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R.P. (F.C.) No. 53 of 2006. Case: Kunhimohammed Vs Ayishakutty. High Court of Kerala (India)

Judgment Cited authorities 2 Cited in 3 Precedent Map Related
Vincent
Case NumberR.P. (F.C.) No. 53 of 2006
CounselFor Appellant: K.P. Sudheer, Adv. and For Respondents: K.P. Mujeeb, Adv., For Amicus Curiae: M.P.M. Aslam, K.I. Mayankutty Mather, S. Sreekumar, P.K. Ibrahim, C.S. Dias, C.S. Rejith and V.G. Arun, Advs.
JudgesR. Basant and M.C. Hari Rani, JJ.
IssueMuslim Women (Protection of Rights on Divorce) Act, 1986 - Sections 4, 3, 5, 7; Kerala High Court Act - Section 3; Family Courts Act, 1984 - Section 7(1) and 7(2); Muslim Personal Law (Shariat) Application Act, 1937 - Section 2; General Clauses Act - Section 6; Criminal Procedure Code (CrPC), 1973 - Sections 125, 127, 127(3) and 128; Criminal ...
Citation2010 (2) KLT 71
Judgement DateMarch 17, 2010
CourtHigh Court of Kerala (India)

Order:

R. Basant, J.

1. (i) Does a divorce valid under the Muslim Law ipso facto extinguish the liability of the husband under Section 125 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') to pay maintenance to his wife even when it is admitted or proved that amounts due under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as 'the Act') have not been paid?

(ii) Is unilateral pronouncement of divorce without offering any reason and without any attempt for reconciliation by the arbiters as mandated by Ayat 35 of Sura IV of the Holy Quran valid under the Muslim Law after the decision of the Supreme Court in Shamim Ara v. State of U.P. 2002 (3) KLT 537 SC?

2. These two questions of crucial relevance and contextual significance arise for consideration in this RP(FC) which has been referred to a Division Bench under Section 3 of the Kerala High Court Act by a Single Judge (one of us). The learned Counsel for the contestants have been heard in detail. As it was felt that larger questions of public importance are involved, we had requested the learned Counsel who are willing, to offer assistance to us as amicus curiae and accordingly M/s. M.P.M. Aslam, K.I. Mayankutty Mather, P.K. Ibrahim, C.S. Dias, C.S. Rejith and V.G. Arun have offered assistance to us. We record our appreciation for the valuable assistance rendered to us by the learned counsel, appearing for the parties as also the learned Counsel who rendered assistance to us as amicus curiae.

3. The relevant facts can be summarised in a nutshell. Marriage between the petitioner/husband and respondent/wife is admitted. They are referred to hereinafter as the 'husband and wife'. There was acrimony in their matrimony and as early as in the early eighties the learned Judicial Magistrate of the First Class, Tirur, in M.C. No. 6/81 had directed payment of maintenance at the rate of Rs. 60/- per mensem to the respondent/wife. That order was passed on 18/3/82. We are not adverting to the claim of the children as the same has now become irrelevant.

4. Long later vide order dated 16.5.88, which was passed on the basis of an agreement between the parties, the claim for enhancement was allowed under Section 127 of the Code and the husband was directed to pay maintenance at the rate of Rs. 80/- per mensem to the wife.

5. Subsequently in 1998 another application under Section 127 of the Code was filed claiming further enhancement of maintenance. That petition was transferred to the Family Court, Malappuram in accordance with the provisions of the Family Courts Act, 1984 and by order dated 19.9.01 in M.C. No. 870/99 the learned Judge of the Family Court granted enhancement of maintenance. Accordingly, an amount of Rs. 500/- per mensem is payable thereafter by the husband to the wife.

6. The maintenance amount for the period from 23/4/03 to 24/4/04 (Rs. 500/- x 12 months = Rs. 6,000/-) remained unpaid and this obliged the wife to file C.M.P. No. 1006704 on 29/4/04 for recovery of the amount under Section 128 of the Code. In that petition, a counter statement was filed by the husband raising the contention that he had pronounced talaq on 8.12.03. Admittedly, it was a unilateral pronouncement of talaq. There is no contention that any attempt for reconciliation by the arbiters, in accordance with the mandate of Ayat 35 of Sura IV, had taken place. It is also admitted that no cause was shown in the communication of talaq to justify the pronouncement of talaq. Ext.D1, it is claimed by the petitioner, was sent to the respondent. It was not served and was returned with an endorsement "Not known. Returned to the sender". Ext.D2 is the copy of the letter allegedly sent to the Khasi and Ext.D3 is the acknowledgment received from the Khasi of the local Mosque for receipt of the intimation of talaq by him.

