Right/obligation to maintain the unmarried daughter includes the right/obligation to meet the marriage expenses of the unmarried daughters. This is so for all fathers – be they Hindus, Muslims, Christians or others. We adopt the following process of reasoning to reach that conclusion. They all have the duty under their personal law to maintain their children. Even ignoring the personal law, as declared in Mathew Varghese (supra), such a right/duty can be spelt out from Article 21 of the Constitution. Duty to maintain is not limited to provide for food, raiment and lodging. It includes the duty of the obligee to do all acts for the physical, mental and moral well being of the child. That duty has to be understood in the context of the Indian society in the modern constitutional republic. The concept has to be understood identically for persons belonging to all religious faiths in the secular polity. Where the interpretor has elbow room, he must invoke the power of interpretation as a functionary of the State consistent with the mandate of Article 44 of the Constitution. The interpretor need not wait for the Parliament to enact a uniform civil code. Till that is done by the Parliament, the interpretor as a functionary of the State must draw inspiration from Article 44 of the Constitution in performing the duty/power of interpretation. So reckoned the duty to maintain the unmarried daughters under the personal law must in the present day Indian context include the obligation to meet the marriage expenses of the unmarried daughters. For all members of the Indian polity, this has to apply. The Muslim father also, we hence hold, has the obligation to pay/meet the marriage expenses of his unmarried daughter. We must hasten to observe that the right/duty is only to meet the reasonable expenses, that too only when the daughter is dependent on the father.
HIGH COURT OF KERALA
Ismayil Vs. Fathima
Citation : 2011 (4) KLT 40 : ILR 2011 (3) Ker. 961
CoramThe Hon'ble MR. Justice R.BASANT, The Hon'ble MR. Justice K. Surendra Mohan
Dated: 6/9/2011
Case No. : W.P. (C) No. 28433 of 2010 (R)
How is the concept of maintenance to an unmarried adult daughter to be unmarried adult daughter to be understood? Does that conceptually include the obligation to meet the marriage expenses of an adult daughter? Is the concept of maintenance payable by a Muslim father to his adult daughter to be understood differently? These are the questions that arise for consideration in this writ petition.
2. Reference to the essential factual matrix may be relevant. The husband/father is the petitioner. His wife and daughter had filed O.P.No.1603/09 before the Family Court, Thrissur, claiming past and future maintenance to them as also the prospective marriage expenses of the daughter. This petition was filed under Sect.7 of the Family Courts Act. An amount of Rs.1,20,000/- towards past maintenance and maintenance at the rate of Rs.3,000/- per mensem for each towards future maintenance as also an amount of Rs.10,00,000/- as prospective marriage expenses of the adult major daughter aged 21 years were claimed.
3. Along with the said O.P. an application was filed for attachment of 50 cents of property belonging to the writ petitioner. That petition was allowed and attachment was effected. An application was filed by the petitioner for lifting the attachment. By the impugned order, the learned Judge rejected the application for lifting the attachment.
4. The petitioner claims to be aggrieved by the impugned order. Various contentions are raised. Inter alia, the crucial contention is raised that the Muslim father has no obligation to meet the marriage expenses of his adult daughter. The liability to maintain her does not include the liability to meet the marriage expenses. Whatever may be the liability of fathers similarly situated belonging to other religious denominations, the Muslim father has no such legal liability, contends the learned counsel for the petitioner. It is hence prayed that the impugned order may be set aside and the application for attachment may be rejected.
5. We found the question raised to be interesting. We requested the counsel to advance detailed arguments. We felt persuaded to seek the assistance of Sri. M.P.M. Aslam as amicus curiae. We must acknowledge the able services rendered by Sri. M.P.M. Aslam as amicus curiae to this Court.
6. The learned amicus curiae first of all submits that it is not necessary to consider the claim for marriage expenses of the daughter as an incident of the right of maintenance. The learned counsel accepts that the Muslim father in the Indian context undoubtedly has the moral obligation to ensure that his daughter is married and to meet expenses for such marriage. Sri. Aslam argues that it is not necessary to treat this as an incident of the right of maintenance of the daughter. It is enough if the same is considered as an obligation imposed by custom or usage. Sri. Aslam argues that if such an approach is made., it will be unnecessary to refer to the provisions of the Muslim Personal Law (Shariat) Application Act 1937, to justify such a direction for payment of marriage expenses. According to Sri. Aslam, under Sec.2 of the Muslim Personal Law (Shariat) Application Act, the Personal Law of Muslims is made applicable only in respect of certain specified matters. Maintenance is one such matter. If the right to claim marriage expenses is reckoned as an incident of the right to maintenance, the direction to pay the same will have to be justified under the Muslim Personal Law. Otherwise, if the claim is reckoned as one based on custom or usage, there shall be no obligation to justify the direction for payment of marriage expenses under the Muslim Personal Law (Shariat).
We extract Sec.2 of the Muslim Personal Law (Shariat) Application Act below:
“2. Application of Personal Law to Muslims. – Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
(emphasis supplied)
8. There is no plea founded on custom or usage in the facts and circumstances of this case. We are hence of the opinion that our burden to tackle the issue squarely under the personal law relating to maintenance cannot be skirted or avoided by resort to the course suggested by Sri. Aslam. Whether a direction to pay the marriage expenses of the daughter can be justified on the basis of the custom or usage does not hence fall for consideration before us in this petition. Moreover, if payment of such expenses would fall within the sweep of the expression ‘maintenance’ for other communities, for the Muslim community alone a different meaning cannot be assigned. We shall hence try to ascertain whether such marriage expenses is included in the concept of maintenance under the personal law.
