Hefzur Rahman (Md) (Appellant )
Vs.
Shamsun Nahar Begum and another (Respondents)
Supreme Court
Appellate Division
(Civil)
JUSTICE
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Judgment : December 3, 1998.
(i) Muslim Law-Divorce and Maintenance-Meaning of ‘Mataa’
Per A.T.M. Afzal CJ: Mataa is something to which a divorced woman is entitled and which the former husband is under an obligation to pay seems to follow naturally from the Ayat (241, Sura Bakara) itself. But the whole question is whether Mataa can be equated with maintenance as has been done by the High Court Division. We shall see whatever be the meaning of Mataa it is certainly not maintenance as can be claimed within the meaning of the Family Court Ordinance. It is clear that the interpretation given by the learned Judges is not and cannot be acceptable because it brings conflict and even on the general criterion of interpretation as they also would not deny that a document should be read as a whole, interpretation of the learned Judge should be rejected…………………….(35 & 48)
Per Mustafa Kamal J: Under the strict interpretation of the word Mata’a all that can be given is three pieces of cloth sufficient for a divorced woman to pray. The maximum that can be given is half of the dower money fixed. But, of course, instances have been provided to us that Hazrat Hasan Bin Ali (R) gave his divorced wife 10,000 Dirhams in those days. It is our understanding that the Holy Quran has left the quantum of mata’a to the Godliness, sense of justice, equity and fairness on the part of the husband, since it is a voluntary payment. The liberal view (Tafsir Ibne Kasir, a disciple of Imam Shafi) is that the presentation of a suitable gift is obligatory in the case of all divorced women and not merely in the case of women referred to in Ayat 236 of Sura Al-Baqarah (2). In any view of the matter mata’a is a voluntary gift payable by the righteous. A righteous man will please Allah and if righteous men give voluntary gift to all kinds of divorced women it is for Allah to consider whether they have acted righteously or not. Righteousness and mata’a go hand in hand………………………………(154 & 155)
Per Latifur Rahman J:
Inner meaning of “Mattaa” has not been correctly derived from any Arabic dictionary and rightly appreciated by the learned Judges who wrongly arrived at the conclusion that in the context of Verse No. 241 of Surah Baquara it means maintenance. Whereas it is not maintenance at all in Arabic meaning. The learned Judges of the High Court Division did not give any attention to the real translation of the two Arabic words “Mattaa” and “Nafaqa” and wrongly held that a divorced woman is entitled to maintenance till she remarries. The term ‘Mattaa’ means certain benefits, privileges and gifts in any form by whatsoever name you call it, is incumbent on the ‘righteous’ as enjoined by Allah in the Holy Quran. ‘Mattaa’ is given once at a time at the time of divorce……………………………… (163 & 164)
(ii) The Code of Civil Procedure, 1908 (V of 1908), section 115
Per A.T.M. Afzal CJ:
Before the High Court Division it is the defendant who took a revision against the judgment and decree passed by the learned District Judge and its jurisdiction was to see if there was any error of law committed by the Subordinate Court resulting in an error in the decision occasioning failure of justice. The error of law must have to be found within the framework of the suit and not beyond. Learned Judges’ interference with the appellate decree reducing the amount to Taka 600.00 per month for the maintenance of the son was legally bad on principle, for, the plaintiffs never complained against the said reduction.……….(65 and 69)
Per B.B. Roy Chowdhury, J:
Plaintiff No.1 Shamsun Nahar Begum never appealed against the decree of the original court. She did not also prefer any revision. In such circumstances the learned Judges of the High Court Division had no jurisdiction to give her any further relief beyond what was granted by the first two courts below………………………(178)
Cases Referred to-
Aga Mohammed Jaffer Bindavin vs Koolsoom Beebee and others, ILR 25(Cal) 9; Aga Mahomed Gaffer Bindanim vs Beebee and others, ILR 25 (Cal) 9; Rashida Begum vs Shahan Din and others, PLD 1960 (Lahore) 1142; Shah Bano Case, AIR 1985 (SC) 945; Raghu Mahton vs Bullak and others All 1953 Pat. 289; Rup Ram vs Harphul AIR 1921 Lah 125; Sheo Dutt and, others vs Pushi Ram and others AIR 1947 All 229; Putta Kannaya chetti and others AIR 1918 Mad 998 and Fazal Din and others vs Milkha Singh AIR 1933 Lab 193; Personal Laws in Islamic Countries (2nd Ed. 1995) P. 261-262; Firm Sriniwas vs Mahabir Prasad, AIR 1951 (SC) 177; Om Prakash vs Ram Kumar, AIR 1991 (SC) 409; Secretary to Govertment vs Abdul Kafil,PLD 1978 (SC) 242; Safura Khatoon vs Osman Gani and others, 9 DLR 455; Marium vs Kadir Box, AIR 1929 (Oudh) 527.
Lawyers Involved:
Md. Hannan, Senior Advocate, instructed by Md. Ataul Haque, Advocate-on-Record — For the Appellant.
Rabeya Bhuiyan, Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-Record — For the Respondent No. 1.
Not Represented — Respondent No. 2.
AW Bhuiyan, Acting Attorney-General, instructed by Md Sajjadul Huq, Advocate-on- Record — Amicus Curiae.
Moulana Obaidul Haque, Khatib Baitul Mukarram National Mosque, Moulana Mohiuddin Khan, Editor of “Monthly Madina” — For the opinion on Islamic Law.
Interveners (First Group)
For the Appellant:
1. Shamsuddin Ahmed, Advocate — For Self.
2. M G Bhuiyan, Advocate-on-Record — For Self.
3. M Nawab Ali, Advocate-on-Record — For the Bangladesh Legal Aid & Services Trust (BLAST)
4. Mvi Md Wahidullah, Advocate-on-Record— For Rokeya Begum, housewife.
For the Respondent:
1. Md. Fazlul Karim, Senior Advocate, instructed by Sharifuddin Chaklader Advocate-on- Record For Seema Zahur Advocate Member, Bangladesh Jatiya Mohila Ainjibi Samity.
