habibur rahman molla vs state

8/16/2019 Habibur Rahman Molla vs State

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Habibur Rahman Molla Vs. State, 2008, 37 CLC (HCD) 87!8"

Supreme Court

High Court Division

(Criminal Jurisdiction)

Present:

Mohammad Anwarul Haque J

arah Mah!u! J

Habibur Rahman Molla………………………………………………………….Petitioner

Vs.

The State………………………………………………………………………………..State

Judgment

November 20, 2008.

"esult:

The Rule is dischar ed.Cases Re#erre$ to%

!bdul Ha"im Vs. The State, #$ %&R 'a e ($2) *overnment o+ Peo'le s Re'ublic o+ -an ladVs. /bal Hasan Mahmood Tu"u, 0 %&R 1!% 'a e 3#) Niamat !li Shei"h and others Vs.-e um 4na5etur Noor and others, 3( -&% 1!% 'a e 33) 6adud Vs. The State, #8 %&R 1!%*olam Sar7ar Hiru Vs. The State and another, 3( M&R 1!% 'a e 302) State o+ H.P. Vs. &eRa , 2000 S99 19rl. 3#:) *olam Sar7ar Hiru Vs. The State and another, 3( M&R 1!% 'a30(.

#aw$ers %nvolved:

Abdul Motin Khosru with Sk. Baharul Islam with Motiur Rahman with Md. Habibur Rahman Mollah, Advocate- For the Accused !etitioner.

A.S.M. Abdul Mobin, "e#ut$ Attorne$-%eneral with S$ed Mohammad &abed !arve', Assistant Attorne$-%eneral- For the State.


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Md. Khorshed Alam Khan, Advocate- For the A((.

Criminal Miscellaneous &o' o* ++,'

Judgment

Mohammad Anwarul Haque J'- The Rule 7as issued, at the instance o+ the 'etitioner HabiburRahman Mollah, the accused o+ S'ecial 9ase No.30 o+ 2008 arisin out o+ *.R. 9ase No.33200: corres'ondin to Ramna Model P.S. 9ase No.0 dated 0(.30.200: under sections 2 1213 o+ the !nti=9orru'tion !in, 200# read 7ith section 3$*ha 1$ o+ 4mer enc5 Po7ers Rule200: 'endin in the 9ourt o+ S'ecial >ud e, 9ourt No.30, %ha"a callin u'on the o''osite 'ar=ties to sho7 cause as to 7h5 the case, re+erred above, shall not be /uashed and< or such other+urther order or orders 'assed as to this court ma5 seem +it and 'ro'er.

2. n short, +acts relevant +or dis'osal o+ this Rule are as +ollo7s?

@n (.30.200: one S5ed !hmed, !ssistant %irector, !nti=9orru'tion 9ommission lod ed an A R7ith Ramna Model Police Station alle in ,inter alia , that the accused='etitioner HabiburRahman Mollah, 4B=Member o+ Parliament, havin been served 7ith a notice under memo No.%uda"ud e, 9ourt No.30, %ha"a on the round that neither the sanction as re/uired under

section (213 o+ the !99 !in, 200# has been obtained nor the 'rescribed 'eriod +or investi atiunder rule 30 o+ !99 Rules, 200: has been +ollo7ed to submit the 'olice re'ort. @n such counRule 7as issued and the trial 7as sta5ed.

$. Mr. Md. !bdul Motin Fhosru the learned !dvocate a''earin on behal+ o+ the accused= 'etitioner at the ver5 out set o+ his ar ument submits that in the instant case en/uir5 o++icerstarted his en/uir5 vide !nti 9orru'tion Memo No.Puda"


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contain an5 conse/uence a++ectin the 'rosecution case in an5 manner. n su''ort o+ the saidcontention he has re+erred the decision o+ the case o+ 6iamat &li Shei'h an$ others Vs. 1e+um

na etur 6oor an$ others re'orted in53 1LD (&D) *a+e 55 7here their &ordshi's haveobserved re ardin time=limit in a trial o+ criminal case b5 incor'oratin a ne7 section ((;9 the 9ode o+ 9riminal Procedure) G t a''ears to us that section ((;9 7as enacted in order to

in ect a s'irit o+ utmost eB'edition, s'eed and ur enc5 in the trial o+ 9riminal cases, but it donot a''ear +rom the lan ua e used in section ((;9 that it 7as the intention o+ the le islature to bid a +are7ell to the 7ell="no7n conce't o+ criminal uris'rudence a criminal com'laint su+++rom no la7 o+ limitation and that an alle ed criminal act 7ill never o to untried.G

8. n su''ort o+ it the learned !dvocate has also re+erred another decision o+ a case9a$u$ Vs.he State re'orted in 8 DLR (&D) *a+e%4 7here their &ordshi's o+ our !'eB court have iven

an identical vie7 re+erred to above.

;. The learned !dvocate a''earin on behal+ o+ the !99 +urther oes to 'oint out that thesanction as re/uired under section (213 o+ the !nti 9orru'tion !in, 200# has been dul5 obtain

in the 'resent case and as such /uestion o+ Gmechanical sanctionG as alle ed b5 the accused 'etitioner does not, at all, arise. n this re ard his contention is that the ne7 le islation o+ !9!in, 200# has clearl5 'rovided GAorm No.(G under rule 3$1: o+ the !99 Rules, 200: in ordeaccord sanction +or 'rosecution 7here the 9ommission has or had no sco'e to assi n an5s'eci+ic reason in su''ort o+ it s satis+action. The learned !dvocate has also ar ued that sincesaid GAormG is a 'art o+ the statute there lies no o''ortunit5 to incor'orate or im'ort even a 7oin order to assi n an5 reason o+ it s satis+action in su''ort o+ the 'rosecution case 7hich 7asavailable in the 'revious statute, as such the decision cited b5 the 'etitioner re'orted in! DLR

*a+e 3!2 has no manner o+ a''lication in the 'resent case. Moreover, the G7or"in da5sGconsumed b5 the investi atin o++icer +or com'letion o+ investi ation, as have been sho7ncounter a++idavit, are 7ithin the 'rescribed 'eriod o+ limitation, as such no mischie+ has been

caused to the 'rosecution case in an5 manner 7hatsoever. n +ine, the learned !dvocate +or th!99, re+errin a decision o+ a case o+olam Sar:ar Hiru Vs. he State an$ another re'ortedin 53 MLR (&D) *a+e 502, submits that since as man5 as 3: 7itnesses have alread5 beeneBamined and cross=eBamined durin the course o+ trial in no 7a5 the same can be the submatter o+)uashment under section $ 3=! o+ the 9ode o+ 9riminal Procedure.