9. There is no semblance of doubt on the question that the Muslim father has the obligation to pay maintenance to his unmarried adult daughter. The text by Mulla under the heading “Maintenance” in paragraph – 369 and 370 which we extract below makes the position crystal clear:
“369. Maintenance defined. –
“Maintenance” in this Chapter includes food, raiment and lodging.
370. Maintenance of children and grandchildren. – (1)) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (s.352) does not relieve the father from the obligation of maintaining them (a). But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.
(2) If the father is poor; and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.
(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.”
(emphasis supplied)
A Muslim father is hence undoubtedly liable under his personal law to pay maintenance to his unmarried daughter - whether major or minor.
10. The crucial question is whether the right for maintenance includes the right to claim marriage expenses. That is the question which we will have to squarely tackle now.
11. ‘Maintenance’, it has repeatedly been held, includes food, raiment and lodging. Mulla in Sec.369 accepts the same. It is an inclusive explanation of the concept. It is not exhaustive. It is only indicative. Other liabilities are also included within the sweep of the concept of maintenance. Courts had occasion to consider whether medical expenses, educational expenses etc., can also go into and constitute the concept of maintenance. In this context three decisions of the Gauhati, Sind and Calcutta High Courts appear to be relevant. In Ahmadellah v. Mafizuddin Ahmad (AIR 1973 Gauhati 56); Tekchand Partabrai v. Kalavantibai ((28) AIR 1941 Sind 214) and Purnasashi Devi v. Nagendra Nath (AIR (37) 1950 Calcutta 465) the courts have realized the need to take within the wings of the right of maintenance not only food, raiment and lodging but also all other necessary expenses for the metal and physical wellbeing of the recipient. In this is included all expenses for complete discharge of the duty of the obligee to the claimant. That duty arises from the responsibility of the obligee as father and the need of the person claiming the right.
12. What we intend to emphasis is only that the obligation of the Muslim father to maintain his unmarried daughter whether major or minor must be understood realistically. It must include all expenses for the complete discharge of the duty of the father to the daughter. It must and does include all necessary expenses for the physical and mental well being of the child.
13. The question is whether such obligation would include the obligation to meet the marriage expenses of the daughter. So far as the Hindu father is concerned, there can be not a trace of doubt as Sec.3(b) of the Hindu Adoptions and Maintenance Act, 1956 which obliges the father to maintain his unmarried daughter specifically includes the right of the claimant for marriage expenses. We extract Sec.3(b) below:
“3. Definitions. – In this Act, unless the context otherwise requires, --
(a) xxxxx
(b) “Maintenance” includes –
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment.
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.”
14. A Bench of five Judges of this Court in Mathew Varghese v. Rosamma Varghese (2003 (3) KLT 6) had occasion to consider whether even in the absence of a contract, principle of personal law or a specific statutory stipulation, the parent/father has the duty to maintain his child. Drawing inspiration from Art.21 of the Constitution, it has been held in paragraph-86 of the said judgment that every father whatever be his religious denomination and father has the indisputable liability to maintain his child. That question was considered in the light of the duty/obligation of a Christian father to maintain his minor child. That decision does not specifically consider whether the obligation to maintain would include the obligation to give the daughter in marriage and to meet the consequent marriage expenses. We have referred to the said decision only to point out that if the concept of maintenance would include the marriage expenses of the daughter then absence of a stipulation in the Personal Law obliging payment of such expenses (maintenance) is no reason for a father to avoid the liability to meet expenses in connection with the marriage of his daughter. If there is no contract, legal principle, personal law stipulation or statutory prescription the right to maintenance of the daughter can be held to flow from the fountain stream of the all encompassing fundamental right to life guaranteed under Art.21 of the Constitution, the mother law. Mathew Varghese (supra) makes the position crystal clear.
15. Law cannot be far removed from life and therefore it will be necessary to understand the right/obligation to maintain a daughter in the light of the existing situation in the Indian society. We may hasten to observe that we are only trying to find out whether expenses relating to marriage are necessary expenses for the mental and physical well being of the claimant/unmarried daughter. In the present level of emancipation of the Indian woman it is impossible to accept that an unmarried daughter can fend for herself and enter into matrimony without the support and patronage of her father/parent. Even if she is able to choose a bridegroom for herself, it is common knowledge that marriage expenses are met by the father. All fathers to whichsoever religious denomination he may belong, does certainly perceive the responsibility in the Indian society of the present day to give his daughter in marriage when she attains the age of marriage. What we intend to note is that consistent with the mandate of Art.21 of the Constitution as accepted by the Full Bench in Mathew Varghese (supra), maintenance is the right of the child. Such maintenance does and must include all expenses for the mental and physical well being of the child and so far as the unmarried daughter is concerned her marriage is also something essential and necessary for the mental and physical well being of the child. Therefore, we feel that the right to marriage expenses can certainly be included in the concept of maintenance which a father is liable to provide for his unmarried daughter. We do promptly note that the entitlement is only for reasonable amount and is available to only an unmarried daughter who does not have means of her own to meet the marriage expenses. Such right is only against the father who has the requisite means.
