JOIN HANDS

The aim of this article is to explore the inverse relationship of a custom empowering the parties to the marriage to dissolve their marriage and the sacramental continuity of a marriage soleminised under the Hindu Marriage Act, 1955. A valid and legally recognised custom is respected and given due weight by the courts so that it can have its full operation. This is so because no person, including a court, has a right to challenge a well recognised and universally accepted custom, which has passed the test of time and the rigorous of public and societal interest.

I. Introduction

Marriage is the very foundation of a civilised society. The relation once formed, the law step in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. A marriage solemnised, whether before or after the commencement of the Hindu Marriage Act, 1955 (Act) can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Thus, it is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy[1]. Even under the Muslim Law plurality of marriage is not unconditionally conferred upon the husband. Muslim law as traditionally interpreted and applied in India permits more than one marriage during the subsistence of one and another though capacity to do justice between co wives in law is condition precedent[2]. As per the Hindu Law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. One of the causes expressly recognised by law is the legal sanction of a valid custom to dissolve a marriage. Thus the rules of dissolution of marriage and monogamy are subject to a valid custom to the contrary. This shows that the law relating to marriage and divorce of Hindus has an inverse relationship with a recognised valid custom. If a Hindu custom allows the parties to the marriage to dissolve their marriage as per the custom, then the Act cannot prohibit its operation, even if it goes against the basic spirit of the Act.

II. The inverse relationship

The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29(2) providing that nothing in the Act can affect any right, recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. Thus, a marriage which may not be permissible to be dissolved as per the provisions of the Act can still be dissolved if the party relying on a custom can successfully plead and prove it. This shows that a valid and recognised customary law of divorce will prevail over the provisions of the Act and thus it shares an inverse relationship with the provisions of the Act, which restrict the right of the spouses to get divorce on limited grounds only. It must be noted that the customary law of divorce can be relied upon only if it satisfies certain well-accepted principles, as enumerated by the Courts from time to time. The characteristics of a valid and binding custom or usage empowering the parties to obtain divorce are:

(1) it must be of immemorial existence, it must be reasonable, it must, be certain and it must be continuous. Every custom must have to be in existence preceding memory of man and if the proof was carried back as far as living memory would go, it should be presumed that the right claimed had existed from time of legal memory[3],

(2) it is the essence of special usages modifying the ordinary law that they should be ancient and invariable; it is further essential that they should be established to be so, by clear and unambiguous evidence and that it is only by means of such findings that the Courts can be assured of their existence and that they possess the conditions of antiquity and continuity and certainty on which alone their legal title to recognition depends. Custom must be proved and the burden of proof is on the person who asserts it[4],

(3) after the existence of a custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence and it is for this reason that such an evidence is allowable as an explanation to the general rule[5],

(4) the breach of a custom in a particular instance need not destroy it for all times[6],

(5) the material customs must be proved in the first instance by calling witnesses acquainted with them until a particular custom has by frequent proof in the Court becomes so notorious that the Courts take judicial notice of it. A custom cannot be extended by logical process[7],

(6) an oral evidence as to instances, which can be proved, by documentary evidence cannot be fairly relied upon to establish custom when no satisfactory explanation for withholding the best evidence is given. Custom cannot be extended by analogy and it cannot be established by a priori method[8], and

(7) the ordinary rule is that a custom, general or otherwise, has to be proved under Section 57 of the Evidence Act. However, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under Section 57(1) of the Evidence Act[9].

III. Judicial response

The response of the courts in India is two fold. On the one hand they respect the mandates of the valid and well-recognised customs whereas on the other hand any attempt, which fails to satisfy the rigours of public policy and societal interests, is thwarted at the very threshold. The courts are also very conscious to ensure that the requirement of the existence of a valid custom are duly fulfilled and they must be expressly pleaded and clearly established before any relief is granted. The general impression is that since these customs are going against the basic theme and policy of the Act, they must be construed narrowly and strictly. At the same time once these customs are validly recognised even in the limited, narrowed and restricted parameters of societal interests, they are given their due weight age and the wisdom of courts is not substituted for their wisdom and recognition.

