IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 Crl.MC.No. 2188 of 2004() ------------------------- CRRP.59/2003 of SESSIONS COURT, MANJERI MC.2/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... PETITIONER: RESPONDENT/REVISION PETITIONER: ------------------------------------------- C.K.ABOOBACKER, S/O. LATE MOIDEEN, AGED 45 YEARS, KARAPARAMBIL HOUSE, P.O. MONGAM. BY ADV. SRI.C.KHALID SRI.R.O.MUHAMED SHEMEEM RESPONDENTS: RESPONDENTS/PETITIONER & STATE: -------------------------------------------- 1. RAHIYANATH, D/O. LATE KUTTY HASSAN, AGED 37 YEARS, KALANTHODI HOUSE, THIRURKKAD POST. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.M.SATHYANATHA MENON FOR R1 PUBLIC PROSECUTOR SRI. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 2188 of 2004 ------------------------------------------------- Dated this the 22nd day of July, 2008 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 Sec.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 Sec.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 Sec.3 of the Act larger and supplemental to the rights under Sec.125 of the Cr.P.C.? Cannot the amount due under CRL.M.C.NO. 2188 OF 2004 -: 2 :- Sec.3 of the Act in a case of remarriage exceed the arithmetical equivalent of maintenance which would have been payable under Sec.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 Sec.3(1)(a) of the Act when there is a post Iddat remarriage pending proceeding? These thoughts come up for 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 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 CRL.M.C.NO. 2188 OF 2004 -: 3 :- 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 03/4/01 by unilateral pronouncement of Talak on the sole ground that the claimant/wife did not agree for the second marriage. The husband immediately thereafter on 21/4/01 married another school teacher. The claimant/wife herself is a High School teacher. CRL.M.C.NO. 2188 OF 2004 -: 4 :- 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 Sec.3 of the Act on 14/5/01. The learned Magistrate disposed of the claim on 31/7/03 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 30/3/04, 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 Sec.3(1)(a) of the Act. 6. The husband has come up with this application under Sec.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 CRL.M.C.NO. 2188 OF 2004 -: 5 :- revision on 12/5/04, she is not entitled for anything more than maintenance for the period from 03/4/01 to 12/5/04. 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 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 Sec.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 CRL.M.C.NO. 2188 OF 2004 -: 6 :- quantum payable under Sec.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 Sec125 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 sec.125 of the Cr.P.C. 8. The questions raised are interesting and demand a detailed look 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 CRL.M.C.NO. 2188 OF 2004 -: 7 :- 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 of their husband/father under the secular Code which was applicable to all citizens. Sec.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 Sec.125 of the Cr.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 CRL.M.C.NO. 2188 OF 2004 -: 8 :- 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 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 Sec.125 of the new Code. Considering the plight of the neglected divorcee wife, by a bold introduction of Explanation (b) to Sec.125, it was declared that not only the wife in current CRL.M.C.NO. 2188 OF 2004 -: 9 :- 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 Sec.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 Sec.125 should be made applicable to all communities. 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 Sec.127(3)(b) was introduced in the Code which took out of the sweep of the compassion of Sec.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 Sec.127(3)(b) was to telescope into the main Section - Sec.125 Cr.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 CRL.M.C.NO. 2188 OF 2004 -: 10 :- Sec.127(3)(b). For the sake of easy and immediate reference, I extract the relevant portions of Sec.125 and 127(3)(b) of the Cr.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 x x x x x x x x x x x x x x x x x x x x x x x x a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance . . . . . . . . . . . . . . . . . . . . . . x x x x x x x x x x x x x x x x Explanation.-- For the purposes of this Chapter,-- x x x x x x x x x (b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.” CRL.M.C.NO. 2188 OF 2004 -: 11 :- “127. Alteration in allowances.-- x x x x x x x x x x x x x x x x x x x x x x x x x x x (3) Where any order has been made under section 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-- x x x x x x x x x (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;” (emphasis supplied) CRL.M.C.NO. 2188 OF 2004 -: 12 :- The introduction of Sec.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 CRL.M.C.NO. 2188 OF 2004 -: 13 :- 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 Sec.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 to claim 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 Sec.125. The object of Sec.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 armory 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 Sec.125, is not obliged to pay further amounts CRL.M.C.NO. 2188 OF 2004 -: 14 :- under Sec.125 Code. No double benefit can be claimed by such a wife, it was declared. 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 Sha Bano's case. It is unnecessary to advert to the details of Sha Bano. But in Sha Bano it was clearly held that notwithstanding Sec.2 of the Muslim Personal Law (Shariat) Application Act, 1937, Sec.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 CRL.M.C.NO. 2188 OF 2004 -: 15 :- 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 Sha Bano also the court was obliged to decide what was the payment contemplated under Sec.127(3)(b). The learned Judges of that five Judge Bench after an elaborate consideration speaking through the Hon'ble Chief Justice CRL.M.C.NO. 2188 OF 2004 -: 16 :- 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 Sec.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 Sec.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 CRL.M.C.NO. 2188 OF 2004 -: 17 :- from liability to pay maintenance under Sec.127(3)(b) Cr.P.C. 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 Sha Bano' 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 Sha Bano the controversy was only about the amount payable under Sec.127(3)(b) to justify the claim for absolution under Sec.125 and not at all as to whether Sec.125 was applicable to the divorced Muslim wife. On that aspect there was no controversy whatsoever in Sha Bano. What payment was to made to avoid liability under Sec.127(3)(b) was the only question in Sha Bano. The Parliament had seized the opportunity to resolve the said controfversy. 21. The Act therefore is a piece of legislation which deals CRL.M.C.NO. 2188 OF 2004 -: 18 :- with the civil rights of Muslim women which they can claim from their husbands at the time of divorce. Sec.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 Sec.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. Sec.2 which I extract below makes the position very clear: CRL.M.C.NO. 2188 OF 2004 -: 19 :- “2. 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, 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) 22. Sec.2 of the Act cannot therefore inhibit the application of Sec.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. 23. Sec.127(3)(b) which I have already extracted above speaks of amounts payable on divorce under any customary or CRL.M.C.NO. 2188 OF 2004 -: 20 :- 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 Sec.125 in view of the specific bar under Sec.127(3)(b). Controversy was raised in Bai Tahira, Fuzlunbi and Sha 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 Sec.3 what amounts are payable under the personal law, if liability under Sec.125 were to be avoided under Sec.127(3)(b) Cr.P.C. 24. In Dnial Latifi v. Union of India (2001 (3) KLT 651) the question has been considered as to the nature of the amounts payable under