the rate of Rs.60/- per mensem to the respondent/wife. That order was passed on 18/3/82. We are RP.(FC) No.53 of 2006 -: 3 :- not adverting to the claim of the children as the same has now become irrelevant. 4. Long later vide order dated 16/5/88, which was passed on the basis of an agreement between the parties, the claim for enhancement was allowed under Sec.127 of the Code and the husband was directed to pay maintenance at the rate of Rs.80/- per mensem to the wife. 5. Subsequently in 1998 another application under Sec.127 of the Code was filed claiming further enhancement of maintenance. That petition was transferred to the Family Court, Malappuram in accordance with the provisions of the Family Courts Act, 1984 and by order dated 19/9/01 in M.C.No.870/99 the learned Judge of the Family Court granted enhancement of maintenance. Accordingly, an amount of Rs.500/- per mensem is payable thereafter by the husband to the wife. 6. The maintenance amount for the period from 23/4/03 to 24/4/04 (Rs.500/- x 12 months = Rs.6,000/-) remained unpaid and this obliged the wife to file C.M.P.No.1006/04 on 29/4/04 for recovery of the amount under Sec.128 of the Code. In that petition, a counter statement was filed by the husband raising the contention that he had pronounced talaq on 8/12/03. Admittedly, it was a unilateral pronouncement of talaq. There is RP.(FC) No.53 of 2006 -: 4 :- no contention that any attempt for reconciliation by the arbiters, in accordance with the mandate of Ayat 35 of Sura IV, had taken place. It is also admitted that no cause was shown in the communication of talaq to justify the pronouncement of talaq. Ext.D1, it is claimed by the petitioner, was sent to the respondent. It was not served and was returned with an endorsement “Not known. Returned to the sender”. Ext.D2 is the copy of the letter allegedly sent to the Khasi and Ext.D3 is the acknowledgment received from the Khasi of the local Mosque for receipt of the intimation of talaq by him. 7. The learned Judge of the Family Court, on an anxious consideration of all the relevant inputs, came to the conclusion that the alleged divorce has not been proved satisfactorily. No reasonable cause having been shown in the communication of talaq and no attempts for reconciliation by the arbiters having preceded the pronouncement of talaq, the alleged talaq is not valid and cannot be recognised as valid in the light of the dictum in Shamim Ara (supra), held the learned Judge of the Family Court. It was hence held that the order directing payment of enhanced maintenance is liable to be enforced. Accordingly, Crl.M.P.No.1006/04 was allowed as per the impugned order. 8. The learned counsel for the revision petitioner Sri. K.P. RP.(FC) No.53 of 2006 -: 5 :- Sudheer contends that under the Muslim Law, a husband can exercise his prerogative to terminate the matrimony by unilateral pronouncement of talaq without assigning any reason. The Muslim Law does not oblige him to reveal reasons. In fact, the humanist stipulations in the Muslim Law do not oblige him, and do actually discourage him, from revealing the reasons. Non- revealing of reasons cannot, at any rate, be held to vitiate the divorce effected. It is submitted that the husband has valid reasons to divorce his wife. Actually the spouses were residing separately from early eighties and it was only reasonable and just to invoke the power to terminate such a dead matrimony which remains only in the eye of law and not actually. The learned counsel further contends that the Muslim Personal Law - the Quranic injunctions, the Sunnahs or the Ijtihads do not catalogue what reasons are reasonable and what reasons are not reasonable. The legislature or the courts have not intervened to prescribe what reasons can be reckoned as reasonable and what as not reasonable. The learned counsel hence argues that reasonability of the causes for divorce is not justiciable. It would be dangerous and impermissible to leave it to the individual Judges without guidelines to decide what causes would be reasonable and what causes will not be reasonable. In RP.(FC) No.53 of 2006 -: 6 :- these circumstances, the dictum in Shamim Ara (supra) properly understood cannot lead a court to the conclusion that reasonableness of the substantive cause of divorce is justiciable, argues the counsel. Consequently, the husband is not liable to reveal reasons or justify and substantiate those reasons. 9. The learned counsel for the husband then contends that reconciliation by the arbiters, though laudable, is only optional and cannot be reckoned as a condition precedent for a valid divorce. In this view of the matter, the impugned order holding the divorce effected under Exts.D1 to D3 invalid or unacceptable cannot be held to be correct, argues counsel. 