SYED SAIB Vs. MEERAM BEE

JUDGEMENT

(1.) The only question which calls for decision upon the petition of Syed Saib is, whether the Magistrate was right in holding that the counter-petitioner Meeram Bee, who was the wife of Syed Saib, but is alleged to have been divorced by him in the irrevocable form by pronouncement of three talaks, is entitled during the period of her iddat, supposing such divorce is proved, to the benefit of an order for maintenance which had been made in her favour before the pronouncement of talak. The Magistrate relies upon the decisions in Gulam Mohidin v. Kasara Bibi Weir s Criminal Rulings Vol. II p. 617 In the matter of the petition of Din Muhammad 5 A. 226, and Shah Abu Ilyas v. Ulfat Bibi 19 A. 50. in support of his view, but it is urged by the Vakil for the petitioner that these cases do not lay down the law correctly. His contention would be valid if it can be said that according to Muhammadan law a woman irrevocably divorced ceases even before the expiry of her iddat to be the wife of the person who so divorced her. And here it may be stated at once that there can be no question but that Meeram Bee is entitled under the Muhammadan law to maintenance during her iddat from the petitioner. A Magistrate, however, exercising summary powers conferred on him by Section 488, Code of Criminal Procedure, can make or enforce an order to that effect only if the relationship of husband and wife exists between the two, but in order to determine this, and only to that extent, we must ascertain the effect in Muhammadan Law of an irreversible divorce on conjugal relations. But before going any further, we may mention that some doubt was entertained at one time as to whether it is competent to a Magistrate to refuse to enforce an order duly made under Section 488, Criminal Procedure Code, on the ground that the relationship of husband and wife has ceased to exist since the date of the order but a series of decisions have held, and in our opinion, rightly held, that the Magistrate not only has the power, but is bound to abstain from enforcing his order under such circumstances see Shah Abu Ilyas v. Ulfut Bibi 19 A. 50 where the authorities are discussed).

(2.) We may say at the outset that the question under consideration is by no means easy of determination and can only be satisfactorily determined by taking into account the extent and the mode in which an irreversible talak affects those marital rights, obligations and disabilities which go to constitute in law the relationship of husband and wife. For we shall find that the language of a definition such as that of marriage and talak, as given in any particular text book or of an argument advanced in it in support of a certain right or disability of the wife or the husband during the period of iddat, however useful as a guide, does not by itself afford a certain basis for a (conclusion. Now the rights, obligations and disabilities ordinarily incident to a valid and subsisting marriage may be thus summarised. Each of the parties has a right to the conjugal society of the other; in the event of death of one of them the survivor is entitled to a share of the inheritance as an heir; the husband is entitled to a certain degree of control over the liberty of movement of the wife; the wife is entitled to maintenance and residence and to be paid such portion of her dower as is payable by the husband on demand but not of the deferred portion: the husband can have three more wives at the same time and not more, but the wife cannot marry any other person; neither of them can marry within certain degrees of relationship of the other on account of what is called prohibition for affinity--which prohibition is of a permanent character--for instance one cannot marry the mother of the other; the husband can marry three other women in addition but cannot associate together by marriage his wife and her sister or certain other relations of hers; and if there be children born in wedlock, or on the marital bed to translate an Arabic phrase, the father is bound to maintain them, and when they no longer need the maternal care he and in his absence his relatives have a right to their custody until they are grown up. To dissolve the marriage tie is a right recognized in the husband and we have had occasion in the case of Asha Bibi v. Kadir Ibrahim Rowther 3 Ind. Cas. 730; 6 M.L.T. 295 to explain the theory on which this right is founded. Such dissolution of marriage is called talak which is usually translated as divorce. Talak, however, is regarded by the Hanafis as a dangerous act from a purely religious point of view, because it puts an end to marriage, an institution in which temporal and spiritual concerns not only of the husband and the wife but of the children and of the society in general are involved, as is pointed out in the case just mentioned. The law while it permits divorce, having regard to the fact that some times it may not be possible for the parties to live together in peace and harmony, fulfilling all those religious and moral duties which are associated with married life, insists not only that there shall be some guarantee that the husband should not be acting from caprice or upon a momentary provocation, but takes care that the interests of the children that may be born in consequence of the marriage should not be jeopardised. The first precaution lies at the root of the distinction between a revocable and an irrevocable divorce and the enforcement of the iddat, or the period during which a woman whose marriage has been dissolved by divorce or death is bound to wait before she is free to marry again, is a sufficient safe-guard ensuring correct ascertainment of the paternity of the child that may be born to the woman after such dissolution. So far as the legal effect of a divorce is concerned the rule as to the time when it is to be pronounced, namely during the state of purity of the wife, has only a theological significance and the two important forms of divorce from a legal point of view are the Rajai , usually translate as revocable or reversible, and bayan i. e., irrevocable or irreversible A simple pronouncement of the sentence of talak once or even twice constitutes a revocable divorce which means that the husband is entitled to undo its effect if he so chooses, but he must express his intention to that effect either by words or in act before the expiry of the period of iddat which counts from the date of the first pronouncement. If he allows the period of iddat to lapse without revoking the divorce there is a complete cessation of the relation of husband and wife at the end of that period. Iddat is, as ordinarily calculated, the period of three menstrual courses, and in the case of a woman not subject to such courses it is three months; in the case of a widow iddat is of four mouths and ten days, and if a woman is pregnant, her iddat is in any case prolonged until confinement.