In Sankarlingam v Subban[10] divorce by consent was held valid as a matter of custom of the Pakhali caste of Ahmedabad observing that there was nothing immoral in a caste custom by which divorce and remarriage were permitted by mutual agreement. There was no invalidity in a custom by which married couple on account of disagreement between them by consent could divorce and were divorced by parties approaching the headman and other relations, paying certain amount and taking away tali or the sacred thread from round the wife's neck and giving it back to the husband. It was only when the divorce was enforced against the wishes of his wife that the custom permitted divorce would be illegal.

In Pakhali Jina Magan v Bai Jethi[11] it was held that a custom of divorce with mutual consent of husband and wife stated to exist among the Hindus of Pakhali caste of Ahmedabad was not repugnant to Hindu Law. When it was contended that the institution of divorce was itself opposed to the concept of Hindu law and that there was no decision of any Court in India which held a custom of divorce as valid as it was observed that divorce is not contemplated by the Hindu Law but it is not repugnant to its principles, and if there be a well established custom in its support, it may override the general provisions of that law. It was further observed that there had been many cases in our Courts arising out of divorce in the lower castes. In all those cases even where it was held that the divorce had not been properly granted, it had been taken for granted that the custom of divorce can validly exist in a particular community, especially if it is a Sudra community, but that divorce granted cannot be forced by the caste against an unwilling person.

In Veerappa Chettiar v Michael[12] the main question involved in both the appeals was whether the marriage of Bangaru Ammal was in Asura form or in Brahma form. The contention of the appellant was that it was not in Asura form. The Court held that the marriage of Bangaru Ammal was not in Asura form but in Brahma form. The Court observed: “Except a bare allegation in the plaint that the said marriage was held in Asura form, the plaintiffs did not give any particulars or set up any custom in the community to which the parties to the marriage belonged. There was nothing to show that there was a practice in the family to give Kambu as 'Parisam for the bride or Kambu was paid as 'Parisam' at the time of the betrothal ceremony in connection with the marriage of Bangaru Ammal. We are also in these appeals not concerned with any customary form of marriage but only with a marriage sanctioned by Hindu Law, for no custom was pleaded in derogation of Hindu Law. But there may be a custom in a community not in derogation of the Hindu Law but in regard to the manner of complying with a condition laid down by Hindu Law. That is to say if the criterion for an Asura marriage was that there should be a sale of the bride, there may be a custom in a community in regard to the manner of paying the consideration' for the sale”.

In Shakuntalabai v V.L.V. Kulkarni[13] the Supreme Court held that custom must be proved and the burden of proof is on the person who asserts it. A custom cannot be extended by logical process. The Court observed: “ Customs cannot be extended by analogy and it cannot be established by a priori method. Further, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under section 57(1) of the Evidence Act. The Court entertaining no doubt that there has been ancient and unbroken customs of dissolution of marriage and of Serai Udiki marriage among the Panchamasal Lingayats which was judicially noticed by the Courts, and that the marriage in the instant case, of the fourth defendant with Gurulingappa was proved to have been customarily dissolved and that she was subsequently legally married with Gurappa in the valid customary form of Udiki marriage, whereafter, she lived with Gurappa as husband and wife until Gurappa died, and that, thereafter, she enjoyed the family pension by dint of her being nominated as wife of Gurappa to the knowledge of all concerned. She was accepted by the community as wife of Gurappa even after his death. There is, therefore, no scope for declaring the marriage illegal posthumously”.