30. !s to the /uestion o+ violation o+ section 2(# o+ the 9ode o+ 9riminal Procedure the learn!dvocate +or the o''osite 'art5 No.2 has candidl5 ar ued that b5 incor'oratin section 13- ithe 9riminal &a7 !mendment !ct, 3;$8 1vide @rd. No.V


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32. There is no denial o+ the +act that +or the 'ur'ose o+ rec"onin Gda5sG durin the coursin/uir5, investi ation and trial onl5 G7or"in da5sG are relevant as has been s'eci+icall5enumerated in the statute itsel+. n the instant case, the accused='etitioner has mentionedGcalendar da5sG in his a''lication in order to alle e violation o+ rules : and 30 o+ the !99 Ru200: 7ith re ard to com'utation o+ time 7hich can not be acce'ted) rather on the +ace o+ the

statutor5 'rovisions the account o+ G7or"in da5sG as iven b5 the o''osite='art5 No.2 is to acce'ted 7hich has been 'laced be+ore this court b5 a counter a++idavit. The 'rovisions as toen/uir5, rule : o+ the !99 Rules, 200: comes to 'la5 be+ore lod in the A. .R. under section o+ the 9ode o+ 9riminal Procedure. Moreover, be+ore recordin a case under section 3$# o+9ode an5 activities underta"en b5 the !nti=9orru'tion 9ommission is to be considered as anGadministrative actG 7hich can not be brou ht +or G udicial Scrutin5G under section $ 3=9ode in as much as the 7ords Gan5 courtG em'lo5ed in section $ 3=! must be understood tomean a Gcriminal courtG. To have this vie7, 7e ma5 sa+el5 rel5 u'on the decision o+ the cas

o-t. o# the eo*le/s Re*ubli o# 1an+la$esh Vs. bal Hasan Mahmoo$ u'u re'orted in40 DLR (&D) *a+e 5 7. Moreover, the 'o7er con+erred under section $ 3=! o+ the 9ode can not bli htl5 eBercised in order to de+eat and dela5 the normal 'rocedure or to bid +are7ell to the

alle ed o++ender a ainst 7hom s'eci+ic alle ation is available to commit a 'unitive o++enceon Gh5'er technicalG round. n +act, s'eci+ic time has been +iBed b5 the statute to be +ollobserved b5 the authorit5 concerned in ever5 sta e in order to create 'ressure +or eB'editioudis'osal, not to bid +are7ell to the o++ender 7ithout trial on such technical round. n thisconnection, 7e must /uote the +ollo7in observations made b5 the !'eB 9ourt o+ ndia in a co+ State o# H. . Vs. Le'h Ra;, re'orted in2000 SCC (Crl.) 5 7.

GThe court are not obli ed to ma"e e++orts either to ive latitude to the 'rosecution or looseconstrue the la7 in +avour o+ the accused. The traditional do matic h5'er technical a''roach hto be re'laced b5 rational, realistic and enuine a''roach +or administerin ustice in a crimitrial. 9riminal uris'rudence cannot be considered to be an uto'ian thou ht but have to be

considered as 'art and 'arcel o+ the human civiliEation and realities o+ li+e. The courts can ni nore the erosion in values o+ li+e 7hich are a common +eature o+ the 'resent s5stem. Sucherosions can not be iven a bonus in +avour o+ those 7ho are uilt5 o+ 'ollutin the societ5the man"ind.G

3(. The relevant statutor5 la7s and the decisions in this res'ect iven b5 our !'eB 9ourt alsoclearl5 indicate that all these 7ere 'romul ated to have an e++ective control over theinvesti atin and trial a encies, not to +rustrate the 'rosecution case and to leave the accuse 'etitioner +rom the clutch o+ trial or to /uash the 'roceedin or the round o+ h5'er=technilita ainst such 'erson 7ho alle ed to have committed o++ences under the !nti=corru'tion9ommission !in, 200#.

3#. No7, let us eBamine 7hether the 'rovisions laid do7n in Rule 30 o+ the !99 Rules,200: ansection ! o+ the 9riminal &a7 !mendment !ct, 3;$8 so +ar it relates to the 'rescribed 'eriod oinvesti ation and trial res'ectivel5 has been com'lied 7ith or not. @''osite='art5 No.2 b5 +ilincounter a++idavit has iven the account in details about the time, consumed +or investi atio7here $; G7or"in da5sG are +ound to have been eBhausted +or the 'ur'ose o+ investi ationthe instant case. n s'ite o+ that, 7e also +eel it ur ent to decide 7hether the 'rovisions laid d


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in Rule 30 o+ the !99 Rules, 200: and ! o+ the 9riminal &a7 !mendment !ct,3;$8 ismandator5 or director5.

3$. Rule 30 o+ !99 Rules 200: and section ! o+ the 9riminal &a7 !mendment !ct, 3;$8 are/uoted belo7?=

. =

1 ! " # # =$ % & ' ( ) *& ) + ,

1 - 1 % - ! " ( . / 0 & 1 , ) - & 2 -. !

3 4 . 4 5 % 6 -.7 5 8 8 ) -. 4 -.

! ,19 I I I I I I I I I I I

1: - = 19 % & ; 2 5 < & = & >" 4 8 ) ? ; @ - = 19 ( ; 2 A " 5 8 B 2 C & = 4 ) A " A" 4 ( ) 5 @ >) D 1de'artmental 'roceedin s= & % 6 % 7 0C E ) B 2 C & @ >) D = & ,

1$ % ) 0 @ > 0C E F G @ < => H ) 0#IA ) ( ) 0 " J 0 H ) 19ase %air5 K 6 C& ,

1L - = 1L % ) K ; 6 C H ) ( @ > 4 3 M N ( A " 0 & - 6 ( . ,

1O % ) 0 A - P " -. N + 6 C 5 # # =Q ( )

K ; 6 RS C 0 AT 2 % 6 + 0C E F G @ < 2 ,

GJ.A' /ime-limit *or trial'- 13 Not7ithstandin an5thin contained in the 9ode o+9riminal Procedure, 38;8 in res'ect o+ time=limit +or trial o+ o++ences, the S'ecial >udshall sub ect to the 'rovision o+ sub=section 12 , conclude the trial, o+ an o++ence 7i+ort5 +ive da5s +rom the date o+ ta"in o+ co niEance.G

12 + trial cannot be concluded 7ithin the time=limit mentioned in subsection 13 , thS'ecial >ud e shall, a+ter recordin a''ro'riate reasons in 7ritin , cancel the trial 7ithin+i+teen da5s neBt therea+ter.KG


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3 . n +act, the lan ua e o+ the statute is not al7a5s a decisive +actor in determinin 7heth 'articular 'rovision o+ a statute is mandator5 or director5. The lan ua e o+ the statute can noal7a5s be +aultless, and this leaves room +or udicial discretion to inter'ret the 'articular 'rovision as mandator5 or director5 7ith re+erence to the intent o+ the le islature. So theintention o+ the le islature is the overnin and re ulatin +actor here. The intention o+ th

le islature has to be athered not onl5 +rom the 'hraseolo 5 o+ the 'rovision, but also b5considerin it s nature, it s desi n, scheme and the conse/uences 7hich 7ould +ollo7 +romconstruin it in one 7a5 or the other. n this connection MaB7ell observed=

G6hen a statute re/uires that somethin shall be done or done in a 'articular manner or+orm, 7ithout eB'ressl5 declarin 7hat shall be the conse/uence o+ non=com'liance, is re/uirement to be re arded as im'erative 1or mandator5 or merel5 as director5 1or 'ermissive .

I I I I I I I I I I I I I I I I

-ut 7hen the 'ublic dut5 is im'osed and the statute re/uires that it shall be 'er+ormed in acertain manner, or 7ithin a certain time or under other s'eci+ied conditions, such 'rescri'tionsma5 7ell be re arded as intended to be director5 onl5 in cases 7here in ustice or inconvenieto others 7ho have no control over those eBercisin the dut5 7ould result i+ such re/uiremen7ere essential and im'erative.G 1MaB7ell inter'retation o+ Statute 30th 4dition 'a e (:

3:. 6ith this vie7 in mind 7e are o+ o'inion that since conse/uence has not been iven underrule 30 o+ the !99 Rules, 200: or section ! o+ the !ct, 3;$8 in case o+ +ailure to obli e theGtime=limitG as such the accused can not derive an5 bene+it out o+ it. n su''ort o+ this viema5 sa+el5 rel5 u'on the decision o+ the case re'orted in53 1LD (&D) *a+e 55.