16. This right/obligation to maintenance has to be understood in the Indian context today. Law must resonate to the frequency and wave length of the times. The concept of maintenance has to be understood in the Indian context of today. The practice of a bygone age when girls were never sent to school cannot persuade the court to hold that girls are not entitled to educational expenses as part of maintenance. Similarly, the concept of the right to maintenance in the present day in the Indian society cannot be attempted to be understood and interpreted under conditions that prevailed in medieval Arabia. Islam’s is a marriage to the whole universe. The revelations made by the Lord though the prophet must have relevant at all times and in every part of the universe. Whether the father in Saudi Arabia during ancient periods had the obligation to meet the marriage expenses of his daughter is irrelevant. Maintain his unmarried daughter, the Muslim father must, in response to his duty under the personal law. As to what would be the constituents of maintenance payable - at a given point of time in history and at a given geographical point, has to be understood realistically consistent with the norms and moorings of the society in the given situation.
17. There is not one precedent under Sec.125 of the Code of Criminal Procedure or its predecessor provisions which lays down that marriage expenses are included in the right of maintenance under that provision, it is argued. We find no merit in this argument at Maintenance under Sec.125 Cr.P.C. is available only for minor children. Ordinarily (unless they are disabled/debilitated) only a minor child is entitled for maintenance. Under Sec.125(c) Cr.P.C., only such adult children who, by reason of any physical or mental abnormality or injury, are unable to maintain themselves are entitled for maintenance under Sec.125 Cr.P.C.
18. Under the Child Marriage Restraint Act, a minor child cannot get married in accordance with law. Therefore, maintenance under Sec.125 Cr.P.C. cannot and should not include the marriage expenses as the right can arise only after a person attains marriageable age by which time the child would have walked out of the province of Sec.125 Cr.P.C. Absence of precedents under Sec.125 cannot, in these circumstances, afford any help. No specific precedent contra is brought to out notice also.
19. The above discussions lead us to the conclusion that it would be absolutely safe to include marriage expenses also within the sweep of the concept of maintenance of an adult unmarried daughter.
20. We are further of the opinion that the concept of maintenance though claimed under the respective Personal Law must yield to an uniform and common understanding of the concept. Conceptually maintenance cannot mean different things to the followers of different religions. In the secular republic of India unless there are compelling reasons the concept of maintenance has to be understood identically in its operation in relation to all communities and religions. The concept of equality and equal protection before law must also persuade us to give uniform and common meaning and interpretation to the expression maintenance under different Personal Laws. This is the mandate to us under Art.44 of the Constitution.
21. It would be idle to assume that Chapter IV of the Constitution speaks only to the executive and the legislature. Its command is addressed to all functionaries of the State. The judiciary is not an exception to that command. When attempts are made by courts to understand concepts by resort to the power of interpretation/adjudication, it is essential that the mandate under Article 44 - of uniform Personal Law for all sections of the community, is borne in mind and given effect to by the interpreter/adjudicator. Wherever there is elbow room available to a court, the court must and can only interpret the law in such a manner that the concept shall carry identical meaning and content to all sections of persons in the secular republic.
22. Sec.3(b) of the Hindu Adoptions and Maintenance Act which we have already extracted above clearly indicates the Parliament’s understanding of the concept of maintenance, in its application to the Hindus. The Hindu father and the Muslim father do both live in the same society with identical duties and obligations in the moral plane to his children. Under Art.21 of the Constitution as explained by Mathew Varghese (supra), they have identical constitutional obligations to their children also. Personal law obliges all fathers to maintain their unmarried daughters. We deem it unnecessary to interpretationally exempt the Muslim father from his responsibility to maintain his unmarried daughters. We deem it only proper and appropriate to include in that obligation, the obligation to meet the marriage expenses of his unmarried daughter.
23. We requested Advocate Sri. M.P.M. Aslam to enlighten us as to whether there is any text, commentary or precedents which can throw light on this specific aspect. The learned counsel Sri. M.P.M. Aslam submits that in this context it will only be proper and necessary to understand the distinction in the moral/legal obligation of a Muslim father in contra distinction to that of a Hindu father. The learned counsel contends that there is no concept of dowry/sthreedhana in a Muslim marriage. There is no obligation for the father to pay any dowry or sthreedhana to his daughter. Under the Muslim law dower is to be paid by the bridegroom to the bride. Even the marriage feast (walima) is to be performed by the bridegroom and not by the bride’s father. In these circumstances, there is no specific assistance available from the Quran, other subsidiary sources of Muslim law or from texts or precedents throwing specific light on this aspect, submits the learned counsel.
24. Dowry is an abuse which has been inherited by the Indian society for various historical reasons. The Hindu father also does not have the obligation to pay dowry. The prevalent abuse of payment of dowry is not certainly the foundation of the legal obligation to meet the marriage expenses of the daughter under Sec.2(b) of the Hindu Adoption and Maintenance Act. The abuse of dowry is prevalent both in the Hindu and in the Muslim communities. The fact that the Muslim father has no obligation to pay any dowry/sthreedhana under law and he (ie. his daughter) is entitled to receive dower from the bridegroom cannot, according to us, make any difference in our approach to the concept of maintenance for the Hindus and Muslims. They both live in the same society with identical abuses and advantages. The mere fact that the marriage conceptually is an indissoluble sacrament under the Hindu Law; whereas it is only a solemn contract under the Muslim law cannot in any way affect the obligation for maintenance of the unmarried daughter so far as the Muslim father is concerned.
