IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 Mat.Appeal.No. 82 of 2004(E) --------------------------- OP.123/2003 of FAMILY COURT, MANJERI .................... APPELLANT/RESPONDENT ----------------------------------- ABDURAHIMAN 49 YEARS, S/O. AMBATTUPARAMBIL ABDULLA, PERINTHALMANNA TALUK, THAZHEKEDE AMSOM DESOM, VALLUVANAD STEEL, KATTILATHANI NEAR MUSLIMLEAGUE OFFICE, MANNARKKAD P.O., MANNARKKAD. BY ADV. SRI.K.P.MUJEEB RESPONDENT : PETITIONER ------------------------- KHAIRUNNEESA 43 YEARS, D/O. KALLINGAL ABDU, PERINTHALMANNA TALUK, KAKKOOTH AMSOM, DESOM, W/O. AMBATTUPARAMBIL ABDURAHIMAN, TEACHER, PEEPPALAM DARUL HALAH ENGLISH SCHOOL, P.O.POOPPALAM. ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR SRI.DIAS,AMI.CUR. SRI.P.K.IBRAHIM,AMI.CUR. SRI.K.I.MAYANKUTTY MATHER,AMI.CUR. SRI.M.P.M.ASLAM,AMI.CUR. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON 01/03/2010 DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- Mat. Appeal No. 82 of 2004-E ------------------------------------------------- Dated this the 1st day of March., 2010 JUDGMENT Basant,J. How is the expression “does not treat her equitably in accordance with the injunctions of the Quran” in Sec.2(viii)(f) of the Dissolution of Muslim Marriages Act, 1939 (hereinafter referred to as ‘the Act’) to be understood in law? Whose standards are to apply and prevail? Is it the partisan standards of the polygamous husband to be followed? Is it the cold objective standards of the court – an outsider, to be followed? Or is it the assessment and evaluation of the helpless wife to be reckoned as crucial? Should not that expression consistent with the humane socialist commitment of the constitution in favour of the helpless and hapless receive a construction in favour of the wife in distress? Can the expression be understood divorced of the core Islamic Mat. Appeal No. 82 of 2004-E -: 2 :- approach to life and marriage that marriage is an arrangement to be enjoyed and not to be endured reckoning the same as indissoluble? Should not the true perception of the right to life, in all its dimensions, persuade a court to give the expression the widest possible amplitude to liberate the wife in distress from her demeaning status of a `sapathni’ (co-wife) - wife-in-law (husband's wife) is a crude translation, which she does not want to suffer and endure? These disturbing questions vex us in this appeal. 2. To the crucial and relevant vital facts first. Spouses are the parties. They got married in 1980 in accordance with the customary Muslim religious rites. Four children have been begotten in the marriage. The wife was taken by the husband to his place of employment abroad. She is an educated woman. She was employed as a Teacher there and it is her case that she has earned a total amount of Rs.10.52 lakhs while she was employed there till 1993. As the husband lost his employment abroad in 1993, the wife had to resign her employment and return to India collecting her terminal benefits. They came back to their native place and set up joint residence in a building. It is the case of the wife that she was led to believe that the property was purchased in her name using her earnings which she had entrusted to her husband. Her gold ornaments and Mat. Appeal No. 82 of 2004-E -: 3 :- wedding gifts including currency were also taken by him for that purpose. She realised later that she was taken for a ride and the property was not purchased in her name. The fourth child was conceived when they so started separate residence. The attitude of the husband towards the wife started changing thereafter and he started cruel behaviour against her. She was relegated to a different house with only one bed room and kitchen made available to her. He allegedly indulged in cruel behaviour. He did not maintain her. He did not perform his marital obligations. He indulged in physical cruelty against her. To crown all other circumstances, he, a person aged above 40 years, notwithstanding his marriage with her and four children born in the said wed-lock, contracted another marriage and started residing with the second wife. According to the petitioner/wife, he did not treat her equitably in accordance with the injunctions of the Quran. It is, in these circumstances, that she came to court with her application for divorce under Sec.2 (ii), (iv), (viii)(a) and (f) of the Act. 3. The husband resisted the prayer for divorce. He did not admit the second marriage. He denied the allegations of failure/omission to pay maintenance. He denied the allegation that he had not performed his marital obligations. He denied the allegation of physical cruelty. He did not explain why he Mat. Appeal No. 82 of 2004-E -: 4 :- married again. He did not specifically assert that he was treating both his wives equally and equitably. 4. Parties went to trial on these contentions. The wife examined herself as P.W.1. She examined a witness as P.W.2 to prove the second marriage of her husband. That witness marked Ext.A1 marriage certificate to prove the second marriage. The husband examined himself as R.W.1. He did not at that stage dispute the second marriage. In evidence, he took up an interesting stand unsupported by his pleadings that he had got married again with the consent of his first wife. 5. The court below by the impugned order found the wife entitled to a decree for divorce as claimed. Accordingly, the court below proceeded to pass the impugned order. 