In Dr. Surajmani Stella Kujur v D.C.Hansdah (14-02-01) the Supreme Court observed: “It is conceded even by the appellant that the parties to the petition are two Tribals, who otherwise profess Hinduism, but their marriage being out of the purview of Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santal Customs and usage. The appellant has, however, relied upon an alleged custom in the Tribe, which mandates monogamy as a rule. It is submitted that as the respondent has solemnized a second marriage during the subsistence of the first marriage with the appellant, the second marriage being void, the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status, the establishment of which may be used for the purposes of proving the ingredients of an offence which, under Section 3(37) of the General Clauses Act, would mean an act or omission punishable by any law by way of fine or imprisonment. Article 20 of the Constitution, guaranteeing protection in respect of conviction of offence, provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause (3) of the Constitution means the law made by the Legislature including intravires statutory, orders and orders made in exercise of powers conferred by the statutory rules. For custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. Nowhere in the complaint the appellant has referred to any alleged custom having the force of law, which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void, the appellant was under an obligation to show the existence of a custom, which made such marriage null, ineffectual, having no force of law or binding effect, incapable of being enforced in law or non- est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability, the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. In view of the fact that parties admittedly belong to the Scheduled Tribes and in the absence of specific pleadings, evidence and proof of the alleged custom making the second marriage void, no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent”.

In Yamanaji Jadhav v Nirmala[14] the Supreme Court observed: “We find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document, which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong.
Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true in the courts below that the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of their not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case it is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26th of June, 1982 has come into existence and which is the subject matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the process of or outside court) in their community and then test the validity of the divorce deed dated 26.6.1982 based on the finding arrived at in deciding the new issue”.

IV. Conclusion

A close reading and appreciations of the traditional Hindu Law and the Act reveals that the codification of the traditional Hindu Law is a positive step in the right direction, which recognises a benign movement from the statehood of non-recognition to the platform of recognition of grounds for divorce. The traditional Hindu law did not recognise the system of divorce and the husbands were literally free to desert their wives, as this was a socially accepted phenomenon. There was, of course, the customary law which recognised that divorce can be granted by either party to the marriage if a custom prevailing in their community permits them to do so. The legislature by way of codification has improved the “marital equality” among the spouses by formulating certain grounds, which can be invoked by either spouse to get a decree of divorce. In this sense the legislature has made “positive and constructive departures” from the traditional Hindu law. The best part about this codification drive is that it expressly and in clear terms reserved the right to grant divorce under the customary Hindu law by incorporating Section 29(2) in the Act. Thus, the spouses are now free to get divorce either by invoking the provisions of the Act or by successfully pleading and proving a valid custom permitting them to obtain divorce.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Phone No: 9899169611.

[1] Smt. Sarla Mudgal v U.O.I, AIR 1995 SC 1531.
[2] Lily Thomas v U.O.I, AIR 2000 SC 1650.
[3] Edward v Jenkins, (1896) 1 Ch.D.308, reiterated in Mohammed Ibrahim v Shaik Ibrahim, AIR 1922 P.C. 59.
[4] Ramalakshmi Ammal v Sivanantha Perumal Sethurayar, 14 M.I.A.81.570.
[5] Raja Rajendra Narain v Kumar Gangananda, AIR 1925 PC 213.
[6] D.C. Bara Banki v. Receiver of the Estate of Choudhry & Ors, AIR 1928 PC 202.
[7] Effuah Amissah v. Effuah Krabah, AIR 1936 P.C. 147.
[8] Saraswati v Jagadambal AIR 1953 SC 20.
[9] Uzagar Singh v Mst. Jeo, AIR 1959 SC 104.
[10] [1894] 17 Madras 479.
[11] I.L.R.1941 Bom 535.
[12] AIR 1963 SC 933.
[13] AIR 1989 SC 1359.
[14] (2002) 2 SCC 637.

The aim of this article is to analyse and appreciate the role played by the Apex Court of India in reviving and revitalizing the personal laws concerning marriage of various communities, particularly the Muslim community.

I. Introduction

Some questions, which arise under the ordinary civil and criminal law, are of a far-reaching significance to large segments of society, which have been traditionally subjected to unjust treatment. Women are one such segment. Thus, in dealing with the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief, which partakes basic human rights to secure gender and social justice, is universally recognised by persons belonging to all religions. The solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints (1).