10. The learned counsel for the wife, on the contrary, contends that even assuming that the marriage has been validly terminated, an order directing payment of maintenance under Sec.125 of the Code which was passed long prior to the commencement of the Act cannot be held to lapse by the mere enactment of the Act. Not the enactment of the Act, not even the passing of an order for payment of amounts under Sec.3 of the Act, but the actual payment of the amount payable under the Act - a piece of statutory Personal Law, will alone extinguish the liability to pay maintenance under Sec.125 of the Code. In this view of the matter, the respondent contends that even if the RP.(FC) No.53 of 2006 -: 7 :- divorce is proved and is valid, that cannot extinguish the rights under Sec.125 of the Code and, at any rate, the order passed long earlier under Sec.125 of the Code duly modified under Sec.127 of the Code will be enforcible even after such divorce. 11. It is in the light of the above contentions, that the two questions referred above arise for consideration in this case. We shall initially consider Question No.(i). 12. Question No.(i): As stated earlier, the contention of the petitioner is that a valid divorce would extinguish the right of the divorced Muslim woman to claim maintenance under Sec.125 of the Code. Reference to this question has already been made by one of us in the decision in Aboobacker v. Rahiyanath (2008 (3) KLT 482). 13. The journey must start with the provisions of Sec.488 in the 1898 Code. That was followed by Sec.125 of the present Code. The Code of Criminal Procedure 1898 and 1973 and Sec.488/125 therein are pieces of secular law which oblige all Indian husbands/parents/children having sufficient means to maintain their wives, children and parents who are unable to maintain themselves. Religious identity of the individual has absolutely no bearing or significance on the liability. The purpose of the law is to prevent vagrancy and thus avoid the RP.(FC) No.53 of 2006 -: 8 :- consequent threat to peace, tranquility and law and order in the society. Your religious identity is totally irrelevant while applying the provisions of Sec.488/125 of the Code. Though there was no similar provision in Sec.488 prior to the amendment, Sec.125 of the 1973 Code obliged the husbands to pay maintenance not only to their wives in current matrimony, but also their divorced wives. 14. The provisions of Sec.488/125, it is now trite beyond pale of controversy, are applicable to all Indians including those who owe allegiance to Islam. By reference to the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 (for short `the Shariat Act') the liability cannot be avoided at all. In this context, we extract Sec.2 below: “Application of Personal Law to Muslims.-- Notwithstanding any customs 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, illa, zihar, lian khula and Mubaraat, RP.(FC) No.53 of 2006 -: 9 :- maintenance, dower, guardianship, gifts, trusts and trust properties, and wakhs (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) It is eloquently clear from the language employed in the said Act that a statutory stipulation in conflict with the Muslim Personal Law (Shariat) shall prevail over the Muslim Personal Law (Shariat). The non-obstante clause applies only to custom or usage to the contrary. Stipulations in the Code under Sec.125 are therefore applicable to all Indians including the followers of Islam. Muslim husbands are also made liable to pay maintenance not only to their wives in existing matrimony but also their divorced wives. 15. However, it is worthwhile to note that prior to the passing of the amended Code in 1973, Sec.127(3)(b) was introduced into the Code whereby it was declared that receipt of the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce would RP.(FC) No.53 of 2006 -: 10 :- absolve the husband of his liability to pay maintenance to his divorced wife. This provision - Sec.127(3)(b) found its way into the amended Code at some point of time before its final acceptance and it is transparent that it is only the followers of Islam who are entitled to the benefit of that provision. Our attention has not been drawn to the customary or personal law applicable to any others which mandates payment of any such amounts on divorce. A Muslim husband can thus claim under the 1973 Code, that his liability under Sec.125 must stand extinguished if he establishes that he has discharged the liability to pay amounts under the customary or personal laws applicable to him while/after effecting the divorce. 16. A spate of litigations followed on the ambit and scope as well as the nature and quantum of the amounts payable under Sec.127(3)(b) of the Code which would extinguish the liability to pay maintenance under Sec.125 of the Code. Reference can advantageously be made to the decisions of the Supreme Court in Bai Tahira v. Ali Hussain (AIR 1979 SC 362) and Fuzlunbi v. Khader Vali (AIR 1980 SC 1730). It was held unambiguously that what is payable under Sec.127(3)(b) of the Code, though not a mathematical equivalent, must be a reasonable substitute for the liability to maintain the divorced RP.