Indian Kanoon - Search engine for Indian Law

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 s. 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).

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 s. 127 (3) (b) of the Code has been complied with or the vinculum juris created by the order under s. 125 continues despite the make-believe ritual of miniscule mahar which merely stultifies s. 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 s. 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.

Another angle to the subject of Mahar and its impact on liability for maintenance after divorce may be briefly considered. Khalid, J. of the Kerala High Court in two cases has taken the view that s.125 and s. 127 Cr.P.C. are conceptually unconnected with payment of mahar and cannot bail out a muslim husband from his statutory obligation under s.125. We are aware of the criticism of this conceptual divorce between mahar and post-divorce maintenance by Dr. Tahir Mahmood in his recent book on the 'Muslim Law of India' (see P. 133) where the learned author prefers to retain the 'nexus between mahar and maintenance but has this to say:

As explained in an old judgment by Justice Syed Mahmood, mahar is "not the exchange or consideration given by the man to the woman, but an effect of the contract imposed by law on the husband as a token of respect for its subject: the woman". Giving a correct appraisal of the concept of mahar, the Privy Council once described it as "an essential incident to the status of marriage". On another occasion it explained that mahar was a 'legal responsibility' of the husband. These judicial observations evidence a correct understanding of the Islamic legal concept of mahar Baillie in his Digest of Mohammaden Law says: