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Legality Of Mubarat As A Type Of Extrajudicial Divorce Based On Mutual Consent

Brief Facts Of The Case:
Mst. Zohara Khatoon (hereinafter referred as 'Appellant') was legally married to Mohd. Ibrahim (hereinafter referred as 'Respondent'). The Civil Court passed the decree of dissolution of marriage in favour of the appellant on January 15, 1973 yet, the terminology of wife prevails over the Appellant in relation to the Respondent according to section 125(1)(b) of Code of Criminal Procedure 1973 [2](hereinafter referred as '1973 code').

The appellant filed an application against the respondent before the trial Magistrate on September 17, 1974 claiming for maintenance under section 125 of 1973 Code as the respondent willfully neglected the appellant. The Magistrate accepting the allegations of the appellant of being neglected without any reasonable and probable cause against the respondent provided maintenance by an order dated December 29. 1976 at Rs. 100/- per month for the appellant and the minor son.

In a revision filed in Sessions Judge the order of trial Magistrate was upheld. As a result, Respondent moved the Allahabad High Court(Lucknow Bench) under section 482 of the 1973 Code[3] to get the order of the Magistrate quashed as it was impaired by an error of law.

The judgement of High Court on October 20, 1978 held that according to section 125(1)(b) of 1937 ACT and Dissolution of Muslim Marriages Act, 1939 (hereinafter referred as '1939 Act') the appellant should not have been provided with the maintenance under section 125 of 1973 Code but, the Rs 40/- can be fixed for the minor son.

The appellant filed an appeal in the Supreme Court of India against the judgement given by the High Court on October 20, 1978.

Mst. Zohara Khatoon v. Mohd. Ibrahim [1]
1981 AIR 1243 1981 SCR (2) 910 1981 SCC (2) 509 1981 Scale (1)370
Supreme Court Of India
  • Syed Murtaza Fazal Ali, J.
  • A. Varadarajan, J.
  • A.D. Koshal, J.
Petitioner: Mst. Zohara Khatoon
Respondent: Mohd. Ibrahim
Date Of Judgement: February 18, 1981

  1. Whether the Magistrate was competent to award maintenance if under the personal law of the Mohmedans the wife had been validly divorced and had completed the period of Iddat?
  2. Whether the Appellant can claim the maintenance for herself and child out of marriage from the Respondent?

Rules Of Law
  • Section 125(1)(b) 1973 Code:
    "Wife includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried."
  • Section 127(3)(b) 1973 Code:[4]
    (b) the woman has been divorced by her husband and that she has received, whether before or after the date of the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was pay able on such divorce, cancel such order:- (i) in the case where such sum was paid before such order, from the date on which such order was made, (ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman.
  • Section 127(3)(c) 1973 Code:
    "The woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof."
  • Section 488 of the 1898 Code:[5]
    "If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub- Divisional Magistrate or 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 or such child, at such monthly rate, not exceeding (five hundred rupees) in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs."
  • Section 489(2) of 1898 Code:[6]
    "Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly."
  • Section 2(ii) of 1939 Code:
    "Grounds for decree for dissolution of marriage�A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds
    (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years.
  • Matrimonial Causes Act, 1950:
    "16(3) Any married person who alleges that reasonable grounds exist for supposing that the other party to the marriage is dead may present a petition to the court to have it presumed that the other party is dead and to have the marriage dissolved, and the court, if satisfied that such reasonable grounds exist, may make a decree of presumption of death and of dissolution of the marriage. "

    "19(3) On any decree for divorce or nullity of marriage, the court may, if it thinks fit, by order direct the husband to pay to the wife, during their joint lives, such monthly or weekly sum for the maintenance and support of the wife as the court may think reasonable..."

Contention Of Parties:
Arguments of the Appellant:
The Counsel for the Appellant argued for the fixing of maintenance for both i.e., the appellant and the minor son. The dissolution of marriage decree obtained by the means of law cannot affect the right to maintenance. The appellant argued for maintenance from the respondent by putting allegations that the appellant has been neglected without any reasonable and probable cause.

Arguments of the Respondent:
The Counsel for the Respondent argued that the appellant ceased to be the wife of the respondent as she was living separately and has also obtained the decree for dissolution of marriage under the 1939 Act. Therefore, the Respondent argued that the Appellant is not entitled for any maintenance.

  1. The Magistrate:
    In order to assert her right to maintenance for herself and the minor son born out of the marriage, the appellant filed an appeal with the trial Magistrate on September 17, 1974 in accordance with section 125 of the 1973 Code. After hearing from the parties, the Magistrate issued a judgment on December 29, 1976, allowing the appeal and setting the maintenance for the appellant and the young son at Rs. 100 per month. The Magistrate also agreed with the appellant's argument that her spouse had neglected her without a good reason.
  2. The Allahabad High Court:
    The Respondent moved to the High Court to challenge the Magistrate's decision. Under section 2 of the 1939 Act, the appellant secured a decree of dissolution of marriage. In this case, the High Court ruled that because the appellant sought a dissolution of marriage pursuant to the 1939 Act, section 125(1) could not be invoked because the decree issued under that Act did not result in the husband's divorce as the dissolution of marriage was only accomplished through the operation of law. The High Court set the support at Rs. 40 per month and only applied the Magistrate's ruling to the minor son.

