JUDGMENT
Pareed Pillay, J.
1. Petitioner challenges the order of the Additional
Sessions Judge, Palakkad in Crl. R.P. 14 of 1990 confirming the order of the
Chief Judicial Magistrate, Palakkad in M.C. 6 of 1989. The M.C. was filed
Under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act,
1986 by the respondent.
2. Respondent was married by the petitioner on 26.3.1980. Due to
estrangement between them the marital relationship was snapped. Divorce
was effected on 26.10.1980. In the wedlock a male child was born to the
respondent on 22.2.1981. Learned Chief Judicial Magistrate awarded altogether
Rs. 24,000/- to the respondent. This has been confirmed by the learned Additional Sessions Judge holding that it is not possible to hold that the amount
awarded by the Chief Judicial Magistrate is excessive.
3. Contention of the petitioner is that the respondent was divorced on
26.10.1980 and as the divorce was before the commencement of the Muslim
Women (Protection of Rights on Divorce) Act, 1986, (for short ‘the Act’) she
is not entitled to any benefit under the Act.
4. The short question that arises for consideration is as to whether the
Act is retrospective or not.
5. The cardinal principle is that every statute is prima facie prospective unless is expressly or by necessary implication made to have retrospective operation. The Supreme Court held in Mithilesh Kumari v. Perm Behari
Khare, (AIR 1989 SC 1247) that a retrospective operation is not to be given to
a statute so as to impair existing right or obligation, otherwise than as regards
matter of procedure unless that effect cannot be avoided without doing
violence to the language of the enactment. Before applying a statute retrospectively the Court has to be satisfied that the statute is in fact retrospective
The Supreme Court further held that the laws made justly and for the benefit
of individuals and the community as a whole may relate to a time antecedent
to their commencement and that the presumption against retrospectivity may
in such cases be rebutted by necessary implication from the language employed
in the statute. It is not possible to hold as an invariable rule that a statute
could not be retrospective unless so expressed in the very terms of the Section
which had to be construed. Mere non-mention is the statute that it is
retrospective is not sufficient to hold that the statute has only prospective
operation.
6. The Act is a declaratory one. The presumption against retrospective operation will not apply to declaratory statutes. The preamble of the
Act sheds sufficient light as to whether it is prospective or retrospective the
preamble reads :
“An Act to protect the rights of Muslim women who have been
divorced by, or have obtained divorce from, their husbands and to
provide for matters connected therewith or incidental thereto.”
From the preamble it is very clear that the Act applies to Muslim women who
have been divorced or have obtained divorce from their husbands. From
a reading of the Act it is not possible to discern that it has only prospective
operation.
7. Divorced woman has been defined Under Section 2 of the Act.
“Divorced woman” means a Muslim woman who was married according to
Muslim law, and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim law. It is not possible to hold that Muslim
husband’s liability to provide for reasonable and fair provision and maintenance to his divorced wife originates only from the Act. It is a duty ordained
by Holy Koran enjoins the husband to provide reasonable and fair provision
and maintenance to his divorced wife. The following passages from various
editions and translations of the Holy Koran are relevant in this context :
The Holy Koran Translation by Abdullah Yusuf Ali at page 96 :
Ayat No. 241-For divorced women
Maintenance (should be provided)
On a reasonable (scale)
This is a duty on the righteous.
Ayat No. 242-Thus doth God
Make clear His Signs
To you : in order that Ye may understand
The Quran by Md. Zafrullah Khan (page 38)
For divorced women also there shall be provision according to what
is fair. This is an obligation binding on the righteous. This does
Allah make His Commandments clear to you that you may
understand.
The meaning of Quran (Vol. I) published by Board of Islamic Publications,
Delhi :
Ayat 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. Like-wise, the divorced
women should also be given something in accordance with the
known fair standard. This is an obligation upon the God-fearing
people.
Ayat 242–Thus Allah makes clear His Commandments for you :
It is expected that you will use your commonsense.
Running commentary of the Holy Quran (1964 Edn.) by Dr. Allanadh Khadim
Rahmani Nuri:
Ayat 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.
Holy Quran–Translated by Mohammed Ali :
Ayat 241–And for the divorced woman, provision (must be made)
in kindness. This is incumbent on those who have regard for
duty.
(Reference to the above has been made by a Division Bench of this Court in
Aliyar v. Pathu (1988 (2) KLT 446). Thus, it can be seen that the mandate on
a Muslim husband to provide fair and reasonable provision to his divorced
wife is contained in the Holy Koran. It is not possible at all to hold that it
is for the first time that the Act has fixed liability on the husband to provide
reasonable and fair provision and maintenance to the divorced wife.
8. As the Act declares duties and liabilities of a Muslim husband with
a view to give adequate protection to the divorced wife and as preamble of the
Act itself states that it is applicable to every divorced Muslim wife, contention
that it has no retrospective operation is not tenable. There is no logic in
holding that the Act for the first time introduced a burden on the Muslim
husband to provide for reasonable and fair provision and maintenance to the
divorced wife. The Act should be considered only as retrospective. Contention that the Act is only prospective and that the respondent having been
divorced prior to the commencement of the Act is not entitled to invoke the
provisions of the Act is without any merit.
9. In the result, the petition is dismissed.