V. Khalid, J.
1. The question posed In this criminal appeal is whether a muslim wife can repudiate the marriage with her husband de hors the provisions of the Dissolution of Muslim Marriages Act. 1939 (Act VIII of 1939), hereinafter referred to as the Act. My reply is in the negative. According to me, under no circumstances can a muslim marriage be dissolved at the instance of the wife, except in accordance with the provisions of the Act.
2. Now the facts: The appellant filed a private complaint before the District Magistrate. Kozhikode, against six persons; the first accused his wife, the 2nd accused her second husband whom she married during the subsistence of her marriage with the appellant, accused 3 and 4 her parents, the 5th accused an abettor and the 6th accused her uncle. The marriage between the appellant and the first respondent took place in 1950 end a child was born of that marriage. After the birth of the child, the wife was taken away from the appellant by her parents and was not sent back. All his efforts to get back his wife failed and therefore the appellant filed O. S. No. 321 of 1959 before the Munsiffs Court. Calicut, for restitution of conjugal rights. The first respondent, the wife filed O. S. No. 424 of 1959 before the same Court for recovery of mahar amount and the value of ornaments from the appellant. As an afterthought when the two earlier suits had become ripe for trial, another suit was filed by her as O. S. No. 828 of 1962 for dissolution of her marriage with the appellant on the ground of non-payment of maintenance and cruelty. The suit for restitution of conjugal rights was decreed subject to the condition that the appellant Paid in Court the mahar within 30 days. The mahar suit was also decreed. The suit for dissolution of marriage filed by the wife was however dismissed on 27-8-1963.
3. The first respondent thereafter adopted an ingenious device to avoid the decree of Court by taking the advice of D. W. 1. who is said to be well-versed in Islamic theology and on the strength of that advice unilaterally divorced her husband, apparently by means of 'Faskh' without the husband's presence or his consent. Thereafter, she entered into another marriage with the 2nd respondent. The appellant therefore brought this complaint before the District Magistrate's Court stating that the first respondent has committed an offence under Section 494. I. P. C. and the other accused abetted the crime.
4. The learned District Magistrate held that the first accused could divorce her husband by Faskh. He also held that even if divorce by Faskh is not valid in law, she cannot be deemed to have committed an offence as she was protected by the advice given by D. W. 1. All the accused were acquitted. It is against this acquittal that the present appeal is filed.
5. Before considering the case on its merits, it would be useful to examine the law on the point. The grounds on which a muslim wife can seek divorce are now codified in the Act mentioned above. A little legislative history of the Act is apposite. The majority of Muslims in India are Hanafis. According to the Strict Hanafi law. Muslim women had no right to get divorce from their husbands. The law was so rigid that muslim wives suffered untold hardships on account of the absence of a right to obtain divorce. In his book entitled "The question of protection of Muslim Personal Law" in Urdu by Shri Mahamood Thahir. Associate Research Professor at the Indian Law Institute, New Delhi, at page 30, the following passage appears:
"The Dissolution of Muslim Marriages Act is an important enactment for Indian Muslims. Its short history is this: The Indian Courts did not recognise any right in Muslim women to obtain divorce from their husbands, according to Hanafi jurisprudence, whatever be the difficulties these ladies had to undergo. Another aspect of the Hanafi jurisprudence was that if a Muslim wife became apostate by conversion into another faith her marriage with her husband stood automatically dissolved. Several instances were reported from different, parts of India of Hanafi women resorting to conversion from Islam into another religion finding it difficult to extricate themselves from the marriage bond with their husbands and thus dissolving the marriage by apostasy. The celebrated theologian Maulana Ashraf Ali realising the gravity of the situation decreed that where a Henafi woman wanted to secure a divorce from her husband she could discard the Hanafi tenet and embrace Mallick tenet; according to which in some cases Courts could give divorce to wives."
This difficulty confronted Muslim women not only in India but elsewhere also,
"It was the miserable lot of Muslim wives that first prompted, and indeed forced the extension of the principles of reform to the sacred sphere of the family law. For a Muslim wife according to the most authoritative Hanafi opinion had no right to a judicial dissolution of her marriage even if deserted by her husband for year after year, or it she found herself married, without her knowledge, to a man afflicted with some such disease of body or mind as leprosy or insanity. This was an intolerable position ........." (see Islamic Law in the Modern World by J. N. D. Anderson, page 26). It has to be remembered in this connection that the Muslim jurists did not recognise the rights of wives to claim divorce although the Quran had clearly recognised such rights in them.