25. The learned counsel Sri. M.P.M. Aslam submits that indirectly the Quran in two places makes declarations which may be helpful to us in the resolution of the controversy. The learned counsel, after elaborate reference to the relevant verses of the holy Quran, submits that there is no specific stipulation in the Quran either way about the obligation of the father to meet the marriage expenses of his unmarried daughter. The learned counsel draws our attention to Sura xxiv Ayat 32 of the Quran and submits that the responsibility is imposed on every religious Muslim and submits that the responsibility is imposed on every religious Muslim to ensure that those who are single are married. There is a declaration that those who are single must get married. This is the command not only to the ones who are to get married; it is a declaration of a moral principle that all those who are single should be given in marriage. We extract Sura xxiv Ayat 32 below as translated by Yusuf All. This verse indirectly declares the obligation of all to ensure that persons who are single are married. This can be reckoned as a command to the father to ensure that his unmarried daughter enters matrimony, points out the counsel.
“32. Marry those among you
Who are single, or
The virtuous ones among
Your slaves, male or female:
If they are in poverty,
God will give them
Means out of His grace:
For God encompasseth all,
And He knoweth all things.”
26. The learned counsel Sri. M.P.M. Aslam then points out that Sura iv Ayat 34 which also, according to the learned counsel, though only indirectly, declares the obligation of men to maintain women. Men who are protectors and maintainers of woman are bound to ensure that all acts for the physical, mental and moral requirements of women under their charge are discharged. That is the conduct expected from a Muslim under the holy Quran, submits counsel. We extract below Sura iv Ayat 34 (first part):
“34. Men are the protectors
And maintainers of women,
Because God has given
The one more (strength)
Than the other, and because
They support them
From their means.
Therefore the righteous women
Are devoutly obedient, and guard
In (the husband’s) absence
What God would have them guard.”
All counsel accept and we ourselves are unable to trace any specific relevant verses in the Quran which throw light on this aspect.
27. Sri. M.P.M. Aslam relying on the various texts and commentaries points out, and there is no dispute on that, that it is the responsibility/duty/obligation of the Muslim father to act as Wilayat (guardian in marriage) of his unmarried daughter. Even when a woman has attained puberty/majority she needs the help and assistance of her father to formally enter matrimony. The father must function as guardian on her behalf in such marriage to enable his daughter to enter into the contract of marriage. This paramount responsibility of the father as guardian at the time of marriage of his daughter must necessarily bring with it the corresponding obligation to ensure that all necessary expenses in connection with the marriage are met by him, points out the counsel.
28. We are of the opinion that the above stipulations in the Personal Law, though they do not afford direct assistance to us on this controversy, can also be relied on to reach the conclusion that the Muslim father has the indisputable obligation to maintain his unmarried daughter. We find it safe to proceed to further hold that he has the obligation to ensure that the unmarried daughter under his charge is given away in marriage properly. He hence has, we hold, the legal obligation to meet the reasonable marriage expenses of his daughter, as part of his obligation to pay maintenance to her.
29. Though not assisted by any specific precedent on this aspect, Sri. Aslam has traced a decision of the Kerala High Court in which the court recognizes the responsibility of the father to give his daughter in marriage and to claim necessary exemption from the provisions of the Gift Tax Act for the amounts so spent by him. A Division Bench of this Court headed by Mr. Justice C.N. Ramachandran Nair has taken the view in Meeran v. Dy. Commissioner of Income Tax (2010 (1) KLT 553) that the Muslim father is also entitled to claim exemption from the gift tax for gifts made by him on the occasion of the marriage of his daughter. The crucially relevant observations though only of indirect assistance appear in paragraph-3 of the said judgment which we extract below:
“In our view, it is the desire of every father, whether he is member of the Hindu community or Muslim community, to have his daughter married in the best manner possible and naturally people look persons for marrying their daughters who hold the same status, position etc., in the society as they have. Even though under Muslim law marriage is a contract, no one can expect a grown up girl to go and negotiate and enter into contract for marriage by herself. It is common knowledge that like member of any other community it is the father and the family members who arrange the marriage for the girl, no matter the Muslim marriage is treated as a contract. We are, therefore, unable to agree with the view expressed by the Madras High Court that since Muslim marriage is a contract, father is not obliged to give any gift at the time of marriage and so much so, gift given by Muslim father at the time of marriage of his daughter is not comparable with the gift given by a Hindu father because under Hindu law, it is the obligation of the father to maintain his daughter which includes giving her in marriage.”
28. The above discussions lead us to the conclusion that the right/obligation to maintain the unmarried daughter includes the right/obligation to meet the marriage expenses of the unmarried daughters. This is so for all fathers – be they Hindus, Muslims, Christians or others. We adopt the following process of reasoning to reach that conclusion. They all have the duty under their personal law to maintain their children. Even ignoring the personal law, as declared in Mathew Varghese (supra), such a right/duty can be spelt out from Article 21 of the Constitution. Duty to maintain is not limited to provide for food, raiment and lodging. It includes the duty of the obligee to do all acts for the physical, mental and moral well being of the child. That duty has to be understood in the context of the Indian society in the modern constitutional republic. The concept has to be understood identically for persons belonging to all religious faiths in the secular polity. Where the interpretor has elbow room, he must invoke the power of interpretation as a functionary of the State consistent with the mandate of Article 44 of the Constitution. The interpretor need not wait for the Parliament to enact a uniform civil code. Till that is done by the Parliament, the interpretor as a functionary of the State must draw inspiration from Article 44 of the Constitution in performing the duty/power of interpretation. So reckoned the duty to maintain the unmarried daughters under the personal law must in the present day Indian context include the obligation to meet the marriage expenses of the unmarried daughters. For all members of the Indian polity, this has to apply. The Muslim father also, we hence hold, has the obligation to pay/meet the marriage expenses of his unmarried daughter. We must hasten to observe that the right/duty is only to meet the reasonable expenses, that too only when the daughter is dependent on the father.
