judgement:
N: Criminal Appeal No. 103 of 1981.
From the Judgment and Order dated 1.
1980 of the Madhya Pradesh High Court in Crl.
Revision No. 320 of 1979.
P. Govindan Nair, Ashok Mahajan, Mrs. Kriplani, Ms. Sangeeta and S.K Gambhir for the Appellant.
Danial Latifi Nafess Ahmad Siddiqui, S.N. Singh and T.N.Singh for the Respondents.
Mohd. Yunus Salim and Shakeel Ahmed for Muslim Personal Law Board.
S.T. Desai and S.A. Syed for the Intervener Jamat UlemaHind.
The Judgment of the Court was delivered by CHANDRACHUD,C.J.
This appeal does not involve any question of constitutional importance but, that is not to say that it does not involve any question of importance.
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. ' Nastree swatantramarhati" said Manu, the Law giver: The woman does not deserve independence.
And, it is alleged that the 'fatal 850 point in Islam is the 'degradation of woman '(l).
To the Prophet is ascribed the statement, hopefully wrongly, that 'Woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore treat your wives kindly.
This appeal, arising out of an appellation filed by a divorced Muslim woman for maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction.
The appellant, who is an advocate by profession, was married to the respondent in 1932.
Three sons and two daughters were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial home.
In April 1978, the respondent filed a petition against the appellant under section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore asking for maintenance at the rate of Rs 500 per month.
On November 6, 1978 the appellant divorced the respondent by an irrevocable talaq.
His defence to the respondent 's petition for maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to provide that he was therefore under no obligation maintenance for her, that he had already paid maintenance to her at the rate of Rs. 200 per month for about two years and that, he had deposited a sum of Rs. 3000 in the court by way of dower during the period the of iddat.
In August, 1979 the learned Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance.
It may be mentioned that the respondent had alleged that the appellant earns a professional income of about Rs. 60,000 per year.
In July, 1980, in a revisional application filed by the respondent, the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month.
The husband is before us by special leave.
Does the Muslim Personal Law impose no obligation upon the husband to provide for the maintenance of his divorced wife ? Undoubtedly, the Muslim husband enjoys the privilege of being (1) 'Selections from Kuran ' Edward William Lane 1843, Reprint 1982, page xc (Introduction) 851 able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent.
Indeed, for no reason at all.
But, is the only price of that privilege the dole of a pittance during the period of iddat ? And, is the law so ruthless in its inequality that, no matter how much the husband pays for the maintenance of his divorced wife during the period of iddat, the mere fact that he has paid something, no matter how little, absolves him for ever from the duty of paying adequately so as to enable her to keep her body and soul together ? Then again, is there any provision in the Muslim Personal Law under which a sum is payable to the wife 'on divorce ' ? These are some of the important, though agonising, questions which arise for our decision.
The question as to whether section 125 of the Code applies to Muslims also is concluded by two decisions of this Court which are reported in Bai Tahira vs Ali Hussain Fidalli Chothia(1) and Fazlunbi vs K. Khader Vali.(2) These decisions took the view that the divorced Muslim wife is entitled to apply for maintenance under section 125.
But, a Bench consisting of our learned Brethren, Murtaza Fazal Ali and A. Varadarajan, JJ. were inclined to the view that those cases are not correctly decided.
Therefore, they referred this appeal to a larger Bench by an order dated February 3, 1981, which reads thus: "As this case involves substantial questions of law of far reaching consequences, we feel that the decisions of this Court in Bai Tahira vs Ali Hussain Fidaalli Chothia & Anr and Fuzlunbi vs K. Khader Vnli & Anr.
require reconsideration because, in our opinion, they are not only in direct contravention of the plain and an unambiguous language of section 127(3)(b) of the Code of Criminal Procedure, 1973 which far from overriding the Muslim Law on the subject protects and applies the same in case where a wife has been divorced by the husband and the dower specified has been paid and the period of iddat has been observed.
The decision also appear to us to be against the fundamental concept of divorce by the husband and its consequences (1) ; (2) 1980 (3)SCR 1127 852 under the Muslim law which has been expressly protected by section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 an Act which was not noticed by the aforesaid decisions.
We, therefore, direct that the matter may be placed before the Honorable Chief Justice for being heard by a larger Bench consisting of more than three Judges.
" Section 125 of the Code of Criminal Procedure which deals with the right of maintenance reads thus: "Order for maintenance of wives, children and parents 125.
(1) If any person having sufficient means neglects or refuses to maintain (a) his wife, unable to maintain herself, (b). (c). (d). a Magistrate of the first class may, upon proof of such neglecter refusal, order such person to make a monthly allowance for the maintenance of his wife . at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate think fit Explanation For the purposes of this Chapter, (a). (b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband has not remarried.
853 (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month 's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided.
Provided further that if such person offers to maintain his wife on condition of her living with him.
and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation 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." Section 127(3)(b), on which the appellant has built up the edifice of his defence reads thus: "Alteration in allowance 127.
(1). . (2). (3) Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is satisfied that (a). . (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, 854 under any customary or personal law applicable to the parties, was payable 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.
" 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.
Whether the spouses are Hindus or Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of these provisions.
The reason for this is axiomatic, in the sense that 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.
What difference would it then make as to what is the religion professed by the neglected wife, child or parent ? Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125.
Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion.
True, that they do not supplant the personal law of the parties but, equally the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes.
The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the individual 's obligation to the society to prevent vagrancy and 855 destitution.
That is the moral edict of the law and morality cannot be clubbed with 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.
Sir James FitzJames Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal Member of the Viceroy 's Council, described the precursor of Chapter IX of the Code in which section 125 occurs, as 'a mode of preventing vagrancy or at least of preventing its consequences.
In Jagir kaur vs Jaswont Singh,(1) Subba Rao, J. speaking for the Court said that Chapter XXXVI of the Code of 1898 which contained section 488, corresponding to section 125, "intends to serve a social purpose".
In Nanak Chand vs Shri Chandra Kishore Agarwala.(2) Sikri, J., while pointing out that the scope of the and that of section 488 was different, said that section 488 was "applicable to all persons belonging to all religions and has no relationship with the personal law of the parties".
Under section 488 of the Code of 1898, the wife 's right to maintenance depended upon the continuance of her married status.
Therefore, that.
right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law.
It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be, extended to a divorced woman, so long as she has not remarried after the divorce.
That is the genesis of clause (b) of the Explanation to section 125(1), which provides that 'wife ' includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.
Even in the absence of this provision, the courts had held under the Code of 1&98 that the provisions regarding maintenance were independent of the personal law governing the parties.