2. Shafique Ahmed, Advocate — For Salma Sobhan, Executive Director, Ain-o-Salish Kendra (ASK).
3. Alimuzzaman Chowdhury, Advocate, instructed by MG Bhuiyan, Advocate-on-Record — For Khan Md Shahid Chief Coordinator on behalf of Madaripur Legal Aid Association.
Interveners (Second Group)
For the Appellant:
1. Nazrul Islam, Advocate, instructed by Md Nawab Ali, Advocate-on-Record — For self and as Secretary General, Islamic Law Research Centre & Legal Aid.
2. ABM Nurul Islam, Senior Advocate — For Self
For the Respondent
1. Syed Ishtiaq Ahmed, Dr Kamal Hossain, M Amir-ul-Islam with Tanya Amir, Advocate (with the leave of the Court) Dr M Zahir, Senior Advocates, instructed by Md Aftab Hossain, Advocate-on- Record –
For:
a) Maleka Begum, Chief Gender Development Cell.
b) Rokeya Kabir, Executive Director Bangladesh Nari Progoti Sangstha.
c) Dr. Mizanur Rahman, Professor, Department of Law, Dhaka University and Dr. Abrar Professor Political Science Dhaka University.
d) Begum Ivy Rahman, Jatiya Mohila Sangstha (JMS).
e) Salma Khan, Chairperson, The Committee on the Elimination of Discrimination Against Women (CEDAW)
2. Sigma Huda, Advocate (with leave of the Court), instructed by Md. Aftab Hossain, Advocate-on-Record.
For:
a) The Coalition Against Trafficking in Women, Bangladesh (CATW) represented by its Coordinator
Shaheen Akhtar Munir, Advocate, And Ain-o-Unnayan Sangstha, represented by its Secretary Sigma Huda, Advocate.
b) The Coalition of Environmental NGOs represented by its Chairman Ms. Khushi Kabir.
c) Bangladesh Society for the Enforcement of Human Rights, represented by its Secretary General, Sigma Huda, Advocate.
d) Association of Development Agencies in Bangladesh (ADAB) represented by its Director, Shamsul Huda.
e) Sammilito Nari Samaj represented by its member Sultana Aktar Ruby, Advocate.
f) Ms Rashida Begum, Traine, Nijera Kori.
Civil Appeal No.130 of 1997
Judgment:
ATM Afzal CJ.-
Arabic The Holy Qur-an Sura (II) Baqara Ayat 24.
241. Talaq prapta narisigoke prothamoto (iddath porjonto) bhoron podhon kors dsbdhsnider kortobbo.
(Anubsd: Quaranul Karim (prothom khondo) Islamic Foundation, Bangladesh, anudito, 6th mudron joistho, 1387, August 1980)
241. For divorced women Maintenance (should be provided) on a reasonable (scale). This is a duty On the righteous. Quran
(The Glorious Qur’an—Translation and commentary by Abdallah Yousuf Ali)
2. In this defendant-husband’s appeal by leave, the main question raised for consideration is whether the High Court Divisions interpretation of and decision following the aforesaid Ayat that a person after divorcing his wife is bound to maintain heron a reasonable scale beyond the period of iddat for an indefinite period, that is to say, till she loses the status of a divorcee by remarrying another person”, is supportable or not both on merit as well as in the facts and circumstances of the case. We have had a prolonged hearing of the appeal in course of which we heard the learned Counsel for the parties, Mr Abdul Wadud Bhuiyan, learned Acting Attorney General (as amicus curiae), two distinguished Alims and a host of interveners representing individuals, non-Government women and other legal organizations and also perused written arguments submitted by them. After considering everything. I have come to the conclusion that the interpretation and decision given by the High Court Division as above are not supportable both on merit as also in the facts and circumstances of the case. I shall now proceed to the reasons but, before that, a brief account of the facts of the case.
3. The plaintiff-respondents filed Family Court Suit No 60 of 1988 in the Family Court and the Court of Assistant Judge, Daudkandi, Comilla on 2-11-1988 for realisation of dower money of Taka 50.001.00 and for maintenance of each of the plaintiffs, mother and son. Plaintiff-respondent No 1 and the defendant-appellant were married on 25-3- 1985 at a dower money of Taka 50,001.00 Plaintiff- respondent No 2, a son, was born in the wedlock, on 15-12-1987. The defendant-appellant (husband) divorced plaintiff-respondent No I (wife) on 10-8- 1988.
4. The defendant-appellant in his written statement expressed his willingness to pay the dower money claiming that he had already paid Taka 30,000.00. He stated that he had already sent a number of money orders to plaintiff No 1 before divorce towards her maintenance and maintenance of the minor son. So they are no longer entitled to any maintenance, as claimed.
5. Plaintiff No 1 examined 4 PWs including herself and the defendant-appellant examined 3 DWs including himself and both sides produced a good number of papers and documents.
6. The Family Court by judgment and order dated 30-10-90 decreed the suit for Taka 89,000.00, including Taka 3,000.00 to plaintiff No 1 as maintenance during the iddat period @ Taka 1,000.00 per month.
7. From December 1990 the defendant- petitioner was directed to pay to plaintiff No. 1 Taka 1,000.00 per month towards maintenance of plaintiff No 2, with a further direction to pay the decretal amount within one month, failing which to realise the amount through Court.
8. In Family Appeal No 2 of 1991, preferred by the appellant, the learned District Judge, Comilla by judgment and decree dated 20-4-1992 reduced the amount of Taka 1,000.00 to Taka 600.00 per month in respect of maintenance of plaintiff No. 2 but did not reduce the amount of maintenance of plaintiff No 1. The learned District Judge deleted Taka 2,000.00 claimed to have been spent by plaintiff No I at the time of the birth of plaintiff No. 2, holding that the Family Court Ordinance did not provide for realisation of any such amount. The total decretal amount was reduced from Taka 89,000.00 to Taka 72,600.00. The defendant-appellant was directed to pay the reduced decretal amount to plaintiff No 1 within 30 days of the receipt of the case record by the Family Court.
9. The appellant preferred Civil Revision No. 2067 of 1992 against the judgment and decree of the learned District Judge and obtained a Rule and stay on 30-8-1992 from the High Court Division.