38. No7, let us eBamine 7hether GsanctionG +or 'rosecution as re/uired under section (213the !99 !in=200# has been iven or not. No doubt GsanctionG as re/uired under the said 'rovision o+ la7 is 'recondition +or ta"in co niEance o+ the o++ence as described in the sco+ the !in but 7e can not acce't this vie7 in the li ht o+ the decisions re+erred b5 the learned!dvocate +or the 'etitioner that this sanction is not a sanction in the e5e o+ la7 since no reasohas been assi ned +or it s satis+action. n +act, this decision re+erred to above b5 the learnvocate +or the 'etitioner 7as based on section 1$ o+ the 9riminal &a7 !mendment !ct, 3;$87here State 7as the 'rosecution and that no +ormat li"e that o+ GAorm=(G o+ the !99 Rules,=200: 7as ever incor'orated therein) -ut 7ith the 'romul ation o+ the !nti 9orru'tion !in, 200#the entire scheme o+ the 'rosecution has been chan ed. The ne7 !nti 9orru'tion !in, 200# has 'rovided ne7 Rules in order to re ulate sanction or other sta e o+ the en/uir5 and trial o+ thecase.

3;. Section (2 o+ the !nti=9orru'tion !in, 200# runs as +ollo7s?

:9, ( =


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0#IA ) 5 U " 0 5 ' ( 8 ( 0 , 3 ( 1sanction " 0 5 % 5 ) 0 4 8 5

= & 1co niEance ,

9 % 5 ) 0 3 3 ( = &

% 6 ; < ( E % + 5 ,LThe above 'rovisions, incor'orated in the 'arent enactment, is to be read 7ith the 'rovision aslaid do7n in rule 3$ o+ the !nti 9orru'tion 9ommission Rules, 200: 7here the 'rocedures o+such sanction has been narrated in details, 7hich runs as +ollo7s?

L,= ( 2 =

1 C" = V )C= )C 4 A )+ 4 3 M , 0CE A" , ( % + C

- ,

19 I I I I I I I I I I I

1: I I I I I I I I I I I

1$ I I I I I I I I I I I

1L I I I I I I I I I I I

1O I I I I I I I I I I I

1Q 5 :9 % ) 0C E % ( ) ( 0> 0 7 W " ) -. ( 5 " @ # # =: ( 5 ,L

No7 let us /uote the Aorm ( 7hich is to be used +or sanction?

# =:

( E

J L 1Q XS " K

( )

......................

..........................,


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V 6 U9 J8 6.......K

N U < 4 A )+ ( Y ,

( Z ) ; ; ( Z < ) ; ; C" V " " 0 H E 4 ( ) ( S ( ) 5 , 9 $ % :9 % 6 ( ) , 9 Q % .................% - = ............% < C [ . " . B 2 \ . < 4 A )+ ( Y U

D 6

, ) ]

1 ^ C

=

)=

=


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=

A ...........................

#_ # < - = ) 4 < ) 4 < - = 4

( )

................................,

( U , Y 0` AA ............................

9, 5 ) > ) ; C,

:, BA ( ) *& ) , L

20. 6e have alread5 observed above that GAorm=(G is the 'art o+ the statute and accordin l57hen a s'eci+ied +orm has been 'rescribed in the statute +or 'articular 'ur'ose the sanctioninauthorit5 has no sco'e to assi n an5 reason o+ its satis+action be5ond the said +ormat iven

+orm, /uoted above. So, the decision iven on the basis o+ 'revious le islation re+erred b5 tlearned !dvocate +or the accused 'etitioner has no manner o+ a''lication in the 'resent sta e oa++airs so +ar it relates to sanction under section (213 o+ the !nti=corru'tion !in, 200#.

23. Moreover, the learned !dvocate a''earin on behal+ o+ the accused='etitioner has also trieto convince us that the sanction b5 a 9ommissioner on behal+ o+ the !nti=9orru'tion9ommission is no sanction in the e5e o+ la7 as contem'lated in section (213 o+ the !99 !in,200# because as 'er section $ o+ the !in, 200# G9ommissionG means all the three members o9ommission. -ut section 38 o+ the !99 !in, 200# clearl5 ives a di++erent 'icture den5in thecontention o+ the learned !dvocate +or the accused='etitioner 7hich runs as +ollo7s?

a , C >, 1 % 5 ) C , - 0C E 0 0 0 7 C , -. 0 7 C >

,L

22. The above 'rovision as laid do7n in section 38 has clearl5 em'o7ered an5 member o+ the9ommission to 'er+orm the dut5 o+ the 9ommission. n the instant case, admittedl5 one o+


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members o+ the 9ommission has been em'o7ered to accord sanction on behal+ o+ thecommission.

2(. Moreover, there is no sco'e to challen e the e++icac5 o+ the sanction 7hich has beenaccorded in Aorm No.( under rule 3$1: o+ the !99 Rules, 200: 'rescribed b5 the le islature

+act, the recital o+ the sanction order clearl5 sho7s that sanctionin authorit5 7as satis+ied, scrutiniEin the record, 'roduced in res'ect o+ the alle ation brou ht a ainst the accused 'etitioner to accord sanction +or 'rosecution. !ll other relevant evidence 7hich 7ould have tiltthe balance in +avour o+ the accused i+ it 7as considered b5 the sanctionin authorit5 be+or

rantin sanction 7hich 7as le+t out o+ consideration could be eBamined onl5 at the sta e o7hen Gsanctionin !uthorit5G comes +or7ard as 'rosecution 7itness to su''ort the sanctionorder, i+ challen ed durin the course o+ trial. The instant case is no7 at that sta e 7here onumber o+ 7itnesses have been eBamined, and cross=eBamined, as such 7e do not +ind an5to invo"e our inherent urisdiction to /uash the 'roceedin on this count.

2#. No7, let us see 7hether on the +ace o+ the 'rovision laid do7n in section 13- o+ the

9riminal &a7 !mendment !ct, 3;$8 incor'orated in the 5ear 3;:; the 'rovision o+ section 2(#the 9ode o+ 9riminal Procedure is a''licable or not.

Section 13- o+ the 9riminal &a7 !mendment !ct is /uoted belo7?

G! 'erson accused o+ more o++ences than one 'unishable under this !ct ma5 be tried at trial +or all such o++ences.G

6hereas Section 2(# o+ the 9ode o+ 9riminal Procedure ives a di++erent 'icture limitin the 'eriod o+ o++ence 7hich runs thus?