II. Necessity of a Uniform Civil Code

Marriage is the very foundation of a civilised society. The relation once formed, the law step in and binds the parties to various obligations and liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist. This societal interest mandates the enactment of a “Uniform Civil Code” (UCC) so that we can have a uniform law governing the marriages and the relationships and obligations arising out of them. Article 44 of the Constitution of India is the source for the enactment of a UCC to bring harmony between various personal laws governing the matrimonial relationships. Dr. Tahir Mahmood in his book ‘Muslim Personal Law' (1977 Edition, pages 200-202) has made a powerful plea for framing a uniform Civil Code for all citizens of India. He says: "In pursuance of the goal of secularism, the State must stop administering religion based personal laws". He wants the lead to come from the majority community but we should have thought that, lead or no lead, the State must act. It would be useful to quote the appeal made by the author to the Muslim community: "Instead of wasting their energies in exerting theological and political pressure in order to secure an "immunity” for their traditional personal law from the state legislative jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India". It is a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws, which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State, which is charged with the duty of securing a uniform civil code for the citizens of the country, and, unquestionably, it has the legislative competence to do so. The difficulties involved in bringing persons of different faiths and persuasions on a common platform are appreciable but a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because; it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws cannot take the place of a Common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case (2). One wonders how long will it take for the Government of the day to implement the mandate of the framers of the Constitution under Article 44 of the Constitution of India. The traditional Hindu law – personal law of the Hindus-governing inheritance, succession and marriage was given go-bye as back as 1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country. Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27 (3). Any legislation that brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation. It is a matter of regret that Article 44 of the Constitution has not been given effect to. The Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies (4). The political history of India shows that during the Muslim regime, justice was administered by the Qazis who would obviously apply the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus were concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings made Regulations for the administration of civil justice for the native population, without discrimination between Hindus and Mohammedans. The 1772 Regula-tions followed by the Regulations of 1781 where under it was prescribed that either community was to be governed by its” personal" law in matters relating to inheritance, marriage, religious usage and institutions. So far as the criminal justice was concerned the British gradually superseded the Muslim law in1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the British regime until independence and the territory of India was partitioned by the British Rulers into two States on the basis of religion. Those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation - Indian nation - and no community could claim to remain a separate entity on the basis of religion. It would be necessary to emphasise that the respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations of 1781 framed by Warren Hastings. The Legislation - not religion – being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplemented by introducing a uniform civil code. In this view of the matter no community can oppose the introduction of uniform civil code for all the citizens in the territory of India. The Successive Governments till date have been wholly re-missed in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India. It must be noted that the legislative competence is one thing, the political will, sensitivity and courage to use that competence is quite another. Thus, unless and until the political parties unite together for the common betterment of India, the hope for a UCC will always remain a distant reality. They must sacrifice their own personal interests and work for the interest of nation at large. The role model for governance and decision taken thereon should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but also must create an impression that the decision-making was motivated on the consideration of probity. The government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play. Though on the face of it the decision may look legitimate but as a matter of fact the reasons may not be based on values but to achieve popular accolade that decision cannot be allowed to operate. The Constitution of India envisages separation of power between the three organs of the Constitution so that the working of the constitution may not be hampered or jeopardized. This thin and fine line of distinction should never be ignored and transgressed upon by any of the organ of the Constitution, including the judiciary. This rigid perception and practice can be given a go by in cases of “abdication of duties” by one of the organ of the Constitution. Thus, the judiciary can interfere if there is an abdication of duties by the legislature or the executive. In such cases, the theory of separation of powers would not come in the way of judiciary while exercising the power of judicial review (5). The Supreme Court provided a sound legal base in the form of guidelines for preventing sexual harassment of women at workplace in Vishaka v State of Rajasthan, (1997) 6 SCC 241 even in the absence of legislative will to fill in the vacuum. Thus, judicial law making is permissible in certain exceptional circumstances and the problem of UCC can be solved by this process. A careful perusal of the recent decisions of the Supreme Court shows that the same is happening in a systematic and phased manner, for the common betterment of society at large.

III. Judicial codification of personal law

The codification of personal laws into a UCC has remained a secluded and disgruntled reality, but the judiciary has given them a new dimension and meaning with the exercise of its legitimate and Constitutional powers of judicial activism. This is more so where Muslim personal law was involved. The object seems to be to empower Muslim women with the basic Human Rights so that they can live a dignified and respectful life. It must be appreciated that a nation which does not respect its women cannot be described as a civilised nation at all. Such a nation cannot grow and develop and will ultimately perish due to its own rudimentary and tyrannical dogma. It seems the Supreme Court has followed this philosophy without any exceptions attached to it.

In Mohd Ahmed Khan v Shah Bano Begum (6) the Supreme Court considered the application of section 125 of the Cr.P.C to Muslim women. The Court gave section 125 a humanistic and benign interpretation and observed: “ Under section 125(1)(a), a person who, having sufficient means, neglects or refuses to maintain his wife who is unable to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1), 'wife' includes a divorced woman who has not remarried. These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions. Section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws, which define and govern the rights and obligations of the parties belonging to particular religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion. Clause (b) of the Explanation to section 125(1), which defines 'wife' as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope. Section 125 is truly secular in character. Therefore, a divorced Muslim woman, so long as she has not remarried, is a 'wife' for the purpose of section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her. According to the Explanation to the second proviso to section 125 if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him. It is too well known that a Mohammedan may have as many as four wives at the same time but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular. The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section125 overrides the personal law, if there is any conflict between the two”.

In Smt. Sarla Mudgal v U.O.I (7) the Supreme Court considered the effect of conversion to another religion on marriage and observed: “The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the effect of dissolving a Hindu marriage. Conversion to another religion by one or both the Hindu spouses did not dissolve the marriage. In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties. A marriage solemnised under a particular statute and according to personal law could not be dissolved according to another personal law, simply because one of the parties had changed his or her religion. A marriage solemnised, whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. It is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. The second marriage of an apostate would, therefore, be illegal marriage qua his wife who married him under the Act and continues to be Hindu. Looked from another angle, the second marriage of an apostate-husband would be in violation of the “rules of natural justice”. The second marriage after conversion to Islam would, thus, be in “violation of the rules of natural justice” and as such would be void”.

In Danial Latifi v U.O.I (8) while upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court summed up its conclusions as follows: 1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1) (a) of the Act. 2) Liability of Muslim husband to his divorced wife arising under Section 3(1) (a) of the Act to pay maintenance is not confined to iddat period. 3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. 4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

In Shamim Ara v State of U.P (9) the Supreme Court streamlined the position regarding the requirements for a valid Talaq under the Muslim law. The Court held that the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected.

In Savitri Pandey v Prem Chand Pandey (10) the Supreme Court held that the second marriage by a spouse during the subsistence of an appeal by the other spouse against the decree of divorce would be subject to the end result of the proceedings. The court further observed: “ There is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court. No person can be permitted to flout the course of justice by his or her overt and covert acts. At this stage we would like to observe that the period of limitation prescribed for filing the appeal under Section 28(4) is apparently inadequate which facilitates the frustration of the marriages by the unscrupulous litigant spouses. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law & Justice for such action as it may deem fit to take in this behalf”. The legislature accepted this request of the apex Court of India and enhanced the period of appeal from 30 days to 90 days, which is an appropriate step in the right direction.

In Amina v Hassn Koya (11) the Supreme Court while adjudicating upon the validity of a marriage entered into by a pregnant Muslim female observed: It is very difficult to believe that a woman who is five months pregnant will be able to conceal the pregnancy from the husband. Such an advanced stage of pregnancy cannot be concealed as the pregnancy starts showing by that time. In any case the pregnancy cannot be concealed from the husband. A husband will at least know for sure that the wife is pregnant especially when the pregnancy is five months old. Therefore, we cannot accept that that the respondent did not know at the time of marriage that the appellant was already pregnant. If this fact was known to the respondent, the marriage cannot be said to be illegal or void. Also, the conduct of the respondent at the relevant time is to be considered. He went through the marriage. He did not raise any objection even after the marriage. He was present at the time of delivery of the child. Presumably he gave his own name as the name of the father of the child for the official record. Even thereafter, for nearly four years he went along with the marriage and brought up the child while treating the appellant as his wife. Any person, who learns that his newly married wife is already pregnant for five months and who does not accept that marriage or pregnancy, will not behave in the manner in which the respondent did. In the present case, the facts on record show that the husband was aware of the pregnancy of the wife at the time of the marriage. Therefore, such a marriage cannot be said to be invalid”.

In B.S. Joshi & Ors v State of Haryana & Anr (12) the Supreme Court held that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code. The Court observed: “ The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier”.

In K.A. Abdul Jaleel v T.A. Shahida (13) the Supreme Court held that the Family Court has jurisdiction to adjudicate upon any question relating to the properties of divorced parties. The Court observed: “The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of Objects and Reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts the matters relating to the property of the spouses or either of them. The Statement of Objects and Reasons would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other; irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise”.

IV. Conclusion

The Constitution is organic and living in nature. It is also well settled that the interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with passage of time, law must change. New rights may have to be found out within the constitutional scheme. It is established that funda-mental rights themselves have no fixed content; most of them are empty vessels into which each generation must pour its contents in the light of its experience. The attempt of the court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. There cannot be any distinction between the fundamental rights mentioned in Chapter III of the Constitution and the declaration of such rights on the basis of the judgments rendered by the Supreme Court (14). We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree it will shed that bark and grow a living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law, which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast-changing society and not lag behind (15). It is further trite that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation (16). These changed circumstances may also create a vacuum in the legal system, which has to be suitably filled up by the legislature. If the legislature fails to meet the need of the hour, the courts may interfere and fill-in the vacuum by giving proper directions. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field (17). Thus, directions given by the court will operate only till the law is made by the legislature and in that sense temporary in nature. Once legislation is made, the court has to make an independent assessment of it. In embarking on this exercise, the points of disclosure indicated by this court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure there from cannot be countenanced (18). The courts may also rely upon International treaties and conventions for the effective enforce-ment of the municipal laws provided they are not in derogation with municipal laws (19). Thus, till India has a UCC, the judiciary should continue its benign and much needed codification drive. This will provide a sound and judicious platform for the ultimate UCC enacted by the legislature, after considering and giving due credence to the observations of the highest Court of India.

© Praveen Dalal. All rights reserved with the author.
* Arbitrator,Consultant and Advocate, Delhi High Court
Contact at: pd37@rediffmail.com/ perry4law@yahoo.com
Telephone no:9899169611.

(1) Danial Latifi v U.O.I, (2001) 7 SCC 740.
(2) Mohd Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945.
(3) Smt. Sarla Mudgal v U.O.I, AIR 1995 SC 1531.
(4) John Vallamattom and Anr v Union of India, (2003) 6 SCC 611.
(5) Praveen Dalal; “ Judicial review: Nuisance or absolute necessity”, www.naavi.org, dated: 06-0804.
(6) AIR 1985 SC 945.
(7) AIR 1995 SC 1531.
(8) (2001) 7 SCC 740.
(9) (2002) 7 SCC 518.
(10) AIR 2002 SC 591.
(11) (2003) 6 SCC 93.
(12) AIR 2003 SC 1386.
(13) AIR 2003 SC 2525.
(14) P.U.C.L v U.O.I, (2003) (3) SCALE 263
(15) Justice Bhagwati in National Textiles Workers Union v P.R.Ramakrishnan, (1983) 1 SCC 228.
(16) John Vallamattom v U.O.I, (2003) 6 SCC 611.
(17) Vishaka v state of Rajasthan, (1997) 6 SCC 241.
(18) Per P.V.Reddi.J in P.U.C.L v U.O.I, 2003(3) SCALE 263: JT 2003 (2) SC 528(Para 122). (19) Praveen Dalal, Judicial review: Nuisance or absolute necessity, www.naavi.org, dated: 06-08-04.