Khula and Mubarat - Validity of divorce by mutual agreement under Islamic Law

 

 

 

·         A S Parveen Akhtar vs Union of India - Madras High Court - 2002 SCC OnLine Mad 836 : (2003) 1 LW 370 : (2003) 1 LW (Cri) 115 - Paragraphs – 49

Muslim Personal Law (Shariat) Act, 1937 provides for the application of Muslim Personal Law to all questions regarding, inter alia, “…marriage, dissolution of marriage, including talaq, ila, zihar, lian, Khula and mubaraat……”. That Act is clearly a legislation dealing with Personal Law. Section 2 of that Act, in whole or in part, cannot, having regard to the decisions of the apex Court in the case of AWAG, 1997 3 SCC 573, and in the case of Krishna Singh v. Mathura Ahira, AIR 1980 SC 707, be declared as void or unconstitutional by reason of any inconsistency with Part HI of the Constitution.

·         Masroor Ahmed vs State (NCT of Delhi) and Another - ILR 2007 II Delhi 1329 - Paragraphs - 16 to 18

The Muslim Personal Law (Shariat) Application Act, 1937 and the various forms of dissolution of marriage recognised by it.

16. In India, the confusion with regard to application of customary law as part of muslim law was set at rest by the enactment of The Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of the 1937 Act reads as under:—

“2. Application of Personal Law to Muslims.— Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

The key words are “notwithstanding any customs or usage to the contrary” and “the rule of decision in cases where the parties are muslims shall be the muslim personal law (shariat).” This provision requires the court before which any question relating to, inter-alia, dissolution of marriage is in issue and where the parties are muslims to apply the muslim personal law (shariat) irrespective of any contrary custom or usage. This is an injunction upon the court13. What is also of great significance is the expression — “dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat…” This gives statutory recognition to the fact that under muslim personal law, a dissolution of marriage can be brought about by various means, only one of which is talaq. Although islam considers divorce to be odious and abominable, yet it is permissible on grounds of pragmatism, at the core of which is the concept of an irretrievably broken marriage. An elaborate lattice of modes of dissolution of marriage has been put in place, though with differing amplitude and width under the different schools, in an attempt to take care of all possibilities. Khula, for example, is the mode of dissolution when the wife does not want to continue with the marital tie. She proposes to her husband for dissolution of the marriage. This may or may not accompany her offer to give something in return. Generally, the wife offers to give up her claim to Mahr (dower). Khula is a divorce which proceeds from the wife which the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return14. Mubaraat is where both the wife and husband decide to mutually put an end to their marital tie. Since this is divorce by mutual consent there is no necessity for the wife to give up or offer anything to the husband. It is important to note that both under khula and mubaraat there is no need for specifying any reason for the divorce. It takes place if the wife (in the case of khula) or the wife and husband together (in the case of mubaraat) decide to separate on a no fault/no blame basis. Resort to khula (and to a lesser degree, mubaraat') as a mode of dissolution of marriage is quite common in India.

17. Ila15 and Zihar16 as modes of divorce are virtually non-existent in India. However, lian is sometimes resorted to. If a man accuses his wife of adultery (zina), but is unable to prove the allegation, the wife has the right to approach the qazi for dissolution of marriage. In India, a regular suit has to be filed. Once such a suit is filed by the wife, the husband has the option of retracting his charge of adultery, whereupon the suit shall fail. However, if he persists then he is required to make four oaths in support of the charge. The wife makes four oaths of her innocence, after which the court declares the marriage dissolved. This is the process of dissolution of marriage by lian17.

The Dissolution of Muslim Marriage Act, 1939

18. At this juncture it would be relevant to mention the Dissolution of Muslim Marriages Act, 1939 which enabled muslim women of all sects to seek dissolution of marriage by a decree of the court under the various grounds enumerated in section 218” thereof which included the husband's cruelty, impotency, failure to maintain, leprosy, virulent venereal disease, etc. Section 2(ix) of the 1939 Act contained the residuary clause entitling a muslim woman to seek dissolution of her marriage through a court on any other ground which is recognised as valid for the dissolution of marriages under Muslim law. So, the position after the 1937 and 1939 Acts is that dissolution of a muslim marriage is permissible by the modes of talaq, ila, zihar, lian, khula and mubaraat (as mentioned in the 1937 Act) as also on a wife's suit under the 1939 Act, on any of the grounds mentioned therein or on any other ground which is recognised as valid for the dissolution of marriages under Muslim law which would include lian. Divorce through talaq, ila, zihar, khula and mubaraat takes place without the intervention of the court. Divorce under the 1939 Act (which would also include lian) is through a wife's suit and by a decree of the court. The muslim wife, therefore, can seek divorce either outside the court (through khula) or through court (under the 1939 Act or lian). She can also put an end to the marital tie by pronouncing talaq upon herself in the case of talaq-e-tafwiz where the husband delegates the power of pronouncing talaq to his wife. On the other hand, the muslim husband can dissolve the marriage only outside court through talaq (ila and zihar being virtually non-existent in India). Both the husband and wife can mutually decide to dissolve the marriage, again without the intervention of court, through mubaraat.