29. Having held so, we do not find any reason to interfere with the impugned order. The petitioner certainly has the intention to dispose of the property under attachment. Even according to him, the value of the property, notwithstanding the disputes about its value, is only meagre and the attachment cannot be said to be excessive considering the magnitude and reasonableness of the claim.
30. This Writ Petition is accordingly dismissed.
Print Page
HIGH COURT OF KERALA
Ismayil Vs. Fathima
Citation : 2011 (4) KLT 40 : ILR 2011 (3) Ker. 961
CoramThe Hon'ble MR. Justice R.BASANT, The Hon'ble MR. Justice K. Surendra Mohan
Dated: 6/9/2011
Case No. : W.P. (C) No. 28433 of 2010 (R)
How is the concept of maintenance to an unmarried adult daughter to be unmarried adult daughter to be understood? Does that conceptually include the obligation to meet the marriage expenses of an adult daughter? Is the concept of maintenance payable by a Muslim father to his adult daughter to be understood differently? These are the questions that arise for consideration in this writ petition.
2. Reference to the essential factual matrix may be relevant. The husband/father is the petitioner. His wife and daughter had filed O.P.No.1603/09 before the Family Court, Thrissur, claiming past and future maintenance to them as also the prospective marriage expenses of the daughter. This petition was filed under Sect.7 of the Family Courts Act. An amount of Rs.1,20,000/- towards past maintenance and maintenance at the rate of Rs.3,000/- per mensem for each towards future maintenance as also an amount of Rs.10,00,000/- as prospective marriage expenses of the adult major daughter aged 21 years were claimed.
3. Along with the said O.P. an application was filed for attachment of 50 cents of property belonging to the writ petitioner. That petition was allowed and attachment was effected. An application was filed by the petitioner for lifting the attachment. By the impugned order, the learned Judge rejected the application for lifting the attachment.
4. The petitioner claims to be aggrieved by the impugned order. Various contentions are raised. Inter alia, the crucial contention is raised that the Muslim father has no obligation to meet the marriage expenses of his adult daughter. The liability to maintain her does not include the liability to meet the marriage expenses. Whatever may be the liability of fathers similarly situated belonging to other religious denominations, the Muslim father has no such legal liability, contends the learned counsel for the petitioner. It is hence prayed that the impugned order may be set aside and the application for attachment may be rejected.
5. We found the question raised to be interesting. We requested the counsel to advance detailed arguments. We felt persuaded to seek the assistance of Sri. M.P.M. Aslam as amicus curiae. We must acknowledge the able services rendered by Sri. M.P.M. Aslam as amicus curiae to this Court.
6. The learned amicus curiae first of all submits that it is not necessary to consider the claim for marriage expenses of the daughter as an incident of the right of maintenance. The learned counsel accepts that the Muslim father in the Indian context undoubtedly has the moral obligation to ensure that his daughter is married and to meet expenses for such marriage. Sri. Aslam argues that it is not necessary to treat this as an incident of the right of maintenance of the daughter. It is enough if the same is considered as an obligation imposed by custom or usage. Sri. Aslam argues that if such an approach is made., it will be unnecessary to refer to the provisions of the Muslim Personal Law (Shariat) Application Act 1937, to justify such a direction for payment of marriage expenses. According to Sri. Aslam, under Sec.2 of the Muslim Personal Law (Shariat) Application Act, the Personal Law of Muslims is made applicable only in respect of certain specified matters. Maintenance is one such matter. If the right to claim marriage expenses is reckoned as an incident of the right to maintenance, the direction to pay the same will have to be justified under the Muslim Personal Law. Otherwise, if the claim is reckoned as one based on custom or usage, there shall be no obligation to justify the direction for payment of marriage expenses under the Muslim Personal Law (Shariat).
We extract Sec.2 of the Muslim Personal Law (Shariat) Application Act below:
“2. Application of Personal Law to Muslims. – Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
(emphasis supplied)
8. There is no plea founded on custom or usage in the facts and circumstances of this case. We are hence of the opinion that our burden to tackle the issue squarely under the personal law relating to maintenance cannot be skirted or avoided by resort to the course suggested by Sri. Aslam. Whether a direction to pay the marriage expenses of the daughter can be justified on the basis of the custom or usage does not hence fall for consideration before us in this petition. Moreover, if payment of such expenses would fall within the sweep of the expression ‘maintenance’ for other communities, for the Muslim community alone a different meaning cannot be assigned. We shall hence try to ascertain whether such marriage expenses is included in the concept of maintenance under the personal law.
9. There is no semblance of doubt on the question that the Muslim father has the obligation to pay maintenance to his unmarried adult daughter. The text by Mulla under the heading “Maintenance” in paragraph – 369 and 370 which we extract below makes the position crystal clear:
“369. Maintenance defined. –
“Maintenance” in this Chapter includes food, raiment and lodging.
370. Maintenance of children and grandchildren. – (1)) A father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. But he is not bound to maintain his adult sons unless they are disabled by infirmity or disease. The fact that the children are in the custody of their mother during their infancy (s.352) does not relieve the father from the obligation of maintaining them (a). But the father is not bound to maintain a child who is capable of being maintained out of his or her own property.
(2) If the father is poor; and incapable of earning by his own labour, the mother, if she is in easy circumstances, is bound to maintain her children as the father would be.