The induction of the definition of 'wife, so as to include a divorced woman lends even greater weight to that (1) ; , 84.
(2) 1970 (l) S CR 565.
856 conclusion.
'Wife ' means a wife as defined, irrespective of the religion professed by her or by her husband.
Therefor, 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.
The conclusion that the right conferred by section 125 can be exercised irrespective of the personal law of the parties is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125(3) of the Code.
That proviso says that if the husband offers to maintain his wife on condition that she should live with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her, and may make an order of maintenance not with standing the offer of the husband, if he is satisfied that there is a just ground for passing such an order.
According to the Explanation to the proviso: "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 Mahomedan 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".
(See Mulla 's Mahomedan Law,18th Edition, paragraph 25S, page 285, quoting Baillie 's Digest of Moohummudan Law; and Ameer Ali 's Mahomedan Law, 5th Edition, Vol.
II, page 280).
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 section 125 overrides the personal law, if is any there conflict between the two.
The whole of this discussion as to whether the right conferred by section 125 prevails over the personal law of the parties, has proceeded on the assumption that there is a conflict between the provisions of that section and those of the Muslim Personal Law.
The argument that by reason of section 2 of the Shariat Act, 857 XXVI of 1937, the rule of decision in matters relating, inter alia, to maintenance "shall be the Muslim Personal Law" also proceeds upon a similar assumption.
We embarked upon the decision of the question of priority between the Code and the Muslim Personal Law on the assumption that there was a conflict between the two because, in so far as it lies in our power, we wanted to set at rest, once for all, the question whether section 125 would prevail over the personal law of the parties, in cases where they are in conflict.
The next logical step to take is to examine the question, on which considerable argument has been advanced before us, whether there is any conflict between the provisions of section 125 and those of the Muslim Personal Law on the liability of the Muslim husband to provide for the maintenance of his divorced wife.
The contention of the husband and of the interveners who support him is that, under the Muslim Personal Law, the liability of the husband to maintain a divorced wife is limited to the period of iddat.
In support of this proposition, they rely upon the statement of law on the point contained in certain text books.
In Mulla 's Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the effect that, "After divorce, the wife is entitled to maintenance during the period of iddat".
At page 302, the learned author says: 'Where an order is made for the maintenance of a wife under section 488 of the Criminal Procedure Code and the wife is afterwards divorced, the order ceases to operate on the expiration of the period of iddat.
The result is that a Mahomedan may defeat an order made against him under section 488 by divorcing his wife immediately after the order is made.
His obligation to maintain his wife will cease in that case on the completion of her iddat," Tyabji 's Muslim law (4th Edition, para 304, pages 268 269).
contains the statement that: "On the expiration of the iddat after talaq, the wife 's right to maintenance ceases, whether based on the Muslim 858 Law, or on an order under the Criminal Procedure Code " According to Dr Paras Diwan: "When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat.
On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances.
Muslim Law does not recognise any obligation on the part of a man to maintain a wife whom he had divorced." (Muslim Law in Modern India, 1982 Edition, page 130) These statements in the text book 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.
One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent both, in quantum and induration, of the husband 's liability to provide for the maintenance of an indigent wife who has been divorced by him.
Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her.
True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dir hams, which is equivalent to three or four rupees (Mulla 's Mahomedan Law, 18th Edition, para 286, page 308).
But, one must have regard to the realities of life Mahr is a mark of respect to the wife.
The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after.
But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce.
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 opinton 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.
We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events.
That is not the subject matter of section 125.
That section deals with cases in which, a person who is possessed of sufficient means neglects or refuses to maintain, amongst others, his wife who is unable to maintain 859 herself.
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 all 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 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.
There can be no greater authority on this question than the Holy Quran, "The Quran, the Sacred Book of Islam, comprises in its 114 Suras or chapters, the total of revelations believed to have been communicated to Prophet Muhammed, as a final expression of God 's will".
(The Quran Interpreted by Arthur J. Arberry).
Verses (Aiyats) 241 and 242 .
of the Quran show that according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives.
The Arabic version of those Aiyats and their English translation are reproduced below: Arabic version English version Ayat No. 241 For divorced women WA LIL MOTALLAQATAY Maintenance (should be MATA UN Provided) BIL MAAROOFAY On a reasonable (Scale) HAQQAN This is a duty ALAL MUTTAQEENA On the righteous.
Ayat No. 242 KAZALEKA YUBAIYYANULLAHO Thus doth God 860 LAKUM AYATEHEE LA ALLAKUM Make clear His Signs TAQELOON To you: in order that ye may understand.
(See 'The Holy Quran ' by Yusuf Ali, Page 96).
The correctness of the translation of these Aiyats is not in dispute except that, the contention of the appellant is that the word 'Mata ' in Aiyat No. 241 means 'provision ' and not 'maintenance '.
That is a distinction without a difference.
Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aiyat 241, the exhortation is to the ' Mutta Queena ', that is, to the more pious and the more God fearing, not to the general run of the Muslims, the 'Muslminin '.
In Aiyat 242, the Quran says: "It is expected that you will use your commonsense".
The English version of the two Aiyats in Muhammad Zafrullah Khan 's 'The Quran ' (page 38) reads thus: "For divorced women also there shall be provision according to what is fair.
This is an obligation binding on the righteous.
Thus does Allah make His commandments clear to you that you may understand.
" The translation of Aiyats 240 to 242 in 'The Meaning of the Quran ' (Vol.
I, published by the Board of Islamic Publications, Delhi) reads thus .
"240 241.
Those of you, who shall die and leave wives behind them, should make a will to the effect that they should be provided with a year 's maintenance and should not be turned out of their homes.
But if they leave their homes of their own accord, you shall not be answerable for whatever they choose for themselves in a fair way; Allah is All Powerful, All wise.
Likewise, the divorced women should also be given something in accordance with the known fair standard.
This is an obligation upon the God fearing people.
861 242.
A Thus Allah makes clear His commandments for you: It is expected that you will use your commonsense.
" In "The Running Commentary of The Holy Quran" (1964 Edition) by Dr. Allamah Khadim Rahmani Nuri, Aiyat No. 241 is translated thus: "241 And for the divorced woman (also) a provision (should be made) with fairness (in addition to her dower); (This is) a duty (incumbent) on the reverent." In "The Meaning of the Glorious Quran, Text and Explanatory Translation", by Marmaduke Pickthall, (Taj Company Ltd.
,karachi), Aiyat 241 is translated thus: ' 241.
For divorced women a provision in kindness: A duty for those who ward off (evil).
" Finally, in "The Quran Interpreted" by Arthur J. Arberry.
Aiyat 241 is translated thus: "241.