6. We are in this appeal primarily concerned with the decree for divorce under Sec.2(viii)(f) of the Act. This Court entertained a doubt as to the standards applicable regarding equitable treatment of the wife in accordance with the injunctions of the Quran. Counsel for the parties - Advocates M/s. K.P. Mujeeb and Pushparajan Kodoth were heard. As this Court felt the need for independent and unbiased assistance on the question of law, this Court requested some other counsel to offer assistance as amicus curiae. We have had the advantage of hearing Advocates M/s. M.P.M. Aslam, K.I. Mayankutty Mat. Appeal No. 82 of 2004-E -: 5 :- Mather, P.K. Ibrahim, C.S. Dias, Rajith, V.G. Arun and others. We place on record our appreciation for the assistance rendered by the counsel. 7. The learned counsel for the appellant challenges the decree for divorce under Sec.2(viii)(f) of the Act primarily on the ground that there is no evidence of any inequitable treatment of the wife contrary to the injunctions of the Quran by the husband. The wife had asserted so. Is that assertion sufficient? How is the question to be considered and answered? What is the nature of evidence that the court should look for and insist before a polygamous marriage is ordered dissolved on the grievance of the victim wife that she has not been treated equitably by her husband. This is the crucial question to be considered. 8. To answer the crucial and vital question, we feel that a proper understanding of the concept of marriage in Islam, a proper appreciation of the concept of marriage relevant to the modern times and a proper appreciation of the impact of constitutional socialism and the fundamental right to life will have to be undertaken. The question cannot obviously be decided sitting in an island circumscribed by the language of Sec.2(viii)(f) of the Act. 9. Islam does not accept marriage as an indissoluble tie at Mat. Appeal No. 82 of 2004-E -: 6 :- all. In Islam marriage basically is a human contract. Though a human contract, it has solemn significance also. Parties enter matrimony voluntarily on their own free will. The dominant purpose of marriage is the enjoyment of life by the spouses. The spouses together must be able to enjoy life. Marriage in Islam is not a cage where the parties who have entered have no key to unlock the cage and liberate themselves even when the marriage does not beget happiness. Islam in its dynamic liberalism and humanism has always accepted the option of the spouses to get the marriage dissolved. Modern notions about dissolubility of marriage appear to have permeated into the Islamic thoughts and law of marriage and divorce from ancient times. Centuries back, this approach to marriage and divorce was conceived by Islamic thought and vision of life. We are not unmindful of the possibility of, and the actual misuse of, such liberal humanistic provisions by unprincipled individuals who pay only lip service to their faith in Islam. But the fact remains that Islam has prescribed an easier, simpler and expeditious approach to the idea of dissolution of marriage without intervention of courts and authorities. The gender justice conscious modernist may legitimately complain that the advantage of such easy procedure for dissolution has not been made available to the female partner in matrimony. Islam's was a universal message. The message Mat. Appeal No. 82 of 2004-E -: 7 :- emanated at a given point of time in history. It emanated from a particular context in Arabia at a certain juncture of history. The universal message did not express itself in a vacuum. The divine message was expressed in a given language and at a given point of time and geography. The quality of the antenna which receives the message and the sublimity of the receiver of the message is crucial in understanding the message. The universal message was to transcend time and geography. But it was to have relevance primarily in the societal context in which the message was received and relayed. In a war ravaged society with war widows, orphans and captives in abundance, the message of the Lord was received and declared. In that society at the relevant point of time, if a census were taken, the gender proportion of the fertile population must certainly have been grossly uneven. The male species, it must be realised was heavily outnumbered on account of the war. It must, at any rate, have been exceeding 1:2. The possibility of a wife wanting a decree for divorce must have been rare in the societal context. If hence emphasis was not laid on the right of a woman to get advantage of easy dissolution of marriage, it cannot be reckoned as gender bias of Islam against the fairer sex. 10. If there be any reservation about the gender justice of Islam in marriage and divorce, we feel one should visit the story Mat. Appeal No. 82 of 2004-E -: 8 :- of Jameela which is referred to in at least two precedents as we ascertained it. In Mohammed v. Sainaba Umma (1987 (1) KLT 712) and Amma Khatoon v. Kashim Ansari (AIR 2001 Jharkhand 28) , the learned Judges have referred to the case of Jameela. Thabit ibn Quais was the husband of Jameela. Jameela approached the Prophet and claimed divorce from her husband. She had no allegation to make against her husband. He was not guilty of any contumaciousness in matrimony; but she did not like him. For the simple reason that she did not like his physical appearance, she wanted to claim divorce. She complained to the Prophet that but for the fear of God she would have struck him on the face whenever he approached her. The Prophet ensured that she was done justice i.e., she got what she deserved. It was ensured by the Prophet that her husband divorced her. 11. No person researching into the gender justice