10. At the hearing of the civil revision before a Division Bench the defendant-appellant was not represented by his engaged Advocate.
11. The learned Judges of the High Court Division found in the impugned judgment that the parties did not adduce any evidence upon which the amount of monthly maintenance can be determined and fixed, but the Court was not precluded from determining the amount. The defendant is a typist in the Ministry of Finance and in his deposition and written statement; he did not refute the claim of maintenance at the rate of Taka 1,000.00 per month for each of the plaintiffs. Calling in aid their personal knowledge the learned Judges held that each of the plaintiffs is entitled to get from the petitioner an amount of Taka 1,000.00 per month as maintenance commensurate with the status and means, of the defendant. It was therefore held that the lower appellate Court illegally reduced the amount abruptly without assigning any reason.
12. The learned Judges then suo motu addressed themselves to a legal query as to whether plaintiff No 1 (wife) could have claimed maintenance beyond the period of iddat. After quoting Sura Baqara verses 240-242 and from Hedaya, Baillie and Verses from Sura Yunus, Sura Qamar, Sura Al Imran and observing that like statutes, the Quran prescribes a literal construction of its verses, the learned Judges referred to the case of Aga Mahomed Iaffer Bindanim vs Koolsoom Beebee and others, ILR 25 (Cal) 9 and held that the dictum of the Privy Council pronounced a hundred years ago in 1887 AD that it would be wrong for the Court to attempt to put their own construction on the Quran in opposition to the express rulings of commentators of great antiquity and high authority which cannot be followed on three grounds, first, the learned Judges of the Privy Council were non- Muslims, secondly, the interpretation is in conflict with Article 8(1A) of the Constitution of Bangladesh which indicates that Quranic injunctions shall have to be followed strictly and without any deviation and thirdly, the dictum is in derogation of Sura Baqara Verse 121 . Relying on observations from the case of Rashida Begum vs Shahan Din and others, PLD 1960 (Lahore) 1142, the learned Judges agreed with the view that if the interpretation of the Holy Quran by the commentators who lived thirteen or twelve hundred. years ago is considered as the last word on the subject then the whole Islamic society will be shut up in an iron cage and not allowed to develop along with the time. The learned Judges therefore came to the conclusion that a Civil Court has the jurisdiction to follow the law as in the Holy Quran disregarding any other law contrary thereto even though laid down by the earlier jurists or commentators of great antiquity and high authority and followed for a considerable period. Thereafter the learned Judges considered the literal meaning of the First Part of Verse 241 of Sura Baqara and finally held that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period till she loses the status of a divorcee by re-marrying another person.
13. The learned Judges by the impugned judgment dated 9 January, 1995 restored the judgment and decree of the Family Court with the modification that plaintiff Nos 1 and 2 shall get maintenance at the rate of Taka 1,000.00 each per month from the defendant till plaintiff No 1 and plaintiff No 2 respectively remarries or attains majority.
14. Mr. Md. Hannan, learned Counsel for the appellant, raised several points seeking leave to appeal from the impugned judgment and leave was granted to consider his submissions as follows:
(1) that as long as a suo motu judicial exercise is per incuriam (perhaps the learned Counsel meant ‘incidental’) and does not affect either party to a suit adversely, the defendant ‘can have no legitimate grievance against such exercise, but if the suo motu exercise is beyond the frame of the suit and the decision after the exercise saddles the defendant with an added liability which even the plaintiffs did not claim in the suit, the exercise is without jurisdiction and assumes the character of judicial excess.
(2) That the learned Judges of the High Court Division have no authority and jurisdiction to impose their personal views on the defendant at an added cost and liability to him.
(3) that the suo motu exercise was all the more unacceptable, as it was done behind the back of the appellant, without giving him a notice of the learned Judges’ intention to indulge in an exercise of this kind, so that he could refute the learned Judges’ personal views.
(4) that the learned Judges have expressed their views without inviting expert opinion of lawyers and jurists of Islamic jurisprudence and without hearing the views of others who may have views contrary to the learned Judges.
(5) that the views on maintenance expressed by the learned Judges are wholly erroneous, contrary to Muslim Law and devoid of any reasoning and authority and
(6) that the reversal of the lower appellate Court’s decree on maintenance is based neither on any evidence nor on any reasoning but on the personal knowledge of the learned Judges which can never be imported into a contentious suit and which is contrary to all judicial norms.
15. From the above it is clear that the aforesaid (main) decision of the High Court Division has been subjected to a two-fold attack— first, the decision is bad because it offends the principles of general or secular law and secondly, it is bad because it offends and is contrary to the personal law of the defendant i.e., Muslim Law. The interpretation given of Ayat 241 (Sura II) is, in any case, untenable and it has wrongly been made the basis of the decision which was bound to be wrong. I shall take up the second line of attack first for consideration.
16. It will be appropriate to begin with a statement of law, without any fear of contradiction and which is assumed by the learned Judges of the High Court Division themselves, that under the traditional Muslim Law a divorced wife is entitled to maintenance from her erstwhile husband only during the period of her iddat. The learned Judges noticed this provision from Hedaya by Charles Hamilton (Book IV, Chapter XV, Sec 3, p 45) and Digest of Mohammadan Law (compiled and translated from authorities in the original Arabic) by Neil B E Baillie Part Second, Book 1!, Chapter VII Section Sixth Pp 169-170). Any textbook on Mahommadan Law will corroborate this proposition vide, Mulla, Principles of Mahomdan Law (Fourteenth Ed) Para 279.
17. Dr Paras Dewan in his Muslim Law in Modern India, 1982 Ed p 130 says-
When a marriage is dissolved by divorce the wife is entitled to maintenance during the period of iddat On the expiration of the period of iddat, the wife is not entitled to any maintenance under any circumstances. Muslim Law does not recognise any obligation on the part of a man to maintain a wife whom he had divorced.
