PROJECT

FAMILY LAW -I
ANALYSIS OFDOWER
NATIONAL LAW UNIVERSITY
Presented to Saroj Sharma Ma am.
Faculty, Family Law
Submitted by: Mayank Jain
Rollno.- 410
Submittedon: 31st January 2008
1
RESEARCH METHODOLOGY
Area: Muhammadan Law
Topic: Types of Dower and effects of Non-payment of Dower.
Objective: This project work has been designed to fulfill certain underlying obj
ectives,
which are strategic in understanding as to what the different types of dower are
and what
the effects of non-payment of dower amount are.
Research Questions:
1. Definition of Dower- A price for sale or a mark for respect.
2. Different Types of Dowers.
3. Recourses a wife can have to enforce her right to dower when it is not paid.
4. Women s right of retention of deceased husband s property in lieu of unpaid dower
amount- is it transferable?
Sources
?The project would look into the books, journals, texts and websites in course o
f
compiling this project.
Tentative Chapterization:
CHAPTER I -
INTRODUCTION
CHAPTER II -
DEFINITION
CHAPTER III -
TYPES OF DOWERS
CHAPTER IV -
NON-PAYMENT OF DOWER
CHAPTER V -
CASE ANALYSIS
2
BIBLIOGRAPHY
Time Schedule- This project has been prepared in the course of the research made
during
the last twenty days.
Footnoting Style: The footnoting style that would be adopted in this paper is th
e NLU
Uniform style based on the Harvard Blue Book Style.
3
Chapterization
1. Introduction
2. Definition
3. Types of Dower
4. Non- Payment of Dower
5. Case Analysis
6. Conclusion
4
CHAPTER-I
INTRODUCTION
One of the essential parts of Muslim marriage is dower paid or promised to be paid
by the husband to the wife. Without mahr a nikah can not be said to have been p
roperly solemnised. Dower money must be paid or fixed before the solemnisation o
f a marriage. Dower must not, however be confused with dowry which consists of pre
sents made by father and other relations of the bride and Muslim Law does not ma
ke any provision for payment of dowry. Dower is the sum of money or other proper
ty which the wife is entitled to receive from the husband in consideration of ma
rriage.1 The amount of dower may be fixed either before or at the time of marria
ge of after marriage. The law does not say anything about the quantum of dower.
The amount of dower is generally split into two parts- prompt dower which is payab
le immediately on demand by the wife and deferred dower which is payable only on d
issolution of marriage by death or divorce. In this present endeavour the author
would try to explain in detail the types of dower and the effect of non-payment
of dower. Some of the important cases with respect to dower would also be analy
sed.
1 D.F. Mulla, Principles of Mohammedan Law, 17th Ed.P.277
5

CHAPTER-II
DEFINITION
PRIOR to Islam, two kinds of material gifts were prevalent. In a certain type of
marriage, the so-calledbeena marriage, where the husband visited the wife but d
id not bring her home, the wife was calledsadiqa or female friend, and a gift gi
ven to the wife on marriage was calledsadaq. In Islamsadaq simply means a dowry a
nd is synonymous withmahr. But originally the two words were quite distinct:sada
q is a gift to the wife and
mahr
to the parents of the wife. 2 The latter term belongs to the marriage of dominion,
which is known as thebaal marriage, where the wife s people part with her and hav
e to be compensated.
Nowmahr in thebaal form of marriage was used by the Prophet to ameliorate the po
sition of the wife in Islam, and it was combined withsadaq, so that it became a
settlement or a provision for the wife. In Islamic law,mahr belongs absolutely t
o the wife.3 Thus, historically speaking, the idea of sale is latent in the law
ofmahr (dower).
Justice Mahmood defines dower as follows:
Dower, under the Muhammadan law, is a sum of money or other property
promised by the husband 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 mar
riage ceremony, the law confers the right of dower upon the wife. 4
2 Robert Smith,Kinship, 93 as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan
Law, (Oxford
University Press, 4th Edition, 2002) p.132
3 Kor. iv, 4; Ameer Ali, II, 461-2; Fat. Law ? 70 as cited from Asaf.A.A.Fyzee,
Outlines of Muhammadan
Law, (Oxford University Press, 4th Edition, 2002) p.132
4 Abdul Kadirv. Salima (1886) 8 All. 149
6

It is not consideration in the modern sense of the term; but an obligation imposed
by the law upon the husband as a mark of respect to the wife.5 This is made abu
ndantly clear by the author of theHedaya when he says:
The payment of dower is enjoined by the law merely as a token of respect for its
object (the women), wherefore the mention of it is not absolutely essential to t
he validity of a marriage; and, for the same reason, a marriage is also valid, a
lthough the man were to engage in the contract on the special condition that the
re should be no dower. 6
There is no doubt thatmahr was originally analogous to sale-price, but since the
inception of Islam it is hardly correct to regard it as the price of connubial
intercourse. If the authors of the Arabic text-books on Muhammadan law have comp
ared it to price in the law of sale, it is simply because marriage is regarded a
s a civil contract in the system.
In pre-Islamic Arabia,sadaq was a gift to the wife; butmahr was paid to the wife s
father, and could therefore be regarded as tantamount to sale-price. But when I
slam insisted on its payment to the wife, it could no longer be regarded strictl
y as a sale7. Thus Islam sought to makemahr into a real settlement in favour of
the wife, a provision for a rainy day and, socially, it became a check on the ca
pricious exercise by the husband of his almost unlimited power of divorce. A hus
band thinks twice before divorcing a wife when he knows that upon divorce the wh
ole of the dower would be payable immediately.
The Muslim concept of dower has no reference to the price that under some system
s of law was paid to the father of the bride when she was given in marriage. On
the other hand, it is considered a debt with consideration (for submission of he
r person by the wife). The result is that dower is purely in the nature of a mar
riage settlement and is for consideration. It is a claim arising out of contract
by the husband and as such has
5 Abdur Rahim, 334. as cited from Asaf.A.A.Fyzee, Outlines of Muhammadan Law, (O
xford University
Press, 4th Edition, 2002) p.133
6 Hamilton sHedava, 2nd ed. By Grady, 44, cited by Mahmood J. in Abdul Kadir v.Sal
ima (1886) 8 All. 149
at 157-8.
7 Robert Smith,Kinship, 92-3, 111; Ameer Ali shows how the change was effected,
II, 432-4, 461-3 as cited
fromAsaf.A.A.F yzee , Outlines of Muhammadan Law, (Oxford University Press, 4th
Edition, 2002) p.133
7

preference to (sic) bequests and inheritance, but on no principle of Muhammadan

law it
can have priority over the contractual debts8
The best general observations on dower are those of Lord Parker of Waddington in
Hamira Bibiv. Zubaida Bibi9:
Dower is an essential incident under the Mussulman law to the status of
marriage; to such an extent this is so that when it is unspecified at the time t
he marriage is contracted the law declares that it must be adjudged on definite
principles. Regarded as a consideration for the marriage, it is, in theory, paya
ble before consummation; but the law allows its division into two parts, one of
which is called prompt , payable before the wife can be called upon to enter the co
njugal domicil; the other deferred , payable on the dissolution of the contract by
the death of either of the parties or by divorce ..But the dower ranks as a debt,
and the wife is entitled, along with the other creditors, to have it satisfied o
n the death of the husband out of his estate. Her right, however, is no greater
than that of any other unsecured creditor, except that if she lawfully obtains p
ossession of the whole or part of his estate, to satisfy her claim with the rent
s and issues accruing therefrom, she is entitled to retain such possession until
it is satisfies. This is called the widow s lien for dower, and this is the only
creditor s lien of the Mussulman law which has received recognition in the British
Indian Courts and at this Board.
AMOUNT OF DOWER
8 Per Khaliluzzaman J. in Kapore Chand v. Kadar Unnissa, [1950] S.C.R. 747 at 75
1
9 (1916) 43 I.A. 294 at 300-1; also cited in Syed Sabir Husain v. Farzand Hasan
(1937) 65 I.A. 119 at 127.
8

The amount ofmahr may either be fixed or not; if it is fixed, it cannot be a sum
less than
the minimum laid down by the law.
Minimum Dower
1) Hanafi law - 10d irh am s
2)Maliki law - 3dirhams
3)Shafii law No fixed minimum
4) Shiite law No minimum fixed.
Adirham (Persian,diram, a word derived from the Greek) is the name of a silver c
oin 2.97 gram in weight10, and is usually valued at 3-4 annnas or 20-25 paise. I
n India, it has been held that the value of tend irh ams is something between Rs
.3 and 411. Thus it will be seen that the minimum doer fixed by the law can hard
ly be deemed to be an adequate provision for the wife. In fact, it would be a mi
stake to lay too great a stress upon the monetary value of the minimum dower. It
is said that in the case of an extremely poor man, the Prophet requested him to
teach the Koran to his wife, and this was considered by the Lawgiver to be an a
dequate requital of the husband s obligation.
Among the Muslims of India two distinct tendencies are to be found in society. I
n some cases, as in theSulaym ani Bohoras, the dower is Rs. 40, it being conside
red a point of honour not to stipulate for a sum higher than the minimum fixed b
y the Prophet for his favourite daughterFatima, the wife of Ali, namely 500dirha
ms. Among certain other communities, there are dowers of anything between a hund
red and a thousand rupees; Ameer Ali mentions amounts between four to forty thou
sand rupees. An altogether different tendency is to be found in Uttar Pradesh, a
nd also to some extent in Hyderabad, Deccan, where the absurd rule appears to be
that the nobler the family, the higher the
mahr, regardless of the husband s ability to pay or capacity to earn.
CHAPTER- III
10 According to Wilson sGlossary, a silver coin 45-50 grains in weight, rather heav
ier than six pence .
11 Asma Bibiv. Abdul Samad (1909) 32 All. 167.
9

