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Fuzlunbi vs K. Khader Vali And Anr. on 8 May, 1980

Fuzlunbi vs K. Khader Vali And Anr. on 8 May, 1980Equivalent citations: AIR 1980 SC 1730, 1980 CriLJ 1249, (1980) 4 SCC 125
Author: V K Iyer
Bench: A Sen, O C Iyer


V.R. Krishna Iyer, J.

1. The last judicial lap of the journey to gender justice made by Fazlunbi, a married woman just past 30 years and talaged into destitution, constitutes the compassionate core of this case. The saga of Fazlunbi, who had earlier secured an order for maintenance in her favour Under Section 125 Cr. P.C. which was cancelled Under Section 127(3)(b) Cr. P.C., by three courts, tier upon tier in the vertical system, by concurrent misinterpretation of the relevant provision, constitutes the kernel of her legal grievance. If her plea has substance, social justice has been jettisoned by judicial process and a just and lawful claim due to a woman in distress has been denied heartlessly and lawlessly. We say ‘heartlessly’, because no sensitive judge with empathy for the weaker sex could have callously cancelled an order for a monthly allowance already made in her favour, as has been done here. We say lawlessly’, because no disciplined judge bound by the decision of this Court which lays down the law for the nation under Article 141 of the Constitution could have defied the crystal clear ruling of this Court in Bai Tahira v. Ali Hussain Fidaalli Chothia by the disingenuous process distinguishing the

decision. We are surprised by this process of getting round the rule in Bai Tahira’s case (supra) by the artful art of concocting a distinction without a difference. The Sessions Court and the High Court, who had before them the pronouncement of the Supreme Court, chopped legal logic to circumvent it. Reading their ‘reasoning’ we are left to exclaim how the high Bench argued itself out of Bai Tahira’s case by discovering the strange difference.

Twixt Tweeldedum and Tweeldedum”, the discipline of law, the due process of law and the rule of law become mere claptrap if judges bound to obey precedent choose to disobey on untenable alibi. And, behind it all is the unheeded wail of Fazlunbi’s womanhood for the karuna and samata of the law and we are conscientized into reversing the judgment under appeal in terms express, explicit and mandatory so that masculine injustice may not crucify the weaker sex. Small wonder that many a divorcee, beguiled by Articles 14 and 15 and the decision in Bai Tahira’s case, may well exclaim, “How long, O Lord, how long

2. The brief facts which have led to this appeal are that Fazlunbi, the appellant married Khader Vali, the respondent, in 1966 and during their conjugal life, a son, Kader Basha, was born to them. The husband, an Additional Accountant in the State Bank of India, apparently drawing a salary well above Rs. 1000/-, discarded the wife and the child, and the tormented woman, talaged out of the conjugal home, sought shelter in her parents’ abode. Driven by destitution, she prayed for maintenance allowance for herself and her son Under Section 125 Cr. P.C. and the Magistrate granted payment of a monthly sum of Rs. 250/- to the wife and Rs. 150/- to the child. The husband challenged the award in the High Court where the unjustified neglect was upheld but the quantum of maintenance of the child was reduced to Rs. 1.00/- per mensem.

3. The respondent-husband resorted to the unilateral technique of talaq, and tendered the magnificent sum of Rs. 500/- by way of mahar and Rs. 750/- towards maintenance for the period of iddat, hopeful thereby, of extricating himself from the obligation to maintain the appellant. The Additional First Class Magistrate vacated the grant of maintenance on the score of divorce coupled with discharge of mahar and iddat dues. This order was unsuccessfully challenged in the Sessions Court. The desperate appellant reached the High Court and invoked its jurisdiction Under Section 482 Cr. P.C. A Division Bench of that Court, however, dismissed the revision petition and Fazlunbi has landed up in this Court and banks upon the application of the rule in Bai Tahirai’s case (supra).

4. The facts are clear, the talaq has snapped the marital tie, the flimsy mahar has been tendered together with the three months’ iddat dues and the divorcee remains neglected. The question is whether Section 127(3)(b) of the Code has been complied with or the vinculum juris created by the order Under Section 125 continues despite the make-believe ritual of miniscule mahar which merely stultifies Section 127(3)(b) Cr. P.C. and hardly fulfils it. The matter is no longer res Integra. No one in his senses can contend that the mahar of Rs. 500/- will yield income sufficient to maintain a woman even if she were to live on city pavements What is the intendment of Section 127(3)(b)? What is the scheme of relief for driftwood and destitute wives and divorcees discarded by heartless husbands? What is the purpose of providing absolution from the obligation to pay continued maintenance by lumpsum liquidation? What, in short is the text and texture of the provision, if read in the light of the mischief to be avoided, the justice to be advanced? The conscience of social justice, the cornerstone of our Constitution will be violated and the soul of the scheme of Chapter IX of the Code, a secular safeguard of British Indian vintage against the outrage of jetsam women and flotsam children, will be defiled if judicial interpretation sabotages the true meaning and reduces a benign protection into a damp squib. The holistic art of statutory construction has not the pettifogging craft of lexical and literal reading of the text woefully keeping alive the moribund mores of a bygone age but, in the felicitous diction of Cardozo, ‘the task of a translator, the reading of signs and symbols given from without (by those) who have absorbed the spirit, have filled themselves with a love of the language they must read’. Lord Denning’s great tribute to the task of a judge is never barred by the law of limitation (The Discipline of Law, Lord Denning, pp. 20-21).

Many of the Judges of England have said that they do not make law. They only interpret it. This is an illusion which they have fostered. But it is a notion which is now being discarded everywhere. Every new decision-on every new situation-is a development on the law. Law does not stand still. It moves continually. Once this is recognised, then the task of the Judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason, laying brick on brick, without thought to the overall design. He must be an architect-thinking of the structure as a whole-building for society a system of law which is strong, durable and just. It is on his work that civilised society itself depends.

