V. R. Krishna Iyer
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[edit] Introduction
Justice V. R. Krishna Iyerwas Home minister and minister for law, power, prisons, irrigation and social welfare in the Government of the State of Kerala following the victory of the Communist Party of India under E. M. S. Namboodiripad in the 1957 elections.He was the originator of Kerala Land Reforms Act, which drastically transformed the land holding pattern among the people of the State of Kerala.
V. R. Krishna Iyer became a judge of the High Court of Kerala on 2nd July 1968. He became a Judge of the Supreme Court of India in 1973. During this time, the Supreme Court interpreted Article 21 of the Constitution of India in the sense that the national government was obliged to provide free legal services to accused persons in custody. He retired from the Supreme Court in November 1980
As a Judge of the High Court of Kerala and also as a Judge of the Hon'ble Supreme Court of India,Justice Iyer has rendered several epoch making judgments involving the interpretation of the Constitution of India and the statutory as well as personal law of Muslims.Analysing and summarizing his judgments, a book titled " Muslim Law- An analysis of the judgments rendered by Justice V.R. Krishna Iyer" has been published in the year 2006.A brief survey of the contents of the book and the judgments rendered by Justice V.R.K Iyer would reveal the revolutionary in him and his quality and ability to guide a community which did not welcome any inrode into their personal laws.
[edit] V.R. Krishna Iyer on Muslim Law
The contributions of Justice V.R. Krishna Iyer in the field of family law, especially in matters concerning Muslim Law on maintenance, divorce, gift etc are unparalleled. His opinions were enigmatic as well as prophetic.
An exposition of his views on Muslim Law is given in the book “ Muslim Law- An analysis of the judgments rendered by Justice V.R. Krishna Iyer” by Advocate Dr. Sebastian Champappilly and published by Southern Law Publishers, Cochin-22, Kerala, India.
[edit] Justice Iyer’s Philosophy and approach
The shrewd researcher in Justice Iyer emboldened him to opt for the incisive analysis of the development of Muslim law through the centuries. He travelled through the difficult terrains through which the Islamic law traveled and got shaped up- sometimes making itself agile, at times showing its vitality in adjusting with the times and places. While analyzing the cases involving Muslim law in matters of marriage, divorce, transfer of property and maintenance, it is seen that Justice Iyer has made every effort to decipher the first principles of pristine Muslim law and test them on the touch stone of the Constitution of India. He has analyzed the law on first principles by reference to the Koran and concluded that by any stretch of interpretative techniques the personal law can in no way displace the general law enacted by legislation.
[edit] On Transfer of Property
The central theme of Justice Krishna Iyer’s judgments on various aspects of Mohammedan law revolves round the concept that except in matters of religion real, the general law should prevail in secular matters. In his zeal to apply the general law in matters of transfer of property, he has held that the exemption, from the requirement of registration, granted under the Transfer of Property Act to Muslims is to be construed and applied in its limited sphere dealing with Wakf property and gifts made for charitable purposes. In all other matters, Muslims should also be governed by the provisions of the Registration Act and transfer of property by way of gift or otherwise shall be done in accordance with the provisions of the Transfer of Property Act and the Registration Act (See Assan Rawther Vs. Ammu Umma 1971 KLT 684). And while dealing with the legality of gift of an undivided share (musha), it was held that the doctrine of musha is obsolete and it is only to be declared unlaw as intangible and incorporeal rights are dealt with facilely by modern jurisprudence, ( See K.P. Khader Vs. K.K.P Kunhamina 1970 KLT 237).
[edit] On Talak by husband and divorce by wife
It is generally believed that a Muslim husband has unbridled powers of pronouncing talak (divorce). That position seemed to have been judicially recognised. More often than not, the right of triple talak was exercised by a Muslim husband to get out of the obligation to pay maintenance to his neglected wife. With the amendment of the Code of Criminal Procedure in 1973, Parliament took cognizance of this malevolent trend and pre-empted it by making a provision in section 125 of Cr. P.C that a person with sufficient means shall maintain his divorced wife if she is unable to maintain herself and remains unmarried. Justice Iyer has had a definite role in the shaping of the law both as a Judge and as a Member of the Law Commission of India. The provisions made for maintenance of a divorced wife turned upside down the constitutional balance in the following years as can be seen from the further judicial and legislative intervention.