TYPES OF DOWER
We have seen that dower is payable whether the sum has been fixed or not, Ali sa
id: There can be no marriage withoutmahr . Thus, dower may, first of all, be either
specified or not specified. In the latter case, it is called mahr al-mithl, Pro
per Dower, or to be strictly literal, the dower of the like . If the dower has been
specified, then the question may be whether it is prompt (mu ajjal) or deferred (
muwajjal, strictlymu aj jal).
Thus we have two kinds of dower in Islam:
A. Specified Dower (al-mahr al-musamma); and
B. Unspecified Dower or Proper Dower (mahr al mithl).
Specified Dower may be again be divided into-
Prompt -mu ajjal, and
Deferred -mu ajjal.
In (A) and (B) the question before the court is the amount payable: in (I) and (
II) the
question is the time when payment has to be made.
A. Specified Dower (al-mahru al-musamma) 12
Usually themahr is fixed at the time of marriage and thekazi performing the cere
mony
enters the amount in the register; or else there may be a regular contract calle
d
kabinnama, with numerous conditions. The sum may be fixed either at the time of
marriage or later, and a father s contract on behalf of a minor son is binding on
the minor.
Where a father stipulates on behalf of his son, in Hanafi law, the father is not
personally
liable for themahr; butaliter in Ithna Ashari law. In Syed Sabir Husain v.Farzand
Hasan, a Shiite father had made himself surety for the payment of the mahr of hi
s minor
son. Thereafter he died, and it was held that the estate of the deceased was lia
ble for the
12 Also called mahr al- aqd.
10

payment of his son smahr. Accordingly each heir was made responsible for a portion
of the wife s claim in proportion to the share received by the particular heir on
distribution from the estate of the deceased. The heirs were, however, liable o
nly to the extend of the assets received by them from the deceased, and not pers
onally13.
Where the amount has been specified, the husband will be compelled to pay the wh
ole of it, however excessive it may seem to the court, having regard to the husb
and s means; but in Oudh, only a reasonable amount will be decreed, if the court d
eems the amount to be excessive or fictitous14.
B. Unspecified Dower ( mahr al-mithl
)15
The obligation to pay dower is a legal responsibility on the part of the husband
and is not dependent upon any contract between the parties; in other words, if
marriage, then dower16. Where the dower is specified, any amount, however excess
ive, may be stipulated for. But what are the principles upon which the amount of
dower is to be determined where no agreement exits?
The customary or proper dower of a woman is to be fixed with reference to the so
cial position of her father s family and her own personal qualifications. The soci
al position of the husband and his means are of little account. TheHedaya lays d
own the important rule that her age, beauty, fortune, understanding and virtue mus
t be taken into consideration. Islamic marriage, therefore, safeguards the right
s of a wife and attempts to ensure her an economic status consonant with her own
social standing. Historically speaking, and on the analogy of sale, it is permi
ssible to ask: What have the circumstances of a purchaser to do with the intrinsi
c value of the thing he buys? The answer is that the Indian courts no
13 (1937) 65 I.A. 119.
14 This is called fictitious dower . Sometimes for the purpose of glorification a lar
germahr is announced,
but the realmahr is smaller. Such amahr for the purposes of show is know assum a.
15 Ameer Ali calls it the customary dower.
16 This has been emphasized by the Privy Council in Syed Sabir Husain s Case, (193
7) 65 I.A. 119
11

longer consider marriage as a form of sale or barter, and do not proceed upon th
e analogy
that dower is the price of consortium.
In fixing the amount of the proper dower, regard is to be had to the amount fixe
d in the case of the other female members of the wife s family. Mahr is an essentia
l incident under the Mussalman law to the status of marriage; to such an extend
that is so that when it is unspecified at the time the marriage is contracted th
e law declares that it must be adjudged on definite principles .17 The main consid
eration is the social position of the bride s father s family, and the court will co
nsider the dowers fixed upon her female paternal relation such as sisters or pat
ernal aunts who are considered to be her equals.
The Prophet once allowed the marriage of an indigent person for a silver ring; a
nd on another occasion, merely on the condition that the husband should teach th
e Koran to his wife. In Hanafi law, where the specified dower is less than 10d i
rh am s, the wife is entitled only to the minimum, namely 10dirhams, and in Ithn
a Ashari law, the proper dower can never exceed 500d irh ams, the dower fixed for
the Prophet s daughterFatim a. Thus, among the Shiites there are three kinds ofma
hr:
i.
Mahr-e sunat, the dower supported by tradition, i.e. 500d irh am s;
ii.
Mahr-e mithl, the dower of the like , or the dower of an equal, which is the
technical name for proper or unspecified dower; and
iii.
Mahr-e musamma,the specified dower.
Prompt( mu ajjal) and Deferred(mu ajjal) dower
When the dower is specified, the question arises: At what times and in what prop
ortions is
the amount payable? Here two somewhat puzzling terms are used and it is necessar
y to
17 Syed Sabir Husain s Case, (1937) 65 I.A. 119
12

distinguish carefully between them. The technical term for prompt dower ismu ajjal.
It is derived from a root meaning to hasten, to preced . The termmu ajjal, therefore,
means that which has been hastened or given a priority in point of time . The term
mu ajjal, however, means delayed, deferred , and comes from a root which means to dela
y or postpone . Written in the original Arabic there would be no cause for confusi
on, but in the usual English forms of spelling the words often puzzle those who
are not familiar with the Arabic tongue.
Prompt dower is payable immediately after the marriage, if demanded by the wife;
while deferred dower is payable on the dissolution of the marriage or on the ha
ppening of a specified event. When dower is fixed, it is usual to split it into
two equal parts and to stipulate that one shall be paid at once or on demand, an
d the other on the death of the husband or divorce or the happening of some spec
ified event. But a difficulty arises when it is not settled whether the dower is
prompt or deferred.
In Ithna Ashari law the presumption is that the whole of the dower is prompt; but
in Hanafi law the position is different. The whole of the dower may be promptly
awarded18; but a recent Full Bench decision lays down first, that where thekabi
n-nama is silent on the question, the usage of the wife s family is the main consi
deration; and secondly, that in the absence of proof of custom, the presumption
is that one-half is prompt, and the other half deferred, and the proportion may
be changed to suit particular cases.
INCREASE OR DECREASE OF DOWER
The husband may at any time after marriage increase the dower. Likewise, the wif
e may remit the dower, wholly or partially; and a Muslim girl who has attained p
uberty is competent to relinquish hermahr, although she may not have attained ma
jority (18 years)
18 Per J. Mahmood in Abdul Kadir v.Salima, (1886) 8 All. 149;Husseinkhan v. Gula
b Khatum (sic) (1911)
35 Bom 386.
13

within the meaning of the Indian Majority Act19. The remission of themahr by a w
ife is
called hibat al-mahr or hiba-e mahr.
It has, however, been held in Karachi that in certain cases remission of dower c
annot be upheld. For instance, if a wife feels that the husband is increasingly
showing indifference to her and the only possible way to retain the affection of
her husband is to give up her claim formahr and forgoes her claim by executing
a document, she is not a free agent and it may be against justice and equity to
hold that she is bound by the terms of the deed20.
CHAPTER- IV
NON-PAYMENT OF DOWER
The claim of the wife or widow for the unpaid portion of themahr is an unsecured
debt
due to her from her husband or his estate, respectively. It ranks rateably with
unsecured
19 Qasim Husainv. Bibi Kaniz, (1932) 54 All. 806
20 Shah Banov. Iftekar Muhammed PLD 1956 (W.P.) Kar. 363.
14

debts, and is an actionable claim. During her lifetime the wife can recover the
debt herself from the estate of the deceased husband. If she predeceases the hus
band, the heirs of the wife, including the husband, become entitled to her dower
. A lady, whosemahr was Rs. 50,000, received from her husband during his lifetim
e sums of money in the aggregate exceeding themahr settled on her. The largest o
f such payments was Rs. 3,000. There was no evidence that these payments were in
tended by the husband to satisfy the doer debt. The question arose whether these
payments satisfied the husband s obligation. The Judicial Committee held that suc
h payments were not to be treated as having been made in satisfaction of the dow
er debt.21
Non-payment of Prompt Dower
If the husband refuses the pay prompt dower, the guardian of a minor wife has th
e right to refuse to allow her to be sent to the husband s house; and similarly, t
he wife may refuse the husband his conjugal rights, provided no consummation has
taken place. The wife is under Muhammadan Law entitled to refuse herself to her
husband until the prompt dower is paid; and if in such circumstances she happen
s to reside apart from him, the husband is bound to maintain her.22
This right of refusing her is, however, lost on consummation.23 Thus if the husb
and files a suit for restitution of conjugal rights before cohabitation, non-pay
ment of prompt dower is a complete defence; but after cohabitation, the proper c
ourse is to pass a decree for restitution conditional on the payment of prompt d
ower. This was laid down in the leading case of Anis Begam v. Muhammad Istafa Wa
li Khan.24
21 Mohammad Sadiqv. Fakr Jahan (1931) 59 I.A. 19.
22 Nur-ud-din Ahmadv. Masuda Khanam PLD 1957 Dacca 242; Muhammadiv. Jamiluddin P
LD 1960
Karachi 663.
23 In Lahore it has been held that consummation does not deprive the wife of her
right to refuse conjugal
relations if the prompt dower is not paid, Rahim Jan v.Muham mad, PLD 1955 Lahor
e 122; per contra,
Rabia Khatoonv. Mukhtar Ahmad AIR (1966) All. 548, which, it is submitted is the
correct view.
24 (1933) 55 All. 548. This case is of great importance as Sulaiman C.J. has car
efully considered and
criticized certain dicta of Mahmood J. in the leading case of Abdul Kadir v.Sali
ma (1886) 8 All. 149
15

Non-payment of Deferred Dower

The non-payment of deferred dower by its very nature cannot confer any such righ
t of refusal on the wife. The right to enforce payment arises only on death, div
orce or the happening of a specified event.
The dower ranks as a debt and the widow is entitled, along with the other credit
ors of her deceased husband to have it satisfied out of his estate. Her right, h
owever, is the right of an unsecured creditor; she is not entitled to a charge o
n the husband s property, unless there be an agreement. The Supreme Court of India
has laid down
i.
That the widow has no priority over the creditors, but
ii.
That mahr as a debt has priority over the other heirs claims.25
And the heirs of the deceased are not personally liable to pay the dower; they a
re liable
rateably to the extent of the share of the inheritance which comes to their hand
s.
The Widow s Right of Retention
Muhammadan law gives to the widow, whose dower has remained unpaid a very specia
l
right to enforce her demand. This is known as
the widow s right of retention . A widow lawfully in possession of her deceased husba
nd s estate is entitled to retain such possession until her dower debt is satisfie
d.26 Her right is not in the nature of a regular charge, mortgage or a lien27; i
t is in essence apersonal right as against heirs and creditors to enforce her ri
ghts; and it is a right toreta in, not to obtain, possession of her husband s
25 Kapore Chandv. Kadar Unnissa [1950] S.C.R. 747.
26Mirvahedalliv. Rashidbeg, AIR (1951) Bom. 22
27 Zaibunnissav. Nazim Hasan, AIR (1962) All. 197
16
estate. Once she loses possession of her husband s estate, she loses her special r
ight and is
in no better position than an unsecured creditor.28
The nature of this right was discussed by their lordships of the Privy Council i
nMaina
Bibiv. Chaudhri Vakil Ahmad29 . One Muinuddin died in 1890 possessed of immovabl
e
property leaving him surviving his widow Maina Bibi, who entered into possession
. In 1902 some of the heirs filed a suit to recover possession of their share of
the property. The widow pleaded that the estate was a gift to her, or alternati
vely that she was entitled to possession until her dower was paid. In 1903 the t
rial judge made a decree for possession in favour of the plaintiffs on condition
that the plaintiffs paid a certain sum by way of dower and interest to the wido
w within six months. This sum was not paid, however, and the widow remained in p
ossession, in 1907 Maina Bibi purported to make a gift of the whole of her prope
rty to certain persons. The original plaintiffs challenged this gift and the Pri
vy Council held that the widow had no power to make a gift of the properties, an
d could not convey the share of the heirs to the donees. Their lordships, in dis
cussing the nature of a widow s right of retention, said that
the possession of the property being once peaceably and lawfully acquired, the
right of the widow to retain it till her dower-debt is paid is conferred upon he
r by
Mahomedan Law .30
They further said that it is not exactly an lien, nor a mortgage, usufructuary o
r other.
The widow who holds possession of her husband s property until she has been
paid her dower has no estate or interest in the property as a mortgagee under an
ordinary mortgage .31
28Ibid
29 (1924) 52 I.A. 145.
30Id at p. 150.
31Id at p. 151.
17