GThree o++ences o+ same "ind 7ithin 5ear ma5 be char ed to ether=1: 6hen a 'erson is accused o+ more o++ences than one o+ the same "ind committed7ithin the s'ace o+ t7elve months +rom the +irst to the last o+ such o++ences, 7hether ires'ect o+ the same 'erson or not, he ma5 be char ed 7ith, and tried at one trial +or, an5number o+ them not eBceedin three.G

2$. The 'eriod o+ one 5ear is available in section 2(# o+ the 9ode o+ 9riminal Procedure but absent in section 13- o+ the 9riminal &a7 !mendment !ct and thereb5 in vie7 o+ the 'rovision laid do7n in section 13 o+ the 9riminal &a7 !mendment !ct, 3;$8 section 13-eBcludes the a''lication o+ section 2(# 7hich relates to the 'eriod o+ the commission o+ the

alle ed o++ence.2 . @n 'erusal o+ the record it is +ound that the learned Senior S'ecial >ud e, %ha"a has rethe case record on 2(.#.2008 7ho a+ter ta"in co niEance o+ the o++ence 'unishable undersections 2 12 and 2:13 o+ the !99 !in, 200: trans+erred it to the S'ecial 9ourt No.30 +or tr7hich 7as received b5 the concerned court on 2#.#.2008, 7ho +iBed u' the date o+ +ramin char e. Dltimatel5 char e 7as so +ramed on 3#.$.2008 re ectin the 'ra5er o+ the accused= 'etitioner +or dischar e3 under section 2#3! o+ the 9ode o+ 9riminal Procedure. @n 23.$.20


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P.6.3 7as eBamined and cross=eBamined and therea+ter as man5 as other 3 7itnesses are +oto have been eBamined till 23.:.2008. !t that sta e the learned !dvocate o+? the accused= 'etitioner submitted a certi+icate statin that all +urther 'roceedin s o+ the instant case has bsta5ed b5 this court in 9riminal Misc. 9ase No.33232o+ 2008 and conse/uentl5, it has beensta5ed.

2:. Rel5in u'on the decision o+ the case o+olam Sar:ar Hiru Vs. he State an$ another re'orted in53 MLR (&D) *a+e 503 7e are also o+ o'inion that at this sta e o+ trial 7hereevidence o+ 3: 7itnesses have alread5 been recorded b5 the trial court the a''lication +or)uashment o+ the criminal 'roceedin under section $ 3! o+ the 9ode cannot be alsoentertained.

6ith this vie7 o+ the matter 7e +ind no merit in the Rule and accordin l5 it is liable to bedischar ed.

n the result, the Rule is dischar ed.

The order o+ sta5 'assed at the time o+ issuance o+ the Rule is hereb5 vacated.

4d.

his Case is also Re*orte$ in< 2; -&% 1H9% 1200; 22:.

Hussain Mohamma$ rsha$ Vs. =ahe$ul slam >han an$ others, 2005, 30 CLC (&D) 5354"

Supreme Court

Appellate Division

(Civil)

Present:

Mahmudul Amin Choudhur$ CJ

Mainur "e0a Chowdhur$ J

Md' "uhul Amin J

Md' 1holam "a!!ani J

Hussain Mohammad 4rshad....................Petitioner

Vs.


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Cahedul slam Fhan and others............. Res'ondents

Judgment

!u ust 22, 2003.

"esult:

The a''eal is dismissed.

Offences under the Prevention of Corruption Act, 1947 amounts to moralturpitude. Whenever a member of the Parliament is convicted of such anoffence and sentenced to imprisonment for two ears or more he incursdis!ualification under Article "" and shall vacate his seat automaticall underArticle "7 of the Constitution and there is no necessit or re!uirement ofe#amination of the same b the $lection Commission%%. &1'(

#aw$ers %nvolved:

Abdul Malek, Senior Advocate *ABM +urul Islam, Senior Advocate with him instructed b$ Mvi Md ahidullah, Advocate-on -Record For the !etitioner.

Rokanuddin Mahmud, Senior Advocate, *MK Rahman, Advocate with him instructed b$Shari/uddin (haklader Advocate-on-Record For the Res#ondent +o. 0.

+ot re#resented Res#ondent +os. 1, 2 3 4.

Civil Petition *or #eave to Appeal &o' 2,3 o* ++ '

1Arom ud ment and order dated =2=2003 'assed b5 the Hi h 9ourt %ivision in 6rit Petit No. 2:22 o+ 2000 .

Judgment

Mahmudul Amin Chowdhur$ CJ'- This 'etition +or leave to a''eal is a ainst ud ment andorder dated =2=2003 'assed b5 a %ivision -ench o+ the Hi h 9ourt %ivision in 6rit Petition2:22 o+ 2000 ma"in the Rule absolute.

2. The short +act leadin to this 'etition is that res'ondent Nos. 3 and 2 +iled the said 7rit 'etialle in that the 'etition=Hussain Mohammad 4rshad 7as elected member o+ Parliament in teneral election held on 32= =3;; +rom 23 Ran 'ur ( 9onstituenc5. !+ter he vacated the o+

o+ the President o+ the countr5 the -ureau o+ !nti 9orru'tion started several cases a ainst himinvolvin corru'tion under sections $13 and 12 o+ the Prevention o+ 9orru'tion !ct, 3;#: 1

o+ 3;#: amon st 7hich S'ecial 9ase No. 33 o+ 3;;2 7hich arose out o+ Moti heel PS 9a No. #81# ;3 7hich is commonl5 "no7n as >anata To7er 9ase is one o+ them, and in that cas7as +ound uilt5 and convicted and sentenced to under o sim'le im'risonment +or seven 5ea


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+or committin criminal misconduct under section $13 1d and 1e o+ !ct o+ 3;#: b5 and order dated := =3;;( b5 the !dditional Sessions >ud e, 2nd 9ourt and 4B=@++icio S'ec>ud e, %ha"a. ! ainst that conviction and sentence the 'resent 'etitioner 're+erred 9riminal!''eal No. 33(2 o+ 3;;( be+ore the Hi h 9ourt %ivision 7herein the order o+ conviction 7ascon+irmed but the sentence o+ im'risonment 7as reduced to +ive 5ears sim'le im'risonment a

7as also ordered to 'a5 a +ine o+ Ta"a. $,#8,:0,800 in de+ault to su++er im'risonment +or t7o5ears b5 ud ment dated 2#=8=2000. ! ainst that order 'assed b5 the Hi h 9ourt %ivision t 'etitioner moved this %ivision in 9riminal Petition +or &eave to !''eal No. 22 o+ 2000 7hic7as dismissed but the sentence o+ im'risonment 7as absolute b5 ud ment dated =2=2003reduced to the 'eriod o+ im'risonment alread5 under one maintainin the order o+ 'a5ment o+ine o+ the a+oresaid amount in de+ault to su++er sim'le im'risonment +or siB months. t icase o+ the 7rit 'etitioners that in vie7 o+ the a+oresaid order o+ conviction and sentence +oo++ence o+ criminal misconduct and moral tur'itude the 'resent 'etitioner has been dis/uali+i+rom bein a Member o+ &ati$o San5shad in vie7 o+ the 'rovision o+ !rticles 12 1d and :131d o+ the 9onstitution o+ the Peo'le s Re'ublic o+ -an ladesh and, as such, the 'resent 'etitioner is not entitled to act or continue as a Member o+ the Parliament or to sit or attend i

an5 'roceedin o+ the same. t is the case o+ the 7rit 'etitioner No. 3 that he is a voter o+ 23Ran 'ur ( constituenc5 and has a ri ht to be re'resented in the Parliament b5 a /uali+iedMember under the la7 and accordin to the 7rit 'etitioner the 'resent 'etitioner can not beallo7ed to act as a Member o+ the Parliament and continue as such 7hich is violative o+ thea+oresaid 'rovision o+ the 9onstitution.

(. The Hi h 9ourt %ivision issued Rule directin the 'resent 'etitioner to sho7 cause under 7hauthorit5 he is actin as a Member o+ &ati$o San5shad +rom 23 Ran 'ur ( 9onstituenc5 and 7h5he shall not be restrained +rom and to act as Member o+ &ati$o San5shad .