As regards the right of a Muslim woman to seek divorce, Justice Iyer has construed the provisions of the Dissolution of Muslim Marriages Act 1939 to mean that when the spouses are living separate and apart for a substantial time, an inference may be drawn that the marriage has broken down in fact and should be ended by law. In short, irretrievable breakdown of marriage can also be a ground available for a Muslim wife for dissolution of marriage. He has built up his theory on the foundation of Muslim personal law itself (See Aboobacker Haji Vs. Mamu Koya 1971 KLT 663).
On reform and modernity, Justice Iyer holds the view that the romantic suggestion of a young husband to his darling wife to present herself in public daintily clad in sari and shorn of the purdah, which banned even the sun and moon from looking at her face, is no cruelty. He held that if this be cruelty, it is the limit. For, in the seventies of this century when the youth of either sex are experimenting with mini-dress to the point of near nudity, it is strange that wearing that lovely, colourful, flowing Indian apparel, the sari, which has many fans even in Manhattan is set up as a cruel step. That amounts to laughing at the law, not talking seriously to the court. It will be cruel to the concept of cruelty and outraging the modesty of the statute to cast the net of guilt so wide as to catch within it such pleasurable pressures as persuasion to see a cinema or don a dainty sari on her young figure (See Aboobacker Haji Vs. Mamu Koya 1971 KLT 663). And he further held that there is no absolute right for a purdahnasin lady to resist appearance in Court for being cross- examined ( See Kunhu Mohammad Vs. T.K. Umayithi 1969 KLT 418).
[edit] Maintenance
In matters relating to maintenance, Justice Iyer has held that if a Muslim husband marries a second time, the wife is entitled to get separate maintenance. It has also been made clear that the wife is not legally bound to cohabit with the husband if the husband takes in a second wife (See Shahulameedu Vs. Subaida Beevi 1970 KLT 4). Further a Muslim husband cannot get out of the riggers of Penal Law on bigamy as Personal Law is no answer in a criminal prosecution. (See Shihabuddin Imbichi Koya Thangal Vs. Ahammed Koya 1971 KLT 68). Personal Law can have its limited application to the extent to which it dose not come into direct conflict with the Penal Law. In other words, personal law survives only to the extent to which the sovereign recognises it and permits its application. It has to submit to the social mores and has to be conducive to the norms accepted in the realm of social reforms. This position is not something special in the case of Muslims. As regards Christians, the Kerala High Court as well as the Supreme Court have held that in matters of divorce and declaration of nullity of marriage, the Church Tribunals have no legal right to meddle with the civil rights and civil obligations of Christians, including the liability under section 125 of Cr.P.C (See Molly Joseph V. George Sebastian AIR 1997 S.C. 109 & Kurian Vs. Alphonsa 1986 KLT 731). And there seems to be no reason why the general principles should not apply in the case of Muslims.
The law on maintenance applied to one and all irrespective of region and religion, and was commonly applicable irrespective of all diversities. Justice Iyer has successfully canvassed his theory through and through his judicial career. It is also his contention that where a Muslim husband requests for restitution of conjugal rights and the wife applies for a decree of divorce, the dismissal of the petition for decree of divorce shall not ipso facto lead to allowing the petition for restitution of conjugal rights. The wife is entitled to get maintenance even if both the petitions are dismissed. The failure to provide for maintenance of wife, even if it is because her improper refusal to live with him, would be a ground for dissolution of marriage for the wife. (See Aboobacker Haji Vs. Mamu Koya 1971 KLT 663). And it is not necessary for a wife to get the consent of her husband to seek a divorce through court and that a suit for dissolution of marriage by a Muslim wife is maintainable (See Yusuf Rowthan Vs. Souramma 1970 KLT 477). While Justice Iyer was adorning the Bench in the Supreme Court, he built up his thesis to its possible logical heights without openly inviting the wrath of fundamentalists in Bai Tahira (See Bai Tahira Vs.Ali Hussain Fidaalli Chothia and Another (1979) 2 S CC 316 and Fuzlunbi Vs. K. Khader Vali and Another (1980) 4 SCC125). The Supreme Court through Justice Iyer in Bai Tahira did not turn to the Koran but confined itself to Section 125 and its human dimension and character as a secular provision. The rule of interpretation, well established in our system of jurisprudence, is to so read its meaning as to advance the purpose and suppress the mischief according to the design of the statute. The conclusion was irresistible that the claim to maintenance by the divorcee was indefeasible, be the husband Hindu, Muslim or other, so long as the spouse had not remarried and had no means to maintain herself.
The very next year, the Supreme Court reinforced its earlier decision in Fuzlunbi and explained in unmincing words the thrust of the provision and the policy underlying it. The law was thus well settled. The Code was secular, the Court was secular, the clause in question served a secular purpose and two benches had ruled the same interpretation. Matters should have rested there finally.