(3) If the father is poor and infirm, and the mother also is poor, the obligation to maintain the children lies on the grandfather, provided he is in easy circumstances.”
(emphasis supplied)
A Muslim father is hence undoubtedly liable under his personal law to pay maintenance to his unmarried daughter - whether major or minor.
10. The crucial question is whether the right for maintenance includes the right to claim marriage expenses. That is the question which we will have to squarely tackle now.
11. ‘Maintenance’, it has repeatedly been held, includes food, raiment and lodging. Mulla in Sec.369 accepts the same. It is an inclusive explanation of the concept. It is not exhaustive. It is only indicative. Other liabilities are also included within the sweep of the concept of maintenance. Courts had occasion to consider whether medical expenses, educational expenses etc., can also go into and constitute the concept of maintenance. In this context three decisions of the Gauhati, Sind and Calcutta High Courts appear to be relevant. In Ahmadellah v. Mafizuddin Ahmad (AIR 1973 Gauhati 56); Tekchand Partabrai v. Kalavantibai ((28) AIR 1941 Sind 214) and Purnasashi Devi v. Nagendra Nath (AIR (37) 1950 Calcutta 465) the courts have realized the need to take within the wings of the right of maintenance not only food, raiment and lodging but also all other necessary expenses for the metal and physical wellbeing of the recipient. In this is included all expenses for complete discharge of the duty of the obligee to the claimant. That duty arises from the responsibility of the obligee as father and the need of the person claiming the right.
12. What we intend to emphasis is only that the obligation of the Muslim father to maintain his unmarried daughter whether major or minor must be understood realistically. It must include all expenses for the complete discharge of the duty of the father to the daughter. It must and does include all necessary expenses for the physical and mental well being of the child.
13. The question is whether such obligation would include the obligation to meet the marriage expenses of the daughter. So far as the Hindu father is concerned, there can be not a trace of doubt as Sec.3(b) of the Hindu Adoptions and Maintenance Act, 1956 which obliges the father to maintain his unmarried daughter specifically includes the right of the claimant for marriage expenses. We extract Sec.3(b) below:
“3. Definitions. – In this Act, unless the context otherwise requires, --
(a) xxxxx
(b) “Maintenance” includes –
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment.
(ii) in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.”
14. A Bench of five Judges of this Court in Mathew Varghese v. Rosamma Varghese (2003 (3) KLT 6) had occasion to consider whether even in the absence of a contract, principle of personal law or a specific statutory stipulation, the parent/father has the duty to maintain his child. Drawing inspiration from Art.21 of the Constitution, it has been held in paragraph-86 of the said judgment that every father whatever be his religious denomination and father has the indisputable liability to maintain his child. That question was considered in the light of the duty/obligation of a Christian father to maintain his minor child. That decision does not specifically consider whether the obligation to maintain would include the obligation to give the daughter in marriage and to meet the consequent marriage expenses. We have referred to the said decision only to point out that if the concept of maintenance would include the marriage expenses of the daughter then absence of a stipulation in the Personal Law obliging payment of such expenses (maintenance) is no reason for a father to avoid the liability to meet expenses in connection with the marriage of his daughter. If there is no contract, legal principle, personal law stipulation or statutory prescription the right to maintenance of the daughter can be held to flow from the fountain stream of the all encompassing fundamental right to life guaranteed under Art.21 of the Constitution, the mother law. Mathew Varghese (supra) makes the position crystal clear.
15. Law cannot be far removed from life and therefore it will be necessary to understand the right/obligation to maintain a daughter in the light of the existing situation in the Indian society. We may hasten to observe that we are only trying to find out whether expenses relating to marriage are necessary expenses for the mental and physical well being of the claimant/unmarried daughter. In the present level of emancipation of the Indian woman it is impossible to accept that an unmarried daughter can fend for herself and enter into matrimony without the support and patronage of her father/parent. Even if she is able to choose a bridegroom for herself, it is common knowledge that marriage expenses are met by the father. All fathers to whichsoever religious denomination he may belong, does certainly perceive the responsibility in the Indian society of the present day to give his daughter in marriage when she attains the age of marriage. What we intend to note is that consistent with the mandate of Art.21 of the Constitution as accepted by the Full Bench in Mathew Varghese (supra), maintenance is the right of the child. Such maintenance does and must include all expenses for the mental and physical well being of the child and so far as the unmarried daughter is concerned her marriage is also something essential and necessary for the mental and physical well being of the child. Therefore, we feel that the right to marriage expenses can certainly be included in the concept of maintenance which a father is liable to provide for his unmarried daughter. We do promptly note that the entitlement is only for reasonable amount and is available to only an unmarried daughter who does not have means of her own to meet the marriage expenses. Such right is only against the father who has the requisite means.
16. This right/obligation to maintenance has to be understood in the Indian context today. Law must resonate to the frequency and wave length of the times. The concept of maintenance has to be understood in the Indian context of today. The practice of a bygone age when girls were never sent to school cannot persuade the court to hold that girls are not entitled to educational expenses as part of maintenance. Similarly, the concept of the right to maintenance in the present day in the Indian society cannot be attempted to be understood and interpreted under conditions that prevailed in medieval Arabia. Islam’s is a marriage to the whole universe. The revelations made by the Lord though the prophet must have relevant at all times and in every part of the universe. Whether the father in Saudi Arabia during ancient periods had the obligation to meet the marriage expenses of his daughter is irrelevant. Maintain his unmarried daughter, the Muslim father must, in response to his duty under the personal law. As to what would be the constituents of maintenance payable - at a given point of time in history and at a given geographical point, has to be understood realistically consistent with the norms and moorings of the society in the given situation.