Thus, in essence, it is a personal right given by Muhammadan kaw to safeguard th

e
position of the widow.32
The Supreme Court has laid down that a Muslim widow in possession of her decease
d husband s estate in lieu of her claims for dower, whether with the consent of th
e heirs or otherwise, is not entitled to priority as against his unsecured credi
tors.33
There is a conflict of opinion whether in order to retain possession the consent
, express or implied, of the husband or his heirs is necessary. Some judges are
of opinion that such consent is necessary; others, that it is not. It is submitt
ed with great respect, that on first principles, having regard to the nature of
the right, the consent of the husband or his heirs is immaterial. Muhammadan law
casts a special obligation on every debtor to pay his debt, and the right of th
e widow for her dower is a debt for which the widow has a good safeguard. Thus,
the question of consent appears to be immaterial.
The right to retention does not confer on the widow any title to the property. H
er rights are twofold: one, as heir of the deceased and two, as widow entitled t
o her dower and, if necessary, to retain possession of the estate until hermahr
has been paid. The right to hold possession must, therefore, be sharply distingu
ished from her right as an heir. The widow, in these circumstances, has the righ
t to have the property administered, her just debts satisfied and her share of t
he inheritance ascertained and paid. She has no right to alienate the property b
y sale, mortgage, gift or otherwise, and if she attempts to do so, she loses her
right ofmahr.
There are two other major questions on which the law is still unsettled. Can the
widow
transfer her right of retention? And is this right of retention heritable? In Ma
ina Bibiv.
Chaudhri Vakil Ahmad34 their lordships expressed a doubt whether a widow could t
ransfer
the dower debt or the right to retain the estate until themahr was paid. Followi
ng that
case there has been much conflict of judicial opinion on the questions as to the
heritability
32 The Patna High Court has adopted this view, Abdul Samad v.Alimuddin (1943) 22
Pat. 750.
33Supra Note 25
34Supra Note 29
18

and transferability of this right. The Mysore and Allahabad High Coutrs have dec
ided that the right is both heritable and transferable35; but the Patna High Cou
rt has held that the widow s is a personal right, and not a lien, and as such, it
is not transferable.36 Although there is a conflict of opinion, in view of Kapor
e Chand s case, the balance of authority seems to be in favour of the Patna view.
CHAPTER- V
ANALYSIS OF SOME CASES
1) Mohd. Ahmed Khan v. Shah Bano Begum and Ors.37
CITATION REFERED? MANU/SC/0 1 9 4 /1 9 8 5
DECIDED ON?23.04.1985
HON BLE JUDGES? Y.V. Chandrachud, C.J., D.A. Desai, E.S. Venkataramiah, O.
Chinnappa Reddy and Ranganath Misra, JJ.
35 Hussainv. Rahim Khan AIR (1954) Mysore 24; Zaibunnissav. Nazim Hasan AIR (196
2) All. 197.
36 Zobair Ahmadv. Jainandan Prasad AIR (1960) Pat. 147.
37 AIR 1985 SC 945
19

FACTS?
?The appellant, who is an advocate by profession, was married to the respondent
in
1932. Three sons and two daughters wire born of that marriage.
?In 1975 the appellant drove the respondent out of the matrimonial home.
?In April 1978, the respondent filed a petition against the appellant under Sect
ion
125 of the Code in the court of the learned Judicial Magistrate (First Class),
Indore asking for maintenance at the rate of Rs. 500 per month.
?On November 6, 1978 the appellant divorced the respondent by an irrevocable
talaq. His defence to the respondent s petition for maintenance was that she had c
eased to be his wife by reason of the divorce granted by him, to provide that he
was therefore under no obligation maintenance for her, that he had already paid
maintenance to her at the rate of Rs. 200 per month for about two years and tha
t, he had deposited a sum of Rs. 3000 in the court by way of dower during the pe
riod the ofiddat.
?In August, 1979 the learned Magistrate directed appellant to pay a princely sum
of
Rs. 25 per month to the respondent by way of maintenance. It may be mentioned th
at the respondent had alleged that the appellant earns a professional income of
about Rs. 60,000 per year.
?In July, 1980 in a revisional application filed by the respondent, the High cou
rt of
Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month.
?The husband thus came before the Supreme Court by Special leave.
RELEVANT ISSUE?
1) Would the payment ofmahr indemnify the husband from his obligation under the
provisions of Section 125 Cr.P.C?
DECISION?
?The Court decided thatmahr is different from a sum payable on divorce which
occurs in Section 127(3)(b) of Cr.P.C and hence does not indemnify the husband
from his obligation under the provisions of Section 125 Cr.P.C.
20
REASONING?
?In Mulla s principles of Mahomedan Law (18th Edition, page 308),mahr or
Dower is defined in paragraph 285 as a sum of money or other property which
the wife is entitled to receive from the husband in consideration of the marriag
e.
?Dr. Paras Diwan in his book, Muslim Law in Modern India (1982 Edition, page
60), criticises this definition on the ground thatmahr is not payable in consider
ation of marriage but is an obligation imposed by law on the husband as a mark of
respect for the wife, as is evident from the fact that non-specification of
mahr at the time of marriage does not affect the validity of the marriage.
?Under the Muslim Personal Law, the amount ofmahr is usually split into two
parts, one of which is called prompt , which is payable on demand, and the other is
called deferred which is payable on the dissolution of the marriage by death or b
y divorce.
?But, the fact that deferredmahr is payable at the time of the dissolution of
marriage, cannot justify the conclusion that it is payable on divorce . Even assumi
ng that, in a given case, the entire amount ofmahr is of the deferred variety pa
yable on the dissolution of marriage by divorce, it cannot be said that it is an
amount which is payable on divorce.
?Divorce maybe a convenient or identifiable point of time at which the deferred
amount has to be paid by the husband to the wife. But, the payment of the amount
is not occasioned by the divorce, which is what is meant by the expression on di
vorce , which occurs in Section 127(3)(b) of the Code.
?Ifmahr is an amount which the wife is entitled to receive from the husband in
consideration of the marriage, that is the very opposite of the amount being pay
able in consideration of divorce. Divorce dissolves the Marriage. Therefore no a
mount which is payable in consideration of the marriage can possibly be describe
d as an amount payable in consideration of divorce.
?The alternative premise thatmahr is an obligation imposed upon the husband as a
mark of respect for the wife, is wholly detrimental to the stance that it is an
amount payable to the wife on divorce. A man may marry a woman for love,
21
looks, learning or nothing at all. And he may settle a sum upon her as a mark of
respect for her. But he does not divorce her as a mark of respect.
?Therefore, a sum payable to the wife out of respect cannot be a sum payable on
divorce .
2) Md. Nayeem Khan v .Union Law Secretary, Government of India, New Delhi and
others38
CITATION REFERED? MA NU /A P /0 5 1 6 /2 0 0 1
DECIDED ON?10.07.2001
HON BLE JUDGES? Satya Brata Sinha, C.J. and V.V.S. Rao, J
FACTS?
?This case is based on a very complex factual matrix. However, the relevant issu
e
to be discussed does not require much elaboration of facts. Hence, the author is
not mentioning the facts.
RELEVANT ISSUE?
38 2001 (5) ALD 145
22

1) Whether Muslim women entitled to retain possession of husband s immovable

property even after divorce, until her dower debt is satisfied?
DECISION?
?The Court decided that a Muslim widow is conferred with the right to retain
property in lieu of payment of mahr till it is paid off, whether she is divorced o
r
her husband is deceased.
REASONING?
?A principle of Muslim law confers a right on the widow to retain the immovable
property of her late husband in her possession in lieu of payment ofMahr till th
e
same is paid off.
?Possibly the same principle may be extended having regard to the rationale behi
nd
the said principle to cases where the divorced wife is in possession of a house
of the husband or in regard to the matrimonial home where she is residing. She m
ay be entitled to retain possession of the house of the husband who divorced her
till themahr amount is paid off.
23
3) Kapore Chand v . Kadar Unnisa Begum and Ors.39
CITATION REFERED? MANU/SC/0 0 4 3 /1 9 5 0
DECIDED ON?12.10.1950
HON BLE JUDGES? Mehr Chand Mahajan, R.C. Patnaik and Khaliluzzaman, JJ.
FACTS?
?The appellant, Kapurchand, had a money decree, amongst others; against one Mir
Hamid Ali Khan, husband of the respondent Kaderunnisa.
?In execution of the decree the house in dispute belonging to the deceased
judgment-debtor was attached.
?To the attachment the widow of the deceased raised an objection on the ground
that she was in possession of it in lieu of her outstanding dower and could not
be
dispossessed her claim was satisfied.
39 AIR 1953 SC 413,
24

?The objection was allowed by the executing court and it was ordered that the
house be sold subject to the respondent s claim, the decree-holder being entitled
to the surplus, if any, out of the sale proceeds. There was not much possibility
of the house fetching more in the execution sale than the amount due on account
of dower. The court took the view that the widow s claim for dower had priority o
ver debts due to other unsecured creditors and her position was analogous to tha
t of a secured creditor.
?The decree-holder made an application in revision to the High Court but without
any success. He then preferred an appeal to the Judicial Committee of the State
and it is now before the Supreme Court of India.
ISSUE?
1) Whether widow possessing husband s estate in lieu of dower entitled to priority
over
other creditors?
DECISION?
?The Court decided that a widow possessing husband s estate in lieu of dower is
not entitled to priority over creditors; however it is entitled priority against
heirs
of the deceased husband.
REASONING?
?The dower of a Muslim woman is a settlement in her favour made prior to the
marriage contract and is similar to the donatio proper nuptias of the Romans but
is of such an obligatory nature that if it is not mentioned before or at the ti
me of the marriage, it is presumed to exist to the extent of a proper dower amou
nt
?
The Muslim concept of dower has no reference to the price that under some system
s of law was paid to the father of the bride when she was given in marriage. On
the other hand, it is considered a debt with consideration (for the submission o
f her person by the wife).
?Therefore dower is purely in the nature of a marriage settlement and is for
consideration. It is a claim arising out of contract by the husband and as such
has
25
preference to bequests and inheritance, but on no principle of Muhammadan Law
it can have priority over other contractual debts.
?In our view, therefore, a dower debt cannot be given any priority over other de
bts
on any equitable consideration or on the ground that there is something inherent
in
its very nature which entitles it to priority.
4) Zobair Ahmad and Anr. v . Jainandan Prasad Singh40
CITATION REFERED? MANU/BH/0 0 4 5 /1 9 6 0
DECIDED ON?05.08.1959
HON BLE JUDGES? V. Ramaswami, C.J. and Kanhaiya Singh, J.
FACTS?
SALAMAT
______________|__________________
|
|
|
|
Sakram Saliman
Marian
Tetu
|
|
Bashiruddin Naffisa (defnt. 2)
_____________
|
|
Zobair Ahmed
Zaibunnisa
(plaintiff 1)
(plaintiff 2)
40 AIR 1960 Pat 147
26