The thread that underlies all these decisions is that the spirit embodied under Article 44 of the Constitution of India shall be made applicable to all Indians irrespective of their religion and that the legislature and the judiciary have a duty to strive to achieve the object of bringing in and enforcing a Uniform Civil Code.
[edit] Shah Bano case
However, the subsequent developments which led to referring of Shah Bano case to a Constitution Bench of the Supreme Court and its decision has had far reaching consequences in the legal history of India. The reference to the larger Bench resulted in Shah Bano case (Mohd Ahmed Khan Vs. Shah Banu Begum (1985) 2 SCC556= AIR 1985 SC 945) coming before five Judges, who delivered a unanimous judgment through Chief Justice Chandrachud. In substance, Shah Bano merely affirmed Fuzlunbi except that Chandrachud, C. J. speaking for all his brethren, strengthened his conclusion by paying a tribute to pristine Islam for its humanist concern, even for divorced women, by directing their former husbands to make adequate provision (mata) for this jetsam species.
[edit] Uniform Civil Code
About the decision in Shah Bano, Justice Iyer observed that the novelty of Shah Bano was that the court, with a pulpit touch, blamed the State for keeping Art. 44 in cold storage ignoring Art. 37 which made the principles of Part IV, obviously including Art. 44, ‘fundamental in the governance of the country.’ This obiter on the Common Civil Code, gratuitous and avoidable though, was ‘an arrow at random sent’ which hit “a mark the archer never meant”. The Supreme Court’s observations regarding the Common Civil Code was a red rag to the bull and a virulent campaign was unleashed inside and outside Parliament with fanatical fury and with no holds barred. Further, the interpretation by the Supreme Court of a certain Koranic verse which enjoined payment of mata by a divorcer-husband to the divorcee-wife came in for fulmination and condemnation.
The second judicial delinquency discovered in Shah Bano judgment by the fundamentalists is the reference to the Uniform Civil Code and the State’s inaction in implementing the directive principle in Article 44 pleading an infantile alibi that from among the Muslims a move must come. The logic, if pushed to the extreme means that Sati can be abolished, polygamy prohibited, child marriage forbidden among the Hindus only if the conservative corps agree. Justice Iyer asks; should the last fanatic consent before necessitous reforms in defence of human rights can be undertaken by the State?
Thus the two grave sins of the Supreme Court incensed the defeated interveners in the case, a self-appointed conscience-keeping coterie called the Muslim Personal Law Board. In fact, the first was a praiseworthy reference to the Holy Koran and the second a censorious remark about the Uniform Civil Code in Article 44 of the Constitution! Then ensured a bizarre chapter when the government of the secular Republic of India engineered a bill banishing starving Muslim divorcees from the humane harbour of section 125 and offering a pathetic legislative alternative. The members of Parliament stood bound by the Party Whip. In fact, freedom is what freedom does, and freedom to speak and vote in Parliament is so paramount that the 52nd Amendment (anti-defection), is so far as it reduces members to robots by a three line whip, is a menace to the democratic system.
[edit] Religion and Law
Laws are made for the Government of actions and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were necessary part of religious worship, would it be seriously contended that the civil Government under which he lived could not interfere to prevent a sacrifice? Justice Iyer asks and then he answers. To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every man to become a law unto himself. The religious practice therefore may be controlled by legislation if the State thinks that in the interests of social welfare and reform it is necessary to do so. In fact no other Judge in this land of the religious ever dared to declare so.
Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole.
[edit] Muslim Woman (Protection of Rights on Divorce) Act, 1986
Had the Supreme Court left matters at the same stage as was reached in Bai Tahira and Fuzlunbi, where Iyer stopped in his wisdom, and avoided an invitation to a Uniform Civil Code and certain references to the Koran, Muslim Women (Protection of Rights on Divorce) Act would not have been conceived even. The scenario that followed was extraordinary and tense and the decision in Shah Bano has unfortunately led to the enactment of the Muslim Woman (Protection of Rights on Divorce) Act, 1986.
