Mytheen vs Saphiya

K.T. Thomas, J.—Parties in these two revisions were once husband and wife. They are muslims. When their daughter reached the age of two, they decided to dissolve their marriage for reasons good or bad. On 13-6-1985, they brought about a dissolution of their marriage by executing a mutually agreed document (Ext. D1). Thereafter the woman (her name is Saphiya) remained unmarried, but the man (his name is Mytheen) secured another wife in whom be got two more children now. When the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as ''the Act'') came into force, Saphiya wanted to avail herself of the benefits under the Act. So she filed a petition claiming reasonable and fair provision envisaged in Section 3 of the Act, Learned magistrate, by the impugned order, directed Mytheen to pay a sum of Rs. 21,000/- as reasonable and fair provision. Mytheen challenges the order in revision. Saphiya also challenges the order as she is aggrieved by the quantum fixed. According to her, the amount of reasonable and fair provision should be far higher than the amount now fixed. If Saphiya is to succeed, she has to circumvent the principal impediment sprouted from Ext. D1 agreement as per which she acknowledged receipt of a sum of Rs. 11,000/- from Mytheen and relinquished her right to get future maintenance. There is no dispute that Ext. D1 was executed by both Mytheen and Saphiya. The document contains a recital that Saphiya received Rs. 11,000/- from Mytheen in full and final settlement of all claims against him and that she shall not make any further claim against Mytheen either towards maintenance or any other count.

Learned counsel for Mytheen contended that the terms of the divorce agreement should be respected by both parties and one party cannot be permitted to unilaterally resile therefrom. On the other band, counsel for Saphiya argued that the terms in Ext D1 relinquishing the right to maintenance is opposed to public policy and hence that cannot be used to scuttle the statutory right of divorced woman protected by Section 3 of the Act. He relied on the decision of Khader, J. in Damodaran v. Lakshmikutty Amma (1979 KLT 543). It was held in the said decision that no party can be permitted to contract himself out of a statutory obligation and if permitted it would defeat the legal right statutorily confirmed in Chapter IX of the Code of Criminal Procedure (for short ''the Code''). The provisions contained in the said Chapter were specially enacted as a measure of social justice to protect women and children and to provide a speedy and summary remedy to the deserted and neglected wife and her children to prevent vagrancy, according to the learned Judge. In the said judgment reliance was placed on the observations made in the decisions in Sadasivan Nair v. Kamalakshi (ILR 1973 (1) Kerala 531) and Aboobacker v. Kadeesa (1961 KLT 681).

The question considered and decided in the aforesaid cases centred on the provisions contained in Sections 125 and 127 of the Code. A distinction is sought to be made out in this case on the premise that what is recognised in the Act is not a right based on public policy, but was only providing a procedure for enforcement of a personal right.

The preamble of the Act shows that it is an enactment "to protect the rights of Muslim Women who have been divorced by or have obtained a divorce from their husband..................". "A divorced woman" is defined as a Muslim woman who was married according to Muslim Law and has been divorced by or has obtained a divorce from her husband in accordance with Muslim Law.

Under Muhammadan law, a woman can be divorced through "Talak-al-sunna", or through ''Talak-al-bida'' or ''Talak-e-tafwis'' or by a bilateral divorce (either Mubara'' at or Khula) or through the provisions of Dissolution of Muslim Marriage Act, 1939. The definition "divorced woman" in the Act is of wide import as to embrace within its fold a woman divorced by or through any of the modes recognised by Muhammadan law.

In the aforesaid context, the commencing words in Section 3 of the Act can be read : "Notwithstanding anything contained in any other law for the lime being in force, a divorced woman shall be entitled to...............................". It is significant to note that the non-obstante clause in Section 3 docs not cover a contract between the parties, though it covers "any other law". It means that provisions contained in Chapter IX of the Code would give way to Section 3 of the Act. In other words, Section 3 of the Act has over riding effect on Section 125 of the Code, so far as it relates to divorced muslim women. Yet, Section 5 of the Act permits a divorced woman and her former husband to opt for the provisions contained in Section 125 to 128 of the Code. Only if there is conjunction of resolve between them regarding such option resort to Chapter IX of the Code is permitted. The parties are thus permitted to join together for jettisoning the right protected in Section 3 of the Act and they can prefer to avail themselves of the benefits of the general law.