17. There is not one precedent under Sec.125 of the Code of Criminal Procedure or its predecessor provisions which lays down that marriage expenses are included in the right of maintenance under that provision, it is argued. We find no merit in this argument at Maintenance under Sec.125 Cr.P.C. is available only for minor children. Ordinarily (unless they are disabled/debilitated) only a minor child is entitled for maintenance. Under Sec.125(c) Cr.P.C., only such adult children who, by reason of any physical or mental abnormality or injury, are unable to maintain themselves are entitled for maintenance under Sec.125 Cr.P.C.
18. Under the Child Marriage Restraint Act, a minor child cannot get married in accordance with law. Therefore, maintenance under Sec.125 Cr.P.C. cannot and should not include the marriage expenses as the right can arise only after a person attains marriageable age by which time the child would have walked out of the province of Sec.125 Cr.P.C. Absence of precedents under Sec.125 cannot, in these circumstances, afford any help. No specific precedent contra is brought to out notice also.
19. The above discussions lead us to the conclusion that it would be absolutely safe to include marriage expenses also within the sweep of the concept of maintenance of an adult unmarried daughter.
20. We are further of the opinion that the concept of maintenance though claimed under the respective Personal Law must yield to an uniform and common understanding of the concept. Conceptually maintenance cannot mean different things to the followers of different religions. In the secular republic of India unless there are compelling reasons the concept of maintenance has to be understood identically in its operation in relation to all communities and religions. The concept of equality and equal protection before law must also persuade us to give uniform and common meaning and interpretation to the expression maintenance under different Personal Laws. This is the mandate to us under Art.44 of the Constitution.
21. It would be idle to assume that Chapter IV of the Constitution speaks only to the executive and the legislature. Its command is addressed to all functionaries of the State. The judiciary is not an exception to that command. When attempts are made by courts to understand concepts by resort to the power of interpretation/adjudication, it is essential that the mandate under Article 44 - of uniform Personal Law for all sections of the community, is borne in mind and given effect to by the interpreter/adjudicator. Wherever there is elbow room available to a court, the court must and can only interpret the law in such a manner that the concept shall carry identical meaning and content to all sections of persons in the secular republic.
22. Sec.3(b) of the Hindu Adoptions and Maintenance Act which we have already extracted above clearly indicates the Parliament’s understanding of the concept of maintenance, in its application to the Hindus. The Hindu father and the Muslim father do both live in the same society with identical duties and obligations in the moral plane to his children. Under Art.21 of the Constitution as explained by Mathew Varghese (supra), they have identical constitutional obligations to their children also. Personal law obliges all fathers to maintain their unmarried daughters. We deem it unnecessary to interpretationally exempt the Muslim father from his responsibility to maintain his unmarried daughters. We deem it only proper and appropriate to include in that obligation, the obligation to meet the marriage expenses of his unmarried daughter.
23. We requested Advocate Sri. M.P.M. Aslam to enlighten us as to whether there is any text, commentary or precedents which can throw light on this specific aspect. The learned counsel Sri. M.P.M. Aslam submits that in this context it will only be proper and necessary to understand the distinction in the moral/legal obligation of a Muslim father in contra distinction to that of a Hindu father. The learned counsel contends that there is no concept of dowry/sthreedhana in a Muslim marriage. There is no obligation for the father to pay any dowry or sthreedhana to his daughter. Under the Muslim law dower is to be paid by the bridegroom to the bride. Even the marriage feast (walima) is to be performed by the bridegroom and not by the bride’s father. In these circumstances, there is no specific assistance available from the Quran, other subsidiary sources of Muslim law or from texts or precedents throwing specific light on this aspect, submits the learned counsel.
24. Dowry is an abuse which has been inherited by the Indian society for various historical reasons. The Hindu father also does not have the obligation to pay dowry. The prevalent abuse of payment of dowry is not certainly the foundation of the legal obligation to meet the marriage expenses of the daughter under Sec.2(b) of the Hindu Adoption and Maintenance Act. The abuse of dowry is prevalent both in the Hindu and in the Muslim communities. The fact that the Muslim father has no obligation to pay any dowry/sthreedhana under law and he (ie. his daughter) is entitled to receive dower from the bridegroom cannot, according to us, make any difference in our approach to the concept of maintenance for the Hindus and Muslims. They both live in the same society with identical abuses and advantages. The mere fact that the marriage conceptually is an indissoluble sacrament under the Hindu Law; whereas it is only a solemn contract under the Muslim law cannot in any way affect the obligation for maintenance of the unmarried daughter so far as the Muslim father is concerned.
25. The learned counsel Sri. M.P.M. Aslam submits that indirectly the Quran in two places makes declarations which may be helpful to us in the resolution of the controversy. The learned counsel, after elaborate reference to the relevant verses of the holy Quran, submits that there is no specific stipulation in the Quran either way about the obligation of the father to meet the marriage expenses of his unmarried daughter. The learned counsel draws our attention to Sura xxiv Ayat 32 of the Quran and submits that the responsibility is imposed on every religious Muslim and submits that the responsibility is imposed on every religious Muslim to ensure that those who are single are married. There is a declaration that those who are single must get married. This is the command not only to the ones who are to get married; it is a declaration of a moral principle that all those who are single should be given in marriage. We extract Sura xxiv Ayat 32 below as translated by Yusuf All. This verse indirectly declares the obligation of all to ensure that persons who are single are married. This can be reckoned as a command to the father to ensure that his unmarried daughter enters matrimony, points out the counsel.