Justice Iyer expresses his anguish against the Bill thus: "The bill to kill the Shah Bano decision of the Supreme Court is the unfortunate political product of a creative genius for multi-dimensional injustice. The bill is an injustice to our Republic’s secular principle; it is an injustice to women’s basic rights and, therefore, violative of human rights, it is an injustice to the egalitarian policy in our Constitution in Arts. 14 and 21 and 25; it is a vindictive injustice to Muslim women selling the soul of the State’s humanism to obscurantist fundamentalists; it is an injustice to the holy Koran which insists on payment of maintenance of divorced women in distress; it is an injustice to the 21st century because it throws us back to the 6th century to buy Islamic votes through the noisy illusion of electoral support of fundamentalists whose hold on the liberal Muslim intelligentsia and the suffering masses of women is marginal; it is an ultra vires injustice to the law of the Wakfs because Wakfs are not trusts to look after privatized wrongs inflicted by irresponsible talaqs; it is an injustice to family integrity because it is fraught with potential for litigation between close relatives. It is an injustice to pragmatic working of the law because, functionally speaking the provisions lead the destitute to several cases in search of a pittance; it is an injustice to national stability, because the secular credibility of the Government will be a casualty. The dictate of the social dialectics of India today leaves no choice.”
Then he laments: "I am afraid, the Indian statute book has been sullied by the Muslim Women (Protection of Rights on Divorce) Act which violates non-negotiable values, sullies the corpus juris by a legislation which is misogynist, against our secular culture, against our egalitarian ethos and observes that court litigation, whether we win or lose, may not settle the issue of fundamentalism as a dominant political factor, Hindu, Muslim or other. A solitary enactment forced into the nation’s laws by the coercive command of a 3 line whip may not be sufficient to tear up our secular creed. Masculine authoritarianism, depriving the weakest sector of Indian womanhood, viz., Muslim sisters, of dignity and right to life, cannot over-power the nation’s sense of social justice. Here is a summons to national resistance against noxious weeds. Ultimately it is the people’s will, transformed by constitutional enlightenment, that will win the battle of the tenses and defeat future shock. It is inhumanity to be indifferent to injustice and it is a fundamental duty to rouse the conscience of the people “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women. This is a long march." However, the Act is now a reality.
A study of the statutory scheme, its perspective and intendment reveals a legislative horror and a national dishonour. Undoubtedly, the 1986 Act is a retrograde step and the disciples of Justice Iyer have again been struggling to keep the law on an even keel as is evident from the subsequent decisions (See Ali v. Sufaira 1988(2)KLT 94 )in matters of maintenance as applied to Muslims. In this case the Kerala High Court has held that the liability of the husband does not come to an end by paying maintenance for the period of iddat. He has also to make a reasonable and fair provision for the former wife's life. This has now become an ongoing struggle in the legal field.
Dwelling on the provisions of the Muslim Women (Protection of Rights on Divorce) Act, Justice Iyer comments (in his book on the said Act): "The genetic code of the nascent Act is communal-cum-misogynist and its provision for payment of alimony to the driftwood womanhood, not by her former partner but by her relatives and the Wakf Board violates commonsense and the Koran."
The harsh truth is that Section 3, for the hapless hordes of talaqued damsels, is a pompous mockery, a promise of unreality. The other limb of Section 3 lays down that the man must make provision for his children by her for a period of two years from the respective dates of birth of the children. This means that after two years these children will join the waifs and strays to become vagrants and juvenile delinquents. Notwithstanding the long clauses and crude drafting, the substance of the substantive rights enacted in Sec. 3 is that the woman, who was the queen of his heart once but since has been talaqed, gets the parliamentary karuna of three months’ maintenance for herself and two years’ meintenance for her children.
Section 4 clumsily drafted and craftily designed involves litigative double-dealing, so that the indigent divorcee is duped with linguistic hopes and litigative dopes. A series of spurious alternative remedies for the divorced woman to maintain herself after the Iddat period are written into the Act (Sec.4) never found in any “family law pharmacopoeia” in the world. Its ideology is that the guilt of the husband for breaking up the conjugal unity- please remember we are concerned only with divorcees unable to maintain themselves and remaining unmarried – shall be visited on the wife’s relations. The husband, who is morally and even legally liable to the divorcee, is suddenly absolved from this vinculum, and instead, the desperate woman is statutorily directed to litigate against “such of her relatives as would be entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair maintenance to her”, as the magistrate may determine, with due regard to her way of life and the means of her relatives. Thus, litigative stupidity and prolixity are compounded in Sec. 4 (1). And the ascertainment of heirs and the allocation of shares under the various schemes of inheritance under Muslim law may often be beyond the humble magistrate’s wits and the criminal lawyer’s kit.
