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Syed Abbas Sahib Vs. Musthiri Begam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1649 of 1975
Judge
Reported inAIR1978Mad27
ActsTamil Nadu Indebted Agriculturists (Temporary Relief) Act, 1975 - Sections 2; Indian Contract Act
AppellantSyed Abbas Sahib
RespondentMusthiri Begam
Appellant AdvocateS. Jagadeesan, Adv.
Respondent AdvocateR. Gandhi, Adv.
DispositionPetition dismissed
Cases ReferredAbdul Kadir v. Salima
Excerpt:
.....is an agriculturist, he can with impunity avoid a mahar claim, claiming it to be the result of a contract for..........that tamil nadu act 10 of 1975 would not have contemplated to include within section 2 (c) the mahar debt as well. mahar as is popularly known among the muslim community is an amount which the husband obliges himself to pay to the hand of the woman whom he intends to marry, and that is a provision made by him in case he acts arbitrarily at any future point of time resulting in the snapping of the marital !tie by voluntary or involuntary exuberance on his part. amongst muslims, divorce is easy. the mere pronouncement of 'talak' three times in the presence of the wife and corroborated by some witnesses by itself is sufficient to disrupt the bondage of marriage. such being the easy process by which a disruption in the marriage bondage could be effected in accordance with the personal.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. A Muslim wife who filed an execution petition to execute a money decree obtained by her against her husband in respect of the amount of Mahar due to her from him was resisted on the ground that the husband was an agriculturist and the Tamil Nadu Indebted Agriculturists (Temporary Relief) Ordinance 1975 (now Tamil Nadu Act 10 of 1975) is a bar thereto. The learned Dist. Judge of Dharmapuri at Krishnagiri did not accept the contention of the husband. Apparently, there was no dispate that the husband was an agriculturist. The only question that arose for consideration was whether Mahar in its original shape or after having merged itself into a decree of court, retains the character of a debt within the meaning of Section 2(c) of Act 10 of 1975. Section 2 (c) of the Act defines 'debt' as follows-

' 'Debt' means any sum of money which a person is liable to pay under a contract (express or implied) for consideration received and includes rent in cash or kind which a person is liable to pay or deliver in respect of the lawful use and occupation of agricultural land.'

It is a fundamental norm of interpretation of statutes that while applying a particular provision to a particular situation, if it becomes necessary for courts to interpret any of its provisions including one of the definitions therein, the abject with which such legislation has been passed sometimes loom very much large. This Act is mainly intended to provide temporary relief to indebted agriculturists. It is therefore an enactment which is beneficial for the time being to an agriculturist who is indebted and whose indebtedness was in relation to a debt as defined in Section 2 (c) of the Act. There are debts and debts. It is in this situation that the object and intendment of the legislation comes to the forefront and which necessarily has to be taken into account by courts of law which have to administer justice as between parties. It is not only justice that is expected from courts, but decisions based on equity and good conscience as well. In this background if we examine the content of the expression Mahar which is peculiar to the personal law of Muslims, it will be seen that Tamil Nadu Act 10 of 1975 would not have contemplated to include within Section 2 (c) the Mahar debt as well. Mahar as is popularly known among the Muslim community is an amount which the husband obliges himself to pay to the hand of the woman whom he intends to marry, and that is a provision made by him in case he acts arbitrarily at any future point of time resulting in the snapping of the marital !tie by voluntary or involuntary exuberance on his part. Amongst Muslims, divorce is easy. The mere pronouncement of 'talak' three times in the presence of the wife and corroborated by some witnesses by itself is sufficient to disrupt the bondage of marriage. Such being the easy process by which a disruption in the marriage bondage could be effected in accordance with the personal law of Muslims, a precaution was taken even at the threshold of the marriage that the husband should pay Mahar to his wife in cases where such marriages are disrupted for any cause whatsoever so that a lurking fear may be entertained by the husband to avoid hasty and unprovoked divorce.

2. Mr. S. Jagadeesan, appearing for the petitioner, however, would harp upon the definition of the word 'debt' and rely on the expression 'money which a person is liable to pay under a contract (express or implied) for consideration'. He relies on the observations of the Supreme Court in Kapore Chand v. Kidarnissa : [1950]1SCR747 , and would contend that the Mahar is a debt coming within the mischief or purview of Section 2 (c) of Act 10 of 1975. There is a fallacy in this argument. Though for all apparent purposes, Mahar is the result of a contract as between the woman and the man before marriage, yet the solemnity injected into such an obligation would not make it a sum payable under a contract for consideration. The payment flows from a pious and a dignified intent on the part of the husband to provide the necessities to the wife in case the marriage tie is disrupted. Mohamood J. in Abdul Kadir v. Salima, ILR(1.886) All 149, observed as follows:--

'Dower is not the exchange or consideration given by the man to the woman for entering into the contract, but an effect of the contract imposed by the law on the husband as a token of respect for its subject, the woman.'

3. Well-known authors in their books on Mohammadan Jurisprudence reiterate this principle and would say that it is a pious obligation undertaken by the husband at the time of the marriage. In my view, even the observations of the Supreme Court which were made in a different context and in a different situation might not help the learned counsel for the petitioner. In fact, the Supreme Court itself quoted Mr. Amir Ali and observed as follows (at p. 414 of AIR):--

'As pointed out by Mr. Amir Ali in his book on Mohammadan Law, the custom originated in ancient times with the payments made by husbands to their wives as a means for their support and as a protection against the arbitrary exercise of the power of divorce''.

4. In the above decision, the learned Judges of the Supreme Court were considering the question whether a dower debt can be given priority over other debts. It is in that context the Supreme Court said that dower is purely in the nature of a marriage settlement and is for consideration. Undoubtedly it is for consideration. But the word 'consideration' used by the learned Judges of the Supreme Court is now sought to be taken advantage of by Mr. Jagadeesan who would like to superimpose the explanation given by the Supreme Court to the word 'consideration' to the word debt, appearing in Section 2 (c) of the Act. Taking into consideration the well-intended object of Legislation, I am of the view that it cannot for a moment be suggested that when a husband is an agriculturist, he can with impunity avoid a Mahar claim, claiming it to be the result of a contract for consideration. Though for ordinary purposes and sometimes even for legal purposes Mahar could be pigeonholed as one resulting from a contract between the man and the woman for consideration, yet the consideration which is the foundation for such a contract is not the usual consideration which comes within the meaning of that word as used in the Contract Act or any legal parlance, but it has a peculiar connotation of its own having regard to the nature of the payment, the time at which it is promised and the parties who mutually agreed to pay and receive such a payment. Such a consideration which springs from custom and orthodox Mohammadan Law cannot be equated to be the result of an express contract for consideration in the popular sense. I agree with the court below and hold that notwithstanding the fact that the husband is an agriculturist, the dower debt or the Mahar would not come within the privileged meaning of debt in Section 2 (c) of the Act and that therefore the respondent is entitled to execute the decree based on such a Mahar debt.

5. The civil revision petition fails and the same is dismissed. There will be no order as to costs in this petition.


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