There shall be for divorced women provision honourable an obligation on the god fearing.
" So God makes clear His signs for you: Happily you will understand.
" Dr. K.R. Nuri in his book quoted above: 'The Running Commentary of the Holy Quran", says in the preface: "Belief in Islam does not mean mere confession of the existence of something.
It really means the translation of 862 the faith into action.
Words without deeds carry no meaning in Islam.
Therefore the term "believe and do good" has been used like a phrase all over the Quran.
Belief in something means that man should inculcate the qualities or carry out the promptings or guidance of that thing in his action.
Belief in Allah means that besides acknowledging the existence of the Author of the Universe, we are to show obedience to His commandments. " These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife.
The contrary argument does less than justice to the teaching of the Quran.
As observed by Mr. M. Hidayatullah in his introduction to Mulla 's Mahomedan Law, the Quran is Al furqan ' that is one showing truth from falsehood and right from wrong.
The second plank of the appellant 's argument is that the respondent 's application under section 125 is liable to be dismissed be cause of the provision contained in section 127 (3) (b).
That section provides, to the extent material, that the Magistrate shall cancel the order of maintenance, if the wife is divorced by the husband and, she has received "the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce".
That raises the question as to whether, under the Muslim Personal law, any sum is payable to the wife 'on divorce '.
We do not have to grope in the dark and speculate as to which kind of a sum this can be because, the only argument advanced before us on behalf of the appellant and by the interveners supporting him, is that Mahr is the amount payable by the husband to the wife on divorce.
We find it impossible to accept this argument.
In Mulla 's principles of Mahomedan Law (18th Edition, page 308), Mahr or Dower is defined in paragraph 285 as "a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage." Dr. Paras Diwan in his book, "Muslim Law in Modern India" (1982 Edition, page 60), criticises this definition on the ground that Mahr is not payable "in consideration of marriage" but is an obligation imposed by law on the husband as a mark of respect for the wife, as is evident from the 863 fact that non specification of Mahr at the time of marriage does not affect the validity of the marriage.
We need not enter into this controversy and indeed, Mulla`s book itself contains the further statement at page 308 that the word 'consideration ' is not used in the sense in which it is used in the Contract Act and that under the Mohammedan Law, Dower is an obligation imposed upon the husband as a mark of respect for the wife.
We are concerned to find is whether Mahr is an amount payable by the husband to the wife on divorce.
Some confusion is caused by the fact that, under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called "prompt", which is payable on demand, and the other is called "deferred ", which is payable on the dissolution of the marriage by death or by divorce.
But, the tact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify the conclusion that it is payable 'on divorce '.
Even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce.
Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife.
But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression 'on divorce ', which occurs in section 127 (3) (b) of the Code.
If Mahr is an amount which the wife is entitled to receive from the husband hl consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce.
Divorce dissolves the Marriage.
Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce.
The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce.
A man may marry a woman for love, looks, learning or nothing at all.
he may settle a sum upon her as a mark of respect for her.
But he does not divorce her as a mark of respect.
Therefore, a sum payable to the wife out of respect cannot be a sum payable 'on divorce '.
In an appeal from a Full Bench decision of the Allahabad High Court, the Privy Council in Hamira Bibi vs Zubaide Bibi(1) sum (1) 43 1.
A. 294.
864 med up the nature and character of Mahr in these words: "Dower is an essential incident under the Muslim Law to the status of marriage; to such an extent that is so that when it is unspecified at the time the marriage is contracted, the law declares that it must be adjudged on definite principles.
Regarded as a consideration for the marriage, it is, in theory, payable before consummation; but the law allows its division into two parts, one of which is called "prompt" payable before the wife can be called upon to enter the conjugal domicil; the other " deferred", payable on the dissolution of the contract by the death of either of the parties or by divorce." (p. 300 301) This statement of law was adopted in another decision of the Privy Council in Syed Sabir Husain vs Farzand Hasan.(1) It is not quite appropriate and seems invidious to describe any particular Bench of a court as "strong" but, we cannot resist the temptation of mentioning that Mr. Syed Ameer Ali was a party to the decision in Hamira Bibi while Sir Shadi Lal was a party to the decision in Syed Sabir Husain.
These decisions show that the payment of dower may be deferred to a future date as, for example, death or divorce.
But, that does not mean that the payment of the deferred dower is occasioned by these events.
It is contended on behalf of the appellant that the proceedings of the Rajya Sabha dated December 18, 1973 (volume 86, column 186), when the bill which led to the Code of 1973 was on the anvil, would show that the intention of the Parliament was to leave the provisions of the Muslim Personal Law untouched.
In this behalf, reliance is placed on the following statement made by Shri Ram Niwas Mirdha, the then Minister of State, Home Affairs: "Dr. Vyas very learnedly made certain observations that a divorced wife under the Muslim law deserves to be treated justly and she should get what is her equitable or legal due.
Well, I will not go into this, but say that we would not like to interfere with the customary law of the Muslims through the Criminal Procedure Code.
If there is (1) 65 I.A. 119, 127 865 a demand for change in the Muslim Personal Law, it should actually come from the Muslim Community itself and we should wait for the Muslim public opinion on these matters to crystalise before we try to change this customary right or make changes in their personal law.
Above all, this is hardly, the place where we could do so.
But as I tried to explain, the provision in the Bill is an advance over the previous situation.
Divorced women have been included and brought within the admit of clause 125, but a limitation is being imposed by this amendment to clause 127, namely, that the maintenance orders would ceases to operate after the amounts due to her under the personal law are paid to her.
This is a healthy compromise between wh lt has been termed a conservative interpretation of law or a concession to conservative public opinion and liberal approach to the problem.
We have made an advance and not tried to transgress what are the personal rights of Muslim women.
So this, I think, should satisfy Hon.
Members that whatever advance we have made is in the right direction and it should be welcomed.
" lt does appear from this speech that the Government did not desire to interfere with the personal law of the Muslim through the Criminal Procedure Code.
It wanted the Muslim community to take the lead and the Muslim public opinion to crystalise on the reforms in their personal law.
However, we do not concerned with the question whether the Government did not desire to bring about changes in the Muslim Personal Law by enacting sections 125 and 127 of the Code.
As we have said earlier and, as admitted by the Minister, the Government did introduce such a change by defining the expression 'wife ' to include a divorced wife.
It also introduced another significant change by providing that the fact that the husband has contracted marriage with another woman is a just ground for the wife 's refusal to live with him.
The provision contained in section 127 (3) (b) may have been introduces because of the misconception that dower is an amount payable "on divorce".
But, that cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce.