"And women have rights similar to those against them in just manner."
(2 : 228)
"Then if you fear that they cannot keep within the limits of Allah, there is no blame on them for what she gives up to become free thereby".
(2 : 229)
6. Among Shafis, the question however was not so difficult. There have been instances where resort was made to repudiation of the marriage by 'Faskh', without the intervention of Courts. There have been serious abuses of this right also. An unscrupulous father-in-law or other near relative resorted to this method to get rid of a recalcitrant son-in-law even without the consent of the wife. The Act gave a quietus to these problems and codified the grounds on which Muslim wives could get divorce irrespective of the sect to which they belonged. After the Act, divorce can be effected only by taking recourse to its provisions and under no circumstances can a marriage be dissolved at the instance of the wife except under one or other of the provisions of the Act.
7. In his book 'Muslim Marriage and its Dissolution' by Shri R. B. Sethi, the reasons for enactment of the Act are stated thus :
"One of the principal reasons -- there were several which led to the enactment of Act 8 of 1939 -- was the existence of controversy as to whether a Hanafi marriage could be dissolved on the ground that the husband had failed to maintain his wife. The original Hanafi text did not authorise the Kazi to effect dissolution of the marriage without the husband's consent. The text of three later Sunni as well as Shia texts lay down that the Kazi or other appropriate authority can in such cases effect dissolution of the marriage."
8. The Act lays down the various grounds enabling the wife to seek divorce from her husband. After enumerating the various grounds in Section 2 (i) to (viii). Section 2 (ix) is enacted to obviate any difficulty. Section 2 (ix) reads as follows:
"2. Grounds for decree for dissolution of marriage:-- A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:--
X X X X X X X
(ix) on any other ground which is recognised as valid for the dissolution of marriage under Muslim law".
9. This sub-section recognises the right of a woman to obtain divorce under other grounds recognised by the Muslim Law which are not included in Sub-sections (i) to (viii). In effect it is clearly a statutory preservation of prior Isalmic rights. By way of illustration the case of apostasy of the husband and Ban maybe considered. Husband's apostasy is not one of the grounds mentioned in the section, although it is a ground for divorce under the Muslim Law. Lian, which is imputation of unchastity and whoredom to a wife also is not a ground mentioned in the section. A wife may file a suit on these grounds and satisfy the Court that these are grounds recognised by Muslim Law and if the Court is so satisfied a decree for dissolution can be obtained.
10. The exercise of option of puberty (Kuiyarulbulugh) is another instance in point; which is provided in Section 2 (vii) of tile Act. A girl given in marriage before she attained the age of fifteen years is given a right, to repudiate the marriage before attaining the age of eighteen years, provided the marriage has not been consummated. Even here, the girl is not given the freedom to unilaterally repudiate the marriage. She has to seek the intervention of Court to get a decree for dissolution of marriage. Thus, it is clear that the scheme of the Act is elaborate and conclusive and a dissolution outside the provisions of the Act cannot be held to be valid; nor can a Court countenance such a dissolution.
11. As observed by Sir Zaffrullah Khan in the Central Legislature on the passing of the. Act, "the outstanding merit of this bill is that it puts down in the space of one printed page various grounds on which divorce can he obtained by women married under the Muslim Law. This is a matter the lack of which has in the past caused a great deal of distress and misery and suffering in India".
12. The Act after its promulgation brought within its ken all Muslims irrespective of the sect to which they belonged and held that dissolution of Muslim marriage at the instance of wives can be effected only under its provisions. The Act placed on the statute book the law relating to suits for dissolution of marriage by Muslim women and does not propose to add to the provisions of the pristine Islamic Law. The Act has made a distinct endeavour to ameliorate the lot of muslim wives. With the passing of the Act, it has become clear that the function of dissolving marriage at the instance of the wife cannot be exercised by any body or tribunal other than a Civil Court and in no other way than on a consideration of the evidence adduced in the case. The only occasion when a wife can perhaps resort to repudiation without intervention of Court is while pronouncing Talak-i-Tafweez, which is a divorce effected by the wife on the strength of a delegation toy the husband contingent on the happening of an event or subject to other reasonable conditions not opposed to the principles of Muslim Law.