dimension of Islamic law in marriage and divorce can afford to ignore social realities of the times and how the Prophet who relayed the Lord’s message to the universe, understood the message. Jameela’s story highlights that the liberal option to walk out of a marriage when such marriage does not cater to happiness and contentment was given not to the male species alone; but to the female species also. An attempt to understand Mat. Appeal No. 82 of 2004-E -: 9 :- Islamic law cannot be undertaken without understanding the core concept of Islam that the marriage is an institution to facilitate enjoyment of life and if the institution does not cater to enjoyment of life, the parties (the mates as they are referred to) have the option to walk out of the same liberally without any obligation to remain in chains in such unfortunate matrimony which is not conducive to happiness and contentment. We have adverted to this liberal humanist dimensions of the law of marriage and divorce in Islam only to remind ourselves the mind set with which we have to approach the task of understanding the true meaning of the expression “does not treat her equitably” in Sec.2(viii)(f) of the Act. 12. The concept of marriage being a sacramental indissoluble tie which pervaded the Hindu and Christian law relating to marriage and divorce does not hold water any longer in the modern times as a dogma. It is here that we want to remind ourselves of the true concept of marriage in the modern liberal world. Winds of change are sweeping and the traditional concept of indissolubility of marriage is shaking. That concept has practically lost its sheen and fervor. Doctrine of indissolubility is today, nothing but an unacceptable relic of the past in the marriage laws. Marriage as an institution has totally different purposes and incidents in the modern world. We need Mat. Appeal No. 82 of 2004-E -: 10 :- only reiterate with approval what one of us has already stated in para-49 of Aboobacker v. Rahiyanath (2008 (3) KLT 482) as to how the concept of marriage has to be understood now. “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.” Mat. Appeal No. 82 of 2004-E -: 11 :- 13. The arrangement of marriage, being primarily and predominantly the product of a voluntary decision of two adult human beings who are parties to the arrangement, it can never be forgotten that such human beings are likely to err in their decision. Try as they might, they may not be able to make the marriage work and find happiness and contentment in such marriage. In such a situation to compel them to live and endure the decision for the rest of their lives notwithstanding the realization of the gross error in the decision may cater to the requirements of a stable and sound concept about marriage in society in yester years. But all societies and systems of jurisprudence have now accepted that it is no virtue to live by such a decision in perpetuity if the decision turns out to be grossly erroneous. The option to walk out of matrimony honestly must certainly be reckoned as an incident of the right to life. Here again we need only reiterate what we had earlier mentioned in para-37 of the the decision in Manoj C.V. v. Vidhya (2010 (1) KHC 69) . The feeling of shame and guilt did worry us as the system of which we are part has to share the blame for the unfortunate plight of the young couple standing in the long queue before courts one of whom wants liberation from the marital tie and the inability of ours to grant them the time that they need from us immediately. Their plight disturbed us. Mat. Appeal No. 82 of 2004-E -: 12 :- 14. We hence disgressed and observed that: “Our experience in this jurisdiction prompts us to think aloud on the state of matrimonial law and procedure in our country. Right to life under Article 21 of the Constitution must definitely include the right to a healthy and harmonious matrimonial life. Marriage as an institution becomes meaningless if it were to be endured and not enjoyed. The right to opt out of an emotionally dead marriage will have to, subject to the concerns of public order and morality, be essentially accepted - tomorrow, if not today, as an incident of the right to life. It will of course have to be secured that the economically fragile divorced spouse is adequately protected. Section 125 Cr.P.C., more than effectively discharges this basic obligation in its fundamentals. Progressive legislatures will certainly have to accept and recognise the economic right of the marital partners to honourably divide between them the wealth and assets acquired during coverture at the time of termination of relationship. If these concerns are properly addressed, a welfare socialist state cannot and must not, we feel, hesitate to recognise the right of a spouse to honourably walk out of an emotionally dead marriage with an incompatible spouse. The enormity of the number of lives involved inextricably in litigation for securing divorce , the inevitable laws delays which contribute to the life of litigation Mat. Appeal No. 82 of 2004-E -: 13 :- and the loss of precious prime time in life of young spouses in such complex litigation do all worry us and instill in us a deep sense of dissatisfaction and frustration. Is marriage an institution for imprisonment for life against the volition and desire of individuals? If either party does not want to continue matrimony can and should the system and laws compel him/her to continue to endure such matrimony? Cannot individuals be safely entrusted with the right to choose their own fate? Should not marriage laws and the