It must follow from this discussion, unavoidably a little too long, that the judgments of this Court in Bai Tahira (Krishna 866 Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi (Krishna Iyer, J.,) one of us, Chinnappa Reddy J. and A. P. Sen J.) are correct.
Justice Krishna Iyer who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation so as to advance the purpose of the law.
These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society.
We have attempted to show that taking the language of the statute as one finds it, there is no escape from the conclusion that a divorced Muslim wife is entitled to apply for maintenance under section 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on divorce.
Though Bai Tahira was correctly decided, we would like, respectfully, to draw attention to an error which has crept in the judgement There is a statement at page 80 of the report, in the context of section 127 (3) (b), that "payment of Mahr money, as a customary discharge, is within the cognizance of that provision".
We have taken the view that Mahr, not being payable on divorce, does not fall within the meaning of that provision.
It is a matter of deep regret that some of the interveners who supported the appellant, took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women who are unable to maintain themselves.
The written submissions of the All India Muslim Personal Law Board have gone to the length of asserting that it is irrelevant to inquire as to how a Muslim divorce should maintain herself.
The facile answer of the Board is (that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephew and cousins, to support her.
This is a most unreasonable view of law as well as life.
We appreciate that Begum Temur Jehan, a social worker who has been working in association with the Delhi City Women 's Association for the uplift of Muslim women, intervened to support Mr. Daniel Latifi who appeared on behalf of the wife It is also 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 867 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.
A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another.
We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform 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.
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.
" At a Seminar held on October 18, 1980 under the auspices of the Department of Islamic and Comparative Law, Indian Institute of Islamic Studies New Delhi? he also made an appeal to the 868 Muslim community to display by their conduct a correct understanding of Islamic concepts on marriage and divorce (See Islam and Comparative Law Quarterly, April June, 1981, page 146).
Before we conclude, we would like to draw attention to the Report of the Commission on marriage and Family Laws, which was appointed by the Government of Pakistan by a Resolution dated August 4, 1955.
The answer of the Commission to Question No.5 (page 1215 of the Report) is that "a large number of middle aged women who are being divorced without rhyme or reason should not be thrown on the streets without a roof over their heads and without any means of sustaining themselves and their children." The Report concludes thus: "In the words of Allama Iqbal, "the question which is likely to confront Muslim countries in the near future, is whether the law of Islam is capable of evolution a question which will require great intellectual effort, and is sure to he answered in the affirmative " For these reasons, we dismiss the appeal and confirm the judgment of the High Court.
The appellant will pay the costs of the appeal to respondent 1, which we quantify at rupees ten thousand.
It is needless to add that it would be open to the respondent to make an application under section 127 (1) of the Code for increasing the allowance of maintenance granted to her on proof of a change in the circumstances as envisaged by that section.

summary:
Under section 125 (1) (a), if any person, having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees in the whole.
Under Explanation (b) thereunder ' wife" includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.
Under the explanation below sub section 3 of section 125, if a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be a just ground for his wife 's refusal to live with him.
Keeping this in view, if in the trial arising out of 845 an application made under section 125, and if the husband offers to maintain his wife on condition of living with him, the Magistrate may consider any of the grounds of the wife 's refusal to live with her husband before ordering the maintenance.
Under section 127 (3) (b), the Magistrate shall cancel the order passed by him under section 125, in favour of a woman who has been divorced by, or has obtained a divorce from her husband if the woman who has been divorced by her husband 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 payable on such divorce.
The appellant.
who is an advocate by profession was married to the respondent in 1932.
Three ions and two daughters were born of that marriage In 1975, the appellant drove the respondent out of the matrimonial home.
In April 1978, the respondent filed a petition against the appellant under section 125 of the Code of Criminal Procedure, in the Court of the Judicial Magistrate (First class) Indore, asking for maintenance at the rate of Rs. 500 per month, in view of the professional income of the appellant which was about Rs. 60,000 per annum.
On November 6, 1978, the appellant divorced the respondent by an irrevocable "talaq" and took up the defence that she had ceased to be his wife by reason of the divorce granted by him; that he was, therefore, under no obligation to provide maintenance for her; that he had already paid maintenance for her at the rate of Rs. 200 per month for about two years, and that, he had deposited a sum of Rs. 3,000 in the court by way of "dower or Mahr" during the period of "iddat".
In August 1979, the Magistrate directed the appellant to pay a princely sum of Rs. 25 per month to the respondent by way of maintenance.
In a revisional application Sled by the respondent the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month.
Hence the appeal by special leave by the husband.
The view taken in the earlier two three Judges ' Benches of the Supreme Court presided over by Krishna Iyer, J. and reported in ; , and ; , to the effect that section 125 of the Code applies to Muslims also and that therefore, the divorced Muslim wife is entitled to apply for maintenance was doubted, by the Bench consisting of Fazal Ali and Varadarajan, JJ., since in their opinion the said decisions required reconsideration by a larger Bench consisting of more than three judges as the decisions are not only in direct contravention of the plain and unambiguous language of section 127 (3) (b) of the Code which far from overriding the Muslim law on the subject protects and applies the same in case where a wife has been divorced by the husband and the dower specified has been paid and the period of iddat has been observed but also militates against the fundamental concept of divorce by the husband and its consequences under the Muslim law which has been expressly protected by section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 an Act which was not noticed in the said two decisions.
Dismissing the appeals, the Court ^ Held: (Per Chandrachud, C. J.) 1.
The Judgments of the Supreme Court in Bai Tahira (Krishna lyer, J., Tulzapurkar, J. and Pathak, J.) and Fazlunbi (Krishna pyer, J, Chinnappa 846 Reddy, J. and A.P. Sen, J.) are correct, except to the extent that the statement at page 80 of the report in Bal Tahira made in the context of section 127 (3) (b) namely, "payment of Mahr money, as a customary discharge is within the cognizance of that provision".
Justice Krishna Lyre who spoke for the Court in both these cases, relied greatly on the teleological and schematic method of interpretation 90 as to advance the purpose of the law.
These constructional techniques have their own importance in the interpretation of statutes meant to ameliorate the conditions of suffering sections of the society.
A divorced Muslim wife is, therefore, entitled to apply for maintenance under section 125 of the Code.
[865H, 866A C] 2.1 Clause (b) of the Explanation to section 125 (1) of the Code, which defines "wife" as including a divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its scope.
Wife, means a wife as defined, irrespective of the religion professed by her or by her husband.
Therefore, a divorced Muslim woman so long as she has not married, is a wife for the purpose of section 125.
[855A B: 854B] 2.2 Under section 488 of the Code of 1898, the wife 's right to maintenance depended upon the continuance of her married status.
