FUZLUNBI Vs. K KHADER VALI

JUDGEMENT

(1.) The last judicial lap of the journey to gender justice made by Fuzlunbi, a married woman just past 30 years and talaqed into destitution, constitutes the compassionate core of this case. The saga of Fuzlunbi, who had earlier secured an order for maintenance in her favour under S. 125 Cr. P. C. which was cancelled under Sec. 127 (3) (b) Cr. P. C., by three courts, tier upon tier in the vertical system, by concurrent misinterpretation of the relevant provision, constitutes the kernel of her legal grievance. If her plea has substance, social justice has been jettisoned by judicial process and a just and lawful claim due to a woman in distress has been denied heartlessly and lawlessly. We say 'Heartlessly', because no senisitive judge with empathy for the weaker sex could have callously cancelled an order for a monthly allowance already made in her favour, as has been done here. We say 'lawlessly' because no disciplined judge bound by the decision of this Court which lays down the law for the nation under Article 141 of the Constitution could have defied the crystal clear ruling of this court in Bai Tahira v. Ali Hussain Fissalli Chothia (1979) 2 SCC 316 by the disingenuous process of distinguishing the decision. We are suprised by this process of getting round the rule in Bai Tahira's case (supra) by the artful art of concocting a distinction without a difference. The Sessions Court and the High Court, who had before them the pronouncement of the Supreme Court, chopped legal logic to circumvent it. Reading their 'reasoning' we are left to exclaim how the high Bench argued itself out of Bai Tahira's case by discovering the strange difference.

(2.) "Twixt Tweedledum and Tweedledee". The discipline of law, the due process of law and the rule of law become mere claptrap if judges bound to obey precedent choose to disobey on untenable alibi. And behind it all is the unheeded wail of Fuzlunbi's womanhood for the karuna and samata of the law and we are conscientized into reversing the judgment under appeal in terms express explicit and mandatory so that masculine injustice may not crucify the weaker sex. Small wonder that many a divorcee, beguiled by Arts. 14 and 15 and the decision in Bai Tahira's case, may well exclaim, "How long. O Lord, how long !"

(3.) The brief facts which have led to this appeal are that Fuzlunbi, the appellant, married Khader Vali, the respondent, in 1966 and during their conjugal life, a son, Kader Basha, was born to them. The husband, an Additional Accountant in the State Bank of India, apparently drawing a salary well above Rs. 1,000/-, discarded the wife and the child, and the tormented woman, talaqued out of the conjugal home sought shelter in her parents abode. Driven by destitution she prayed for maintenance allowance for herself and her son under S. 125, Cr. P. C. and the Magistrate granted payment of a monthly sum of Rs. 250/- to the wife and Rs. 150/- to the child. The husband challenged the award in the High Court where the unjustified neglect was upheld but the quantum of maintenance of the child was reduced to Rs. 100/- per mensem.