5. We lay so much emphasis on the functional sensitization of a judge lest what is absurd may be fobbed as obvious by judicial semanticisation.

6. We need not labour the point because this Court has already interpreted Section 127(3)(b) in Bai Tahira and no judge in India, except a larger bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio thereof. The language used is unmistakable, the logic at play is irresistible, the conclusion reached is inescapable, the application of the law as expounded there is an easy task. And yet, the Division Bench, if we may with respect say so, has, by the fine art of skirting the real reasoning laid down ‘unlaw’ in the face of the law in Bai Tahira which is hardly a service and surely a mischief, unintended by the Court may be, but embarrassing to the subordinate judiciary.

7. There is no warrant whatever for the High Court to reduce to a husk a decision of this Court by its doctrinal gloss. The learned judges observe, to our bafflement-

The decision in Bai Tahira v. Ali Hussain Fassalli, (supra) is to be confined only to the facts of that case. It falls to be distinguished for the following reasons : (i) the compromise of 1962 referred to therein was construed as not affecting the rights of a Muslim divorced wife in seeking to recover maintenance Under Section 125 Cr. P.C., (ii) what was considered to have been paid to the Muslim divorced wife was only the Mahar amount and not the maintenance amount payable for the Iddat period, (iii) The Mahar amount paid revealed a rate of interest which for a person residing in Bombay was held to be wholly inadequate to do duty for maintenance allowance, (iv) there was nothing in that case to show that the amount of Rs. 130/- paid towards Iddat represented the payment of a sufficient maintenance amount for the three months period of Iddat and (v) the husband in that case did not raise any plea based on Section 127(3)(b) Cr. P.C.

8. Let us quote a few passages from this Court’s ruling in Bai Tahira (supra) to express the untenability of the excuse not to follow the binding ratio.

Nor can Section 127 rescue the respondent, from his obligation, payment of mehar money, as a customary discharge, is within the cognizance of that provision. But what was the amount of mehar ? Rs. 5000/-, interest from which could not keep the woman’s body and soul together for a day, even in that city where 40% of the population are reported to live on pavements, unless she was ready to sell her body and give up her soul The point must be clearly understood that the scheme of the complex of provisions in Chapter IX has a social purpose. III-used wives and desperate divorcees shall not be driven to material and moral dereliction to seek sanctuary in the streets. This traumatic horror animates the amplitude of Section, 127. Where the husband, by customary payment at the time of divorce, has adequately provided for the divorce, a subsequent series of recurrent doles is contraindicated and the husband liberated. This is the teleological interpretation, the sociological decoding of the text of Section 127. The keynote though is adequacy of payment: which will take reasonable care of her maintenance.

The payment of illusory amounts by way of customary or personal law requirement will be considered in the reduction of maintenance rate but cannot annihilate the rate unless it is a reasonable substitute. The legal sanctity of the payment is certified by the fulfilment of the social obligation, not by a ritual exercise rooted in custom. No construction which leads to frustration of the statutory project can secure validation if the court is to pay true homage to the Constitution. The only just construction of the section is that Parliament intended divorcees should not derive a double benefit. If the payment by any mehar or ordained by custom has a reasonable relation to the object and is a capitalised substitute for the order Under Section 125 not mathematically but fairly-then Section 127(3)(b) subserves the goal and relieves the obliger, not pro tanto but wholly. The purpose of the payment ‘under any customary or personal law’ must be to obviate destitution of the divorcee and to provide her with wherewithal to maintain herself. The whole scheme of Section 127(3)(b) is manifestly to recognise the substitute maintenance arrangement by lump sum so paid and is potential as provision for maintenance to interpret otherwise is to stultify the project. Law is dynamic and its meaning cannot be pedantic but purposeful. The proposition, therefore, is that no husband can claim Under Section 127(3)(b) absolution from his obligation Under Section 125 towards a divorced wife except on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient to do duty for maintenance allowance.

9. Granville Williams in his “Learning the Law” (pp. 77-78) gives one of the reasons persuading judges to distinguish precedents is “that the earlier decision is altogether unpalatable to the court in the later case, so that the latter court wishes) to interpret it as narrowly as possible”. The same learned author notes that some judges may “in extreme and unusual circumstances, be apt to seize on almost any factual difference between this previous case and the case before him in order to arrive at a different decision. Some precedents are continually left on the shelf in this way, as a wag observed, they become very “distinguished”. The limit of the process is reached when a judge says that the precedent is an authority only “on its actual facts”. We need hardly say that these devices are not permissible for the High Courts when decisions of the Supreme Court are cited before them not merely because of the jurisprudence of precedents, but because of the imperatives of Article 141.

10. We have been painstakingly drawn into many rulings of the High Courts but none except this one has had the advantage of the pronouncement in Bai Tahira. A Division Bench of the Kerala High Court-a ruling which perhaps advances the purpose more than the Full Bench decision which overruled it-dwelt on Section 127(3)(b) of the Code. Khalid, J. speaking for the court observed, and rightly if we may say so with respect kunhi Moyin v. Pathumma 1976 KLT 87 at 96.

This section provides that the Magistrate shall cancel the order for maintenance if any sum under any customary or personal law applicable to the parties is paid on divorce. This section may be pressed into service by some ingenious husbands to defeat the provisions contained in Section 125. We would like to make ft clear that Section 127(3)(b) refers not to maintenance during the period of iddat or payment of dower. Unfortunately, place of dower is now occupied by dowry, payable by the girl’s parents, which till 1-6-1961 was paid in public and thereafter in private; thanks to the Dowry Prohibition Act, 1961. It is therefore not a sum of money

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