#. -e+ore the Hi h 9ourt %ivision the 'resent 'etitioner entered a''earance and resisted the Rul

b5 +ilin a++idavit=in=o''osition alle in that the criminal case +iled a ainst him are all 'omotivated and in none o+ the cases he 7as convicted +or moral tur'itude and, as such, it doesattract the 'rovision o+ dis/uali+ication under the 9onstitution and the 7rit 'etition has been +a+ter a lon la'se o+ time o+ ei ht


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:. -e+ore 'roceedin +urther let us loo" into the relevant 'rovisions o+ the 9onstitution. !rticle o+ the 9onstitution 'rovides as +ollo7s?

13 ! 'erson shall sub ect to the 'rovisions o+ 9lause 12 be /uali+ied to be elected ato be a member o+ Parliament i+ he is a citiEen o+ -an ladesh and has at the a e o+ 2

5ears.12 ! 'erson shall be dis/uali+ied +or election as or +or bein a member o+ Parliamen7ho=

1a ...................................................................................................

1b ...................................................................................................

1c ...................................................................................................

1d has been, on conviction +or a criminal o++ence involvin moral tur'itudesentenced to im'risonment +or a term o+ not less then t7o 5ears, unless a 'eriod+ive 5ears has ela'sed since his release.

1dd ...................................................................................................

1 ....................................................................................................

12! ..........................................................................................................

1( ............................................................................................................

1# + an5 dis'ute arises as to 7hether a member o+ Parliament has, a+ter his election be+ore sub ect to an5 o+ the dis/uali+ications mentioned in 9lause 12 or as to 7hethmember o+ Parliament should vacate his seat 'ursuant to !rticle :0, the dis'ute shall bere+erred to the 4lection 9ommission to hear and determine it and the decision o+ the9ommission on such re+erence shall be +inal.

1$ Parliament ma5 b5 la7 ma"e such 'rovision as it deems necessar5 +or em'o7erinthe 4lection 9ommission to ive +ull e++ect to the 'rovisions o+ clause 1# .

8. So, +rom this !rticle it a''ears that a 'erson shall be dis/uali+ied +or election or a+ter electio

continue to be a Member o+ Parliament 7ho has been, amon st others, convicted +or a crimo++ence involvin moral tur'itude and sentenced to im'risonment +or a term o+ not less than5ears unless a 'eriod o+ +ive 5ears has ela'sed since his release. -en ali version o+ this !rticle

12 1d runs as +ollo7s?


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1 b F c A 0 0#IA ) 0 N) "d 3 " ( e e % 6 ( . @ 4 8 ,

;. -en ali version o+ this article is ver5 clear on the meanin o+ the 7ords moral tur'itude. Athe -en ali version, the matter has become ver5 clear that one 7ho has been convicted +or N

Stholon and im'risoned +or a term o+ t7o 5ears or more shall be dis/uali+ied to be elected asMember o+ the Parliament and cannot also continue to act as such a+ter his conviction. The 'etitioner 7as convicted and sentenced in the a+oresaid criminal case under section $13 ando+ the Prevention o+ 9orru'tion !ct, 3;#: 1!ct o+ 3;#: 7hich 7as u'held u' to the !''ellate%ivision 7here the sentence o+ im'risonment 7as reduced to the 'eriod alread5 under one7hich is +or over three 5ears.

30. Mr. !bdul Male", learned !dvocate submits that 7hether the conviction resulted in moraltur'itude or not in to be decided b5 the 4lection 9ommission and not b5 the S'ea"er and thematter ou ht to have been re+erred to the 4lection 9ommission. -ut !rticle is ver5 clear othe 'oint, a+ter the conviction and sentence 7as a++irmed u' to the !''ellate %ivision there

remains no dis'ute to be decided b5 the 4lection 9ommission. !rticle 1# is ver5 clear on t 'oint. ! 'erson shall be dis/uali+ied +or election or +or bein a Member o+ Parliament i+ an5the clauses as mentioned in 9lause 1a to 1b o+ the !rticle attracts him. -en ali version o+ !rticle 12 runs as +ollo7s?

19 0 " . 6 " 4 % 6 6 " 8 0 >"

33. So 7hen a 'erson is convicted o+ F c A 0 and sentenced to su++erim'risonment +or a minimum 'eriod o+ t7o 5ears he cannot be elected as Member o+ the

Parliament and at the same time as a sittin Member cannot retain his 'osition as such Memb!rticle : o+ the 9onstitution also 'rovides as +ollo7s?

13 ! member o+ Parliament shall vacate his seat=

1a .....................................................................

1b .....................................................................

1c ...........................................................................

1d i+ he has incurred a dis/uali+ication under 9lause 12 o+ !rticle or,The -en ali version o+ this !rticle is as hereunder?

OQ 1 0 6 " 5 3 &"

1 .............................


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1> .............................

1 b % 6 OO ( ? 19 # ) >" 8

32. So, this !rticle clearl5 'rovided that a sittin Member o+ Parliament shall automaticall5

vacate his seat i+ he is dis/uali+ied as 'er 'rovision o+ !rticle 12 1d and :13 1d o+ th9onstitution. There is no ambi uit5 in the same and no eBamination b5 an5 authorit5, 'articularl5 b5 the 4lection 9ommission, is necessar5 or re/uired.

3(. t is the de+inite case o+ the 7rit 'etitioner that the 'resent 'etitioner be+ore us 7as convictin a case +iled under section $13 1d and 1e and sentenced under the Prevention o+ 9orru!ct, 3;#: 1!ct o+ 3;#: and that 9onviction 7as u'held u' to the !''ellate %ivision. Thenature o+ the o++ence committed b5 the 'resent 'etitioner de+initel5 comes 7ithin the meaninmoral tur'itude F c A 0 as the 'resent 'etitioner at the time o+ commissiono+ o++ence 7as the President o+ the countr5. The Hi h 9ourt %ivision, it a''ears, heardar uments +rom both the sides on the meanin o+ moral tur'itude. -ut the meanin is clearl

+ound in the -en ali version o+ the !rticle 7hich 'revails over the 4n lish version. So a+ter thconviction and sentence as a+oresaid 7hich has been u'held u' to the !''ellate %ivision there inothin to be decided b5 the 4lection 9ommission. The vacation o+ the seat is automatic. Th 'etitioner cannot hold that o++ice a+ter he has been sentenced to su++er im'risonment +or ov5ears 7hich has been u'held b5 the !''ellate %ivision. The 'etitioner lost his seat in the 'arliament as he has incurred dis/uali+ication as 'rovided under !rticle o+ the 9onstitution4mbeEElement o+ State mone5 b5 a 'erson 7ho 7as the President o+ the countr5 and usin tsame +or his 'ersonal bene+it or livin or havin 'ro'erties dis'ro'ortionate to his "no7n sourco+ income 7ill de+initel5 come 7ithin the ambit o+ moral tur'itude. There is absolutel5 no doin the same. The 'etitioner 7as the President o+ this countr5 7hen he committed the act +or7hich he 7as 'laced on trial and convicted and accordin l5 sentenced.

