Kerala High Court
A. Abdul Gafoor Kunju vs Avva Ummal Pathumma Beevi And Anr. on 27 January, 1989
Equivalent citations: 1989CRILJ1224
ORDER Chettur Sankaran Nair, J.
1. An order of the Court of Session, Trivandrum enhancing maintenance awarded to a divorced Muslim wife and her daughter, after the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter called the Act') came into force is impugned in these proceedings.
2. Maintenance was awarded to the wife and daughter earlier. By M.C. 59/87 they sought enhancement and the Chief Judicial Magistrate, Trivandrum declined the prayer, Additional Sessions Judge, revised the order of the Magistrate and enhanced the amount. The enhancement in favour of the daughter is not challenged, and rightly too.
3. The question for consideration is, whether a Muslim wife is entitled to invoke Section 127 of the Code after 19-5-86, the date on which the 'Act' came into force. Learned Sessions Judge felt that she could. In his view, the Act supplemented the rights enuring to a divorced Muslim wife under Sections 125 to 128. The reasons for this conclusion, is that there was no repeal of Sections 125 to 128, express or implied. According to him in the absence of repeal, the Act supplemented widened or enriched the contents of rights enuring to the wife under the Code. The Sessions Judge thought that such was the intention of Parliament. Decisions of this Court in Ali v. Sufaira (1988) 2 Ker LT 94 and Aliyar v. Pathu (1988) 2 Ker LT 446 were also referred to, to support this view. The decisions have no bearing on the question arising in this case. In Ali v. Sufaira the learned Judge was dealing with the sweep of the expression 'provision' occurring in Section 3(1)(a). In Aliyar v. Pathu the Division Bench, considered the scope of Section 3(1) & (2) of the Act and the liability of a former husband to make provision for the wife, beyond iddat period. Whether an action under Section 127 survives the Act, was not considered in the decisions cited, and they are of no help in resolving the controversy raised.
4. Sessions Judge is right in his view that Sections 125 to 128 of the Code do not stand repealed. This is for, reasons more than one. The Act contains no provision of repeal. Besides, Sections 125 to 128 are not confined in their operation, to Muslim wives alone. The sections apply to a host of others, such as divorced wives belonging to other religions, neglected parents and children without sufficient means. But, this is beside the point.
5. The answer to the question is available in Sections 5 & 7 of the Act. Besides, the well known rule of interpretation is that the special law excludes the general. In Queen v. London County Council (1893) 2 QB 454 Bowen LJ. observed:
Now a general Act, prima facie, is that which applies to the whole community...as opposed to that, you get statutes which may well be public because of the importance of the subjects with which they deal and their general interest to the community, but which are limited in respect of area which makes them local - or limited in respect of individuals or persons - a limitation which makes them personal.
In Kaushalya Rani v. Gopal Singh referring to provisions of the Code of Criminal Procedure the Supreme Court stated the law (Para 7):
A special law therefore means a law enacted for special cases, in special circumstances, in centra-distinction to general rule of law, laid down as applicable generally to all cases with which the general law deals.
6. Cases are legion to support this view. When a special law namely the 'Act' was enacted to govern maintenance payable to Muslim wives, application of the general law under the Code, is excluded or restricted.
7. Shri C.K.S. Panicker appearing for respondents submitted that the Act dealt with only the personal law and that it augmented the provisions in Sections 125 to 128. According to him the law relating to prevention of vagrancy in the Code remains in-tact. It is argued that the right under the Code is independent of the personal law and is unaffected. If one considers the context in which the Act came into existence or its object it is not possible to think that it was intended to provide additional rights. The decision in 'Shah Banu' was considered, as going against Islamic Personal Law. Otherwise put, the provisions of Sections 125 to 128 were considered to be in conflict with Islamic Personal Law and hence to "specify" the rights of a divorced Muslim wife and "to provide for matters" connected with divorce the law was enacted. It is difficult to accept the view, that the Act following Shah Banu was intended to widen rights of divorced Muslim wives. The Objects and Reasons show:
This decision (Shah Banu) has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has therefore been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce....
(Emphasis supplied) The Act was to specify the rights to which the wife is entitled, and not to add to the rights in Sections 125 to 128 of the Code. Preamble to the Act also indicates that the Act was intended to provide for maintenance/provision payable on divorce. It reads:
to provide for matters connected there-with and incidental thereto.
That apart, language of the Act and the indications in Sections 5 & 7, clearly show that except in cases provided under Section 5(2), the Code of Criminal Procedure is off bounds for the divorced Muslim women.
8. Only exception available, is found in Section 5 of the Act. Under Section 5. both parties by consent may elect to be governed by Sections 125 to 128 of the Code. That clearly suggests that, in such cases and no other case, can provisions of the Code be invoked. Section 7 also gives indication that provisions of the Code are not available, even to pending applications originally instituted under the Code. Consideration based on repeal is thus alien to the context. Neither is it, possible to subscribe to the view that the Act supplemented the rights under the Code, The Act enacted in the post-Shah Banu era was intended to restrict the effect of the Code. The historical setting in which a legislation was enacted, must be considered while interpreting the legislation. It is said:
The court is not to be oblivious...of the history of law and legislation.
Policy of the legislative wisdom is not for the Court to judge, if the law is valid and inside permissible legislative parameters. There is no challenge to the validity of the Act. Rules of interpretation require that if the object of the legislation is clear, duty of the court is to hit it and not record that it has been missed (Kenneth Diplock L.J.).
Considering the language of the Act, the setting in which it was enacted and the pointers in Sections 5 & 7 of the Act, the inevitable conclusion, is that Section 127 is not available, to the divorced wife in the circumstances of the case. The right of the daughter remains unaltered, on the facts also, the order of enhancement in favour of the daughter is justified. Order of the court below is confirmed to this extent. The order enhancing maintenance to the first respondent wife is set aside. Criminal Miscellaneous Case, is allowed as indicated above.