?Bashiruddin, who was admittedly the owner of the 16 annas of the property, died
in the year 1937.
?It appears that on 7-5-1945, Naffisa and Bibi Saliman executed a sale-deed (Ext
.
B) in favour of defendant No. 1 in respect of the 16 annas share in the properti
es in dispute. This sale-deed was executed by Bibi Naffisa on her own behalf as
well as the guardian of her two children, namely, the two plaintiffs.
?After attaining majority the two plaintiffs filed the present suit for recovery
of
possession of their 14 annas share in the properties. The allegation was that th
eir
mother had no right to convey the property to defendant No. 1.
?The suit was contested by defendant No. 1 on the ground that defendant No. 2
came in possession of the properties in lieu of her dower debt, that defendant N
o. 2 was appointed the executor of the properties of Bashiruddian and the legal
guardian of the plaintiffs and that the transaction was for the benefit of the p
laintiffs and it could not, therefore, be impeached.
?The trial court decreed the suit in favour of the plaintiffs but that decree ha
s been
set aside by the lower appellate court in appeal.
?And hence this present appeal.
ISSUE?
1) Whether a widow has a right to transfer her right to dower debt or any posses
sion in
lieu it?
DECISION?
?The Court decided that a widow cannot transfer her right to dower debt or any
possession in lieu it. However, she may transfer the share of the property which
has inherited as the wife of the deceased husband and not the one received in l
ieu of the payment ofmahr.
REASONING?
27
?Precedence must be given to the decision of the Privy Council in AIR 1925 PC 63
and the view expressed by the Madras High Court in AIR 1920 Mad 666 cannot be he
ld to be authoritative in view of the decision of the Privy Council in AIR 1925
PC 63.
?Privy Council in Maina Bibi v. Chaudhri Vakil Ahmad41 . One Muinuddin died in
1890 possessed of immovable property leaving him surviving his widow Maina Bibi,
who entered into possession. In 1902 some of the heirs filed a suit to recover
possession of their share of the property. The widow pleaded that the estate was
a gift to her, or alternatively that she was entitled to possession until her d
ower was paid.
?In 1903 the trial judge made a decree for possession in favour of the plaintiff
s on
condition that the plaintiffs paid a certain sum by way of dower and interest to
the
widow within six months.
?This sum was not paid, however, and the widow remained in possession,
meanwhile Maina Bibi purported to make a gift of the whole of her property to
certain persons.
?The original plaintiffs challenged this gift and the Privy Council held that th
e
widow had no power to make a gift of the properties, and could not convey the
share of the heirs to the donees.
41 AIR 1925 PC 63
28

5) Daniel Latifiv. Union of India15

Facts in Brief
In this case, the constitutional validity of the Muslim Women (Protection of Rig
hts on Divorce) Act, 1986 was challenged before the Supreme Court. The Act was p
assed to appease a particular section of the society and with the intention of m
aking the decision in case of Mohd. Ahmed Khan v. Shah Bano Begum ineffective.
In the Shahbano s case , the husband had appealed against the judgment of the Madh
ya Pradesh High Court which had directed him to pay to his divorced wife Rs. 179
/- per month, enhancing the paltry sum of Rs. 25 per month originally granted by
the Magistrate. The parties had been married for 43 years before the ill and el
derly wife had been thrown out of her husband's residence. For about two years t
he husband paid maintenance to his wife at the rate of Rs. 200/- per month. When
these payments ceased she petitioned under Section 125 of the Code of Criminal
Procedure (Cr.P.C.). The husband immediately dissolved the marriage by pronounci
ng a tripletalaq. He paid Rs.3000/- as deferredmahr and a further sum to cover a
rrears of maintenance and maintenance for theiddat period and he sought thereaft
er to have the petition dismissed on the ground that she had received the amount
due to her on divorce under the Musilm law applicable to the parties. The impor
tant feature of the case was that wife had managed
29

the matrimonial home for more than 40 years and had borne and reared five childr
en and was incapable of taking up any career or independently supporting herself
at that late state of her life - remarriage was impossibility in that case. The
husband, a successful Advocate with an approximate income of Rs. 5,000/- per mo
nth provided Rs. 200/- per month to the divorced wife, who had shared his life f
or half a century and mothered his five children and was in desperate need of mo
ney to survive.
Contentions
The petitioner argued, (a) that the rationale of Section 125 Cr.P.C. was to offs
et or meet a situation wherein a divorced wife was likely to be led into destitu
tion or vagrancy. It was urged that Section 125 Cr.P.C. was enacted to prevent s
uch a situation in furtherance of the concept of social justice embodied in Arti
cle 21 of the Constitution. (b) That the object of Section 125 Cr.P.C. being to
avoid vagrancy, the remedy thereunder could not be denied to a Muslim woman othe
rwise it would amount to violation of not only equality before law but also equa
l protection of laws (Article 14) and inherent infringement of Article 21 as wel
l as basic human values. (c) That the Act was un-Islamic, unconstitutional and h
ad the potential of suffocating the Muslim women while also undermining the secu
lar character, which was the basic feature of the Constitution. And thus there w
as no rhyme or reason to deprive the Muslim women from the applicability of the
provisions of Section 125 Cr.P.C.
Defending the validity of the enactment, it was argued on behalf of the responde
nts that (a) if the legislature, as a matter of policy, wanted to apply Section
125 Cr.P.C. to Muslims, it also meant that the same legislature could, by necess
ary implication, withdraw such an application of the Act and make some other pro
vision in that regard. (b) Parliament could amend Section 125 Cr.P.C. so as to e
xclude it application and apply
30

personal law instead. (c) That the policy of Section 125 Cr.P.C. was not to crea
te a right of
maintenancedehors the personal law and therefore could not stand in the way of t
he Act.
Judgement
Upholding the validity of the Act, the Supreme Court held as follows;
A Muslim husband is liable to make reasonable and fair provision for the future
of the divorced wife which obviously includes her maintenance as well. Such a re
asonable and fair provision extending beyond theiddat period must be made by the
husband within theiddat period in terms of Section 3(1)(a) of the Act,
Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) o
f
the Act to pay maintenance is not confined toiddat period,
A divorced Muslim woman who has not remarried and who is not able to maintain he
rself afteriddat period can proceed as provided under Section 4 of the Act again
st her relatives who are liable to maintain her in proportion to the properties
which they inherit on her death according to Muslim law from such divorced woman
including her children and parents. If any of the relatives being unable to pay
maintenance, the Magistrate may direct the State Wakf Board established under t
he Act to pay such maintenance.
The provisions of the Act do not offend Articles 14, 15 and 21 of the Constituti
on
of India.
Analysis
It is unfortunate to note that the Court did not strike down the Act which purpo
rts to exclude Muslim women in particular from the beneficial treatment of Secti
on 125. The legislature to appease the Muslim gentry may have passed the Act on
political consideration but that same has rendered an indirect classification of
people of the basis of religion, which is against the fundamental rights.
Other than the above cases, following are some case, which are there just to sup
plement
the effort of judiciary towards them.
In Shamim Ara v. State of U.P16 the Supreme Court streamlined the position regar
ding the
requirements for a valid Talaq under the Muslim law. The Court held that the cor
rect law
31

of talaq as ordained by the Holy Quran is that talaq must be for a reasonable ca
use and be preceded by attempts at reconciliation between the husband and the wi
fe by two arbiters- one from the wife's family and the other from the husband's;
if the attempts fail, talaq may be effected.
In Savitri Pandey v. Prem Chand Pandey17 the Supreme Court held that the second
marriage by a spouse during the subsistence of an appeal by the other spouse aga
inst the decree of divorce would be subject to the end result of the proceedings
. The court further observed: There is no denial of the fact that right of at lea
st one appeal is a recognised right under all systems of civilised legal jurispr
udence. If despite the pendency of the appeal, the appellant chose to solemnise
the second marriage, the adventure is deemed to have been undertaken at her own
risk and the ultimate consequences arising of the judgment in the appeal pending
in the High Court. No person can be permitted to flout the course of justice by
his or her overt and covert acts. At this stage we would like to observe that t
he period of limitation prescribed for filing the appeal under Section 28(4) is
apparently inadequate which facilitates the frustration of the marriages by the
unscrupulous litigant spouses. We are of the opinion that a minimum period of 90
days may be prescribed for filing the appeal against any judgment and decree un
der the Act and any marriage solemnised during the aforesaid period be deemed to
be void. Appropriate legislation is required to be made in this regard. We dire
ct the Registry that the copy of this judgment may be forwarded to the Ministry
of Law & Justice for such action as it may deem fit to take in this behalf . The l
egislature accepted this request of the apex Court of India and enhanced the per
iod of appeal from 30 days to 90 days, which is an appropriate step in the right
direction.
InAmina v. Hassn Koya18 the Supreme Court while adjudicating upon the validity o
f a marriage entered into by a pregnant Muslim female observed: It is very diffi
cult to believe that a woman who is five months pregnant will be able to conceal
the pregnancy from the husband. Such an advanced stage of pregnancy cannot be c
oncealed as the pregnancy starts showing by that time. In any case the pregnancy
cannot be concealed from the husband. A husband will at least know for sure tha
t the wife is pregnant
32

especially when the pregnancy is five months old. Therefore, we cannot accept th
at that the respondent did not know at the time of marriage that the appellant w
as already pregnant. If this fact was known to the respondent, the marriage cann
ot be said to be illegal or void. Also, the conduct of the respondent at the rel
evant time is to be considered. He went through the marriage. He did not raise a
ny objection even after the marriage. He was present at the time of delivery of
the child. Presumably he gave his own name as the name of the father of the chil
d for the official record. Even thereafter, for nearly four years he went along
with the marriage and brought up the child while treating the appellant as his w
ife. Any person, who learns that his newly married wife is already pregnant for
five months and who does not accept that marriage or pregnancy, will not behave
in the manner in which the respondent did. In the present case, the facts on rec
ord show that the husband was aware of the pregnancy of the wife at the time of
the marriage. Therefore, such a marriage cannot be said to be invalid .
In B.S. Joshi & Ors v. State of Haryana & Anr19 the Supreme Court held that the
High Court in exercise of its inherent powers can quash criminal proceedings or
FIR or complaint and Section 320 of the Code does not limit or affect the powers
under Section 482 of the Code. The Court observed: The special features in such
matrimonial matters are evident. It becomes the duty of the Court to encourage g
enuine settlements of matrimonial disputes. There has been an outburst of matrim
onial disputes in recent times. Marriage is a sacred ceremony, the main purpose
of which is to enable the young couple to settle down in life and live peacefull
y. But little matrimonial skirmishes suddenly erupt which often assume serious p
roportions resulting in commission of heinous crimes in which elders of the fami
ly are also involved with the result that those who could have counselled and br
ought about rapprochement are rendered helpless on their being arrayed as accuse
d in the criminal case. There are many other reasons which need not be mentioned
here for not encouraging matrimonial litigation so that the parties may ponder
over their defaults and terminate their disputes amicably by mutual agreement in
stead of fighting it out in a court of law where it takes years and years to con
clude and in that process the parties lose their "young" days in chasing their "
cases" in different courts.
33