13. Now the question is whether the Act can be circumvented or defeated by ingenious devices. Once an enactment comes into existence laying down the principles of law governing rights of parties, it is not permissible for Courts to travel behind it or for the parties to avoid it. In Rohini Kumari v. Harendra Singh, 1972 Ker HC (Notes) 50. Their Lordships of the Supreme Court observed:
"It is well known that when a particular branch of law is codified it is intended that the object essentially is that on any matter specifically dealt with by that law it should be sought for in the codified enactment alone when any question arises relating to that matter"."
This is the guiding principle in construing the Act. The rights of Muslim women to obtain divorce from their husbands have been codified by the Act and it is not permissible to travel beyond it and decide the rights of parties.
14. With this background in mini let us consider the facts in this case. It is admitted that the marriage between the appellant and the first respondent took place in 1950 and that a female child was born in that wedlock. It is also admitted that on 5-10-1969 the first respondent was married by the 2nd respondent. It is pertinent to remark that a document was registered to evidence this marriage which is unusual for a Muslim marriage. The question therefore is, whether the second marriage between respondents 1 and 2" was during the subsistence of the first marriage between the appellant and the first respondent. The second marriage was on 5-10-1969 and hence after the Act.
15. The defence is twofold. The first contention is that the first respondent repudiated the marriage by Faskh. The second is that even if that repudiation did not effect a legal dissolution, the advice given toy D. W. I protected the accused in that they acted in good faith and bona fide. The learned District Magistrate was in some confusion regarding the first contention. He posed the question, "if Muslim Personal Law recognised a right in a Mohammedan wife to enfranchise herself from the bonds of her husband by Faskh, where is the need for enacting a law enabling a woman to obtain divorce of her husband ?" This question has been correctly posed by him but was answered incorrectly and confusedly. He did not pursue the question to its logical end and has landed himself in an erroneous conclusion. To dispel any doubts on this question. I think it necessary to discuss the first aspect in some detail.
16. There is some confusion regarding the scope of the word 'Faskh'. The word 'Faskh' is an arabic word, which is translated in a Dictionary of Modern written Arabic by Hanswehr as "cancellation, abolishment, recision revocation, abrogation, annulment etc." In the Muslim Law by Tyabji at page 143, note No. 5, it is stated: "In Arabic. Faskh equals to annulment, or cancellation or judicial recision of contract." "and at page 194 beneath Section 211, it is observed as "dissolution of marriage by Courts: by Faskh". In the book , on Muslim Marriage and its Dissolution' by Shri R. B. Sethi at page 78, it is said:
"Kinds of divorce .......................
(7) Faskh cancellation of marriage or judicial or juridical separation." This word does not find a place in Mulla's Mohammedan Law, in the famous shaffi text 'Minhaj' or in the Hanaffi text Hidays.
17. My object in giving the exact meaning of the word 'Faskh' is to highlight the point that 'Faskh' means dissolution and it is not a ground on which marriage between a Muslim woman and man can be dissolved. To repudiate the marriage toy 'Faskh' without the intervention of a Court is opposed to the law of the land. It was to prevent such abuses that the Act has been enacted. It without intervention of Courts, marriage can be dissolved by the unilateral repudiation by the wife calamitous results will follow. There have been instances in the past where unscrupulous fathers-in-law or other near relatives of the wife resorted to "free advice" from "agreeable men" learned in theology to get rid of recalcitrant or poor sons-in-law but loving husbands. It is the duty of Courts to guard against any such encroachment in its domain by unscrupulous persons. No person, however great or learned should be allowed to usurp the functions of a Court. The advice given by a person, no matter however learned or great, can hardly be a substitute for a decree of Court. It is therefore clear that the unilateral repudiation of the marriage by the wife in this case does not have the sanction of law and at the time" she entered into the second marriage her first marriage with P. W. 2 was subsisting. In this case, there is the additional circumstance of the wife having taken resort to a civil suit for getting her marriage dissolved, where she failed. She should, therefore, be imputed with, the knowledge that to get a divorce she should necessarily move the Court. As discussed above, the suit was a counterblast to the suit by P. W. 2 for restitution of conjugal rights. Of course, she did not succeed in that suit. If all unsuccessful wives before Courts can seek shelter under an advice given by a 'learned man' and violate the provisions of law and disobey the decrees of Courts, we will be bringing down the authority of law and dignity of Courts. I have therefore no hesitation in holding that the repudiation of marriage by Faskh by the first respondent has no legal sanction and in spite of the alleged Faskh, the marriage between P. W. 2 and the first respondent continued.