·         Munavvar-ul-Islam vs Rishu Arora and Rukhsar - ILR 2014 III Delhi 1886 - Paragraphs – 52

This Court bears in mind that the legislation enacted 75 years ago was to empower Muslim women to seek redress from a miserable marriage, which otherwise was wholly dependent upon the husband's prerogative to give her a talaq (divorce; un-tethering from the bonds of marriage). It must be noted that even khula, which was a procedure for dissolution initiated at the instance of the wife, required the consent of the husband. However, with the enactment of the Act, the husband's right to talaq has to be seen in the context of the wife's competing rights. An equitable scheme as per Islamic tenets has been recognised in the Act and attitudes of parties would need a subtle adjustment to align with the basic tenets. Accordingly, the contention that the impugned judgement, if upheld, would adversely affect the appellant's prerogative of talaq, is rejected.

·         Jorden Diengdeh vs S S Chopra - (1985) 3 SCC 62 - Paragraph – 06

6. Under the Mohammedan Law, a Muslim husband may divorce his wife by the pronouncement of talaq. A Muslim wife may after the passing of the dissolution of Muslim Marriages Act, 1939, obtain a decree for a dissolution of a marriage on one of the following grounds:

"(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;

(iii)that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his martial obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii)that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years (Proviso has been omitted as it is not necessary)

(viii)that the husband treats her with cruelty that is to say-

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill- treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;

(ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law." (The proviso has been omitted as it is not necessary in the present case).

We may add that under strict Hanafi Law, there was no provision enabling a Muslim women to obtain a decree dissolving her marriage on the failure of the husband to maintain her or on his deserting her or maltreating her and it was the absence of such a provision entailing 'inspeakable misery in innumerable Muslim women' that was responsible for the dissolution of the Muslims Marriages Act, 1939. (See Statements of Objects and Reasons of that Act). If the legislature could so alter the Hanafi Law, we fail to understand the hallabalcoo about the recent judgment of this court in the case of Mohd. Ahmed Khan v. Shah Bano Begum & Ors. interpreting the provisions of sec. 125 of the Criminal Procedure Code and the Muslim Law. it is also necessary to add that Mohammedan Law provides for a decree for divorce known as Khula and mubara' at by agreement of parties.

·         Zohara Khatoon vs Ibrahim - (1981) 2 SCC 509 - Paragraphs - 22,23

22. In these circumstances we are therefore, satisfied that the interpretation put by the High Court on the second limb of clause (b) is not correct. This seems to be borne out from the provisions of Mahomedan law itself. It would appear that under the Mahomedan law there are three distinct modes in which a muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce.

(1) Where the husband unilaterally gives a divorce according to any of the forms approved by the Mahomedan law, viz, Talaq ahsan which consiss of a single pronounce-ment of divorce during tuhar (Period between menstruations) followed by abstinence from sexual intercourse for the period of iddat; or Talak hasan which consists of three pronouncement made during the successive tuhrs, no intercourse taking place between three tuhrs; and lastly Talak-ul-bidaat or talalk-i- badai which consists of three pronouncements made during a single tuhr either in one sentence or in three sentences signifying a clear intention to divorce the wife, for instance, the husband saying 'I divorce thee irrevocably' or 'I divorce thee, I divorce thee, I divorce thee'. The third form referred to above is however not recognised by the Shiah law. In the instant case, we are concerned with the appellant who appears to be a Sunni and governed by the Hanafi law (vide Mulla's Principles of Mahomedan Law, Sec. 311, p. 297). A divorce or talaq may be given orally or in writing and it becomes irrevocable if the period of iddat is observed though it is not necessary that the woman divorced should come to know of the fact that she has been divorced by her husband.

(2) By an agreement between the husband and the wife whereby a wife obtains divorce by relinquishing either her entire or part of the dower. This mode of divorce is called 'khula' or Mubarat. This form of divorce is initiated by the wife and comes into existence if the husband gives consent to the agreement and releases her from the marriage tie. Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarat. The gist of these mode is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced. A divorce may also come into existence by virtue of an agreement either before or after the marriage by which it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature and which again are agreed to be the husband. In such a case the wife can repudiate herself in the exercise of the power and the divorce would be deemed to have been pronounced by the husband. This mode of divorce is called 'Tawfeez' (vide Mulla's Mohmedan Law, Sec. 314. p. 300.