18. Indeed this has been the Muslim law since the days of Prophet Muhammad (Allah’s Peace be upon him) and the respondents and the interveners supporting them have not been able to show one instance from the early days of Islam, till the date of the impugned judgment where the view taken by the learned Judges as to maintenance has been upheld even by any authority or Court in any Muslim society/country at any time during the last fourteen hundred years. The nearest that we have been able to come across was the decision of the Indian Supreme Court in the Shah Bano case, AIR 1985 (SC) 945, which, as is well-known, caused a great stir in that country and the result was that the Government of India had to bring about an enactment called “The Muslim Women (Protection of Rights on Divorce) Act, 1986” by which prima facie the said decision was set at naught. It is to be observed that in the said case the Indian Supreme Court was considering an application for maintenance of a divorced Muslim woman filed under section 125 of the Code of Criminal Procedure, 1974 and particularly the provision in the said section which reads:
125(1)(a). “if any person neglects or refuses to maintain his wife, unable to maintain herself’ underlined by me).
19. In considering the defence taken by the husband and the interveners including All India Muslim Personal Law Board on the basis of aforesaid personal law of the Muslims, the Court observed:
“We are of the opinion that the application of those statements of law must be restricted to that class of cases in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. We are not concerned here with the broad and general question whether a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances and at all events. That is not the subject matter of section 125.”
20. The Indian Supreme Court then considered the aforesaid Ayats 241 and 242 of the Sura Baqara and observed: “These Ayats leave no doubt that the Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than Justice to the teachings of the Qur-an”.
21. The Shah Bano decision was thus a limited one given in the context of section 125 Cr.P.C. and the impugned decision before us is a general one and it is agreed by all the parties that it is unique.
22. The question before us is whether by putting the interpretations on Ayat 241 (Sura Baqara) in the manner done by the learned Judges, the traditional Muslim Law as to maintenance of a divorced wife prevalent for centuries was lawfully and legitimately knocked down. During the hearing of the appeal several Tafsirs of the Holy Quran by renowned and famous commentators have been placed before us by the learned Advocates. Mrs. Rabeya Bhuiyan, learned Counsel, who supported the plaintiffs case or cause with commendable zeal cited Imam Shafei on Al Qur-an (11:241) commentary on the Holy Qur-an by Ibn Katheer (d 1373 AC Damas Cus) Translated by Danial Latifi) and Tafsere Tabare Sharif, 4th Volume, Allama Abu Jafar Tabari (published by Islamic Foundation in 1993). In one of the Tafsirs, there is support for the view taken by the learned Judges as to maintenance till remarriage.
23. On behalf of the Interveners supporting the respondents some translation of Ayat No 241 by some Authors and opinions by some authorities have been referred to where the meaning of the word Mataa has been given as maintenance. They have referred to the translation of Mohammad Asad and the Urdu translation by Shaikul Hind Akiama Mahmood Hasan Deobandi. In his, note to Ayat No 241. Muhammad Asad says:
“This obviously relates to women who are divorced without any legal fault on their part. The amount of alimony-payable unless and until they remarry-has been left unspecified since it must depend on the husband’s financial circumstances on the social consideration of the time”
24. Shaikul Hind in his Urdu translation qualified maintenance “as per provisions of law”.
25. Baidavi in his commentary on the Holy Quran observes: “Maintenance is made obligatory so as to remove despair and grief caused to the woman by separation as a result of divorce. The quantum is to be determined by the Government authority”.
26. Imam Qurtubi in his commentary observes that “payment of maintenance is ordered for the reason that disrespect has been shown against marital contract”.
28. It has been brought to our notice that the translation of the Holy Quran by Abdallah Yusuf Ali (which was relied upon by the High Court Division to read ‘maintenance’ for the word Mataa in Ayat 241) has been revised and corrected by the Presidency of Islamic Researches, IFTA, call and guidance, under a Royal decree issued by the Custodian of the Two Holy Mosques. From the preface of the -said revised translation of the Holy Qur-an it will appear how much care and pains have been taken in revision and correcting the work of Abdallah Yusuf Ali. In this revised Book the meaning of the word Mataa as occurring in Ayats Nos 236 and 241 is found to be the same, that is ‘a suitable gift”. Evidently, the High Court Division had not had the benefit of looking into the revised meaning of Mataa which is different from the original translation done by Abdallah Yusuf Ali.
29. In a well-chronicled Article on “Divorced Muslim Women in India” by Lucy Carrol produced by Mrs. Bhuiyan it has been pointed out that the usual word for maintenance is Nafaqa. This meaning is to be found in the Fatwai-Alamgiri (Indian Ed., 2nd Volume p 144) and has been attributed to as such by both the Alims who appeared before us.
30. The aforesaid Article reads:
“Reading the injunction contained in 11:241 against the background of these verses, the Hanafi jurists concluded that the mataa (provision; gift) is only obligatory when the woman has been divorced before consummation in circumstances where no mahr has been set (i.e., in circumstances where, had the marriage been consummated, she would have been entitled to the proper mahr or the mahr of her equals). It is, however, “laudable” to give the divorced woman a ‘present” in other cases as well. I e it is not contrary to, i.e. or prohibited by, Muslim law, even as narrowly interpreted by the Hanafi jurists, that the husband should make some consolatory offering to his divorced wife. The mandatory mataa or gift due to the woman divorced both before consummation and before an amount of mahr had been settled, is defined by the classical Hanafi jurists in terms of three items of clothing, the fabric of which depends on the economic position of the husband.”
31. The other Sunni Schools and the Shias regard mataa as something (in addition to her mahr) that the husband is obliged to provide to his wife in every case of divorce by talaq. The fourteenth century Shafi jurist, ibn Katheer (as translated and quoted by Danial Latifi) said of mataa in his commentary on the Qur-an:
Said Abdur Rahman bin Zaid bin Aslam:
“When God revealed the Ayat reasonable provision is due from the kindly (11:236), some said’ if I wish to be kind I may pay and otherwise not’. Then God revealed this Ayat:” And for divorcees reasonable provision is due from the righteous (ii: 241).”
32. And because of l this Ayat a group of scholars hold mataa obligatory in all cases whether of divorce by delegation (talaq-i-tafwid) or of mahr paid or of those divorced before consummation or those [divorced]after consummation. So held Imam Al Shafi.” God bless him and his.”