    The Supreme Court of India:

Majority Judgement:
Judgement of Murtaza Fazal Ali, J. and A. Vardarajan, J. delivered by Fazal Ali, J.
  • The Judgement of the High Court has been sidelined and there has been the restoration of order of the Magistrate granting maintenance to the appellant and the minor son fixed at Rs 100/- per month. The rules of law taken into consideration by the Supreme Court to allow the appeal includes:
  • Section 127(3)(b) 1973 Code is not applicable as the respondent did not file any application stating the cancellation of maintenance, the section 125(1)(b) 1973 Code is aptly applicable as according to this the appellant continues to be the 'wife' of the respondent even after the marriage has been dissolved according to the 1939 Act. In other words, the divorce resulting under the 1939 Act is considered legal.
  • The Supreme Court held that the High Court have over looked the provision of statutory remedy that was provided to the appellant under the 1939 Act and thus, has failed to follow the legal consequences incurred after the dissolution of marriage under the 1939 Act on January 15, 1973 at Civil Court.
  • Further, The Court held that the High Court has been erroneous in taking two separate clauses "who has been divorced" and "had obtained a divorce from her husband" in a consolidated matter and thus, has portrayed that a divorce from the husband and the husband alone can be treated as a legal divorce and not the divorce arising out from the dissolution of marriage 1939 Act.
  • The Supreme Court clarified the position of law by drawing the clear distinction between the section 125(1)(b) and section 127(3)(c) of the 1973 Act.

Concurring Judgement:
A.D. Koshal, J. delivered the concurring judgement:
  • The argument proceeded stating that the divorce and dissolution of marriage are terms that can be used simultaneously, whether the same result from the act of parties or is a consequence of proceedings at law, unless the difference on the other hand, is a creation of the legislature.
  • Referring to section 125(1)(b) of the 1973 act, the clause defines a 'wife' as including a woman who has 'obtained a divorce from the husband.' The term "obtained" can be interpreted to mean that the woman has secured a divorce through her own efforts, even in the face of opposition from others.
  • Applicability of the divorce by the act of the husband is unique to Muslims. As a result, the applicability of the act will be restricted if section 125(1)(b) is only applicable when the husband obtains a divorce.
  • Therefore, a wife who has been given the decree by the Court through the dissolution of marriage is included when the term "a woman who has obtained a divorce" is used.

Ratio Decidendi
"Wife includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried."

"The woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce, cancel the order from the date thereof."

Obiter Dicta
"For instance, where the validity of a marriage or mode of divorce or cessation of marriage under the personal law of a party is concerned that would have to be determined according to the said personal law."

"For instance, the husband saying 'I divorce thee irrevocably' or 'I divorce thee, I divorce thee, I divorce thee'. The third form referred to above is however not recognised by the Shiah law."

Precedents Followed In The Case
Majority Judgement Precedent:
  • Nanak Chand v. Shri Chandra Kishore Agarwala & Ors[7]. [1970] 1 SCR 565, Ram Singh v. State & Anr.[8] AIR 1963 All. 355, Nalini Ranjan Chakravarty v. Smt. Kiran Rani Chakravarty [9]AIR 1965 Pat. 442, Mahabir Agarwalla v. Gita Roy [10][1962] 2 Cr. L.J. 528.

    Through the mention of the above cases, it is clear that the section 488 of 1898 code provided the summary remedy to award maintenance to wives facing neglect irrespective of any form of discrimination.
  • In re Shekhanmian[11], Syed Said v. Meera Bee [12](2), Mohamed Rahimullah & Anr[13]. (3), Rahimunissea & Ors. v. Mohd. Ismail[14], Din Mahommad's case [15](2)

    A careful examination of the mentioned decisions unmistakably demonstrates that while a Muslim wife had the entitlement to receive maintenance from a Magistrate under Section 488 of the Code, this entitlement ceased to exist once she was divorced by her husband and had completed the iddat period. This was unequivocally the legal stance as per the 1898 Code, as amended by the 1955 Amending Act.

Concurring Judgement Precedent:
Deacock v. Deacock[16], [1958] 2 All. E.R. 633
The decree in this case clearly indicates that the court's action was aimed at ending the marriage, using the term "dissolved" consistently instead of the term "divorce." Therefore, in the eyes of the Court of Appeal, the terms "divorce" and "dissolution" were essentially two different ways of referring to the same situation.

Present Status Of The Judgement
The Present status of Mst. Zohara Khatoon v. Mohd. Ibrahim, 1981 given by The Supreme Court of India is that it is currently a valid judgement and has not been overruled. This judgment submitted that according to Islamic Law, mubarat is a type of extrajudicial divorce based on mutual consent.

  1. Mst Zohara Khatoon v. Mohd. Ibrahim, 198, AIR 1243 1981 SCR (2) 910 1981 SCC (2) 509 1981 SCALE (1)370.
  2. Code Crim. Proc. �125.
  3. Code Crim. Proc. �482.
  4. Code Crim. Proc. �127.
  5. Code Crim. Proc., 1898 �488.
  6. Code Crim. Proc., 1898 �489.
  7. Nanak Chand v. Shri Chandra Kishore Agarwala & Ors, [1970] 1 SCR 565.
  8. Ram Singh v. State & Anr. AIR 1963 All. 355.
  9. Nalini Ranjan Chakravarty v. Smt. Kiran Rani Chakravarty, AIR 1965 Pat. 442.
  10. Mahabir Agarwalla v. Gita Roy, [1962] 2 Cr. L.J. 528.
  11. re Shekhanmian, AIR 1930 Bombay 178.
  12. Syed Said v. Meera Bee, 20 M.L.J. 12.
  13. Mohamed Rahimullah & Anr., AIR 1947 Madras 416.
  14. Aahimunnissa & Ors. v. Mohd. Ismail, AIR 1956 Hyderabad 14.
  15. Din Mohmmad's V.I.L.R., 1883 226.
  16. Deacock v. Deacock, [1958] 2 All E.R. 633.

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