(FC) No.53 of 2006 -: 11 :- wife under Sec.125 Cr.P.C. The object of Sec.127(3)(b) of the Code, it was clarified in those decisions, is not to bail out a Muslim husband from his liability to pay maintenance under Sec.125 of the Code; but only to ensure that a devout Muslim husband who has already discharged such liability to provide for his divorced wife, in accordance with his personal law, is not obliged to pay further amounts again under Sec.125 of the Code. These decisions of the Supreme Court declare that the purpose was only to ensure that no double benefit is claimed by the divorced wife. 17. Though it appeared that the law was settled beyond controversy for some period of time, a two Judges Bench of the Supreme Court made a reference to a larger Bench and the Supreme Court in what is now well known as the Sha Bano's case (Mohd. Ahmed Khan v. Shah Bano Begum & Others (AIR 1985 SC 945)) held that the payment under Sec.127(3)(b) of the Code must be of such an amount - whether the translation of `Mata' in Ayat 241 in Sura II be maintenance, gift or provision, which will be a reasonable substitute for the duty to maintain the divorced wife under Sec.125 of the Code. 18. This pronouncement of the Supreme Court led to a furore across the length and breadth of India. There was RP.(FC) No.53 of 2006 -: 12 :- criticism that the interpretation of 'Mata' as maintenance by the Supreme Court is not correct and there was no obligation for the Muslim husband to pay any amount as maintenance under the personal and customary laws to claim extinguishment of liability under Sec.127(3)(b) of the Code. Mata had to be paid. There was no controversy on that at all. What ought to be the quantum of payment due as Mata was the only controversy. 19. The Act was born in this legal and factual background. The purpose of the statute was very clear. What is the amount payable under Sec.127(3)(b) of the Code under the personal and customary law of the Muslims to claim absolution from liability under Sec.125 of the Code had to be clarified. The statement of objects and reasons of the Act makes it clear that the Parliament had only seized the opportunity to specify the rights which a divorced woman is entitled to at the time of divorce to protect her interest. We would like to clarify that in Shah Bano (supra) the controversy was only about the amount payable under Sec.127(3)(b) of the Code to justify the claim for absolution of the liability under Sec.125 of the Code. There was no controversy at all as to whether Sec.125 of the Code was applicable to the divorced Muslim wife or not. What payment was to be made under Sec.127(3)(b) of the Code by a divorced RP.(FC) No.53 of 2006 -: 13 :- Muslim husband to his divorced Muslim wife to avoid liability under Sec.125 of the Code was the only question in Shah Bano (supra). The Parliament seized the opportunity to authentically resolve that controversy. 20. A plain and simple reading of Sec.2 of the Shariat Act, Secs.125 and 127(3)(b) of the Code, the dictum in Bai Tahira; Fuzlunbi and Shah Bano (supra) and the provisions of the Act makes the following crystal clear: (i) The liability under Sec.125 of the Code is there on all Indians irrespective of their religious identity. The provision in the Code about payment of maintenance to divorced wives is a secular stipulation applicable universally to all Indians whatever their religious identity. (ii) That liability under Sec.125 of the Code can be extinguished by making payment of the amounts payable under the customary and personal law applicable to a particular community. Persons owing allegiance to Islam are the only persons who can take advantage of that provision. They can claim extinguishment of their liability under Sec.125 of the Code on proof that the divorced wife has received such amounts. On proof of such payment the liability under Sec.125 of the Code of a divorced husband shall stand extinguished. RP.(FC) No.53 of 2006 -: 14 :- (iii) There was a dispute as to what are the amounts payable under the Muslim Personal Law as Mata at the time of divorce. The Parliament intervened and enacted the Act which in Sec.3 stipulated the amounts that are payable. (iv) Once the amounts are paid, the liability under Sec.125 of the Code which has already crystalled into an order shall also stand extinguished. Not the enactment of the Act; not the passing of the order under Sec.3 of the Act; but only the actual payment of the amounts payable under Sec.3 of the Act shall extinguish the liability under Sec.125 Cr.P.C. in accordance with Sec.127(3)(b) of the Code. 21. The constitutionality of the Act was challenged before another Constitution Bench of the Supreme Court and the Bench as per the decision in Danial Latifi & Another v. Union of India ((2001) 7 SCC 740) held the statute to be legally and constitutionally valid. To us, in these circumstances, it appears to be evident that the Act has only specified the amounts that will be payable under Sec.127(3)(b) of the Code under the Personal/Customary Law to justify the claim for extinguishment of the liability under Sec.125 of the Code. That amount can be claimed in accordance with the provisions of the Act also. 22. A contention is raised that this approach is not correct. RP.