system realistically recognise that compatibility is sine qua non for the success of the institution of marriage? Should marriages dead de facto continue to live de jure? If so for whose benefit? Are the children in a nuclear family going to benefit in any manner by the continuance of such a dead matrimony between warring parents? Nature or God gives a person one opportunity to live in this stint of life and should she/he not be permitted to so arrange his life as to pursue happiness in a manner that is not opposed to public order and morality? Should not spouses of unhappy marriages be permitted to walk out of such marriages honourably and as friends on the mere ground of incompatibility of temperament, after the mandatory period of waiting, counselling and conciliation? Are people going to walk out of solemn marriages merely because law offers such opportunity to redeem Mat. Appeal No. 82 of 2004-E -: 14 :- themselves from dead marriages? The law maker and civil society must address themselves to these disturbing questions and come out with answers. We feel that it is the duty of the Kerala legislature to lead the country on this aspect by bold and innovative legislation? Has not our Kerala experience shown us convincingly that easier and less cumbersome divorce laws do not necessarily increase the incidence of divorce and that marriages last longer in our culture not because the laws of divorce are draconian but because of the essential culture and attitude of the polity to marriage and family?” 15. Confirmed optimists we are, and we do believe that the mandate of Art.44 of the Constitution that the State shall endeavour to enact a uniform civil code for all Indians shall be translated into reality at some point of time. When such a uniform civil code comes into being, it is our ardent hope that there shall be liberal borrowing from the concept of Islam about easy, simpler, non-expensive, non-cumbersome and user friendly procedure prescribed for unwilling spouses to walk out of such dead marriage with honour, self-respect and dignity duly providing for the economic security of the fragile partner of such fractured marriage. Provision to quit marriage on the ground of incompatibility after the mandatory period of waiting, counselling and conciliation with accent on economic security of Mat. Appeal No. 82 of 2004-E -: 15 :- the partner will certainly be there in such uniform Civil Code, we do hope. 16. Having thus adverted to the concept of marriage in Islamic law and the modern concepts about marriage prevailing now in our progressive society, we must advert to the implications of the fundamental right to life in the controversy. The interpreter has to be conscious of the nuances of the right to life under Art.21 of the Constitution which has received a revolutionary dimension at the hands of the Supreme Court. It is unnecessary to advert to precedents. Right to life is not any more merely a negative right which provides against the arbitrary extinguishment of life. It includes the right to meaningful life and life with dignity and self-respect. Art.13 of the Constitution declares that no pre or post constitutional law can be enforced within the territory of India if the same is inconsistent with fundamental rights enshrined in Part III of the Constitution. If such fundamental right to life is offended by any such law, no such law can be enforced after the advent of the constitution. While understanding Sec.2(viii)(f) of the Act the dimension and nuances of the right to life under Art.21 have got to be borne in mind. An argument is advanced that personal law is out of bounds for Art.13. We have in paragraphs 18 to 27 of the decision in Saumya Ann Thomas v. Union of India & Mat. Appeal No. 82 of 2004-E -: 16 :- Another (judgment dated 25/2/2010 in Mat. Appeal No.20076/09) disagreed with this idea which finds expression in the decision of the two Judge Bench of the Bombay High Court in The State of Bombay v. Narasu Appa (AIR (39) 1952 Bombay 84). We have taken the view that the decision of Srikrishna Singh v. Mathura Aahir & Others ((1981) 3 SCC 639) cannot be held to have approved the dictum in Narasu Appa (supra). We have expressed our opinion that the decision in Mathew & Another v. Union of India (1999 (2) KLJ 824) deserves re- consideration by a larger Bench. We have taken the firm view as declared in the binding precedent of the Full Bench in Mary Sonia Zachariah v. Union of India (1995 (1) KLT 644 (FB)) that so long as the impugned provisions are part of an Act it must pass the test of constitutionality even if the provision is based on religious principles. In these circumstances, we take the view that we are dealing with a provision in a statute relating to personal law and while interpreting the same also an approach consistent with the right to life guaranteed under Art.21 of the Constitution has to be adopted by courts. Therefore, the constitutional perspective of the fundamental right to life - i.e., the right to life with dignity and self-respect must also inform us while trying to understand the true meaning Mat. Appeal No. 82 of 2004-E -: 17 :- of the expression “does not treat her equitably” in Sec.2(viii)(f) of the Act. 17. We cannot afford to ignore the principles of constitutional socialism declared in the preamble of the Constitution. We approve and endorse what one of us has already observed in para-49 of Aboobacker (supra) that constitutional socialism is not a competing political ideology. If it were so, the pluralist Indian Constitution may not have declared its allegiance to such a political