Therefore, that right could be defeated by the husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a decree of divorce against her under the other systems of law.
It was in order to remove this hardship that the Joint Committee recommended that the benefit of the provisions regarding maintenance should be extended to a divorced woman, so long as she has not re married after the divorce.
That is the genesis of clause (b) of the Explanation to section 125 (I).
Section 125 of the Code is truly secular in character.
Section 125 was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves.
Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is wholly irrelevant in the application of these provisions.
The reason for this is axiomatic, in the sense that 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 relations, like the Hindu Adoptions and Maintenance Act, The Shariat, or the Parsi Matrimonial Act.
It would make no difference as to what ii the religion professed by the neglected wife, child or parent.
[834D E: 855E G] 2.3 Neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves are the objective criteria which determine the applicability of section 125.
Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion.
True that they do not supplant the personal law of the parties but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws unless, within the framework of the Constitution, their application is restricted to a defined category of religious groups or classes The liability imposed by section 125 to maintain close relatives who are indigent is founded upon the indi 847 viduals ' obligation to the society t a prevent vagrancy and destitution.
That is the moral edict of the law and morality cannot be clubbed With relation.
[834G Hl That the right conferred by section 125 can be exercised irrespective of the personal law of the parties, is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125 (3) of the Code.
The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage leave alone, three or four other marriages, which a Mohammedan may have under the Islamic law.
Further it shows unmistakably, that section 125 overrides the personal law, if there is any conflict between the two [836B C,F G] Jagir Kaur vs Jaswant Singh, ; ,84, Nanak Chand vs Shri Chandra Kishore Agarwala, 11970] I SCR 56C applied.
3.1 The contention that, according to Muslim Personal Law the husband 's 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 cannot be accepted, since that law does not contemplate or countenance the situation envisaged by section 125 of the Code.
Whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances, and at all events is not the subject matter of section 125.
Section 125 deals with cases in which a person who is possessed of sufficient means neglects or refuses to maintain amongst others, his wife who is unable to maintain herself.
[838H, 851A B] 3.2 One must have regard to the entire conspectus of the Muslim Personal Law in order to determine the extent, both in quantum and in duration, of the husband 's liability to provide for the maintenance of an indigent wife who has been divorced by him.
Under that law, the husband is bound to pay Mahr to the wife as a mark of respect to her.
True, that he may settle any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams which is equivalent to three or four rupees.
But one must have regard to the realities of life.
Mahr is a mark of respect to the wife.
The sum settled by way of Mahr is generally expected to take care of the ordinary requirements of the wife, during the marriage and after.
But these provisions of the Muslim Personal Law do not countenance cases in which the wife is unable to maintain herself after the divorce.
The application of those statements of law to the contrary in text books on Muslim 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.
[858D G] 3.3 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.
Thus 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 848 who is unable to maintain herself.
Aiyat No. 241 and 242 of 'the Holy Koran ' fortify that the Holy Koran imposed an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife.
The contrary argument does less than justice to the teachings of Koran.
[859C D; 862C D] 3.4 Mahr is not the amount payable by the husband to the wife on divorce and therefore, does not fall within the meaning of section 127 (3) (b) of the Code and the facile answer of the All India Muslim Law Board that the Personal Law has devised the system of Mahr to meet the requirements of women and if a woman is indigent, she must look to her relations, including nephews and cousins, to support her is a most unreasonable view of law as well as of life.
[863E F, 866E F] 3.5 It is true under the Muslim Personal Law, the amount of Mahr is usually split into two parts, one of which is called 'prompt" which is payable on demand, and the other is called "deferred", which is payable on the dissolution of the marriage by death or by divorce.
But, the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify that it is payable 'on divorce '.
even assuming that, in a given case, the entire amount of Mahr is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on divorce.
[863B D] 3.6 Divorce may be a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife.
But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression 'on divorce ', which occurs in section 127 (3) (b) of the Code.
If Mahr is an amount which the wife is entitled to receive from the husband in consideration of the marriage, that is the very opposite of the amount being payable in consideration of divorce.
Divorce dissolves the marriage.
Therefore.
no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce.
The alternative premise that Mahr is an obligation imposed upon the husband as a mark of respect for the wife, is wholly detrimental to the stance that it is an amount payable to the wife on divorce.
A man may marry a woman for love, looks, learning or nothing at all.
And, he may settle a sum upon her as a mark of respect for her.
But he does not divorce her as a mark of respect.
Therefore, a sum payable to the wife out of respect cannot be a sum payable on divorce '.
Thus, the payment of Mahr may be deferred to a future date as, for example, death or divorce.
But, that does not mean that the payment of the deferred dower is occasioned by these events.
[863D G] Similarly, the provision contained in section 127 (3) (b) may have been introduced because of the misconception that dower is an amount payable 'on divorce. ' But, that again cannot convert an amount payable as a mark of respect for the wife into an amount payable on divorce.
[863H] Hamira Bibi vs Zubaida Bibi, 43 Indian Appeal 294; Syed Sabir Hussain vs Farzand Hasan, 65 Indian Appeal 119 and 127 referred to.
849 OBSERVATION (Article 44 of our Constitution has remained a dead letter.
There is no evidence of any official activity for framing a common civil code for the country.
A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.
It is the State which incharged 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.
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.)


judgement:
Civil Appeal No. 8 of 1951.
Appeal from the judgment and decree dated 12th October, 1944, of the High Court of Judicature at Allahabad (Allsop and Malik JJ.)in First Appeal No. 374 of 1941 arising out of a Decree dated 31st July, 1941, of the Court of the Civil Judge, Moradabad, in Original Suit No. 9 of 1941.
Bakshi Tek Chand (section K. Kapoor, with him) for the appel lant.
Achhru Ram (Jwala Prasad, with him) for the respondent.
February 22.
The judgment of the Court was deliv ered by BoSE J.
This is a litigation between two branches of a family whose common ancestor was one Megh Raj Singh The family tree is as follows: Megh Raj Singh Jawahar Singh Madan Singh Shankar Lal(d 1884) Brijlal (d. 1889 or (1890) Daughter: Met.
Mohan Dei (d. Oct 1929) Kishan Lal Mahabir Prasad Husband: Narain Das (d. 21 5 1940) (d. 1921) Shri Kishan Das Mst.
Deoki Jugal Kishore Amar Nath (d.march 1929) (d. 1894) Plff.
1 Plff.2.
Dhiyan Singh Jai Bhagwan Singh Deft.
1 Deft. 2 Ghas Ram Onkar Prasad The dispute is about property which, according to the plaintiffs, formed part of Shanker Lal 's estate.
The plain tiffs state that the two branches of the family were sepa rate at all material times; that on 480 Shanker Lal 's death in 1884 his daughter Mst.
Mohan Dei (the defendants ' grandmother) succeeded to a limited estate.
The reversion opened out on her death in October 1929 and the plaintiffs are entitled as the next reversioners, for Mst.
Mohan Dei 's son Shri Kishan Das predeceased her.
The defendants admit that Shanker Lal was separate from the other branch of the family.
They divide the property which their grandmother Mst.
Mohan Dei possessed into two categories.
First, there was property which they say be longed to her.
These are properties which, according to them, she purchased or obtained under mortgages in her own right.
Next, there were properties which belonged exclu sively to her father and to which she succeeded as daughter.
On Shanker Lal 's death disputes arose between Shanker Lal 's father 's brother 's son Brijlal (the plaintiffs ' grandfa ther) and the defendants ' grandmother Mst.
Mohan Dei.
Brijlal claimed the entire estate by survivorship, his allegation being that Shanker Lal died in a state of joint ness with him and that all the properties were joint family properties.
This dispute was referred to arbitration and an award was delivered.
Under it Mst.
Mohan Dei was given the suit properties as absolute owner and the rest of the estate then in dispute was given to Brijlal, A division was ef fected accordingly and ever since, that is to say, from 21 12 1884, the date of the award, down to 26 3 1941, the date of the suit, each branch has been in separate and uninter rupted possession of the properties respectively allotted to it and each has been dealing with them as absolute owner.
The defendants claim that the plaintiffs are bound by this award and are in any event estopped.
The plaintiffs lost in the first Court but won in the High Court.
The defendants appeal.
The first question is about the nature of the award.
The defendants say that it gave Mst.
Mohan Dei an absolute estate.
The plaintiffs deny this and say she obtained only a limited estate.
In our opinion, the defendants are right.
481 The question at issue is a simple one of construction.
The award is exhibit A 1.
The operative portion runs thus: "Having regard to the specifications give above, Brij Lal, first party, and Musammat Mohan Devi, the deceased 's female issue, second party, have been held entitled to shares, worth Rs. 28,500 and Rs. 42,482 10 0 respective ly in the said properties; and accordingly. two lots have been made and the first lot is allotted to the first party and the second lot to the second party; and henceforth the parties shall have no claim or liability against each other; and each party has become permanent owner (malikmustaqil) of his or her share; and each party should enter in proprietary possession and occupation of his or her respective share. " The underlining is ours.
We do not think the words admit of any doubt, particu larly as the words "malik mustaqil" have been used: see Ram Gopal vs Nand Lal and Others (1) and Bishunath Prasad Singh vs Chandika Prasad Kumari (2).
But it was argued that the award must be viewed as a whole and that certain earlier passages show that this could not have been the intention. ]he passages relied on are these.
First, the finding that the properties claimed by Mst.
Mohan Dei as her own really belonged to Shanker Lal.
He had purchased some and acquired others through mortgages in her name but she was only a benamidar and had no title to them.
Second, that some of the properties in dispute were ancestral and the rest sell acquired, though whether with the help of ances tral funds or not the arbitrator was unable to determine.
Third, the arbitrator 's view of the Hindu law, namely that "the brother should be the owner of the joint ancestral property and the daughter who has a male issue should be owner of the self acquired property.
" And lastly, this passage (1) ; at 773.(2)(1933) 60 I.A. 56 at 61 & 62. 482 "Furthermore, when the 2nd party (Mohan Dei) has inher ited no property from her husband, she, in case of getting this share, will certainly settle down in Amroha and will make her father 's haveli as her abode and thus the haveli shall remain a bad as heretofore, and in this way the de ceased 's name will be perpetuated; and it is positive that, after the Musammat, this property shall devolve on her son, who will be the malik (owner) thereof, and later the de scendant of this son will become the owner thereof.
" We do not think these passages qualify the operative portion of the award and are unable to agree with the learned Judges of the High Court who hold they do.
In our opinion, the arbitrator was confused in his mind both as regards the facts as well as regards the law.
His view of the law may have been wrong but the words used are, in our opinion, clear and, in the absence of anything which would unambiguously qualify them, we must interpret them in their usual sense.
Some cases were cited in which the word "malik", and in one case the words "malik mustaqil" were held to import a limited estate because of qualifying circumstances.
We think it would be pointless to examine them because we are concerned here with the document before us and even if it be conceded that words which would ordinarily mean one thing can be qualified by other words and circumstances appearing in the same document, we are of opinion that the passages and circumstances relied on in this case do not qualify the strong, clear and unambiguous words used in this document.
The learned counsel for the plaintiffs respondents had to search diligently for the meaning for which he contended in other passages and had to make several assumptions which do not appear on the face of the award as to what the arbitra tor must have thought and must have intended.
We are not prepared to qualify clear and unambiguous language by phrases of dubious import which can be made to coincide with either view by calling in aid assumptions of fact about whose existence we can only guess 483 The award was attacked on other grounds also.
It was urged, among other things, that the arbitrator had travelled beyond the terms of his reference in awarding Mst.
Mohan Dei an absolute interest.
It was also urged that even if Brij lal was bound his son Kishan Lal, who did not claim through him but who had an independent title as reversioner to Shanker Lal, would not be bound, and it was contended that if Kishan Lal was not bound the plaintiffs would not be either.
But we need not examine these points because we do not need to proceed on the binding nature of the award.
Even if the award be invalid we are of opinion that the plaintiffs ' claim is completely answered by the plea of estoppel.
Now it can be conceded that before an estoppel can arise, there must be, first, a representation of an existing fact as distinct from a mere promise de futuro made by one party to the other; second, that the other party, believing it, must have been induced to act on the faith of it; and third, that he must have so acted to his detriment.
It will be necessary to deal with this in stages and first we will consider whether there was any estoppel against Brijlal.
It is beyond dispute that he laid serious claim to the property in 1884.
He claimed that he was joint with Shanker Lal and so, on Shanker Lal 's death he became entitled to the whole of the estate and that Mst.
Mohan Dei had only a right of maintenance.
Whether he would have had difficulty in establishing such a claim, or indeed whether it would have been impossible for him to do so, is wholly immaterial.
The fact remains that he pressed his claim and was serious about it, so much so that he was able to per suade the arbitrator that he had an immediate right to part of the estate.
Mohan Dei, on the other hand, resisted this claim and contended that she was entitled to separate and exclusive possession, and in any event, that she was entitled in absolute right to a part of the property.
On the facts which now emerge it is evident that Brijlal had no right and that his hopes of one day succeeding as 484 reversioner were remote.