(3) By obtaining a decree from a civil court for dissolution of marriage under s. 2 of the Act of 1979 which also amounts to a divorce (under the law) obtained by the wife. For the purpose of maintenance, this mode is governed not by clause (b) but by clause (c) of sub-section (3) of s. 127 of the 1973 Code; whereas the divorce given under modes (1) and (2) would be covered by clause (b) of sub-section (3) of s. 127.

23. These are the three distinct modes in which a dissolution of marriage can be brought about. It is, therefore, manifest that clause (b) Explanation to s. 125 envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce S under mode numbers 2 and 3, she continues to be a wife for the purpose of getting maintenance under s. 125 of the 1973 Code. In these circumstance the High Court was not at all justified in taking the two separate clauses 'who has been divorced' and 'has obtained a divorce from her husband' conjunctively so as to indicate a divorce proceeding from the husband and the husband alone and in not treating a dissolution of marriage under the 1939 Act as a legal divorce. We might like to mention here that the 1973 Code has by extending the definition of wife, not excluded the various modes of divorce but has merely abrogated that part of the Mahomedan law under which the wife ceased to get maintenance if the conjugal relationship of the husband and wife came to an end. Nevertheless, the personal law is applied fully and kept alive by clause (b) of sub-section (3) of s. 127 which may be extracted thus:

"(b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was pay able on such divorce, cancel such order:-

(i) in the case where such sum was paid before such order, from the date on which such order was made,

(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman."

 

 

Mere use of the word "undertake" does not give rise to contempt action unless undertaking is given to the court

1947 SCC OnLine Cal 167 : ILR (1948) 2 Cal 239 : AIR 1948 Cal 294 : 1948 Cri LJ 567

In the High Court of Calcutta

Nisha Kanto Ray Chaudhuri

Versus

Saroj Bashini Guha^*

Contempt of Court — Breach of undertaking given in a compromise petition, if and when amounts to contempt of Court.

There is no contempt of Court on the breach of an undertaking, unless such undertaking is given to the Court. If one of the terms of the compromise is that one party should give an undertaking to the Court, then the compromise should make that clear; otherwise such undertaking would connote a promise or a solemn promise to the party and not to the Court. The mere user of the word “undertake” in a compromise petition does not mean a promise to the Court in which the compromise petition is filed.

J 2

Possibility of Abuse not a ground to strike down a legislation

 

 In Sushil Kumar Sharma v. Union of India, (2005) 6 SCC  at page 285 this Hon'ble Court has held that:

12. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless the contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand”. (See A. Thangal Kunju Musaliar v. M. Venkatichalam Potti [(1955) 2 SCR 1196 : AIR 1956 SC 246)

 

 See also

(R.K. Garg v. Union of India, (1981) 4 SCC 675, para. 8).  

Beneficial and Liberal Construction

Pandey Oraon v. Ram Chander Sahu, 1992 Supp (2) SCC 77 at page 80

7. The provision is beneficial and the legislative intention is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. Therefore when the legislature is extending special protection to the named category, the court has to give a liberal construction to the protective mechanism which would work out the protection and enable the sphere of protection to be effective than limit by (sic) the scope. In fact, that exactly is what has been said by a three Judge bench of this Court in almost a similar situation in Manchegowda v. State of Karnataka [(1984) 3 SCC 301 : (1984) 3 SCR 502] and what was said by a three Judge bench followed by a later decision of this Court in Lingappa Pochanna Appelwar v. State of Maharashtra [(1985) 1 SCC 479 : (1985) 2 SCR 224] . To the same effect is the observation of this Court in Gamini Krishnayya v. Guraza Seshachalam [AIR 1965 SC 639] . The House of Lords in D (a minor) v. Bershire County Council [(1987) 1 All ER 20 (HL)] said that broad and liberal construction should be given to give full effect to the legislative purpose. We would, therefore, in the facts and circumstances appearing in this case, hold that the authorities under the Act were justified in extending the provision of Section 71-A of the Chotanagpur Tenancy Act to the situation which emerged and the High Court took a wrong view in limiting the concept of transfer to the statutory definition in the T.P. Act and holding that Section 71-A was not applicable in a case of this type. On this basis, it must follow that the action of the statutory authority was justified and the conclusion of the Full Bench must not be sustained. We accordingly allow the appeal and reverse the decision of the High Court.