(FC) No.53 of 2006 -: 15 :- It is contended that with the enactment of the Act, Sec.125 of the Code in its application to Muslim divorced husbands and wives is repealed/abrogated impliedly. The divorced Muslim woman cannot claim any rights under Sec.125 of the Code, argues the learned counsel for the petitioner vehemently. Admittedly, there is no express extinguishment of such right of the divorced Muslim wife under Sec.125 Cr.P.C. Is there implied extinguishment of the right of the divorced Muslim wife under Sec.125 of the Code, by enactment of the Act? This appears to be the crucial question to be considered by us. 23. One who surveys the provisions of Sec.125 of the Code must certainly take note of the fact that the Muslim husband, unlike the husbands in any other religion, has a unilateral right to divorce his wife without intervention of the court. Considering the vulnerability of such a wife, the Act has been enacted to confer on the divorced Muslim wife higher and superior rights than her counter parts in other religions. In this context we need only refer with approval to what one of us has held in Aboobacker v. Rahiyanath (2008 (3) KLT 482) in paragraphs 30 and 31. Undoubtedly, the Muslim divorced wife has a higher right than her counter parts in other religions. The comparison of the nature of rights of the divorced wife under RP.(FC) No.53 of 2006 -: 16 :- Sec.125 of the Code and the Act would clearly show that a larger and superior right is available to the Muslim wife who faces the vulnerability of arbitrary and unilateral divorce at the hands of her husband without intervention of any court. Even when she is able to maintain herself, she can claim amounts under Sec.3 of the Act. While the other divorced wives shall get the maintenance amounts only in monthly doles, the Muslim divorced wife can get the capitalised payment of amounts under Sec.3 of the Act. Even a millionaire wife can claim amounts from her billionaire husband, it is trite. While the remarriage puts an end to the claim of other divorced wives, the Muslim divorced wife on re-marriage can keep the capitalised amount with herself with no liability to return the same. Thus viewed from any angle, the Muslim divorced wife under her personal law (i.e., the Act) has a larger and superior rights than what her counter parts of other religions have under Sec.125 of the Code. 24. It is then that the question comes up whether the rights under the Act to receive amounts is additional and supplemental to the rights under Sec.125 of the Code. The contention that we have to consider is whether the Act extinguishes the right of the divorced Muslim wife under Sec.125 of the Code. RP.(FC) No.53 of 2006 -: 17 :- 25. The legislature was fully aware that Muslim divorced wives have the rights under Sec.125 of the Code. Fully conscious of the existence of such rights, the Act has been enacted. There is not the semblance of an indication in the Act that the right of the Muslim divorced wife under Sec.125 of the Code shall stand extinguished. Extinguishment of an existing right is not to be assumed or presumed lightly. If the Parliament had the intention to extinguish such rights of the Muslim divorced wife, it would only be reasonable to expect the Parliament to speak in definite and specific language about such extinguishment. The Parliament must have been aware that by 1986 when the Act was enacted, a number of orders must have been passed in favour of divorced Muslim wives from 1973 under Sec.125 of the Code. It is crucial to note that in spite of Sec.6(c) of the General Clauses Act, the Parliament did not choose to enact a provision extinguishing the rights of the divorced woman under Sec.125 of the Code or to extinguish her rights claimable under orders passed already under Sec.125 of the Code. The message appears to us to be loud and clear. No extinguishment of existing rights was intended or conceived. Both rights - under Sec.125 of the Code and Sec.3 of the Act were conferred on the divorced Muslim woman. She has the right to choose. RP.(FC) No.53 of 2006 -: 18 :- Normally, any Muslim divorced wife in her senses was likely to choose only the larger and superior rights under the Act. If she chooses to claim amounts under Sec.3 of the Act and if such payments were actually made either voluntarily or in response to an order of court, such payment of the amount shall extinguish the liability under Sec.127(3)(b) of the Code; not earlier. The mere enactment of the Act and Sec.3 therein cannot satisfy the Muslim woman. Until she gets the larger amount under the Act, her right under Sec.125 must remain live. Implied repeal of Sec.125 of the Code in its application to the Muslim wives cannot be lightly inferred. It is crucial that even after the enactment of the Act, Sec.127(3)(b) of the Code continues on the statute book. Sec.125 may be applicable to the wives including divorced wives