33. The Board of Islamic Publications, Delhi in “The Meaning of the Qur-an” (Vol.1) translated Ayat 241 thus: Likewise, the divorced woman should also be given something in accordance with the known fair standard. This is an obligation upon the God fearing people.
34. The interveners (for respondent) have ultimately submitted that whatever meaning be attributed to the word Mataa, i.e. maintenance, reasonable provision, suitable gift or whatever, it cannot be denied that the divorced woman is entitled to something after divorce which is an obligation cast upon the husband. Mr. Amirul Islam in particular upon citing some verses from the Holy Qur-an pointed out that as the revealation progressed the treatment to be meted out to divorced woman has been progressively made more equitable, humane and generous. The concept of Mataa therefore has an essential element of equity and humanity. Both Mr Amirul Islam and Syed Ishtiaq Ahmed argued that maintenance for Iddat period only has lost relevance under the Muslim Family Laws Ordinance 1961 because divorce does not become effective until expiration of 90 days as provided under section 7(3) thereof.
35. That Mataa is something to which a divorced woman is entitled and which the former husband is under an obligation to pay seems to follow naturally from the Ayat itself. But the whole question is whether Mataa can be equated with maintenance as has been done by the High Court Division. We shall see whatever be the meaning of Mataa it is certainly not maintenance as can be claimed within the meaning of maintenance under the Family Court Ordinance.
36. Mr. Md. Hannan, learned Counsel for the appellant, produced the Bengali version of the Ayat from TAFHIMUL QURAN by Syed Abul A’la Maududi which reads:
‘Anurup je sob strilok ke Talaq deya hoyeache taderkeyo songoto bhabe kichu na diyea bidai kora uchit. Eta muttaki der upor aropito odhiker.’
37. Mr. Hannan in course of his submission laid great stress on the word ‘maruf’ and submitted that the High Court Division totally failed to appreciate the meaning of the said word and put a whimsical meaning thereto. The true meaning of the word, he submits, is to be found in the annotation of verses 1-6 of Sura At-Talaq by Hajrat Moulana Multi Muhammad Shah (RA) in his Tafsire Ma’areful Qur-an (translated in Bengali by Moulana Mohiuddin Khan); the relevant portion reads thus;
“shosto bidhan iddath somapto hole stri ke rakhar sidhanto hok othoba mukto kore deyar, uvhoy obostate quaran pak ta maruf orthat jothopojukto ponthai somponno korte bolechea. ‘maruf’ sobder ortho porichito pontha. Uddesho ai je, je pontha soriyot o sunnot dara promanito abong musulmander modhea sadharon bhabe khato, sei pontha obolombon koro. Ta ai je, bibaho rakha abong Talaq prothahar korar shiddhanto hole strike mukhe othoba korme koshto dio na, tar upor onugroho rekhona abong tar je kormogoto o choritrogoto durbolota talaker karon hocchilo, oto:por nijeo tojonne shobor korar shonkolpo koro, jate punorai shai tiktota srishti na hoi. Pokkhantore mukto kora shiddhanto holeo tar bidito o sunnot pontha ai je, take lanchito o hao kore othoba galmondo die griho thake bohishkar koro na; borong shotbaboharer maddhome bidai koro. Koraner onnanno ayat dara promanito ache je, take kono bostrojora die biday kora kompokkhe mostahab abong kono kono obosthai oajibo. Fiqahr kitabadite er biboron paoa jabe.
38. The impugned judgment is unique in the sense that it gives no reason whatsoever for completely ignoring all the lessons and learning of fourteen hundred years and undertakes to declare the law upon the claim that “ a Civil Court has the jurisdiction to follow the law as in the Quran disregarding any other law on the subject, if contrary thereto even though laid down by the earlier jurists or commentators may be of great antiquity and high authority and though followed for a considerable period.” And what is this law in the Quran? The learned Judges say—As we find it to mean by giving a literal construction and ordinary meaning to its words and phrases in as much the same way as we interpret an ordinary statue. This is the entire rationale of the impugned judgment.
39. In my opinion, this attitude, saying with respect, is not only legally wrong but morally despicable and, if I may go further verge on sacrilege. The Qur-an is not a legal draftsman’s work, who is guided by Mr Maxwell’s rules of interpretation. The Qur-an was revealed by the Creator of all Maxwells and the person to whom it was revealed is the Maxwell of that sacred Book.
40. The Qur-an has been revealed in Arabic language and its Author says
(Arabic) (Sura Yusuf-Ayat-2)
Orthat, Qur-an , iha ami obotirno koriachi arbi bhashai jahate tomra bujhite paro.
Though Arabic was the common language of the whole of Arabia, it is accepted that the Qur-an was revealed in the dialect of the Quraish of Makkah. True it is that the Quran invites everyone to read it and get guidance and its verses are “easy to understand”. It will be easy to understand for a person who has got command over the Arabic language. It is not necessarily so for a person who is reading Quran in a different language. For example, the import of the word Mataa should be understood in the sense the holy Prophet (Allah’s peace by upon him) and his companions had understood it and not according to later day translations of the said word which are conflicting. The more important point, however, is that a verse of the Quran has to be understood not in isolation, and less with a shallow knowledge of language and certainly not with the interpretative techniques of man-made laws but with the help of first the Prophet’s (Allah’s peace by upon him) teachings and practices and subsequently by the enunciations of Islamic jurists and scholars. The Hamiltons and Baillies did not give their own interpretations but compiled and translated the Muslim law from authorities in the original Arabic which came down from the early days of Islam. Therefore, it will be totally unwise to discard the views of Islamic Jurists and scholars altogether which held the field for centuries and to rely merely upon one’s own reading and understanding of a verse of the Quran for laying down a law on the basis thereof.
41. The learned Judges in doing so took inspiration from a verse in Sura Al Qamar which has been repeated four times in the said Sura and reads thus:
(arabic)
orthat ami Qur-an koria diachi upodesh grohoner jonno,
uha hoite upodesh grohon koribar kaho ache ki?
