Kerala High Court
Syed Fazal Pookoya Thangal vs Union Of India (Uoi) And Ors. on 17 March, 1993
Equivalent citations: AIR1993KER308, II(1993)DMC285, AIR 1993 KERALA 308, (1993) ILR(KER) 3 KER 464, (1993) 2 DMC 285, (1993) 1 KER LT 860, (1993) 2 CIVLJ 531, (1993) 2 CURCC 558
JUDGMENT T.L. Viswanatha Iyer, J.
1. For the first time in the history of this State the jurisdiction under Section 4(2) of the Muslim Women (Protection of Righs on Divorce) Act 25 of 1986 (the Act) was invoked when the Judicial Magistrate of the First Class, Perinthalmanna passed order on September 30, 1992, directing the Kerala Wakf Board to make payment of maintenance to one Jameela, daughter of Chenangara Avaran, at the rate of Rs. 250/-per month. A copy of this order is Ext. P1 and it was passed in Maintenance Case No. 2 of 1990 on the file of the said Magistrate. Jameela is a divorced Muslim wife, who moved the court for relief under Section 3 of the Act and was granted a sum of Rs. 15,400/-by the order in M.C. No. 59 of 1986. She could however realise only an amount of Rs. 6,000/- out of the amount so granted, by attachment and sale of the property of her ex-husband the respondent in that case. The ex-husband was sent to jail for non-payment of the balance amount. Jameela had no property, or source of income, to maintain herself and her three children. Her near relatives (and legal heirs) were her parents, but they were unable to maintain her because of their impecuniosity. Therefore, Jameela claimed maintenance from the Kerala Wakf Board at the rate of Rs. 350/- per month invoking Section 2 of the Act.
2. The Wakf Board contested the application with the pleas (as seen from the summary of the pleadings in Ext. P1) that Jameela was capable of maintaining herself, that her parents were also bound to look after her, that the property of the Wakf Board could be utilised only for religious purposes and therefore the petition should be dismissed.
3. The Judicial Magistrate of the First Class found on trial that Jameela did not have the means of maintaining herself, that her parents who were only getting odd cooly jobs occasionally were also not capable of maintaining her and therefore Section 4(2) of the Act was attracted. The Wakf Board was accordingly directed to pay adequate maintenance to Jameela, which was fixed at Rs. 250/- per month. This was ordered to be paid from the date of the miscellaneous case, namely January 5, 1990. This order has not been challenged by the Wakf Board in any revision filed under the provisions of the Code of Criminal Procedure 1973. On the other hand, the petitioner Syed Fazal Pookoya Thangal, who is the Chairman of the Kerala Wakf Board has filed this original petition challenging the constitutional validity of Section 4(2) of the Act, and therefore of the order Ext. Pl.
4. Section 4(2) reads :--
"Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in Sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the proviso to Sub-section (1), the Magistrate may, by order, direct the State Wakf Board established under Section 9 of the Wakf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under Sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order."
It obliges the State Wakf Board established under Section 9 of the Wakf Act, 1954 to pay maintenance to a divorced woman who is unable to maintain herself and who has no relatives as mentioned in Sub-section (1) or if such relatives or any of them do not have enough means to pay the maintenance ordered to be paid to her by the Magistrate. The relatives mentioned in Sub-section (1) are those who will inherit her property on her death according to the Muslim law.
5. The case of the petitioner as set forth in the original petition is that Wakf is a "pious religious activity pleasing to God" and beneficial to the spiritual well being of the Muslim faithfuls. It is a matter of their conscience. The property vests in God once it is dedicated as Wakf. None is competent thereafter to meddle with the wakf property or divert its income for a purpose not authorised by the deed of wakf. Such diversion is theft of God's property which endangers the spiritual life of the faithful, and the wrath of God is incurred by him. The casting of an obligation on the wakfs to pay maintenance to divorced muslim wives, and the diversion of their fund for that purpose are sacrilegious, violating the guaranteed freedoms under Articles 25 and 26 of the Constitution of India. When the Wakf Board pays the maintenance for the divorced woman, the payment is actually made from wakf property. The legislation seeks to achieve indirectly what it cannot do directly, of casting such a liability on the wakfs. It is therefore prayed that Section 4(2) may be declared unconstitutional and consequently Ext. P1 quashed.
6. Though the challenge in the original petition is based on both Articles 25 and 26, at the time the matter came on for preliminary hearing, the thrust of the attack was based on Sub-clauses (b) and (d) of Article 26. I shall therefore deal primarily on this aspect.
7. The Act in question is an aftermath of the decision of the Supreme Court in Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945 : (1985 Cri LJ 875) in which the Supreme Court declared as follows at page 950 (of AIR):-
"These statements in the text books are inadequate to establish the proposition that the Muslim husband is not under an obligation to provide for the maintenance of his divorced wife, who is unable to maintain herself.... We consider it not only incorrect but unjust, to extend the scope of the statements extracted above to cases in which a divorced wife is unable to maintain herself. We are of the opinion that the application of those statements of law must be restricted to that class of cases, in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife.... Since the Muslim Personal Law which limits the husband's liability to provide for the maintenance of the divorced wife to the period of iddat does not contemplate or countenance the situation envisaged by Section 125, it would be wrong to hold that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance, beyond the period of iddat, to his divorced wife who is unable to maintain herself. The argument of the appellant that, according to the Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is limited to the period of iddat, despite the fact that she is unable to maintain herself has therefore to be rejected. The true position is that, if the divorced wife is able to maintain herself, the husband's liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is unable to maintain herself, she is entitled to take recourse to Section 125 of the Code. The outcome of this discussion is that there is no conflict between the provisions of Section 125 and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself,"
The rendering of this judgment was soon followed by the enactment of the Act, the reason for which is stated in the preamble as to protect the righs of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. It is in this context that Section 4(2) casts a liability on the State Wakf Board to make payment of maintenance to a divorced woman who was unable to maintain herself and whose relatives as defined in Sub-section (1) of that section were also not in a position to maintain her.
8. The first point that arises for consideration is whether the Wakf Board, against whom the order Ext.Pl has been passed, can complain of violation of Article 26 of the Constitution of India. Article 26 provides inter alia that subject to public order, morality and health, every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law. The right conferred under Article 26 is on a denomination or any section thereof. A "denomination" has been defined in Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282 (the Shirur Mutt case) by the Supreme Court with reference to the meaning of the term in the Oxford Dictionary as "a collection of individuals, classed together under the same name; a religious sect or body having a common faith and organisation and designated by a distinctive name". It was accordingly held that each one of the sects or sub-sects in a religion can be called a religious denomination as it is designated by a distinctive name --in many cases that of its founder -- and had a common faith and common spiritual organisation. In Sardar Syedna Tahar Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853, Ayyangar, J. in his judgment at paragraph 54 observed that the identity of a religious denomination consists in the identity of its doctrine, creeds and tenets which are intended to ensure the unity of the faith which its adherents profess; and the indentity of the religious views are the bonds of the union which binds them together as one community. There can be no dispute that the rights guaranteed by Article 26 are available only to a denomination. Can the Kerala Wakf Board style itself as a denomination and claim protection under Article 26?. The Kerala Wakf Board is a body established under Section 9 of the Wakf Act 29 of 1954. It is not a collection of individuals or a body having a common faith and organisation. It has been established for the purpose of carrying out the function of supervision and control over the Wakfs in the State. Its functions are delineated in Section 15 of the Wakf Act as the general superintendence of all Wakfs in a State. The provision also specifies that it shall be the duty of the Board so to exercise its powers as to ensure that the Wakfs under its superintendence are properly maintained, controlled and administered and the income thereof duly applied to the objects and for the purposes for which the Wakfs were created or intended. Sub-section (2) of the section specifies some of the functions and powers of the Board without prejudice to the generality of the powers conferred by Sub-section (1). The Act contains detailed provisions for the constitution of the Board, its composition, the removal of its members, and the procedure to be followed by it in relation to the discharge of its functions and duties. I shall refer later to the provisions regarding its finances.
9. Sub-section (2) of Section 9 also provides that the Wakf Board shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property and to transfer any such property subject to the conditions and restrictions as may be prescribed, and shall by the said name sue and be sued.
10. The Wakf Board is not a conglomeration of individuals. It is not even akin to a company where a number of individuals join together to constitute it. It is a statutory body, pure and simple. It is not a representative body of the Muslim community. It has no soul and no faith, except the faith of dutifult performance of its functions and duties under the Act.