The humble have-not woman, in her litigative search for the relative who can be charged with liability, has to generate family quarrels, a plurality of them, and forfeit the little goodwill among them in her favour. She has to prove the assets of these relatives and take out execution through court for recovery of petty sums, including putting them in jail, may be. Nothing more unfair, arbitrary, insane and unjust than Sec. 4 can be invented by the wit of any jurist as a beautiful substitute for the straightforward obligation laid under Sec. 125 on the husband by way of alimonial justice consequent on divorce.
The worst is yet to be. Section 4 (2) provides that where a divorced woman has no relatives to sustain her, the magistrate may direct the State Wakf Board to pay such maintenance as may be determined by it. Wakf Boards are statutory organs to supervise the administration of wakfs which are essentially religious and charitable. A wakf is a dedication of property in the way of God as it were, tying up the wakf as God’s property. Mostly, the purpose to be fulfilled is of a religious nature and the Waki decides on the objects of the wakf. The motive of the wakif is most important. Once these principles are understood, it passes one’s comprehension how the income from the wakfs can be diverted for a purpose never in the contemplation of the wakif. Supposing a wakf is created for the maintenance of a mosque, or for financing the Haj pilgrimage of the poor, can such resources be hijacked by parliamentary perversion into paying maintenance for a woman rendered destitute by some wicked husband’s talaq, talaq! It is a terrible curse that, blindly unconcerned about the incendiary implications, a Muslim measure has been rushed through. Tragic theology in the tattered attire of wakf jurisprudence!
Law may be an ass, as Dickens said. But can it also be a fox? asks Justice Iyer and he answers that section 5 is. If the rat is forced to seek justice from the cat with the latter’s consent it sounds better sense than the current provision whereby the disowned wife is conferred the extraordinary privilege of proceeding against the man who talaqed her after getting his consent to be sued. This is insult and injury, nonsense and injustice put together. Would any fool, who has thrown out his wife, be suddenly overcome with sweet reasonableness and gently tell his yesterday’s darling, “Altho’ I am exempt under Sec. 3, do file a case against me and here I am giving you written consent to drag me to court”? This forensic farrago is arbitrary, discriminatory, unreasonable, unjust and deprives the right to livelihood and survival of an indigent, illiterate class, admittedly of the weaker gender. Unconstitutionality is writ large on the face of the provision, which requires no legal pundits to expound the nuance, Justice Iyer concludes.
"Legislative hurry and conceptual flurry, compounded by drafting chicanery, often produces a statutory pot-pourri. Consequence: Litigative profusion and decisional confusion, in an area where the miserables seek subsistence maintenance for sheer survival. This is traumatic contribution by parliament to the cause of gender justice thro’ the recent Muslim women’s pueuo-protection legislation.
A fortiori, a Hindu woman converted to Islam pro tem and reverting to her parent faith in all respects is no longer a Muslim and, therefore, not a “divorced woman” definitionally speaking (2a). She may not be disabled by Sec. 4 and may still be enabled to rely on the Code. Cases of Christian-Hindu and Hindu-Islam conversions and reversions of whole groups or of individuals are not uncommon in Indian history as Justice Rao in Ratansi Morarji has surveyed and proved.
This apart, Sec. 4 read with Sec. 2 (a) bristles with plural problems plunging the provision in riddles wrapped in mysteries inside enigmas. All these anomalies emphasize how the asal Muslim belle deprived of her youth and of the shelter of the conjugal home and driven into the streets by the talaq tactic is victimized in a distressingly discriminatory manner. The law is what the law does and if shocking injustice inflicted by legislative invidiousness is the effect it is blatant unconstitutionality.
We must jettison religion where it forces itself, even for the noblest reasons, on the forbidden field of secular affairs. Frankfurther’s words are apt: “The validity of secular laws cannot be measured by their conformity to religious doctrines.”
The secular regulation rule is based on the distinction between belief and action. Religious beliefs admittedly must have absolute protection, but actions, even though purporting to be taken for religious reasons or as part of religious observances, must conform with the regulations established by the community to protect public order, health, welfare and morals.
An analysis of Justice Iyer's judgments from Kunhu Mohammad to Bai Tahira and Fuzlunbi on the one hand and his views expressed in the book on Muslim Women (Protection of Rights on Divorce) Act, on the other, would reveal the shaping of his juristic approach over a period of time.
[edit] References
“ Muslim Law- An analysis of the judgments rendered by Justice V.R. Krishna Iyer” By. Dr. Sebastian Champappilly, Southern Law Publishers, Cochin-22
“ Muslim Women ( Protection of Rights on Divorce) Act” By Justice V.R.Krishna Iyer, Eastern Book Company, Lucknow.