There is every likelihood that non-exercise of inherent power to quash the proce
edings to
meet the ends of justice would prevent women from settling earlier .
In K.A. Abdul Jaleel v. T.A. Shahida20, the Supreme Court held that the Family C
ourt has jurisdiction to adjudicate upon any question relating to the properties
of divorced parties. The Court observed: The Family Courts Act was enacted to pr
ovide for the establishment of Family Courts with a view to promote conciliation
in, and secure speedy settlement of, disputes relating to marriage and family a
ffairs and for matters connected therewith. From a perusal of the Statement of O
bjects and Reasons, it appears that the said Act, inter alia, seeks to exclusive
ly provide within the jurisdiction of the Family Courts the matters relating to
the property of the spouses or either of them. The Statement of Objects and Reas
ons would clearly go to show that the jurisdiction of the Family Court extends,
inter alia, in relation to properties of spouses or of either of them which woul
d clearly mean that the properties claimed by the parties thereto as a spouse of
other; irrespective of the claim whether property is claimed during the subsist
ence of a marriage or otherwise .
34
CHAPTER VI
CONCLUSION
In conclusion, all that can be said is that Mahr is a mandatory gift given by th
e groom to the bride. Unlike a bride price, however, it is given directly to the
bride and not to her father. Although the gift is often money, it can be anythi
ng agreed upon by bride and groom such as a house or viable business that is put
in her name and can be run and owned entirely by her if she chooses.
In today s terms, it has taken a very wide scope and many important constitutional
questions have also cropped up. However, in my opinion, even though Dower serve
s as security for the girl, it should entirely be scrapped. Infact, all personal
laws should be scrapped and a uniform civil code should be brought in. This sha
ll make the Indian Society live in a state of perfect harmony.
35
Dower
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please tell me high rate of dower check the rate of divorce
07 / 28 / 2010
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very good w. pls send me all about dower.ahmedsadatkama72@yahoo.com
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Shamim Ara vs State Of U.P. & Anr on 1 October, 2002
Cites 5 docs
The Code Of Criminal Procedure, 1973
Article 15(3) in The Constitution Of India 1949
The Limitation Act, 1963
Article 104 in The Constitution Of India 1949
The Indian Divorce Act, 1869
Citedby 45 docs - [View All]
Manzoor Ahmad Khan vs Mst. Saja And Three Ors. on 9 October, 2003
Rafeeq vs Ashida.K on 3 February, 2009
Anwor Ali Halder vs Sakina Bibi And Anr. on 21 April, 2005
Nizar, Aged 43 Years vs State Of Kerala on 28 August, 2008
Shahzad vs Anisa Bee And Ors. on 5 January, 2006
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Supreme Court of India
Bench: R Lahoti, P Reddi.
CASE NO.:
Appeal (crl.) 465 of 1996
PETITIONER:
Shamim Ara
RESPONDENT:
State of U.P. & Anr.
DATE OF JUDGMENT: 01/10/2002
BENCH:
R.C. LAHOTI & P.VENKATARAMA REDDI.
JUDGMENT:
J U D G M E N T
R.C. Lahoti, J.
Shamim Ara, the appellant and Abrar Ahmad, the respondent no.2 were married some
time in 1968 according to Muslim Shariyat Law. Four sons were born out of the w
edlock. On 12.4.1979, the appellant, on behalf of herself and for her two minor
children, filed an application under Section 125 Cr.P.C. complaining of desertio
n and cruelty on the part of respondent no.2 with her. By order dated 3.4.1993 t
he learned Presiding Judge of the Family Court at Allahabad refused to grant any
maintenance to the appellant on the ground that she was already divorced by the
respondent and hence not entitled to any maintenance. However, maintenance at t
he rate of Rs.150/- per month was allowed for one son of the appellant for the p
eriod during which he remained a minor; the other one having become major during
the pendency of the proceedings.
The respondent no.2 in his reply (written statement) dated 5.12.1990, to the app
lication under Section 125 Cr.P.C., denied all the averments made in the applica
tion. One of the pleas taken by way of additional pleas is that he had divorced
the appellant on 11.7.1987 and since then the parties had ceased to be spouses.
He also claimed protection behind the Muslim Women (Protection of Rights on Divo
rce) Act, 1986 and submitted that the respondent no.2 had purchased a house and
delivered the same to the appellant in lieu of Mehar (Dower), and therefore, the
appellant was not entitled to any maintenance. No particulars of divorce were p
leaded excepting making a bald statement as already stated hereinabove. The appe
llant emphatically denied having been divorced at any time. The respondent no.2,
when he appeared in the witness-box, stated having divorced the appellant on 11
.7.1987 at 11 a.m. in the presence of Mehboob and other 4-5 persons of the neigh
bourhood. He further stated that since 1988 he had not paid anything either to t
he appellant or to any of the four sons for their maintenance. The divorce said
to have been given by him to the appellant was a triple talaq though such a fact
was not stated in the written statement. The Family Court in its order dated 3.
4.1993 dealt with and upheld a strange story of divorce totally beyond the case
set up by the respondent no.2. The learned Presiding Judge referred to some affi
davit dated 31.8.1988 said to have been filed by the respondent No.2 in some civ
il suit details whereof are not available from the record of the present case bu
t certainly to which litigation the appellant was not a party. In that affidavit
it was stated by the respondent no.2 that he had divorced the appellant 15 mont
hs before. The learned Judge held that from such affidavit the plea of the respo
ndent no.2 found corroboration of his having divorced the appellant. The learned
Judge concluded that the appellant was not entitled to any maintenance in view
of her having been divorced. The appellant preferred a revision before the High
Court. The High Court held that the divorce which is alleged to have been given
by the respondent no.2 to the appellant was not given in the presence of the app
ellant and it is not the case of the respondent that the same was communicated t
o her. But the communication would stand completed on 5.12.1990 with the filing
of the written statement by the respondent no.2 in the present case. Therefore,
the High Court concluded that the appellant was entitled to claim maintenance fr
om 1.1.1988 to 5.12.1990 (the later date being the one on which reply to applica
tion under Section 125 Cr.P.C. was filed by the respondent No.2 in the Court) wh
ereafter her entitlement to have maintenance from respondent no.2 shall cease. T
he figure of maintenance was appointed by the High Court at Rs.200/-.
The appellant has filed this appeal by special leave. The singular issue arising
for decision is whether the appellant can be said to have been divorced and the
said divorce communicated to the appellant so as to become effective from 5.12.
1990, the date of filing of the written statement by the respondent no.2 in thes
e proceedings. None of the ancient holy books or scriptures of muslims mentions
in its text such a form of divorce as has been accepted by the High Court and th
e Family Court. No such text has been brought to our notice which provides that
a recital in any document, whether a pleading or an affidavit, incorporating a s
tatement by the husband that he has already divorced his wife on an unspecified
or specified date even if not communicated to the wife would become an effective
divorce on the date on which the wife happens to learn of such statement contai
ned in the copy of the affidavit or pleading served on her. Mulla on Principles
of Mahomedan Law (Nineteenth Edition, 1990) states vide para 310:-
"310. Talak may be oral or in writing.__
A talak may be effected (1) orally (by spoken words) or (2) by a written documen
t called a talaknama (d).
(1) Oral Talak. __ No particular form of
words is prescribed for effecting a talak. If the words are express (saheeh)or w
ell understood as implying divorce no proof of intention is required. If the wor
ds are ambiguous (kinayat), the intention must be proved (e). It is not necessar
y that the talak should be pronounced in the presence of the wife or even addres
sed to her (f). In a Calcutta case the husband merely pronounced the word "talak
" before a family council and this was held to be invalid as the wife was not na
med (g). This case was cited with approval by the Judicial Committee in a case w
here the talak was valid though pronounced in the wife's absence, as the wife wa
s named (h). The Madras High Court has also held that the words should refer to
the wife (i). The talak pronounced in the absence of the wife takes effect thoug
h not communicated to her, but for purposes of dower it is not necessary that it
should come to her knowledge (j); and her alimony may continue till she is info
rmed of the divorce (k). As the divorce becomes effective for purposes of dower
only when communicated to the wife, limitation under Art. 104 for the wife's sui
t for deferred dower ran from the time when the divorce comes to her notice (l),
under the Act of 1908. See also the Limitation Act, 1963.
Words of divorce.__ The words of divorce
must indicate an intention to dissolve the marriage. If they are express (saheeh
), e.g., "Thou art divorced," "I have divorced thee," or "I divorce my wife for
ever and render her haram from me" [Rashid Ahmad v. Anisa Khatun (1932) 59 I.A.
21], they clearly indicate an intention to dissolve the marriage and no proof of
intention is
necessary. But if they are ambiguous (kinayat), e.g., "Thou art my cousin, the d
aughter of my uncle, if thou goest" [Hamid Ali v. Imtiazan (1878) 2 All.71] or "
I give up all relations and would have no connection of any sort with you" [Waji
d Ali v. Jafar Husain (1932) 7 Luck, 430, 136 I.C. 209, ('32) A.O.34], the inten
tion must be proved.
Pronouncement of the word talak in the
presence of the wife or when the knowledge of such pronouncement comes to the kn
owledge of the wife, results in the dissolution of the marriage. The intention o
f the husband is inconsequential. Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys. L
.J. 566.
If a man says to his wife that she has been divorced yesterday or earlier, it le
ads to a divorce between them, even if there be no proof of a divorce on the pre
vious day or earlier."
[(f) Ma Mi v. Kallander Ammal, supra;
Ahmad Kasim v. Khatoon Bibi (1932) 59
Cal. 833, 141 I.C. 689, ('33) A.C. 27;
Fulchand v. Nazib Ali (1909) 36 Cal.
184, 1 I.C. 740; Sarabai v. Rabiabai
(1905) 30 Bom. 536 (obiter).
(g) Furzund Hussein v. Janu Bibee (1878) 4
Cal. 588.
(h) Rashid Ahmad v. Anisa Khatoon (1932)
59 I.A. 21, 54 All.46, 135 I.C. 762, ('32)
A.P.C. 25.
(i) Asha Bibi v. Kadir, supra.
(j) Fulchand v. Nazib Ali, supra.
(k) Ma Mi v. Kallandar Ammal, supra;
Abdul Khader v. Azeeza Bee (1944) 1
M.L.J. 17, 214 I.C. 38, ('44) A.M. 227.
(l) Kathiyumma v. Urathel Marakkar (1931)
133 I.C. 375, ('31) A.M. 647.]
The statement of law by Mulla as contained in para 310 and footnotes thereunder
is based on certain rulings of Privy Council and the High Courts. The decision o
f A.P. High Court in (1975) 1 APLJ 20 has also been cited by Mulla in support of
the proposition that the statement by husband in pleadings filed in answer to p
etition for maintenance by wife that he had already divorced the petitioner (wif
e) long ago operates as divorce.