 

 

National Insurance Co. Ltd. v. Kirpal Singh, (2014) 5 SCC 189 : (2014) 2 SCC (L&S) 161 : 2014 SCC OnLine SC 29 at page 195

10. The only impediment in adopting that interpretation lies in the use of the word “retirement” in Para 14 of the Pension Scheme, 1995. A restricted meaning to that expression may mean that Para 14 provides only for retirements in terms of Paras (2)(t)(i) to (iii) which includes voluntary retirement in accordance with the provisions contained in Para 30 of the Pension Scheme. There is, however, no reason why the expression “retirement” should receive such a restricted meaning especially when the context in which that expression is being examined by us would justify a more liberal interpretation; not only because the provision for payment of pension is a beneficial provision which ought to be interpreted more liberally to favour grant rather than refusal of the benefit but also because the Voluntary Retirement Scheme itself was intended to reduce surplus manpower by encouraging, if not alluring employees to opt for retirement by offering them benefits like ex gratia payment and pension not otherwise admissible to the employees in the ordinary course. We are, therefore, inclined to hold that the expression “retirement” appearing in Para 14 of the Pension Scheme, 1995 should not only apply to cases which fall under Para 30 of the said Scheme but also to a case falling under the Special Voluntary Retirement Scheme of 2004. So interpreted, those opting for voluntary retirement under the said SVRS of 2004 would also qualify for payment of pension as they had put in the qualifying service of ten years stipulated under Para 14 of the Pension Scheme, 1995.

 

 

Dwarkaprasad v. Niranjan, (2003) 4 SCC 549 at page 556

15. A beneficial provision must be meaningfully construed so as to advance the object of the Act. The term “family” must always be liberally and broadly construed so as to include near relations of the head of the family. A Division Bench of the Bombay High Court in Kanhaiyalal v. Bapurao [(1989) 1 AI RCJ 161] held that the term “family” must always be liberally and broadly construed so as to include near relatives of the head of the family. It would include not only the members of the landlord's family but also those persons who are dependent on him and whose responsibility he has accepted.

 

 

Spring Meadows Hospital v. Harjol Ahluwalia, (1998) 4 SCC 39 at page 45

8. Before we examine the aforesaid questions it would be appropriate to notice the scenario in which Parliament enacted the Consumer Protection Act (hereinafter referred to as “the Act”). The United Nations had passed a resolution in April 1985 indicating certain guidelines under which the Government could make law for better protection of the interest of the consumers. Such laws were necessary more in the developing countries to protect the consumers from hazards to their health and safety and make them available speedier and cheaper redress. Consumerism has been a movement in which the trader and the consumer find each other as adversaries. Till last two decades in many developed and developing countries powerful consumer organisations have come into existence and such organisations have been instrumental in dealing with the consumer protection laws and in expansion of the horizon of such laws. In our country the legislation is of recent origin and its efficacy has not been critically evaluated which has to be done on the basis of experience. Undoubtedly the Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act gives a comprehensive definition of consumer who is the principal beneficiary of the legislation but at the same time in view of the comprehensive definition of the term “consumer” even a member of the family cannot be denied the status of consumer under the Act and in an action by any such member of the family for any deficiency of service, it will not be open for a trader to take a stand that there is no privity of contract. The Consumer Protection Act confers jurisdiction on the Commission in respect of matters where either there is defect in goods or there is deficiency in service or there has been an unfair and restrictive trade practice or in the matter of charging of excessive price. The Act being a beneficial legislation intended to confer some speedier remedy on a consumer from being exploited by unscrupulous traders, the provisions thereof should receive a liberal construction.

 

 

Alembic Chemical Works Co. Ltd. v. Workmen, reported in AIR 1961 SC 647. In this case it has been held as follows:

“The answer to this question must be in the negative for two reasons; first, having regard to the obvious policy and object of the Act, if section 79(1) is capable of two constructions that construction should be preferred which furthers the policy of the Act and is more beneficial to the employees in whose interest the Act has been passed. It is well-settled that in construing the provisions of a welfare legislation Courts should adopt what is sometimes described as a beneficent rule of construction.”

 

 

Union of India v. Vijay Kumar No. 3989606 P, Ex-Naik, (2015) 10 SCC 460 : (2016) 1 SCC (L&S) 105 : 2015 SCC OnLine SC 760 at page 465

14. The Entitlement Rules for Casualty Pensionary Awards, 1982 are beneficial in nature and ought to be liberally construed. In terms of Rule 12, the disability sustained during the course of an accident which occurs when the personnel of the armed forces is not strictly on duty may also be attributable to service on fulfilling of certain conditions enumerated therein. But there has to be a reasonable causal connection between the injuries resulting in disability and the military service.

 

 

 

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Interpretation and Legislative Function

Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd., (2004) 1 SCC 702 at page 709

28. In District Mining Officer v. Tata Iron & Steel Co. [(2001) 7 SCC 358 : JT (2001) 6 SC 183] this Court stated: (SCC p. 383, para 18)

"The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed."

406-420 - Intention - inception - quashing

Murari Lal Gupta v. Gopi Singh, (2005) 13 SCC 699 : (2006) 2 SCC (Cri) 430 at page 700

6. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurise the petitioner for coming to terms with the respondent.