Mohan Dei had a son Shri Kishan Das who was the next presumptive reversioner and as the boy was a good deal younger than Brijlal, Brijlal 's chances were slim.
Actually, the boy survived Brijlal by nearly forty years.
Brijlal died in 1889or 1890 and the boy did not die till March 1929.
Had he lived another eight or nine months he would have succeeded and the plaintiffs would have been nowhere.
Now this dispute, seriously pressed by both sides, was referred to arbitration.
It is neither here nor there whether the award was valid, whether the decision fell within the scope of the reference or whether it had any binding character in itself.
Even if it was wholly invalid, it was still open to the parties to say: Never mind whether the arbitrator was right or wrong, his decision is fair and sensible, so instead of wasting further time and money in useless litigation, we will accept it and divide the estate in accordance with his findings.
That would have been a perfectly right and proper settlement of the dispute, and whether it bound third parties or not it would certainly bind the immediate parties; and that in effect is what they did.
By his conduct Brijlal induced Mst.
Mohan Dei to be lieve that this would be the case and on the faith of that representation, namely the acceptance of the award, he induced Mst.
Mohan Dei to act greatly to her detriment and to alter her position by accepting the award and parting with an appreciable portion of the estate, and he himself obtained a substantial advantage to which he would not otherwise have been entitled and enjoyed the benefit of it for the rest of his life; and to his credit be it said, he never attempted to go behind his decision.
In any event, we are clear that that created an estoppel as against Brijlal.
In our opinion, the present case is very similar to the one which their Lordships of the Privy Council decided in Kanhai Lal vs Brij Lal (1).
There also there was a dispute between a limited owner and a person who, but for an un proved claim (adoption) which he (1) (1919) 45 I.A. 118.
485 put forward, had no right to the estate.
The dispute was taken to the courts but was compromised and according to the agreement the property was divided between the two rival claimants and the agreement was given effect to and acted on for a period of twenty years.
Later, the succession opened out and the other party to the compromise, who by then had stepped into the reversion, claimed the rest of the estate, which had been assigned to the limited owner, against her personal heirs.
The Judicial Committee rejected the claim on the ground of estoppel and held that even though the plaintiff claimed in a different character in the suit, namely as reversioner, he having been a party to the compro mise and having acted on it and induced the other side to alter her position to her detriment, was estopped.
We do not think the fact that there was a voluntary compromise whereas here there was the imposed decision of an arbitra tor.
makes any difference because we are not proceeding on the footing of the award but on the actings of the parties in accepting it when they need not have done so if the present contentions are correct.
It is true that in one sense a question of title is one of law and it is equally true that there can be no estoppel on a question of law.
But every question of law must be grounded on facts and when Brijlal 's conduct is analysed it will be found to entail an assertion by him that he admitted and recognised facts which would in law give Mst.
Mohan Dei an absolute interest in the lands awarded to her.
It was because of that assertion of fact, namely his recognition and admission of the existence of facts which would give Mst.
Mohan Dei an absolute interest, that she was induced to part with about one third of the property to which Brijlal, on a true estimate of the facts as now known, had no right.
There can be no doubt that she acted to her detriment and there can, we think, be equally no doubt that she was in duced to do so on the faith of Brijlal 's statements and conduct which induced her to believe that he accepted all the implications of the 63 486 award.
But in any event, we are clear that Brijlal would have been estopped.
The nature of the dispute and the de scription of it given in the award show that there was considerable doubt, and certainly much dispute, about the true state of affairs.
Even if the arbitrator was wholly wrong and even if he had no power to decide as he did, it was open to both sides to accept the decision and by their acceptance recognise the existence of facts which would in law give the other an absolute estate in the properties they agreed to divide among themselves and did divide.
That, in our opinion is a representation of an existing fact or set of facts.
Each would consequently be estopped as against the other and Brijlal in particular would have been estopped from denying the existence of facts which would give Mst.
Mohan Dei an absolute interest in the suit property.
We turn next to his son Kishan Lal.
Brijlal died in 1889 or 1890.
At that date Mst.
Mohan Dei 's son Shri Kishan Das was alive and was the next presumptive reversioner.
Brijlal 's sons therefore had no more right to that portion of his estate which was assigned to Brijlal than Brijlal himself.
But they took possession and claimed through their father. ]hey did not claim an independent title in them selves, and, as we know, they had no other title at that date.
They were therefore in no better position than Brij lal and as Brijlal would have been estopped, the estoppel descended to them also because they stepped into his shoes.
This would be so even if Brijlal had claimed the property independently for himself, which he did not; but much more so as he claimed in joint family rights and evidently acted as karta or manager on behalf of his family.
But apart from this, there was also an independent estoppel in Kishan Lal.
We have said, he had no right to this part of the estate when his father died apart from the award.
But nevertheless he took possession along with his brother and the two of them treated the property as their own and derived benefit 487 from it.
They partitioned the estate between themselves and sold away parts of it to third parties.
Kishan Lal knew of the award.
He knew that mutation had been effected in accordance with it and possession taken by Brijlal under it and that the rest had been retained by Mst.
Mohan Dei.
His retention of the property therefore and his continuing to deal with it on the basis of the award indicated his own acceptance of the award and, therefore, by his acts and conduct, he represented that he also, like his father, admitted the existence of facts which would in law give Mst.
Mohan Dei an absolute estate; and further, he allowed Mst.
Mohan Dei to deal with the estate as her own, for she, on her part.
also acted on the award and claimed absolute rights in the property assigned to her.
She dealt with it on that footing and gifted it in that right to her grand sons, the contesting defendants, on 4th April, 1929.
Muta tion was effected and Kishan Lal raised no objection.
We see then that Brijlal retained possession of property to which he was not entitled for a period of five or six years from 1884 to 1889 or 1890 and induced Mst.
Mohan Dei to part with it by representing that he accepted the award and her abso lute title to the rest, and after him Kishan Lal and his brother between them enjoyed the benefit of it from 1889 or 1890 down to October 1929 when Mst.
Mohan Dei died, that is, for a further forty years, and led Mst.
Mohan Dei to believe that they also acknowledged her title to an absolute estate.
We have no doubt that down to that time Kishan Lal was also estopped for the reasons given above.
Had he questioned the award and reopened the dispute Mst.
Mohan Dei would at once have sued and would then for forty years have obtained the benefit of property from which she was excluded because of her acceptance of the award on the faith of Brijlal 's asser tion that he too accepted it.
Kishan Lal 's inaction over these years with full knowledge of the facts, as is evident from the deposition of D.W. 2, Dhiyan Singh, whose testimony is uncontradicted, and his acceptance of the estate with all its consequential benefits, unquestionably creates an estoppel in him.