11. It is well known that management of Wakf properties has since long been controlled by the State. Various laws have been enacted from time to time in various parts of the country by either the Central Legislature or the State Legislatures for achiveving this purpose. Wakf properties have thus been the subject of special protection by the State through the enactment of these laws with a view to see that they are properly preserved and that the income therefrom is not frittered, misutilised or diverted for purposes other than those authorised by the objects of the Wakf. It is the power so exercised by the State that now stands vested in the Wakf Boards in each State, specially established for the purpose. What the Wakf Board does is to carry out functions which were hitherto being undertaken by the State. It is exercising a part of the State's functions and is an instrumentality of the State. The Wakf Board is a creature of the Wakf Act. It has no existence otherwise. It stands or falls with the Wakf Act. It has to exercise those functions and powers which are vested in it under the provisions of the Wakf Act. It is not a collection of individuals, or a sect or body with a common faith which alone will make it a denomination for the purpose of Article 26. If it is not a denomination, it has no rights under Article 26, liable to be violated by Section 4(2) of the Act or the order Ext. P1 by casting the liability to make payment of maintenance to a destitute divorced woman. Article 26 is therefore out of operation so far as the Wakf Board is concerned.
12. The above contention was one incidentally made, but the more serious submission was that though the amount of maintenance has to flow from the funds of the Wakf Board, in effect the expenditure is charged on the income of the Wakfs themselves. Counsel submits that when the State cannot divert Wakf funds directly for purposes not warranted by the objects of the Wakfs, it cannot achieve the same effect by the "circuitous" (indirect) method of making the Wakf Board pay for such purposes.
13. I do not find any merit in this contention. Section 4(2) does not direct the Wakfs to contribute for making payment of maintenance to any destitute woman. The Wakf Board has got its own finances and it is out of those funds that the maintenance is to be paid. I shall refer to the provisions of the Act, as they stood before the amendment by Act 69 of 1984, which Act, it was agreed, has not come into force. Chapter VI of the Act provides for the Finance of the Board. Section 46 requires the Muthavally of every Wakf to pay annually to the Board such contribution not exceeding 6% of the net annual income of its property as is situate in the State as the Board may from time to time determine. Section 47 also authorises the Board, with the previous sanction of the State Government and subject to such terms and conditions as the State Government may determine, to borrow amounts for the purpose of giving effect to the provisions of the Wakf Act. All these amounts as also any amounts received by the Board by way of donations, benefactions or grants are pooled together into what is called the Wakf Fund. The Fund is utilised for exercising the powers conferred and performing the duties imposed, by the Wakf Act, as mentioned in Sub-section (3) of Section 48. To these powers and duties, a further obligation has been cast by Parliament by Section 4(2) of the Act. It is thus clear that what is expended for maintenance under Section 4(2) is the Fund of the Wakf Board constituted as above. It is not contributed by the Wakfs by way of any charity, but by virtue of the statutory obligation cast on them by Section 46 of the Act.
14. The Wakf Fund into which the contributions made by the Wakfs get merged is the property of the Wakf Board to be utilised for the purposes laid down by Parliament. The diversion, if any, of the income of the Wakfs takes place, not by the direction contained in Section 4(2), but earlier, when the contributions are directed to be paid under Section 46. That is a contribution which the law enjoins the Wakfs to make. There is therefore no "circuitous" method adopted in procuring funds from the Wakfs for payment of the maintenance as alleged by the petitioner. As a statutory functionary created by the Wakf Act, the Wakf Board is bound to act by the laws of the realm, and comply with the obligations cast on it by law; regarding utilisation of its funds and otherwise. If payment of maintenance in such cases is anathema to Wakf, equally the outgoings provided by Sub-clauses (c) and (d) of Sub-section (3) of Section 46 namely payment of salary and allowances to the Secretary and staff of the Board, and of travelling allowances to the Chairman, Members, Secretary and staff of the Board should also be violative of Articles 25 and 26, which is plainly unacceptable. Since only the funds of the Wakf Board are utilised for payment of maintenance under Section 4(2) and not of the Wakfs, there is no substance in the challenge that Section 4(2} is violative of Articles 25 and 26. Section 4(2) is not a colourable place of legilation as alleged, going by the test laid down in Gajapati Narayana Deo v. State of Orissa, AIR 1953 SC 375.
15. No other points are raised in the original petition, Ext. P1 has not been challenged before me on the facts of the case, the challege being limited to the constitutionality of Section 4(2), and the consequential invalidity of Ext. P1.
16. The original petition therefore fails and it is dismissed in limine.