We will offer our comments on this a little later. Immediately we proceed to not
ice a few other authorities. In Dr. Tahir Mahmood's 'The Muslim Law of India' (S
econd Edition, at pp.113119), the basic rule stated is that a Muslim husband und
er all schools of Muslim Law can divorce his wife by his unilateral action and w
ithout the intervention of the Court. This power is known as the power to pronou
nce a talaq. A few decided cases are noticed by the learned author wherein it ha
s been held that a statement made by the husband during the course of any judici
al proceedings such as in wife's suit for maintenance or restitution of conjugal
rights, or the husband's plea of divorce raised in the pleadings did effect a t
alaq. Such liberal view of talaq bringing to an end the marital relationship bet
ween Muslim spouses and heavily loaded in favour of Muslim husbands has met with
 criticism and strong disapproval at the hands of eminent jurists.
V. Khalid, J., as His Lordship then was, observed in Mohammed Haneefa Vs. Pathum
mal Beevi, 1972 K.L.T. 512 __ "I feel it my duty to alert public opinion towards
a painful aspect that this case reveals. A Division Bench of this court, the hi
ghest court for this State, has clearly indicated the extent of the unbridled po
wer of a muslim husband to divorce his wife. I am extracting below what Their Lo
rdships have said in Pathayi v. Moideen (1968 KLT 763). "The only condition nece
ssary for the valid exercise of the right of divorce by a husband is that he mus
t be a major and of sound mind at that time. He can effect divorce whenever he d
esires. Even if he divorces his wife under compulsion, or in jest, or in anger t
hat is considered perfectly valid. No special form is necessary for effecting di
vorce under Hanafi law .. The husband can
effect if by conveying to the wife that he is repudiating the alliance. It need
not even be addressed to her. It takes effect the moment it comes to her knowled
ge."
Should muslim wives suffer this tyranny for all times? Should their personal law
remain so cruel towards these unfortunate wives? Can it not be amended suitably
to alleviate their sufferings? My judicial conscience is disturbed at this mons
trosity. The question is whether the conscience of the leaders of public opinion
of the community will also be disturbed."(p.514)
In an illuminating judgment, virtually a research document, the eminent judge an
d jurist V.R. Krishna Iyer, J., as His Lordship then was, has made extensive obs
ervations. The judgment is reported as A. Yousuf Rawther Vs. Sowramma, AIR 1971
Kerala 261. It would suffice for our purpose to extract and reproduce a few out
of the several observations made by His Lordship:-
"The interpretation of a legislation,
obviously intended to protect a weaker section of the community, like women, mus
t be informed by the social perspective and purpose and, within its grammatical
flexibility, must further the beneficent object. And so we must appreciate the I
slamic ethos and the general sociological background which inspired the enactmen
t of the law before locating the precise connotation of the words used in the st
atute. (para 6)
"Since infallibility is not an attribute of the judiciary, the view has been ven
tured by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic
law of divorce has not exactly been just to the Holy Prophet or the Holy Book.
Marginal distortions are inevitable when the Judicial Committee in Downing Stree
t has to interpret Manu and Muhammad of India and Arabia. The
soul of a culture __ law is largely the formalized and enforceable expression of
a community's cultural norms __ cannot be fully understood by alien minds. The
view that the Muslim husband enjoys an arbitrary, unilateral power to inflict in
stant divorce does not accord with Islamic injunctions." (para 7)
"It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbr
idled
authority to liquidate the marriage. "The whole Quoran expressly forbids a man t
o seek pretexts for divorcing his wife, so long as she remains faithful and obed
ient to him, 'if they (namely, women) obey you, then do not seek a way against t
hem'." (Quaran IV:34). The Islamic "law gives to the man primarily the faculty o
f dissolving the marriage, if the wife, by her indocility or her bad character,
renders the married life unhappy; but in the absence of serious reasons, no man
can justify a divorce, either in the eye of religion or the law. If he abandons
his wife or puts her away in simple caprice, he draws upon himself the divine an
ger, for the curse of God, said the Prophet, rests on him who repudiates his wif
e capriciously." (para 7)
"Commentators on the Quoran have rightly
observed __ and this tallies with the law now administered in some Muslim countr
ies like Iraq __ that the husband must satisfy the court about the reasons for d
ivorce. However, Muslim law, as applied in India, has taken a course contrary to
the spirit of what the Prophet or the Holy Quoran laid down and the same miscon
ception vitiates the law dealing with the wife's right to divorce." (para 7)
"After quoting from the Quoran and the
Prophet, Dr. Galwash concludes that "divorce is permissible in Islam only in cas
es of extreme emergency. When all efforts for effecting a reconciliation have fa
iled, the parties may proceed to a dissolution of the marriage by 'Talaq' or by
'Khola'. . . . . . . . . . . . . . Consistently with the secular concept of marr
iage and divorce, the law insists that at the time of Talaq the husband must pay
off the settlement debt to the wife and at the time of Kholaa she has to surren
der to the husband her dower or abandon some of her rights, as compensation." (p
ara 7)
There is yet another illuminating and weighty judicial opinion available in two
decisions of Gauhati High Court recorded by Baharul Islam, J. (later a Judge of
the Supreme Court of India) sitting singly in Sri Jiauddin Ahmed Vs. Mrs. Anwara
Begum, (1981) 1 GLR 358 and later speaking for the Division Bench in Must. Ruki
a Khatun Vs. Abdul Khalique Laskar, (1981) 1 GLR 375. In Jiauddin Ahmed's case a
plea of previous divorce, i.e. the husband having divorced the wife on some day
much previous to the date of filing of the written statement in the Court was t
aken and upheld. The question posed before the High Court was whether there has
been valid talaq of the wife by the husband under the Muslim law? The learned Ju
dge observed that though marriage under the Muslim law is only a civil contract
yet the rights and responsibilities consequent upon it are of such importance to
the welfare of humanity, that a high degree of sanctity is attached to it. But
inspite of the sacredness of the character of the marriage-tie, Islam recognizes
the necessity, in exceptional circumstances, of keeping the way open for its di
ssolution. (Para 6). Quoting in the judgment several Holy Quranic verses and fro
m commentaries thereon by well-recognized scholars of great eminence, the learne
d Judge expressed disapproval of the statement that "the whimsical and capriciou
s divorce by the husband is good in law, though bad in theology" and observed th
at such a statement is based on the concept that women were chattel belonging to
men, which the Holy Quran does not brook. The correct law of talaq as ordained
by the Holy Quran is that talaq must be for a reasonable cause and be preceded b
y attempts at reconciliation between the husband and the wife by two arbiters __
one from the wife's family and the other from the husband's; if the attempts fa
il, talaq may be effected. (Para 13). In Rukia Khatun's case, the Division Bench
stated that the correct law of talaq, as ordained by Holy Quran, is: (i) that '
talaq' must be for a reasonable cause; and (ii) that it must be preceded by an a
ttempt of reconciliation between the husband and the wife by two arbiters, one c
hosen by the wife from her family and the other by the husband from his. If thei
r attempts fail, 'talaq' may be effected. The Division Bench expressly recorded
its dissent from the Calcutta and Bombay view which, in their opinion, did not l
ay down the correct law.
We are in respectful agreement with the abovesaid observations made by the learn
ed Judges of High Courts. We must note that the observations were made 20-30 yea
rs before and our country has in recent times marched steps ahead in all walks o
f life including progressive interpretation of laws which cannot be lost sight o
f except by compromising with regressive trends. What this Court observed in Bai
Tahira Vs. Ali Hussain AIR 1979 SC 362 dealing with right to maintenance of a m
uslim divorcee is noteworthy. To quote : "The meaning of meanings is derived fro
m
values in a given society and its legal
system. Article 15(3) has compelling,
compassionate relevance in the context of
S.125 and the benefit of doubt, if any, in
statutory interpretation belongs to the ill- used wife and the derelict divorcee
. This
social perspective granted, the resolution of all the disputes projected is easy
. Surely, Parliament, in keeping with Art. 15(3) and
deliberate by design, made a special
provision to help women in distress cast
away by divorce. Protection against moral
and material abandonment manifest in
Art.39 is part of social and economic justice, specificated in Art.38, fulfillme
nt of which is fundamental to the governance of the
country (Art.37). From this coign of
vantage we must view the printed text of the particular Code." (para 7)
"Law is dynamic and its meaning cannot be
pedantic but purposeful." (para 12)
The plea taken by the husband-respondent no.2 in his written statement may be re
-noticed. The respondent No.2 vaguely makes certain generalized accusations agai
nst the wife-appellant and states that ever since the marriage he found his wife
to be sharp, shrewd and mischievous. Accusing the wife of having brought disgra
ce to the family, the respondent No.2 proceeds to state, vide para 12 (translate
d into English) __ "The answering respondent, feeling fade up with all such acti
vities unbecoming of the wife-petitioner, has divorced her on 11.7.87." The part
iculars of the alleged talaq are not pleaded nor the circumstances under which a
nd the persons, if any, in whose presence talaq was pronounced have been stated.
Such deficiency continued to prevail even during the trial and the respondent N
o.2, except examining himself, adduced no evidence in proof of talaq said to hav
e been given by him on 11.7.1987. There are no reasons substantiated in justific
ation of talaq and no plea or proof that any effort at reconciliation preceded t
he talaq.
We are also of the opinion that the talaq to be effective has to be pronounced.
The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically
, to declare to, utter, to articulate (See Chambers 20th Century Dictionary, New
Edition, p.1030). There is no proof of talaq having taken place on 11.7.1987. W
hat the High Court has upheld as talaq is the plea taken in the written statemen
t and its communication to the wife by delivering a copy of the written statemen
t on 5.12.1990. We are very clear in our mind that a mere plea taken in the writ
ten statement of a divorce having been pronounced sometime in the past cannot by
itself be treated as effectuating talaq on the date of delivery of the copy of
the written statement to the wife. The respondent No.2 ought to have adduced evi
dence and proved the pronouncement of talaq on 11.7.1987 and if he failed in pro
ving the plea raised in the written statement, the plea ought to have been treat
ed as failed. We do not agree with the view propounded in the decided cases refe