This witness tells us that 488 "Kishanlal always accepted this award and acted upon it.
" He qualifies this in cross examination by saying that Kishan Lal had also objected to it but the witness did not know whether that was before or after Mst.
Mohan Dei 's death.
The documents filed show it was after, so there is no reason why the main portion of his statement which is uncontradicted, and which could have been contradicted, should not be accepted.
In March, 1929, Mst.
Mohan Dei 's son Shri Kishan Das died and Kishan Lal thereupon became the next presumptive reversioner, and in October, 1929, when the reversion opened out the estate vested in him, or rather would have vested in him but for the estoppel.
The question therefore is, did he continue to be bound by the estoppel when he assumed a new character on the opening out of the reversion ? We have no doubt he did.
The decision of the Judicial Committee which we have just cited, Kanhai Lal vs Brijlal(1), is, we think, clear on that point.
Although other reversioners who do not claim through the one who has consented are not bound.
the consenting reversioner is estopped.
This is beyond dispute when there is an alienation by a limited owner without legal necessity.
See Ramgouda Annagouda vs Bhausaheb (2) where the ground of decision was ". .but
Annagouda himself being a party to and benefiting by the transaction evidenced thereby was preclud ed from questioning any part of it.
" In our opinion, the same principles apply to a case of the present kind.
It was contended, however, on the strength of Rangasami Gounden vs Nachiappa Gounden(3) and Mr. Binda Kuer vs Lalitha Prasad(4), that even if Kishan Lal did take posses sion in 1889or 1890 on the strength of a title derived from his father, that would not have precluded him from asserting his own rights in a different character when the succession opened (1)(1918) 45 I.A 118.
(2) (1927) 54 I.A. 396 at 403.
(3) (1919) 46 I.A. 72.
(4) (1936) A.I.R. 1936 P.C. 304 at 308.
489 out.
Reliance in particular was placed upon page 808 of the latter ruling.
In our opinion, that decision is to be distinguished.
In that case the reversion did not fall in till 1916.
Long before that, namely in 1868, the next presumptive reversioners entered into a compromise whereby the grandfa ther of one Jairam who figured in that case obtained a good deal more than he Would have been entitled to in the ordi nary way.
But for the compromise this grandfather would have got only one anna 12 gundas share, whereas due to the compromise he got as much as 2 annas 4 gundas, The actual taking of possession was however deferred under the compro mise till the death of one Anandi Kuer.
She died in 1885 and on that date Jairam was entitled to his grandfather 's share as both his father and grandfather were dead.
Jairam accordingly reaped the benefit of the transaction.
But it is to be observed that the extra benefit which he derived was only as to a 12 gundas share because he had an absolute and indefeasible right to 1 anna 12 gundas in any event in his own right under a title which did not spring from the com promise.
Jairam lost 1 anna 4 gundas to a creditor Munniram and out of the one anna which he had left from the 2 annas 4 gundas he sold 13 gundas to the plaintiffs for a sum of Rs. 500.
Now it is evident that on those facts it is impossible to predicate that the 13 gundas which the plaintiffs pur chased came out of the extra 12 gundas which Jairam obtained because of the compromise rather than out of the 1 anna 12 gundas to which he had a good and independent title anyway; and of course unless the plaintiffs ' 13 gundas could be assigned with certainty to the 12 gundas it would be impos sible to say that they had obtained any benefit from the compromise.
The Judicial Committee also added that even if it was possible to assign this 13 gundas with certainty to the 12 gundas it by no means followed that the plaintiffs admitted that fact nor would that necessarily have given them a benefit under the compromise.
They had the right to contest 'the 490 position and gamble on the possibility of being able to prove the contrary.
Their Lordships added " Unless the plaintiffs ' individual conduct makes it unjust that they should have a place among Bajrangi Lal 's reversioners their legal rights should have effect.
" In the other case, Rangasami Gounden vs Nachiappa Goun den(1), their Lordships ' decision about this matter turned on the same sort of point: see page 87.
The present case is very different.
When Kishan Lal took possession of his father 's property he held by virtue of the award and under no other title, and for forty years he continued to derive benefit from it.
Accordingly, he would have been estopped even if he had claimed in a differ ent character as reversioner after the succession opened out.
It was conceded that if the estoppel against Kishan Lal enured after October 1929, then the plaintiffs, who claim through Kishan Lal, would also be estopped.
The appeal succeeds.
The decree of the High Court is set aside and that of the first Court dismissing the plaintiffs ' claim is restored.
Costs here and in the High Court will be borne by the plaintiffs respondents.
Appeal allowed.
(1) (1919) 46 I.A. 72.

dataset_name: IN-Abs

summary:
S and B were sons of two brothers respectively.
S died in 1884 leaving a daughter M, surviving him.
On the death of S dispute arose between B and M. B claimed the entire estate by survivorship, alleging that S died in a state of jointness with him and that all the properties were joint family properties and M was entitled only to maintenance.
The dispute was referred to arbitration and an award was delivered.
Under it the suit properties were given to M and the rest of the estate then in dispute was given to B.
The operative part of the award stated inter alia that B, first party, and M, the second party, were held entitled to speci fied shares in the properties in dispute and each had become permanent owner (Malik Mustaqil) of his or her share.
A division was effected and ever since the date of the award in 1884 each branch continued in possession of the proper ties allotted to it and each had been dealing with them as absolute owner.
The defendants claimed that the plaintiffs were bound by the award and were in any event estopped from challenging it.
In 1941 B 's grandsons instituted a suit claiming the properties allotted to M claiming that on the death of S his daughter M succeeded to a limited estate and reversion opened out on her death in 1929 and the plain tiffs were entitled as next reversioners, as M 's son had predeceased her.
The defendants (Ms grandsons) alleged that the property possessed by M consisted partly of property which belonged to her and partly of property which belonged exclusively to her father to which she succeeded as daughter.
Held, that the award gave an absolute estate to M as the words "Malik Mustaqil" were strong.
clear and unambiguous and were not qualified by.
other words and circumstances appearing in the same document in the present case.
Held further.
that even if the award be assumed to be invalid the plaintiffs ' claim was barred by the plea of estoppel.
There was estoppel against B because by his conduct he induced M to believe that the decision of the arbitrator was fair and reasonable and both the parties would be bound by it and he induced her to act greatly to her detriment and to alter her position by accepting the award and never attempting to go behind it as long 479 as he lived; there was estoppel against B 's sons because it descended to them as they stepped into his shoes, and fur ther there was independent estoppel against B 's son K by his acts and conduct as evidenced in this case.
There was estoppel against plaintiffs who claimed through their father K.