(3.) What then are the legal effects of a reversible divorce During iddat the husband still retains his right of access to the wife, but the latter has no corresponding right until revocation to the conjugal society of the former. No doubt it would be proper on the part of the husband before seeking the society of his wife in such predicament to revoke the divorce formally, but this is not necessary in law; he cannot, however, compel her to accompany him on a journey, but otherwise she remains under his matrimonial restraint; she is entitled to residence and maintenance and the deferred portion of her dower becomes due. If he has three wives at one time in addition to the divorced wife, he cannot marry a fourth woman, nor can he marry such wife s sister, and if either of them dies before the afflux of iddat the survivor is entitled to a share in inheritance from the deceased. These being the incidents of a revocable divorce it is obvious that such divorce, though not without some effect on marital relations during iddat, does not absolutely put an end to the relationship of husband and wife; and in this all Sunni lawyers agree. If a divorce in this form can be said, therefore, to effectuate a dissolution of marriage, as is implied in the general definition of talak, the dissolution so caused is only tentative and prospective. The essential difference between this form of talak and an irrevocable talak, which may be effected by three pronouncements in one and the same speech, or, if separately, within the period of one month, or by the use of an emphatic expression conveying the intention to pronounce an irreversible divorce is this. The effect of an irrevocable divorce cannot, as the description implies, be recalled even during iddat. In both cases on the expiry of iddat all those relations which are incident to a marriage come to an end. But the immediate effect of an irrevocable divorce, unlike that of a revocable divorce, is to make it unlawful for the husband to co-habit with the wife, and if he co-habits with her with knowledge of the unlawfulness of the act, he becomes liable to the sentence of death--the punishment awarded for fornication. They may marry again, but if the irrevocable divorce was by three pronouncements of three talaks, the law places a further difficulty in the way of such union, namely, that before re-marriage the woman should have been married to another man and divorced by the latter after he had consummated the intermediate marriage; and if one of them dies during iddat the other gets no share in the inheritance. That being the result of an irreversible divorce according to all the Sunni Schools, the Shafeis hold that it completely and effectually severs the marriage tie, and they, therefore, on that ground would not allow, during iddat, maintenance to the woman so separated, unless she is already pregnant, and permits the husband to marry her sister for a fourth wife. The Hanafi lawyers, however, recognize the existence of the right and the disabilities just mentioned during iddat following upon an irrevocable divorce, and both the Hanafi and the Shafei lawyers recognize her, right to residence and her subjection to the custody of her husband.