rred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein
a mere plea of previous talaq taken in the written statement, though unsubstant
iated, has been accepted as proof of talaq bringing to an end the marital relati
onship with effect from the date of filing of the written statement. A plea of p
revious divorce taken in the written statement cannot at all be treated as prono
uncement of talaq by the husband on wife on the date of filing of the written st
atement in the Court followed by delivery of a copy thereof to the wife. So also
the affidavit dated 31.8.1988, filed in some previous judicial proceedings not
inter parte, containing a self-serving statement of respondent no.2, could not h
ave been read in evidence as relevant and of any value.
For the foregoing reasons, the appeal is allowed. Neither the marriage between t
he parties stands dissolved on 5.12.1990 nor does the liability of the responden
t No.2 to pay maintenance comes to an end on that day. The respondent No.2 shall
continue to remain liable for payment of maintenance until the obligation comes
to an end in accordance with law. The costs in this appeal shall be borne by th
e respondent No.2.
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Shamim Ara vs State Of U.P. & Anr on 1 October, 2002
Cites 5 docs
The Code Of Criminal Procedure, 1973
Article 15(3) in The Constitution Of India 1949
The Limitation Act, 1963
Article 104 in The Constitution Of India 1949
The Indian Divorce Act, 1869
Citedby 45 docs - [View All]
Manzoor Ahmad Khan vs Mst. Saja And Three Ors. on 9 October, 2003
Rafeeq vs Ashida.K on 3 February, 2009
Anwor Ali Halder vs Sakina Bibi And Anr. on 21 April, 2005
Nizar, Aged 43 Years vs State Of Kerala on 28 August, 2008
Shahzad vs Anisa Bee And Ors. on 5 January, 2006
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Supreme Court of India
Bench: R Lahoti, P Reddi.
CASE NO.:
Appeal (crl.) 465 of 1996
PETITIONER:
Shamim Ara
RESPONDENT:
State of U.P. & Anr.
DATE OF JUDGMENT: 01/10/2002
BENCH:
R.C. LAHOTI & P.VENKATARAMA REDDI.
JUDGMENT:
J U D G M E N T
R.C. Lahoti, J.
Shamim Ara, the appellant and Abrar Ahmad, the respondent no.2 were married some
time in 1968 according to Muslim Shariyat Law. Four sons were born out of the w
edlock. On 12.4.1979, the appellant, on behalf of herself and for her two minor
children, filed an application under Section 125 Cr.P.C. complaining of desertio
n and cruelty on the part of respondent no.2 with her. By order dated 3.4.1993 t
he learned Presiding Judge of the Family Court at Allahabad refused to grant any
maintenance to the appellant on the ground that she was already divorced by the
respondent and hence not entitled to any maintenance. However, maintenance at t
he rate of Rs.150/- per month was allowed for one son of the appellant for the p
eriod during which he remained a minor; the other one having become major during
the pendency of the proceedings.
The respondent no.2 in his reply (written statement) dated 5.12.1990, to the app
lication under Section 125 Cr.P.C., denied all the averments made in the applica
tion. One of the pleas taken by way of additional pleas is that he had divorced
the appellant on 11.7.1987 and since then the parties had ceased to be spouses.
He also claimed protection behind the Muslim Women (Protection of Rights on Divo
rce) Act, 1986 and submitted that the respondent no.2 had purchased a house and
delivered the same to the appellant in lieu of Mehar (Dower), and therefore, the
appellant was not entitled to any maintenance. No particulars of divorce were p
leaded excepting making a bald statement as already stated hereinabove. The appe
llant emphatically denied having been divorced at any time. The respondent no.2,
when he appeared in the witness-box, stated having divorced the appellant on 11
.7.1987 at 11 a.m. in the presence of Mehboob and other 4-5 persons of the neigh
bourhood. He further stated that since 1988 he had not paid anything either to t
he appellant or to any of the four sons for their maintenance. The divorce said
to have been given by him to the appellant was a triple talaq though such a fact
was not stated in the written statement. The Family Court in its order dated 3.
4.1993 dealt with and upheld a strange story of divorce totally beyond the case
set up by the respondent no.2. The learned Presiding Judge referred to some affi
davit dated 31.8.1988 said to have been filed by the respondent No.2 in some civ
il suit details whereof are not available from the record of the present case bu
t certainly to which litigation the appellant was not a party. In that affidavit
it was stated by the respondent no.2 that he had divorced the appellant 15 mont
hs before. The learned Judge held that from such affidavit the plea of the respo
ndent no.2 found corroboration of his having divorced the appellant. The learned
Judge concluded that the appellant was not entitled to any maintenance in view
of her having been divorced. The appellant preferred a revision before the High
Court. The High Court held that the divorce which is alleged to have been given
by the respondent no.2 to the appellant was not given in the presence of the app
ellant and it is not the case of the respondent that the same was communicated t
o her. But the communication would stand completed on 5.12.1990 with the filing
of the written statement by the respondent no.2 in the present case. Therefore,
the High Court concluded that the appellant was entitled to claim maintenance fr
om 1.1.1988 to 5.12.1990 (the later date being the one on which reply to applica
tion under Section 125 Cr.P.C. was filed by the respondent No.2 in the Court) wh
ereafter her entitlement to have maintenance from respondent no.2 shall cease. T
he figure of maintenance was appointed by the High Court at Rs.200/-.
The appellant has filed this appeal by special leave. The singular issue arising
for decision is whether the appellant can be said to have been divorced and the
said divorce communicated to the appellant so as to become effective from 5.12.
1990, the date of filing of the written statement by the respondent no.2 in thes
e proceedings. None of the ancient holy books or scriptures of muslims mentions
in its text such a form of divorce as has been accepted by the High Court and th
e Family Court. No such text has been brought to our notice which provides that
a recital in any document, whether a pleading or an affidavit, incorporating a s
tatement by the husband that he has already divorced his wife on an unspecified
or specified date even if not communicated to the wife would become an effective
divorce on the date on which the wife happens to learn of such statement contai
ned in the copy of the affidavit or pleading served on her. Mulla on Principles
of Mahomedan Law (Nineteenth Edition, 1990) states vide para 310:-
"310. Talak may be oral or in writing.__
A talak may be effected (1) orally (by spoken words) or (2) by a written documen
t called a talaknama (d).
(1) Oral Talak. __ No particular form of
words is prescribed for effecting a talak. If the words are express (saheeh)or w
ell understood as implying divorce no proof of intention is required. If the wor
ds are ambiguous (kinayat), the intention must be proved (e). It is not necessar
y that the talak should be pronounced in the presence of the wife or even addres
sed to her (f). In a Calcutta case the husband merely pronounced the word "talak
" before a family council and this was held to be invalid as the wife was not na
med (g). This case was cited with approval by the Judicial Committee in a case w
here the talak was valid though pronounced in the wife's absence, as the wife wa
s named (h). The Madras High Court has also held that the words should refer to
the wife (i). The talak pronounced in the absence of the wife takes effect thoug
h not communicated to her, but for purposes of dower it is not necessary that it
should come to her knowledge (j); and her alimony may continue till she is info
rmed of the divorce (k). As the divorce becomes effective for purposes of dower
only when communicated to the wife, limitation under Art. 104 for the wife's sui
t for deferred dower ran from the time when the divorce comes to her notice (l),
under the Act of 1908. See also the Limitation Act, 1963.
Words of divorce.__ The words of divorce
must indicate an intention to dissolve the marriage. If they are express (saheeh
), e.g., "Thou art divorced," "I have divorced thee," or "I divorce my wife for
ever and render her haram from me" [Rashid Ahmad v. Anisa Khatun (1932) 59 I.A.
21], they clearly indicate an intention to dissolve the marriage and no proof of
intention is
necessary. But if they are ambiguous (kinayat), e.g., "Thou art my cousin, the d
aughter of my uncle, if thou goest" [Hamid Ali v. Imtiazan (1878) 2 All.71] or "
I give up all relations and would have no connection of any sort with you" [Waji
d Ali v. Jafar Husain (1932) 7 Luck, 430, 136 I.C. 209, ('32) A.O.34], the inten
tion must be proved.
Pronouncement of the word talak in the
presence of the wife or when the knowledge of such pronouncement comes to the kn
owledge of the wife, results in the dissolution of the marriage. The intention o
f the husband is inconsequential. Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys. L
.J. 566.
If a man says to his wife that she has been divorced yesterday or earlier, it le
ads to a divorce between them, even if there be no proof of a divorce on the pre
vious day or earlier."
[(f) Ma Mi v. Kallander Ammal, supra;
Ahmad Kasim v. Khatoon Bibi (1932) 59
Cal. 833, 141 I.C. 689, ('33) A.C. 27;
Fulchand v. Nazib Ali (1909) 36 Cal.
184, 1 I.C. 740; Sarabai v. Rabiabai
(1905) 30 Bom. 536 (obiter).
(g) Furzund Hussein v. Janu Bibee (1878) 4
Cal. 588.
(h) Rashid Ahmad v. Anisa Khatoon (1932)
59 I.A. 21, 54 All.46, 135 I.C. 762, ('32)
A.P.C. 25.
(i) Asha Bibi v. Kadir, supra.
(j) Fulchand v. Nazib Ali, supra.
(k) Ma Mi v. Kallandar Ammal, supra;
Abdul Khader v. Azeeza Bee (1944) 1
M.L.J. 17, 214 I.C. 38, ('44) A.M. 227.
(l) Kathiyumma v. Urathel Marakkar (1931)
133 I.C. 375, ('31) A.M. 647.]
The statement of law by Mulla as contained in para 310 and footnotes thereunder
is based on certain rulings of Privy Council and the High Courts. The decision o
f A.P. High Court in (1975) 1 APLJ 20 has also been cited by Mulla in support of
the proposition that the statement by husband in pleadings filed in answer to p
etition for maintenance by wife that he had already divorced the petitioner (wif
e) long ago operates as divorce.
We will offer our comments on this a little later. Immediately we proceed to not
ice a few other authorities. In Dr. Tahir Mahmood's 'The Muslim Law of India' (S
econd Edition, at pp.113119), the basic rule stated is that a Muslim husband und
er all schools of Muslim Law can divorce his wife by his unilateral action and w
ithout the intervention of the Court. This power is known as the power to pronou
nce a talaq. A few decided cases are noticed by the learned author wherein it ha
s been held that a statement made by the husband during the course of any judici
al proceedings such as in wife's suit for maintenance or restitution of conjugal
rights, or the husband's plea of divorce raised in the pleadings did effect a t
alaq. Such liberal view of talaq bringing to an end the marital relationship bet
ween Muslim spouses and heavily loaded in favour of Muslim husbands has met with
criticism and strong disapproval at the hands of eminent jurists.
V. Khalid, J., as His Lordship then was, observed in Mohammed Haneefa Vs. Pathum
mal Beevi, 1972 K.L.T. 512 __ "I feel it my duty to alert public opinion towards
a painful aspect that this case reveals. A Division Bench of this court, the hi