18. In this connection, the observation of the Lahore High Court in Abdul Ghani v. Sardar Begum, AIR 1945 Lah 183 can be usefully referred. There, a suit for dissolution of marriage by the wife on the grounds of failure to pay maintenance and cruelty was filed. The suit was decided on oath. When the plaintiffs father was examined, the defendant-husband stated that if he would place his hands on the Holy Quran and say on oath that he had no knowledge about some ornament, he was prepared to suffer a decree being passed for dissolution. This offer was not accepted by the plaintiff while her father was willing to make a statement on oath which he did. Thereupon, the Court passed a decree for dissolution of marriage in favour of the plaintiff. This decree was confirmed by the District Judge in appeal. The matter came up before the Lahore High Court in second appeal. Abdul Rahman, J., while disposing of the appeal observed:
"It must be remembered that the suit was for dissolution of marriage and the plaintiff could not be held entitled to a decree until she had made out her claim under Section 2. Dissolution of Muslim Marriages Act (Act 8 of 1939). Both the Lower Courts appear to have treated a case of dissolution of marriage like any other case which could be settled by an oath or arbitration and in this both of them were mistaken. They should have taken care, as already observed by me that in a case of this kind it is the Court which has to perform the functions of a Qasi and it is the pronouncement of the Court which dissolved the marriage and that function could not he delegated by the Court to any one else either by arbitration or even by accepting the statement of a witness even with the consent of a party at least on an immaterial point in the case."
19. The second question is whether the accused acted in good faith on the advice of D. W. 1. It cannot be disputed that the conduct of the accused in the case constitutes an actus reus. The further question to be decided is whether it is accompanied by mens rea. The physical aspect of the crime having been proved let us examine whether there is absence of mens rea. In this connection I propose to consider some of the cases cited. In State v. Mohammed Alim Sahib, 1950 Ker LT 472. It was held that "a Muslim wife belonging to Shaffi school can dissolve her marriage without the intervention of a Court of law on the ground of the inability of the husband or that he has been neglecting to maintain her for a long time." It was further observed by the learned Chief Justice in the case:
"If the Government desire to regulate marital relationship with special reference to the rights of wives among the Muslim population of this State, the proper procedure to adopt would be to introduce legislation on the lines of Muslim Marriages Act (Act 8 of 1939 of the Indian Dominion)."
This case lays down that in the absence of an enactment like the Act in question dissolution of marriage at the instance of Muslim wife was possible without the intervention of Court. This was the case in the erstwhile Travan-core-Cochin area. In the case the Court observed the need for extension of the Act to the Travancore-Cochin area.
20. In Janaki Amma v. Padmanabhan Nair. 1954 Ker LT 977 in a suit for dissolution of marriage on husband's petition, orders were passed by the Munsiff allowing dissolution. When this order of dissolution was in force, the first accused in that case married the second accused. The matter was taken In appeal and in the appeal the order of the Munsiff was set aside and a fresh enquiry was ordered. As a result of such enquiry, the petition was ultimately dismissed. Thereupon, the first wife brought an action under Section 494, I. P. C. In that case a single Judge of the Travancore-Cochin High Court held that the decree declaring the first marriage void was in existence when the accused contracted the second marriage and therefore it cannot be said that he had A culpable guilty knowledge that he was doing something unlawful. This case is not serviceable for the case in hand.
21. In Ismail v. Kadeeja Umma, 1958 Ker LT 1042 - (AIR 1959 Ker 119) a Division Bench of this Court held that an action under Section 494. I. P. C. will not lie against a Muslim couple when, the wife had repudiated the marriage by Faskh. There again, this Court was considering a case which arose from the Travancore area where Act 8 of 1939 was not extended then and therefore the principle laid down in that decision if not applicable to the case in hand. Ad 8 of 1939 was extended to the Travancore area only on 1-2-1960. This case therefore cannot be an authority for the proposition that a Muslim wife can by Faskh dissolve her marriage with her husband. The learned District Magistrate considered this case and held that Faskh was a valid mode of divorce. The distinction was not brought to his notice and the principle enunciated in that decision has not been properly considered. This decision was rendered prior to the extension of Act 8 of 1939 to the Travencore Area. The position is now well-settled that marriage cannot toe repudiated by a Muslim wife except under the provisions of the Act.
