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
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 properties 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 their 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 No.
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 plaintiffs and it could not, therefore, be impeached.
The trial court decreed the suit in favour of the plaintiffs but that decree has 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 possession 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 lieu of the payment of mahr.
REASONING
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 held 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 dower was paid.
In 1903 the trial 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 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 the 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
5) Daniel Latifi v. Union of India 15
Facts in Brief
In this case, the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was challenged before the Supreme Court. The Act was passed to appease a particular section of the society and with the intention of making 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 Madhya 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 elderly wife had been thrown out of her husband's residence. For about two years the 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 pronouncing a triple talaq. He paid Rs.3000/- as deferred mahr and a further sum to cover arrears of maintenance and maintenance for the iddat period and he sought thereafter 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 important feature of the case was that wife had managed
the matrimonial home for more than 40 years and had borne and reared five children 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 month provided Rs. 200/- per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.
Contentions
The petitioner argued, (a) that the rationale of Section 125 Cr.P.C. was to offset or meet a situation wherein a divorced wife was likely to be led into destitution or vagrancy. It was urged that Section 125 Cr.P.C. was enacted to prevent such a situation in furtherance of the concept of social justice embodied in Article 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 otherwise it would amount to violation of not only equality before law but also equal protection of laws (Article 14) and inherent infringement of Article 21 as well as basic human values. (c) That the Act was un-Islamic, unconstitutional and had the potential of suffocating the Muslim women while also undermining the secular character, which was the basic feature of the Constitution. And thus there was 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 respondents 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 necessary implication, withdraw such an application of the Act and make some other provision in that regard. (b) Parliament could amend Section 125 Cr.P.C. so as to exclude it application and apply
personal law instead. (c) That the policy of Section 125 Cr.P.C. was not to create a right of maintenance dehors the personal law and therefore could not stand in the way of the 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 reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat 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) of the Act to pay maintenance is not confined to iddat period,
• A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against 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 the Act to pay such maintenance.
• The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
Analysis
It is unfortunate to note that the Court did not strike down the Act which purports to exclude Muslim women in particular from the beneficial treatment of Section 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 supplement the effort of judiciary towards them.
In Shamim Ara v. State of U.P 16 the Supreme Court streamlined the position regarding the requirements for a valid Talaq under the Muslim law. The Court held that the correct law
of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by 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 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 against 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 least one appeal is a recognised right under all systems of civilised legal jurisprudence. 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 the 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 under 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 direct 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 legislature accepted this request of the apex Court of India and enhanced the period of appeal from 30 days to 90 days, which is an appropriate step in the right direction.
In Amina v. Hassn Koya18 the Supreme Court while adjudicating upon the validity of a marriage entered into by a pregnant Muslim female observed: It is very difficult 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 concealed 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 that the wife is pregnant
especially when the pregnancy is five months old. Therefore, we cannot accept that that the respondent did not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the marriage cannot be said to be illegal or void. Also, the conduct of the respondent at the relevant time is to be considered. He went through the marriage. He did not raise any 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 child 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 wife. 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 record 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 genuine settlements of matrimonial disputes. There has been an outburst of matrimonial 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 peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused 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 instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts.
There is every likelihood that non-exercise of inherent power to quash the proceedings 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 Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties.
The Court observed: “The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of Objects and Reasons, it appears that the said Act, inter alia, seeks to exclusively 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 Reasons 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 would 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 subsistence of a marriage or otherwise”.