42. Let us see from one of the Tafsirs what has been said by the Mufassirs about the said verse. Mufti Muhammad Shafi (RA) in Tafsire Maa’reful Quran (translated in Bengali by Moulana Mahiuddin Khan) says:
Ijtihad totha bidhanaboli choyon korar jonne Qur-anke shohoj kora hoi ni: aloccho ayate
er shathe shonjukto kore aro bola hoeche je, mukhosto kora o upodesh grohon korar shima porjonto Qur-an ke shohoj kora hoeche. Phole prottek alem o jahel choto o boro shobai er dara upokrito hote pare. Ete joruri hoi na je, Qur-an pak theke bidhanaboli choyon korao shohoj hobe. Bola bahullo eta shotontro o kothin shastro. Je shob progaro gayni alem ai shastrer gobeshonai jibonatipat koren, kebol tarai ei shastre butpotti orjon korte paren. Eta protteker bichoron khetro noi.
Kono kono Musalman uporokto ayatke shombol kore Qur-aner mulniti o dharashomuho purnorupe ayotto na korei mujtahid hote chai. Uporokto boktobbo dara tader bhranti phute utheche. Bola bahullo, eta porishkar pothobhroshtota.
43. In order to invoke the individual’s right to interpret Quran the learned Judges have referred to PLD 1960 Lahore 1142 referred to before. In that case, the learned Judge not only said that in understanding the Quran one can derive valuable assistance from the commentaries written by different learned people of yore, but also stated particularly about practical aspects which the learned Judges of the High Court Division completely missed. It reads:
“Ijtihad or exercise of judgment is a recognised source from which the laws of Islam are drawn……… Ijtihad by a single individual or by a few individuals was considered even by the Muslim Jurists as dangerous. They, therefore, preferred the exercise of the judgment by the consensus of opinion of the majority of the Mujtahids or an agreement of the Muslim Jurists of a particular age on a question of law. It was perhaps correct for the people of that age to confine Ijithad to a few Jurists because knowledge was not imported to other people so freely and so commonly, but at the present time, I think, this duty should be performed by the representatives of the people because as I have already stated the reading, understanding of the Quran and the application of its general principles is not the privilege of one or two persons but a right and a duty of all Muslims which should be exercised by the persons chosen by them for this purpose”.
44. The impugned decision appears to be prima facie ill considered and ill-conceived as it apparently failed to take into consideration riot only the whole conspectus of Muslim law relating to marriage and divorce but even the various other. Ayats on divorce occurring in the same Sura Baqara and Sura At-Talaq and Al Ahjab. The learned Judges held interpreting ‘mataaoon bil maaroof’ in Ayat 241 relying on Yusuf Ali that a divorcee is entitled to maintenance on a reasonable scale till her remarriage. The same phrase ‘mataaoon bill maaroof’ occurs in Ayat 236 which reads:
45. The translation thereof by Yusuf Ali is as follows:
There is no blame on you
If ye divorce women
Before consummation
Or the fixation of their dower;
But bestow on them
(A suitable gift),
The wealthy
According to his means,
And the poor
According to his means: — A gift of a reasonable amount
Is due from those
Who wish to do the right thing.
It will be seen that the meaning of ‘mataaoon bil maaroof’ given here is—“A gift of a reasonable amount”. How do you then reconcile the two meanings of the same phrase? If the learned Judges are right in their interpretation then there is an obvious conflict between the said two Ayats (Naujubilla hi min Jalik).
46. The opening verses of Sura At Talaq also relate to divorce and consequent provisions and particularly verse No.6 may be referred to which reads: (translation by Yusuf Ali)
(arabic)
6. Let the women live (In iddat) in the same Style as ye live,
According to Your means:
Annoy them not, so as
to restrict them,
And if they carry (life
In their wombs), then
Spend (your substance) on them
Until they deliver
Their burden; and if
They suckle your (offspring)
give them their recompense:
47. It is significant that emphasis has been laid on the period of Iddat and in the opening verse of the said Sura, it has been ordained (translation from Yusuf Ali)
Prophet when ye
Do divorce women
Divorce them at their
Prescribed periods
And Count (accurately)
Their prescribed periods
………………………………………………………….
There is a clear direction in respect of a pregnant woman who has been divorced and the direction is to bear her expenses till she has delivered. In the previous Verse, it has been stated that in the case of a pregnant woman her period of Iddat will be till delivery. It is therefore apparent that the maintenance has been related to the period of Iddat. The interpretation given by the learned Judges is thus apparently in conflict with the aforesaid verse. I am sure the learned Judges will be the last persons to suggest that there are conflicting provisions in the Quran. Allah Almighty, All-knowing proclaims in the Quran:
Arabic
(Sura Jumar-Ayat 28)
Orthat Arbi bhashai ei Qur-an baiporitto mukto, jahate manush shabdhanota obolombon kore.
( Onubad Islamic Foundation)
48. From the above, it is clear that the interpretation given by the learned Judges is not and cannot be acceptable because it brings conflict and even on the general criterion of interpretation as they also would not deny that a document should be read as a whole, the interpretation of the learned Judge must be rejected.
49. Mrs. Rabeya Bhuiyan, learned Counsel for the respondent and some of the interveners supporting the respondent, have referred to some authorities where the word mataa has been interpreted as maintenance, reasonable provision’. They have also quoted from Professor Tahir Mabmood, said to be one of the most eminent scholars of present day India, which, however, does not support the meaning of the word mataa as understood by the learned Judges of the High Court Division. Mrs Bhuiyan submits that Professor Tahir Mahmood in his book ‘Personal Laws in Islamic Countries’, (2nd Ed. 1995) P 261-262 has given examples of different Muslim countries. Mataa has been translated into English as consolatory gift, or ‘compensation’ or ‘indemnity’. Mataa is thus basically different from regular maintenance of the divorcee.
50. There is also a reference to this subject in the written submission of an intervener, Bangladesh Legal Aid and Services Trust, filed in the form of a concise statement. It reads:
That according to Professor Tahir Mahmood (as cited in the forthcoming book titled “Shah Bano and the Muslim Women Act: a Decade on: The right to Divorced Muslim women to mataa”, being published by women living under Muslim Law, for Grabels, France and Bombay, India, 1998 at pp.) a divorced wife is entitled to receive from her former husband what is called mut’a. This concept is referred to in the Qur-an (2:241) and has been rendered into English as ‘consolatory gift’.