“32. Marry those among you
Who are single, or
The virtuous ones among
Your slaves, male or female:
If they are in poverty,
God will give them
Means out of His grace:
For God encompasseth all,
And He knoweth all things.”
26. The learned counsel Sri. M.P.M. Aslam then points out that Sura iv Ayat 34 which also, according to the learned counsel, though only indirectly, declares the obligation of men to maintain women. Men who are protectors and maintainers of woman are bound to ensure that all acts for the physical, mental and moral requirements of women under their charge are discharged. That is the conduct expected from a Muslim under the holy Quran, submits counsel. We extract below Sura iv Ayat 34 (first part):
“34. Men are the protectors
And maintainers of women,
Because God has given
The one more (strength)
Than the other, and because
They support them
From their means.
Therefore the righteous women
Are devoutly obedient, and guard
In (the husband’s) absence
What God would have them guard.”
All counsel accept and we ourselves are unable to trace any specific relevant verses in the Quran which throw light on this aspect.
27. Sri. M.P.M. Aslam relying on the various texts and commentaries points out, and there is no dispute on that, that it is the responsibility/duty/obligation of the Muslim father to act as Wilayat (guardian in marriage) of his unmarried daughter. Even when a woman has attained puberty/majority she needs the help and assistance of her father to formally enter matrimony. The father must function as guardian on her behalf in such marriage to enable his daughter to enter into the contract of marriage. This paramount responsibility of the father as guardian at the time of marriage of his daughter must necessarily bring with it the corresponding obligation to ensure that all necessary expenses in connection with the marriage are met by him, points out the counsel.
28. We are of the opinion that the above stipulations in the Personal Law, though they do not afford direct assistance to us on this controversy, can also be relied on to reach the conclusion that the Muslim father has the indisputable obligation to maintain his unmarried daughter. We find it safe to proceed to further hold that he has the obligation to ensure that the unmarried daughter under his charge is given away in marriage properly. He hence has, we hold, the legal obligation to meet the reasonable marriage expenses of his daughter, as part of his obligation to pay maintenance to her.
29. Though not assisted by any specific precedent on this aspect, Sri. Aslam has traced a decision of the Kerala High Court in which the court recognizes the responsibility of the father to give his daughter in marriage and to claim necessary exemption from the provisions of the Gift Tax Act for the amounts so spent by him. A Division Bench of this Court headed by Mr. Justice C.N. Ramachandran Nair has taken the view in Meeran v. Dy. Commissioner of Income Tax (2010 (1) KLT 553) that the Muslim father is also entitled to claim exemption from the gift tax for gifts made by him on the occasion of the marriage of his daughter. The crucially relevant observations though only of indirect assistance appear in paragraph-3 of the said judgment which we extract below:
“In our view, it is the desire of every father, whether he is member of the Hindu community or Muslim community, to have his daughter married in the best manner possible and naturally people look persons for marrying their daughters who hold the same status, position etc., in the society as they have. Even though under Muslim law marriage is a contract, no one can expect a grown up girl to go and negotiate and enter into contract for marriage by herself. It is common knowledge that like member of any other community it is the father and the family members who arrange the marriage for the girl, no matter the Muslim marriage is treated as a contract. We are, therefore, unable to agree with the view expressed by the Madras High Court that since Muslim marriage is a contract, father is not obliged to give any gift at the time of marriage and so much so, gift given by Muslim father at the time of marriage of his daughter is not comparable with the gift given by a Hindu father because under Hindu law, it is the obligation of the father to maintain his daughter which includes giving her in marriage.”
28. The above discussions lead us to the conclusion that the right/obligation to maintain the unmarried daughter includes the right/obligation to meet the marriage expenses of the unmarried daughters. This is so for all fathers – be they Hindus, Muslims, Christians or others. We adopt the following process of reasoning to reach that conclusion. They all have the duty under their personal law to maintain their children. Even ignoring the personal law, as declared in Mathew Varghese (supra), such a right/duty can be spelt out from Article 21 of the Constitution. Duty to maintain is not limited to provide for food, raiment and lodging. It includes the duty of the obligee to do all acts for the physical, mental and moral well being of the child. That duty has to be understood in the context of the Indian society in the modern constitutional republic. The concept has to be understood identically for persons belonging to all religious faiths in the secular polity. Where the interpretor has elbow room, he must invoke the power of interpretation as a functionary of the State consistent with the mandate of Article 44 of the Constitution. The interpretor need not wait for the Parliament to enact a uniform civil code. Till that is done by the Parliament, the interpretor as a functionary of the State must draw inspiration from Article 44 of the Constitution in performing the duty/power of interpretation. So reckoned the duty to maintain the unmarried daughters under the personal law must in the present day Indian context include the obligation to meet the marriage expenses of the unmarried daughters. For all members of the Indian polity, this has to apply. The Muslim father also, we hence hold, has the obligation to pay/meet the marriage expenses of his unmarried daughter. We must hasten to observe that the right/duty is only to meet the reasonable expenses, that too only when the daughter is dependent on the father.
29. Having held so, we do not find any reason to interfere with the impugned order. The petitioner certainly has the intention to dispose of the property under attachment. Even according to him, the value of the property, notwithstanding the disputes about its value, is only meagre and the attachment cannot be said to be excessive considering the magnitude and reasonableness of the claim.
30. This Writ Petition is accordingly dismissed.
No comments:
Post a Comment