ghest court for this State, has clearly indicated the extent of the unbridled po
wer of a muslim husband to divorce his wife. I am extracting below what Their Lo
rdships have said in Pathayi v. Moideen (1968 KLT 763). "The only condition nece
ssary for the valid exercise of the right of divorce by a husband is that he mus
t be a major and of sound mind at that time. He can effect divorce whenever he d
esires. Even if he divorces his wife under compulsion, or in jest, or in anger t
hat is considered perfectly valid. No special form is necessary for effecting di
vorce under Hanafi law .. The husband can
effect if by conveying to the wife that he is repudiating the alliance. It need
not even be addressed to her. It takes effect the moment it comes to her knowled
ge."
Should muslim wives suffer this tyranny for all times? Should their personal law
remain so cruel towards these unfortunate wives? Can it not be amended suitably
to alleviate their sufferings? My judicial conscience is disturbed at this mons
trosity. The question is whether the conscience of the leaders of public opinion
of the community will also be disturbed."(p.514)
In an illuminating judgment, virtually a research document, the eminent judge an
d jurist V.R. Krishna Iyer, J., as His Lordship then was, has made extensive obs
ervations. The judgment is reported as A. Yousuf Rawther Vs. Sowramma, AIR 1971
Kerala 261. It would suffice for our purpose to extract and reproduce a few out
of the several observations made by His Lordship:-
"The interpretation of a legislation,
obviously intended to protect a weaker section of the community, like women, mus
t be informed by the social perspective and purpose and, within its grammatical
flexibility, must further the beneficent object. And so we must appreciate the I
slamic ethos and the general sociological background which inspired the enactmen
t of the law before locating the precise connotation of the words used in the st
atute. (para 6)
"Since infallibility is not an attribute of the judiciary, the view has been ven
tured by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic
law of divorce has not exactly been just to the Holy Prophet or the Holy Book.
Marginal distortions are inevitable when the Judicial Committee in Downing Stree
t has to interpret Manu and Muhammad of India and Arabia. The
soul of a culture __ law is largely the formalized and enforceable expression of
a community's cultural norms __ cannot be fully understood by alien minds. The
view that the Muslim husband enjoys an arbitrary, unilateral power to inflict in
stant divorce does not accord with Islamic injunctions." (para 7)
"It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbr
idled
authority to liquidate the marriage. "The whole Quoran expressly forbids a man t
o seek pretexts for divorcing his wife, so long as she remains faithful and obed
ient to him, 'if they (namely, women) obey you, then do not seek a way against t
hem'." (Quaran IV:34). The Islamic "law gives to the man primarily the faculty o
f dissolving the marriage, if the wife, by her indocility or her bad character,
renders the married life unhappy; but in the absence of serious reasons, no man
can justify a divorce, either in the eye of religion or the law. If he abandons
his wife or puts her away in simple caprice, he draws upon himself the divine an
ger, for the curse of God, said the Prophet, rests on him who repudiates his wif
e capriciously." (para 7)
"Commentators on the Quoran have rightly
observed __ and this tallies with the law now administered in some Muslim countr
ies like Iraq __ that the husband must satisfy the court about the reasons for d
ivorce. However, Muslim law, as applied in India, has taken a course contrary to
the spirit of what the Prophet or the Holy Quoran laid down and the same miscon
ception vitiates the law dealing with the wife's right to divorce." (para 7)
"After quoting from the Quoran and the
Prophet, Dr. Galwash concludes that "divorce is permissible in Islam only in cas
es of extreme emergency. When all efforts for effecting a reconciliation have fa
iled, the parties may proceed to a dissolution of the marriage by 'Talaq' or by
'Khola'. . . . . . . . . . . . . . Consistently with the secular concept of marr
iage and divorce, the law insists that at the time of Talaq the husband must pay
off the settlement debt to the wife and at the time of Kholaa she has to surren
der to the husband her dower or abandon some of her rights, as compensation." (p
ara 7)
There is yet another illuminating and weighty judicial opinion available in two
decisions of Gauhati High Court recorded by Baharul Islam, J. (later a Judge of
the Supreme Court of India) sitting singly in Sri Jiauddin Ahmed Vs. Mrs. Anwara
Begum, (1981) 1 GLR 358 and later speaking for the Division Bench in Must. Ruki
a Khatun Vs. Abdul Khalique Laskar, (1981) 1 GLR 375. In Jiauddin Ahmed's case a
plea of previous divorce, i.e. the husband having divorced the wife on some day
much previous to the date of filing of the written statement in the Court was t
aken and upheld. The question posed before the High Court was whether there has
been valid talaq of the wife by the husband under the Muslim law? The learned Ju
dge observed that though marriage under the Muslim law is only a civil contract
yet the rights and responsibilities consequent upon it are of such importance to
the welfare of humanity, that a high degree of sanctity is attached to it. But
inspite of the sacredness of the character of the marriage-tie, Islam recognizes
the necessity, in exceptional circumstances, of keeping the way open for its di
ssolution. (Para 6). Quoting in the judgment several Holy Quranic verses and fro
m commentaries thereon by well-recognized scholars of great eminence, the learne
d Judge expressed disapproval of the statement that "the whimsical and capriciou
s divorce by the husband is good in law, though bad in theology" and observed th
at such a statement is based on the concept that women were chattel belonging to
men, which the Holy Quran does not brook. The correct law of talaq as ordained
by the Holy Quran is that talaq must be for a reasonable cause and be preceded b
y attempts at reconciliation between the husband and the wife by two arbiters __
one from the wife's family and the other from the husband's; if the attempts fa
il, talaq may be effected. (Para 13). In Rukia Khatun's case, the Division Bench
stated that the correct law of talaq, as ordained by Holy Quran, is: (i) that '
talaq' must be for a reasonable cause; and (ii) that it must be preceded by an a
ttempt of reconciliation between the husband and the wife by two arbiters, one c
hosen by the wife from her family and the other by the husband from his. If thei
r attempts fail, 'talaq' may be effected. The Division Bench expressly recorded
its dissent from the Calcutta and Bombay view which, in their opinion, did not l
ay down the correct law.
We are in respectful agreement with the abovesaid observations made by the learn
ed Judges of High Courts. We must note that the observations were made 20-30 yea
rs before and our country has in recent times marched steps ahead in all walks o
f life including progressive interpretation of laws which cannot be lost sight o
f except by compromising with regressive trends. What this Court observed in Bai
Tahira Vs. Ali Hussain AIR 1979 SC 362 dealing with right to maintenance of a m
uslim divorcee is noteworthy. To quote : "The meaning of meanings is derived fro
m
values in a given society and its legal
system. Article 15(3) has compelling,
compassionate relevance in the context of
S.125 and the benefit of doubt, if any, in
statutory interpretation belongs to the ill- used wife and the derelict divorcee
. This
social perspective granted, the resolution of all the disputes projected is easy
. Surely, Parliament, in keeping with Art. 15(3) and
deliberate by design, made a special
provision to help women in distress cast
away by divorce. Protection against moral
and material abandonment manifest in
Art.39 is part of social and economic justice, specificated in Art.38, fulfillme
nt of which is fundamental to the governance of the
country (Art.37). From this coign of
vantage we must view the printed text of the particular Code." (para 7)
"Law is dynamic and its meaning cannot be
pedantic but purposeful." (para 12)
The plea taken by the husband-respondent no.2 in his written statement may be re
-noticed. The respondent No.2 vaguely makes certain generalized accusations agai
nst the wife-appellant and states that ever since the marriage he found his wife
to be sharp, shrewd and mischievous. Accusing the wife of having brought disgra
ce to the family, the respondent No.2 proceeds to state, vide para 12 (translate
d into English) __ "The answering respondent, feeling fade up with all such acti
vities unbecoming of the wife-petitioner, has divorced her on 11.7.87." The part
iculars of the alleged talaq are not pleaded nor the circumstances under which a
nd the persons, if any, in whose presence talaq was pronounced have been stated.
Such deficiency continued to prevail even during the trial and the respondent N
o.2, except examining himself, adduced no evidence in proof of talaq said to hav
e been given by him on 11.7.1987. There are no reasons substantiated in justific
ation of talaq and no plea or proof that any effort at reconciliation preceded t
he talaq.
We are also of the opinion that the talaq to be effective has to be pronounced.
The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically
, to declare to, utter, to articulate (See Chambers 20th Century Dictionary, New
Edition, p.1030). There is no proof of talaq having taken place on 11.7.1987. W
hat the High Court has upheld as talaq is the plea taken in the written statemen
t and its communication to the wife by delivering a copy of the written statemen
t on 5.12.1990. We are very clear in our mind that a mere plea taken in the writ
ten statement of a divorce having been pronounced sometime in the past cannot by
itself be treated as effectuating talaq on the date of delivery of the copy of
the written statement to the wife. The respondent No.2 ought to have adduced evi
dence and proved the pronouncement of talaq on 11.7.1987 and if he failed in pro
ving the plea raised in the written statement, the plea ought to have been treat
ed as failed. We do not agree with the view propounded in the decided cases refe
rred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein
a mere plea of previous talaq taken in the written statement, though unsubstant
iated, has been accepted as proof of talaq bringing to an end the marital relati
onship with effect from the date of filing of the written statement. A plea of p
revious divorce taken in the written statement cannot at all be treated as prono
uncement of talaq by the husband on wife on the date of filing of the written st
atement in the Court followed by delivery of a copy thereof to the wife. So also
the affidavit dated 31.8.1988, filed in some previous judicial proceedings not
inter parte, containing a self-serving statement of respondent no.2, could not h
ave been read in evidence as relevant and of any value.
For the foregoing reasons, the appeal is allowed. Neither the marriage between t
he parties stands dissolved on 5.12.1990 nor does the liability of the responden
t No.2 to pay maintenance comes to an end on that day. The respondent No.2 shall
continue to remain liable for payment of maintenance until the obligation comes
to an end in accordance with law. The costs in this appeal shall be borne by th
e respondent No.2.