51. Extensive reference has been made by the respondent and the interveners supporting her to the application of mataa in different Muslim countries, such as Malaysia, Egypt, Jordan, Syria, Morocco, Lebanon, Algeria, Kuwait, Tunisia, Turkey, North Yemen, etc.
52. The common feature which is to be found in the relevant provisions of all these countries is that mataa has been made a subject of legislation of the respective countries and invariably it has been subjected to certain conditions, namely, where a divorce has been made arbitrarily, without a just cause, etc. Another invariable feature is that mataa was never considered as maintenance but something as a recompense for some blame on the part of the husband. And in no country there is found to be any provision of granting mataa for a lifetime or till remarriage of the divorcee generally. For example, the Malaysian Law provides that a woman who has been divorced without just cause would be paid an amount that is fair and just. A woman who has been arbitrarily divorced by her husband may be awarded, by way of mataa, maintenance of one year in Jordan, two years in Egypt and three years in Syria payable in a lump sum or in instalments depending on the financial condition of the husband. In Tunisia and Turkey a married person, husband or wife, who insists on divorce against the wishes of the other spouse and without his or her fault, can be directed to suitably indemnify the other spouse. So, the wife also may be liable to pay mataa. I think that is very fair and highly equitable.
53. None of the examples cited supports or is anywhere near to the interpretation given in the impugned judgment in any manner. We are not considering a legislative provision granting mataa as a recompense but whether the High Court Division was right in interpreting Ayat 241 (Sura II). Mr Fazlul Karim, learned Advocate, although appeared for an intervener supporting the wife, submitted that the maintenance allowed by the High Court Division till re-marriage was abrupt and without any reason but he supports the provision of maintenance to a divorcee who is unable to maintain herself (as in the India case of Shah Bano).
54. Mrs Bhuiyan submits that although the period of post-divorce maintenance is not definitely agreed upon by all the authorities the fact of the existence of a reasonable provision, mataa, for, women who are divorced irrevocably by their husbands is indisputable. She submits that the decision of the High Court Division, although, prima facie, too wide, is justifiable, equitable and reasonable for the majority of women in our country who are divorced for no fault of their own, who are no longer of marriageable age and whose economic and educational backgrounds compel them to remain dependent on someone for survival. She submits that this Hon’ble Court can qualify the impugned decision and make observation to provide for a fair, just and reasonable provision for a reasonable period to remove the destitution or extreme hardship of such women who are not at fault in appropriate circumstances like the present case.
55. The line taken by the numerous interveners supporting the respondent echoes more or less the argument of Mrs. Bhuiyan with repeated emphasis that it is open to the Court, rather it is the duty of the Court, to give innovative interpretation of the orthodox norms in the light of the changing notions of justice, equity and equality, particularly when it involves maintenance of divorced Muslim wives who are often victims of easy divorce.
56. The question precisely raised in this appeal is not the right of the Court to give interpretation of Muslim law in the light of changing conditions and notions, but whether the High Court Division correctly interpreted Ayat 241 (Sura II) and laid down a correct law setting at naught the age-old Muslim personal law that a divorced woman is entitled to maintenance from her husband during the period of iddat only. The respondent and her supporters could only show that in different Muslim countries legislative provision has been made in accordance with which mataa or recompense has been provided to divorced women under certain circumstances even after the period of iddat. They have, however, not been able to show one instance from any jurisdiction where Ayat 241 has been interpreted to mean that maintenance is to be provided till remarriage. The High Court Division is at least honest to admit that it has not cared for any support for its decision from any authority or precedent. The learned Judges read the words of Ayat 241 and put a meaning to it according to their own wisdom which is unique and first of its kind. For the reasons stated above I feel no hesitation in rejecting their interpretation and in setting aside the resultant decision which automatically falls through.
57. The concern and anxieties expressed on behalf of the respondent and her supporters for the indigence and destitution of divorced Muslim women of our country or for their being victims of whims and caprices of their husbands can always be met by appropriate legislation as they have done in India or in other Muslim countries referred to at length by the supporters. But these laws offer no justification for the impugned decision. Nor we are called upon in the context of the issue before us to consider how to bring the impugned decision in line with the present trends of law in other Muslim countries as noticed above.
58. The first objection as enumerated in point Nos (l) (2) (3) (4) of the leave order above raised by the appellant against the suo motu decision is, in my opinion, more formidable than the second objection on merit. Indeed, the decision is liable to be set aside on that, ground alone, as it is violative of the elementary rules and norms of civil procedure.
59. Admittedly, the plaintiff wife neither made out any case in the plaint claiming maintenance till remarriage nor prayed for any relief specifically in that behalf. The learned Judges were, quite aware of it and therefore posed themselves the question — ‘whether the wife could have claimed maintenance beyond the period of iddat’.
60. Order VII rule 7 of the Code of Civil Procedure lays down:
7. Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary, to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for, And the same rule shall apply to any relief claimed by the defendant in his written statement.
61. The law requires that the relief must be specifically claimed either simply or in the alternative. It is true that general or other relief which the Court may think just may be granted although not specifically asked for. But the essential conditions are that, the averments in the plaint must justify such relief and the defendant must get an opportunity to contest such relief. In the name of granting general or other relief, the Court cannot and would not mount any surprise on the defendant and make him liable for something which does not arise out of the plaint and, as such, he had no occasion to answer the same. This is merely an extension of the principle of natural justice.
62. In the case of Firm Sinews vs Mahabir Prasad AIR 1951 (SC) 177 the Indian Supreme Court held: The rule undoubtedly is “that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet”. The same court in a later case, Om Prakash vs Ram Kumar AIR 1991 (SC) 409, observed: “A party cannot be granted a relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute”.