22. In K. P. Ahmed Koya v. K. P. Amina Beebi, 1972 Ker LJ 189 the wife claimed that the acceptance by the husband of the Ahamadeeya persuasion made him an apostate and that the marriage with her was ipso facto dissolved on his apostacy. In that case, kazi of Kozhikode advised her accordingly. Sadasivan. J. held that the accused were entitled to the protection of bona fide belief. This case came before this Court at en earlier stage at the instance of the kezi of Kozhikode against whom charge was framed as an abettor to the charge of bigamy. He contended that under the Islamic Law an Ahamadeeya is not a Muslim and therefore the marriage was automatically dissolved on the husband accepting the tenets of Ahamadeeya feith. In Imbichi Koya Thangal v. Ahammed Koya. 1971 Ker LT 68 -(AIR 1971 Ker 2061 Krishna Iyer J. held that the order framing charge was correct. In his illuminating judgment Krishna Iyer J. posed the question 'who is a Muslim ?' and save an acceptable definition and thus succeeded where the Ulemas failed, for Chief Justice Munir lamented at "the sorry spectacle of the Muslim divines, no two of whom agreed on the definition of a Muslim." The case therefore went back to the District Magistrate and then the accused pleaded that they acted in good faith and there was no mens rea. The learned District Magistrate acquitted the accused. It was against that acquittal that an appeal was taken by the defeated husband which resulted in the decision referred to earlier, namely, K. P. Ahmed Koya v. K. P, Amina Beebi. 1972 Ker LJ 189. Sadasivan. J. held that the parties before Court were acting under an advice given by the kazi of Kozhikode who was the undisputed religious head of Muslims of Kozhikode and that there was a large section of Muslims still in India who consider Ahamadeeya as infidels. On these two grounds the learned Judge confirmed the acquittal. That decision can apply only to the particular facts there.
23. In this case, ignorance of law cannot be put forward. The wife knew fairly well that her remedy was in a Court of law and she moved the Calicut Munsiff's Court for dissolution of her marriage. That suit was dismissed. She cannot now turn round and say that she did not know the law or that she was under the bona fide belief on the strength of the advice given by D. W. 1 that she could unilaterally repudiate her marriage and enter into another marriage. There is no justification for her action. This is a clear violation of the provisions of Act 8 of 1939 and a culpable guilty mind is clearly made out from the facts of the case. I therefore hold that the first accused is not entitled to the protection on the strength of bona fide based on the advice given by D. W. 1.
24. It will be interesting to consider the authority the first accused relied upon for repudiating her marriage with the appellant. The authority is none other than D. W. 1. D. W. 1 is one Shri K. M. Moideen Kunhi aged about 41, whose calling is shown as a Maulavi. His Qualification is that he had written religious books and articles in Malaya-lam. He deposed that the first and 3rd accused went to his house and asked him whether the wife had a right to repudiate her marriage and the reply that he gave was under religious law a muslim wife can divorce her husband. He adds that this opinion is known ,as Faskh in Arabic language and once Faskh is pronounced the marriage is automatically dissolved. He also adds that he is an Ulema in Arabic language. The witness has been glorified by the learned District Magistrate as a commentator in Sheriat Law. I do not propose to make any comments on this. Suffice if to say that D. W. 1 has exhibited ignorance of the law of the land. If the law of the land can be defeated by gratuitous advice from such 'learned men', that will be bringing down the authority of law. The law of the land binds the commoner and the divine alike.
25. In the result. I find accused 1 and 2 guilty. The first accused is guilty for the offence under Section 494. I. P. C. and the 2nd accused is guilty for the offence under Section 494 read with Section 109, I. P. C. and they are convicts ed accordingly.
26. The learned counsel for the appellant did not press his case against the other accused and I find the evidence in the case also is not conclusive regarding their participation or their abetment and their acquittal is there-fore confirmed.
27. Now the question of sentence remains. Section 494. I. P. C. lays down that an accused guilty under that section is liable for imprisonment for a period of upto seven years. The fact that the sentence is so high is an indication how grievous the offence is. The object is to preserve the purity of the society. My difficulty in imposing a sentence in this case is that the marriage between the first accused and P. W. 2 took place in 1950 and the second marriage was in 1969. The appellant is also now married. An admonition and a public censure under Section 562. Criminal P. C. would have been sufficient in the circumstances of the case. But the provisions of Section 562. Criminal P. C. cannot be invoked in view of Section 19 of the Probation of Offenders Act. I therefore directed the first and second accused to appear in Court to-day. They are present. I sentence them to imprisonment till the rising of the Court.
In the result, the criminal appeal is allowed to the extent indicated above. Order accordingly.