3#. Mr. Ro"anuddin Mahmud, learned 9ounsel a''earin on behal+ o+ res'ondent No.2 'lacin 'etitioner +ollo7in 'ara ra'h +rom the 9onstitutional &a7 o+ -an ladesh 7ritten b5 Mr.Mahmudul slam, submits that the ac that the actions and acts o+ the 'etitioner is nothin bumoral tur'itude. The 'ara ra'h is as hereunder?

t is 7ell settled that all criminal convictions do not attract the dis/uali+ication. t m be a conviction +or o++ence involvin moral tur'itude. n the 7idest sense all convicinvolve moral tur'itude. -ut the eB'ression moral tur'itude has been used in the9onstitution in narro7 sense other7ise the use o+ this eB'ression 7ould be meanin les

t is 7ell settled that there must be an element o+ de'ravit5 in the act leadin to the

conviction. The act must be vile and harm+ul to the societ5 in eneral or contrar5 to tacce'ted rules o+ moralit5. Test o+ determinin moral tur'itude 7ill be 7hether the actleadin to a conviction 7as such as could shoc" the moral conscience o+ the societ5 in

eneral and 7hether the motive 7hich led to the act 7as a base one and 7hether onaccount o+ the act havin been committed the 'er'etrator could be considered to be a mo+ de'raved character or a 'erson 7ho has to be loo"ed do7n u'on b5 the societ5. + thans7er is in the a++irmative the act involves moral tur'itude.L


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3$. Here in the 'resent case the 'etitioner 7as the President o+ the countr5 and the 'ost is a verdi ni+ied and honorable one and 7hile in such an eBalted 'osition the 'etitioner committed tho++ence +or 7hich he has been convicted and sentence under the 'rovision o+ Prevention M9orru'tion !ct, 3;#: and 7hen a 'erson o+ such a 'osition has been convicted and sentenced +osuch o++ence it shoc"s the moral conscience o+ the societ5 in eneral. None can thin" o+ an

such nature committed b5 a 'erson 7ho 7as at relevant time the President o+ the countr5 7hic7as bein run under the Presidential +orm o+ *overnment. n such a +orm o+ *overnment tPresident 7as all 'o7er+ul and havin all the eBecutive 'o7ers under his control the 'etitionercommitted the o++ence +or 7hich he has been convicted and sentenced as a+oresaid. Arom 7e have heard +rom the learned !dvocate +or the 'etitioner and on 'erusal o+ the materialsavailable our ans7er in the matter is in the a++irmative and that the act involved moral tur'ituand there is no doubt about it. 6e have alread5 +ound that the 'etitioner has incurreddis/uali+ication to continue as a Member o+ Parliament as 'rovided under !rticles and : the 9onstitution and the Hi h 9ourt %ivision a+ter consideration o+ the materials on recordri htl5 declared that the 'resent 'etitioner Hussain Mohammad 4rshad is dis/uali+ied to be amember o+ Parliament under the 'rovision o+ !rticle o+ the 9onstitution and his seat as

member stood vacated under !rticle : o+ the 9onstitution.6e have considered the submissions made b5 Mr. Male" and also one throu h the 'rovisionthe 9onstitution and also the ud ment o+ the Hi h 9ourt %ivision and 7e +ind nothin tointer+ere 7ith the same.

There is, there+ore, no merit in this 'etition and the same is accordin l5 dismissed.

4d.

his Case is also Re*orte$ in< $# %&R 1!% 12002 3.

He+Eur Rahman 1Md. Vs. Shamsun Nahar -e um and another, J:#8K

6ednesda5, November 3#, 200:, 30?0( !M

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Supreme Court

Appellate Division

(Civil)

Present:

ATM Afzal CJ

Mustafa Kamal J

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Latifur Rahman J

Md A!dur Rouf J

"imalendu "i#ash Ro$ Choudhur$ J

)ef*ur +ahman & d( %%%%%%%%%%%%%%%%%%%%%%%..Appellant

-s.

hamsun /ahar 0e um and another%%%%%%%%%%%%%% +espondents

Jud%ment

2ecember ', 1993.

(i) Muslim La&'Divor e and Maintenan e'Meanin% of Mataa*

Per A T M Afzal CJ ataa is somethin to which a divorced woman is entitled and whichthe former husband is under an obli ation to pa seems to follow naturall from the A at&541, ura 0a6ara( itself. 0ut the whole !uestion is whether ataa can be e!uated withmaintenance as has been done b the )i h Court 2ivision. We shall see whatever be themeanin of ataa it is certainl not maintenance as can be claimed within the meanin ofthe amil Court Ordinance. 8t is clear that the interpretation iven b the learned ud es isnot and cannot be acceptable because it brin s conflict and even on the eneral criterion ofinterpretation as the also would not den that a document should be read as a whole,interpretation of the learned ud e should be re:ected%%%%%%%%.&'; < 43(

Per Mustafa Kamal J =nder the strict interpretation of the word ata>a all that can beiven is three pieces of cloth sufficient for a divorced woman to pra . ?he ma#imum that

can be iven is half of the dower mone fi#ed. 0ut, of course, instances have been providedto us that )a*rat )asan 0in Ali &+( ave his divorced wife 1@,@@@ 2irhams in those da s. 8tis our understandin that the )ol uran has left the !uantum of mata>a to the Bodliness,sense of :ustice, e!uit and fairness on the part of the husband, since it is a voluntarpa ment. ?he liberal view &?afsir 8bne asir, a disciple of 8mam hafi( is that thepresentation of a suitable ift is obli ator in the case of all divorced women and not merelin the case of women referred to in A at 5'" of ura AlD0a!arah &5(. 8n an view of thematter mata>a is a voluntar ift pa able b the ri hteous. A ri hteous man will please Allahand if ri hteous men ive voluntar ift to all 6inds of divorced women it is for Allah toconsider whether the have acted ri hteousl or not. +i hteousness and mata>a o hand inhand%%%%%%%%%%%%&1;4 < 1;;(

Per Latifur Rahman J:

8nner meanin of E attaaF has not been correctl derived from an Arabic dictionar andri htl appreciated b the learned ud es who wron l arrived at the conclusion that in theconte#t of -erse /o. 541 of urah 0a!uara it means maintenance. Whereas it is notmaintenance at all in Arabic meanin . ?he learned ud es of the )i h Court 2ivision did not

ive an attention to the real translation of the two Arabic words E attaaF and E/afa!aF andwron l held that a divorced woman is entitled to maintenance till she remarries. ?he term

G attaa> means certain benefits, privile es and ifts in an form b whatsoever name ou


20/65

call it, is incumbent on the Gri hteous> as en:oined b Allah in the )ol uran. G attaa> isiven once at a time at the time of divorce%%%%%%%%%%%% &1"' < 1"4(

(ii) The Code of Civil Pro edure+ ,-./ (0 of ,-./)+ se tion ,,1

Per A T M Afzal CJ

0efore the )i h Court 2ivision it is the defendant who too6 a revision a ainst the :ud mentand decree passed b the learned 2istrict ud e and its :urisdiction was to see if there wasan error of law committed b the ubordinate Court resultin in an error in the decisionoccasionin failure of :ustice. ?he error of law must have to be found within the framewor6of the suit and not be ond. Hearned ud es> interference with the appellate decree reducinthe amount to ?a6a "@@.@@ per month for the maintenance of the son was le all bad onprinciple, for, the plaintiffs never complained a ainst the said reduction.%%%.&"; and "9(