In this context, it is useful to understand whether under the personal law de hors the provisions of the Act one of the erstwhile spouses can relinquish the right to maintenance.

Under Muhammadan Law "a marriage may be dissolved not by "Talak" (which is an arbitrary act of the husband) but also by agreement between the husband and wife. A dissolution of marriage by agreement may take the form of what is called "Khula" or "Mubara'' at" (Section 319 of the Mulla''s Principles of Muhammadan Law..........................edited by Justice Hidayattulla) In Mubara at form of dissolution of Khula form of dissolution, divorce is effected through agreement between the parties. The subtle difference between the two is that in the latter it is on account of aversion developed by the wife towards the husband which leads both parties to dissolution, while in the former aversion is mutually entertained and that becomes the cause for separation. In this context, reference can be made to what the author has said in Section 320 of Principles of Muhamadan Law. "Unless it is otherwise provided by the contract, a divorce effected by Khula or Mubara at operates as a release by the wife of her dower, but it does not affect the husband to maintain her during her iddat or to maintain his children by her".

A perusal of the relevant passages in Muhamadan Law would thus show that under Mubara'' at or Khula form of dissolution of marriage, personal law allows the parties to come to terms either about the maintenance or about the dower. That may, perhaps, be the reason why Section 3 of the Act never intended to transgress into the terms of any agreement entered by the parties and hence the non-obstante plause has advisedly refrained from huddling with contracts or agreements between the parties. In the general scheme of the Act, the right of parties to come to agreements has not been anathematised.

The right recognised in Section 3 of the Act cannot be regarded as enunciation of a public policy because the right is not conferred on the public at large, but only on a limited Section of the public who professes the faith of Islain.

A Division Bench of the Madras High Court considered a similar question. It was in respect of the right of a Hindu Woman to claim maintenance under the Hindu Adoptions and Maintenance Act. Retnavel Pandyan, J. who spoke for the Muniammal Vs. Raja, has observed thus :

No doubt, the right of maintenance is a personal right and it is an incident of the status of matrimony and a Hindu is under a legal obligation to maintain his wife. The obligation to maintain the wife is personal in character and arises from the very foundation of the existence of the relationship between the parties. The party who stands benefitted by this Act can keep that right and enforce the same or throw it away. It the right is given up or relinquished completely in consideration of a lump sum or consolidated payment, the maintenance holder cannot agitate her claim over again unless the contract of relinquishment is attacked as vitiated by undue influence or fraud.

Dealing with the contention that such contract would be repugnant to public policy and offensive to Section 23 of the Contract Act, the Bench took note of the decision in Muhammad Muin-Ud-Din and Another Vs. Musammat Jamal Fatima, where it has been pointed out that an antenuptial agreement, entered into by prospective wife on the one sid and the prospective husband on the other with the object of securing the wife against ill-treatment and of ensuring her a suitable amount of maintenance in case such treatment was meted out to her, was not void as being opposed to public policy. Supreme Court has cautioned that public policy is an illusive concept with variable quality (vide Cherlal Mrakh v. Mohadeodas AIR 1958 S.C. 781). The duty of the court is to uphold the sanctity of valid contracts but in certain cases, the court may relieve the parties of their obligations under the contract on the rule founded on public policy. But care has to be adopted for ascertaining how and when a public policy was crystallised. In view of this legal posititon, I do not think that the ratio contained in Damodaran''s case (1979 KLT 543) can be imported to the facts of this case. If that be the position, Saphiya cannot raise a claim now that she is entitled to any further provision as envisaged in Section 3 of the Act.

In the result, the revision filed by Mytheen is allowed and that filed by Saphiya is dismissed and the order of the court below is set aside.