7. The learned Judge of the Family Court, on an anxious consideration of all the relevant inputs, came to the conclusion that the alleged divorce has not been proved satisfactorily. No reasonable cause having been shown in the communication of talaq and no attempts for reconciliation by the arbiters having preceded the pronouncement of talaq, the alleged talaq is not valid and cannot be recognised as valid in the light of the dictum in Shamim Ara (supra), held the learned Judge of the Family Court. It was hence held that the order directing payment of enhanced maintenance is liable to be enforced. Accordingly, Crl.M.P. No. 1006/04 was allowed as per the impugned order.

8. The learned Counsel for the revision petitioner Sri K.P. Sudheer contends that under the Muslim Law, a husband can exercise his prerogative to terminate the matrimony by unilateral pronouncement of talaq without assigning any reason. The Muslim Law does not oblige him to reveal reasons. In fact, the humanist stipulations in the Muslim Law do not oblige him, and do actually discourage him, from revealing the reasons. Non-revealing of reasons cannot, at any rate, be held to vitiate the divorce effected. It is submitted that the husband has valid reasons to divorce his wife. Actually the spouses were residing separately from early eighties and it was only reasonable and just to invoke the power to terminate such a dead matrimony which remains only in the eye of law and not actually. The learned Counsel further contends that the Muslim Personal Law - the Quranic injunctions, the Sunnahs or the Ijtihads do not catalogue what reasons are reasonable and what reasons are not reasonable. The legislature or the courts have not intervened to prescribe what reasons can be reckoned as reasonable and what as not reasonable. The learned Counsel hence argues that reasonability of the causes for divorce is not justiciable. It would be dangerous and impermissible to leave it to the individual Judges without guidelines to decide what causes would be reasonable and what causes will not be reasonable. In these circumstances, the dictum in Shamim Ara (supra) properly understood cannot lead a court to the conclusion that reasonableness of the substantive cause of divorce is justiciable, argues the counsel. Consequently, the husband is not liable to reveal reasons or justify and substantiate those reasons.

9. The learned Counsel for the husband then contends that reconciliation by the arbiters, though laudable, is only optional and cannot be reckoned as a condition precedent for a valid divorce. In this view of the matter, the impugned order holding the divorce effected under Exts.D1 to D3 invalid or unacceptable cannot be held to be correct, argues counsel.

10. The learned Counsel for the wife, on the contrary, contends that even assuming that the marriage has been validly terminated, an order directing payment of maintenance under Section 125 of the Code which was passed long prior to the commencement of the Act cannot be held to lapse by the mere enactment of the Act. Not the enactment of the Act, not even the passing of an order for payment of amounts under Section 3 of the Act, but the actual payment of the amount payable under the Act - a piece of statutory Personal Law, will alone extinguish the liability to pay maintenance under Section 125 of the Code. In this view of the matter, the respondent contends that even if the divorce is proved and is valid, that cannot extinguish the rights under Section 125 of the Code and, at any rate, the order passed long earlier under Section 125 of the Code duly modified under Section 127 of the Code will be enforcible even after such divorce.

11. It is in the light of the above contentions, that the two questions referred above arise for consideration in this case. We shall initially consider Question No. (i).

12. Question No. (i): As stated earlier, the contention of the petitioner is that a valid divorce would extinguish the right of the divorced Muslim woman to claim maintenance under Section 125 of the Code. Reference to this question has already been made by one of us in the decision in Aboobacker v. Rahiyanath 2008 (3) KLT 482.

13. The journey must start with the provisions of Section 488 in the 1898 Code. That was followed by Section 125 of the present Code. The Code of Criminal Procedure 1898 and 1973 and Section 488/125 therein are pieces of secular law which oblige all Indian husbands/parents/children having sufficient means to maintain their wives, children and parents who are unable to maintain themselves. Religious identity of the individual has absolutely no bearing or significance on the liability. The purpose of the law is to prevent vagrancy and thus avoid the consequent threat to peace, tranquility and law and order in the society. Your religious identity is totally irrelevant while applying the provisions of Section 488/125 of the Code. Though there was no similar provision in Section 488 prior to the amendment, Section 125 of the 1973 Code obliged the husbands to pay maintenance not only to their wives in current matrimony, but also their divorced wives.

14. The provisions of Section 488/125, it is now trite beyond pale of controversy, are applicable to all Indians including those who owe allegiance to Islam. By reference to the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 (for short 'the Shariat Act') the liability cannot be avoided at all. In this context, we extract Section 2 below:

Application of Personal Law to Muslims.-- Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, illa, zihar, lian khula and Mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakhs (other than charities and charitable institutions and charitable and...

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