Per " " Ro$ Cho&dhur$+ J

Plaintiff /o.1 hamsun /ahar 0e um never appealed a ainst the decree of the ori inalcourt. he did not also prefer an revision. 8n such circumstances the learned ud es of the)i h Court 2ivision had no :urisdiction to ive her an further relief be ond what was

ranted b the first two courts below%%%%%%%%%&173(

Cases Referred to-

A a ohammed affer 0indavin vs. oolsoom 0eebee and others, 8H+ 5;&Cal( 9I A aahomed Baffer 0indanim vs 0eebee and others, 8H+ 5; &Cal( 9I +ashida 0e um vs hahan

2in and others, PH2 19"@ &Hahore( 1145I hah 0ano Case, A8+ 193; & C( 94;I +a huahton vs. 0ulla6 and others All 19;' Pat. 539I +up +am vs. )arphul A8+ 1951 Hah 15;Iheo 2utt and, others vs. Pushi +am and others A8+ 1947 All 559I Putta anna a chetti and

others A8+ 1913 ad 993 and a*al 2in and others vs il6ha in h A8+ 19'' Hab 19'I irm

riniwas vs ahabir Prasad, A8+ 19;1 & C( 177I Om Pra6ash vs. +am umar, A8+ 1991& C( 4@9I ecretar to Bovertment vs Abdul afil,PH2 1973 & C( 545I afura hatoon vsOsman Bani and others, 9 2H+ 4;;I arium vs adir 0o#, A8+ 1959 &Oudh( ;57.

La&$ers 2nvolved:

Md. Hannan, Senior Advocate, instructed by Md. Ataul Haque, Advocate-on-Record — Forthe Appellant.

Rabeya Bhuiyan, Advocate, instructed by Cho dhury Md. !ahan"ir, Advocate-on-Record —For the Respondent #o. $.

#ot Represented — Respondent #o. %.

A& Bhuiyan, Actin" Attorney-'eneral, instructed by Md Sa((adul Huq, Advocate-on- Record— A)icus Curiae.

Moulana *baidul Haque, +hatib Baitul Mu arra) #ational Mosque, Moulana Mohiuddin+han, ditor o /Monthly Madina0 — For the opinion on 1sla)ic 2a .

2nterveners (3irst 4roup)


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3or the Appellant:

1. Sha)suddin Ah)ed, Advocate — For Sel .

%. M ' Bhuiyan, Advocate-on-Record — For Sel .

3. M #a ab Ali, Advocate-on-Record — For the Ban"ladesh 2e"al Aid 4 Services 5rust6B2AS57

8. Mvi Md &ahidullah, Advocate-on-Record— For Ro eya Be"u), house i e.

3or the Respondent:

$. Md. Fa9lul +ari), Senior Advocate, instructed by Shari uddin Cha lader Advocate-on-Record For See)a !ahur Advocate Me)ber, Ban"ladesh :atiya Mohila Ain(ibi Sa)ity.

%. Sha ique Ah)ed, Advocate — For Sal)a Sobhan, ;ecutive


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%. Si")a Huda, Advocate 6 ith leave o the Court7, instructed by Md. A tab Hossain, Advocate-on-Record.

or

a7 5he Coalition A"ainst 5ra ic in" in &o)en, Ban"ladesh 6CA5&7 represented by itsCoordinator

Shaheen A htar Munir, Advocate, And Ain-o-@nnayan San"stha, represented by itsSecretary Si")a Huda, Advocate.

b7 5he Coalition o nviron)ental #'*s represented by its Chair)an Ms. +hushi +abir.

c7 Ban"ladesh Society or the n orce)ent o Hu)an Ri"hts, represented by its Secretary'eneral, Si")a Huda, Advocate.

d7 Association o S ga (

541. or divorced women aintenance &should be provided( on a reasonable &scale(. ?his isa dut on the ri hteous. uran


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&?he Blorious ur>anJ?ranslation and commentar b Abdallah Kousuf Ali(

5. 8n this defendantDhusband>s appeal b leave, the main !uestion raised for consideration iswhether the )i h Court 2ivisions interpretation of and decision followin the aforesaid A atthat a person after divorcin his wife is bound to maintain heron a reasonable scale be ondthe period of iddat for an indefinite period, that is to sa , till she loses the status of adivorcee b remarr in another personF, is supportable or not both on merit as well as inthe facts and circumstances of the case. We have had a prolon ed hearin of the appeal incourse of which we heard the learned Counsel for the parties, r. Abdul Wadud 0hui an,learned Actin Attorne Beneral &as a)icus curiae (, two distin uished Alims and a host ofinterveners representin individuals, nonDBovernment women and other le al or ani*ationsand also perused written ar uments submitted b them. After considerin ever thin . 8have come to the conclusion that the interpretation and decision iven b the )i h Court2ivision as above are not supportable both on merit as also in the facts and circumstancesof the case. 8 shall now proceed to the reasons but, before that, a brief account of the factsof the case.

'. ?he plaintiffDrespondents filed amil Court uit /o. "@ of 1933 in the amil Court and

the Court of Assistant ud e, 2aud6andi, Comilla on 5D11D1933 for realisation of dowermone of ?a6a ;@.@@1.@@ and for maintenance of each of the plaintiffs, mother and son.PlaintiffDrespondent /o 1 and the defendantDappellant were married on 5;D'D 193; at adower mone of ?a6a ;@,@@1.@@ PlaintiffD respondent /o 5, a son, was born in the wedloc6,on 1;D15D1937. ?he defendantDappellant &husband( divorced plaintiffDrespondent /o 8 &wife(on 1@D3D 1933.

4. ?he defendantDappellant in his written statement e#pressed his willin ness to pa thedower mone claimin that he had alread paid ?a6a '@,@@@.@@. )e stated that he hadalread sent a number of mone orders to plaintiff /o.1 before divorce towards hermaintenance and maintenance of the minor son. o the are no lon er entitled to anmaintenance as claimed.

;. Plaintiff /o.1 e#amined 4 P.Ws. includin herself and the defendantDappellant e#amined '2Ws includin himself and both sides produced a ood number of papers and documents.

". ?he amil Court b :ud ment and order dated '@D1@D9@ decreed the suit for ?a6a39,@@@.@@, includin ?a6a ',@@@.@@ to plaintiff /o.1 as maintenance durin the iddat periodL ?a6a 1,@@@.@@ per month.

7. rom 2ecember 199@ the defendantD petitioner was directed to pa to plaintiff /o. 1 ?a6a1,@@@.@@ per month towards maintenance of plaintiff /o 5, with a further direction to pathe decretal amount within one month, failin which to realise the amount throu h Court.

3. 8n amil Appeal /o.5 of 1991, preferred b the appellant, the learned 2istrict ud e,Comilla b :ud ment and decree dated 5@D4D1995 reduced the amount of ?a6a 1,@@@.@@ to?a6a "@@.@@ per month in respect of maintenance of plaintiff /o. 5 but did not reduce theamount of maintenance of plaintiff /o 1. ?he learned 2istrict ud e deleted ?a6a 5,@@@.@@claimed to have been spent b plaintiff /o 8 at the time of the birth of plaintiff /o.5, holdinthat the amil Court Ordinance did not provide for realisation of an such amount. ?hetotal decretal amount was reduced from ?a6a 39,@@@.@@ to ?a6a 75,"@@.@@. ?he defendantDappellant was directed to pa the reduced decretal amount to plaintiff /o 1 within '@ da sof the receipt of the case record b the amil Court.