63. The Pakistan Supreme Court has gone further and refused a decree to the plaintiff of some additional amount admitted by the defendant because the plaint was not amended. Construing Order VII rule 7 and Order II rule 2 of the Code of Civil Procedure it was laid down in Secretary to Govt. vs Abdul Kafil, PLD 1978 SC 242:
By reading these provisions together, they seem to impose upon a plaintiff the uncompromisable obligation to include in the suit filed by him the whole of his claim to which he feels he is entitled and to that end pray for the specific relief which he claims either simply or in the alternative, leaving of course the general or other relief which may always be given to him by the Court. The expression “general or other relief” has been judicially construed to mean the grant of mesne profits: Raghu Mahton vs Bullak and others All 1953 Pat. 289, the award of interest on the sum found due to the plaintiff Rup Ram vs Harphul AIR 1921 Lah. 125, or a decree for accounts in a suit for the recovery of money, Sheo Dutt and others vs Pushi Ram and others AIR 1947A11 229. However, where a plaintiff claims a larger relief than the one to which he is found entitled he cannot be granted the same without first amending his plaint : Putta Kannaya Chetti and others AIR 1918 Mad. 998 and Fazal Din and others vs Milkha Singh AIR 1933 Lah. 193.
64. The High Court Division would have been within its rights if it were content by expressing its own opinion on the law and leave it at that but it could not foist its opinion on the defendant making him liable for payment of such maintenance to the plaintiff which she never claimed and thus the defendant had no opportunity to meet such claim. And to that extent the impugned decision of the High Court Division must be held to have been made without jurisdiction.
65. Before the High Court Division it is the defendant who took a revision against the judgment and decree passed by the learned District Judge and its jurisdiction was to see if there was any error of law committed by the Subordinate Court resulting in an error in the decision occasioning failure of justice. This error of law must have to be found within the framework of the suit and not beyond. The learned Judges themselves acknowledged that their suo motu query was beyond the suit and thus it was a well-confessed exercise of acting without jurisdiction.
66. The defendant was admittedly absent at the hearing of the revision before the High Court Division. The worst that could happen to him was that the Rule could have been discharged for default or on merit and the appellate judgment and decree would have been maintained in that case. But if the learned Judges entertained some bright and innovative ideas about some verses of the Quran hitherto not known for saddling the defendant with more liability than the plaintiff had claimed and received, then was it not necessary and/or elementary that the defendant ought to have been put on notice again? It was like enhancing the sentence of an accused in exercise of revisional jurisdiction in a criminal case. Could any tribunal do it without putting him on prior notice? This is exactly what has been done by the High Court Division which, to say the least, was unfortunate.
67. What is, however, more surprising and, in fact, shocking was that the learned Judges thought it appropriate to give a decision of such a far-reaching effect upsetting the age-old established and traditional Muslim personal law without hearing anybody not to speak of any expert in Islamic Jurisprudence. It has been noticed how difficult the subject is, not to speak of the sensitivity it generates in the Muslim Community. The High Court Division dealt with the matter very casually as if it was disposing of a Lawazima matter without the need of any assistance. This was never the practice of a superior Court which ever acted in such a light hearted way in a serious matter like this nor should it ever do it for the sake of, if not anything else, its own credibility.
68. The learned Attorney-General submitted very strongly against the cavalier manner in which a serious question of law has been disposed of by the High Court Division and we cannot agree more with his submission. The learned Counsel for the respondent and some of the interveners although tried to support the judgment on merit but they also had no satisfactory answer to the present objections raised by the appellant. Mr Fazlul Karim, learned Advocate, feeling the difficultly, prayed for allowing the plaintiff-wife to amend her plaint and a re-hearing of the suit. At this stage, the question does not arise.
69. The learned Judges’ interference with the appellate decree reducing the amount to Taka 600.00 per month for the maintenance of the son was legally bad on principle, for, the plaintiffs never complained against the said reduction. The defendant was the petitioner before the High Court Division. The trial Court allowed maintenance to both the plaintiffs @ Taka 1000.00 per month. The learned District Judge in appeal reduced the amount in the case of plaintiff No. 2 (son) only but maintained that of plaintiff No. 1 (wife). But the learned Judges of the High Court Division wrongly observed that the District Judge reduced the amount of maintenance to Taka 600.00 per month ‘for each of the opposite parties”. This goes to show further how casually the matter was handled by the High Court Division. The impugned judgment is liable to be set aside in any case.
70. For the reasons stated above, the appeal is allowed and the impugned judgment and order of the High Court Division are set aside. There will be no order as to costs.
Mustafa Kamal J: Will a divorced Muslim woman get maintenance only upto the period of iddat or for an indefinite period till she loses the status of divorcee by re-marrying another person, is the central issue in this appeal by leave by the defendant-appellant, along with some other issues.
72. Plaintiff-respondent No. 1 Shamsun Nahar Begum and her minor son plaintiff. respondent No. 2 Shawn Miah filed Family Suit No 60 of 1988 in the Family Court, Daudkandi, Comilla against the appellant as defendant stating, inter alia, that the appellant married plaintiff No.1 on 25-3-85 by a registered Kabinnama fixing the amount of dower at Taka 50,001.00. Plaintiff No 1 was a worker in a garment factory before her marriage at a monthly wage of Taka 3,000.00. Besides giving golden ornaments, furniture, wristwatch, etc worth Taka 66,000.00 by her guardian at the time of marriage plaintiff No. 1 gave the appellant Taka 50,000.00 from her own and her brother’s savings for building a house at the appellant’s village home. The appellant constantly pressurised plaintiff No 1 to extract more money from her and used to ill-treat her. He used to take away her monthly salary and used to run the household with her income. In the Kabinnama, he falsely inserted a clause stating that Taka 2,000.00 of the dower money had already been paid. Before her marriage with him, the appellant had already married and had two daughters by his first marriage. He suppressed this fact and married her by practising deceit. When plaintiff No. 1 conceived she was forced to leave her job to please the appellant. He pressed plaintiff No. 1 to bring Taka 50,000.00 more from her guardian and when plaintiff no. 1 refused the appellant beat her and keeping all the ornaments and other articles mentioned above in his custody drove her out from the conjugal home on 15-4-87 during her pregnancy. Plaintiff no. 1 has been living at village charpara Upazila Daudkandi at her fathers house. Ever since the appellant had not bothered to inquire about her welfare at any time thereafter. Plaintiff no. 1 gave