24/65

9. ?he appellant preferred Civil +evision /o.5@"7 of 1995 a ainst the :ud ment and decreeof the learned 2istrict ud e and obtained a +ule and sta on '@D3D1995 from the )i hCourt 2ivision.

1@. At the hearin of the civil revision before a 2ivision 0ench the defendantDappellant wasnot represented b his en a ed Advocate.

11. ?he learned ud es of the )i h Court 2ivision found in the impu ned :ud ment that theparties did not adduce an evidence upon which the amount of monthl maintenance can bedetermined and fi#ed, but the Court was not precluded from determinin the amount. ?hedefendant is a t pist in the inistr of inance and in his deposition and written statementIhe did not refute the claim of maintenance at the rate of ?a6a 1,@@@.@@ per month for eachof the plaintiffs. Callin in aid their personal 6nowled e the learned ud es held that each of the plaintiffs is entitled to et from the petitioner an amount of ?a6a 1,@@@.@@ per month asmaintenance commensurate with the status and means, of the defendant. 8t was thereforeheld that the lower appellate Court ille all reduced the amount abruptl without assi ninan reason.

15. ?he learned ud es then suo motu addressed themselves to a le al !uer as to whetherplaintiff /o 1 &wife( could have claimed maintenance be ond the period of iddat. After!uotin ura 0a!ara verses 54@D545 and from )eda a, 0aillie and -erses from ura Kunus,

ura amar, ura Al 8mran and observin that li6e statutes, the uran prescribes a literalconstruction of its verses, the learned ud es referred to the case of Aga Mahomed IafferBindanim Vs. Koolsoom Beebee and others, ILR 25 (Cal ! and held that the dictum of the Priv Council pronounced a hundred ears a o in 1337 A2 that it would be wron forthe Court to attempt to put their own construction on the uran in opposition to the e#pressrulin s of commentators of reat anti!uit and hi h authorit which cannot be followed onthree rounds, first, the learned ud es of the Priv Council were nonD uslims, secondl ,the interpretation is in conflict with Article 3&1A( of the Constitution of 0an ladesh whichindicates that uranic in:unctions shall have to be followed strictl and without andeviation and thirdl , the dictum is in dero ation of ura 0a!ara -erse 151. +el in onobservations from the case of Rashida Beg"m Vs. #hahan $in and others, %L$ &!'(Lahore ,,9 , the learned ud es a reed with the view that if the interpretation of the)ol uran b the commentators who lived thirteen or twelve hundred. ears a o isconsidered as the last word on the sub:ect then the whole 8slamic societ will be shut up inan iron ca e and not allowed to develop alon with the time. ?he learned ud es thereforecame to the conclusion that a Civil Court has the :urisdiction to follow the law as in the )ol

uran disre ardin an other law contrar thereto even thou h laid down b the earlier :urists or commentators of reat anti!uit and hi h authorit and followed for a considerableperiod. ?hereafter the learned ud es considered the literal meanin of the irst Part of-erse 541 of ura 0a!ara and finall held that a person after divorcin his wife is bound tomaintain her on a reasonable scale be ond the period till she loses the status of a divorceeb reDmarr in another person.

1'. ?he learned ud es b the impu ned :ud ment dated 9 anuar , 199; restored the :ud ment and decree of the amil Court with the modification that plaintiff /os 1 and 5shall et maintenance at the rate of ?a6a 1,@@@.@@ each per month from the defendant tillplaintiff /o 1 and plaintiff /o 5 respectivel remarries or attains ma:orit .

14. r. d. )annan, learned Counsel for the appellant, raised several points see6in leaveto appeal from the impu ned :ud ment and leave was ranted to consider his submissionsas follows


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&1( that as lon as a suo )otu :udicial e#ercise is per incuria) &perhaps the learnedCounsel meant Gincidental>( and does not affect either part to a suit adversel , thedefendant Gcan have no le itimate rievance a ainst such e#ercise, but if the suo)otu e#ercise is be ond the frame of the suit and the decision after the e#ercisesaddles the defendant with an added liabilit which even the plaintiffs did not claim inthe suit, the e#ercise is without :urisdiction and assumes the character of :udicial

e#cess.

&5( ?hat the learned ud es of the )i h Court 2ivision have no authorit and :urisdiction to impose their personal views on the defendant at an added cost andliabilit to him.

&'( that the suo )otu e#ercise was all the more unacceptable, as it was done behindthe bac6 of the appellant, without ivin him a notice of the learned ud es> intentionto indul e in an e#ercise of this 6ind, so that he could refute the learned ud es>personal views.

&4( that the learned ud es have e#pressed their views without invitin e#pert opinion

of law ers and :urists of 8slamic :urisprudence and without hearin the views of otherswho ma have views contrar to the learned ud es.

&;( that the views on maintenance e#pressed b the learned ud es are whollerroneous, contrar to uslim Haw and devoid of an reasonin and authorit and

&"( that the reversal of the lower appellate Court>s decree on maintenance is basedneither on an evidence nor on an reasonin but on the personal 6nowled e of thelearned ud es which can never be imported into a contentious suit and which iscontrar to all :udicial norms.

1;. rom the above it is clear that the aforesaid &main( decision of the )i h Court 2ivision

has been sub:ected to a twoDfold attac6J first, the decision is bad because it offends theprinciples of eneral or secular law and secondl , it is bad because it offends and is contrarto the personal law of the defendant i.e., uslim Haw. ?he interpretation iven of A at 541& ura 88( is, in an case, untenable and it has wron l been made the basis of the decisionwhich was bound to be wron . 8 shall ta6e up the second line of attac6 first forconsideration.

1". 8t will be appropriate to be in with a statement of law, without an fear of contradictionand which is assumed b the learned ud es of the )i h Court 2ivision themselves, thatunder the traditional uslim Haw a divorced wife is entitled to maintenance from hererstwhile husband onl durin the period of her iddat. ?he learned ud es noticed thisprovision from )eda a b Charles )amilton &0oo6 8-, Chapter M-, ec ', p 4;( and 2i est of

ohammadan Haw &compiled and translated from authorities in the ori inal Arabic( b /eil 0$ 0aillie Part econd, 0oo6 1N, Chapter -88 ection i#th Pp 1"9D17@(. An te#tboo6 on

ahommadan Haw will corroborate this proposition vide, ulla, Principles of ahomdan Haw& ourteenth $d( Para 579.

17. 2r. Paras 2ewan in his uslim Haw in odern 8ndia, 1935 $d p 1'@ sa sD

When a marria e is dissolved b divorce the wife is entitled to maintenance durin theperiod of iddat On the e#piration of the period of iddat, the wife is not entitled to an


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maintenance under an circumstances. uslim Haw does not reco nise an obli ationon the part of a man to maintain a wife whom he had divorced.

13. 8ndeed this has been the uslim law since the da s of Prophet uhammad &Allah>sPeace be upon him( and the respondents and the interveners supportin them have notbeen able to show one instance from the earl da s of 8slam, till the date of the impu ned

:ud ment where the view ta6en b the learned ud es as to maintenance has been upheldeven b an authorit or Court in an uslim societ countr at an time durin the lastfourteen hundred ears. ?he nearest that we have been able to come across was thedecision of the 8ndian upreme Court in the #hah Bano )ase, AIR &!*5 (#C !+5 , which,as is wellD6nown, caused a reat stir in that countr and the result was that the Bovernmentof 8ndia had to brin about an enactment called E?he uslim Women &Protection of +i htson 2ivorce( Act, 193"F b which prima facie the said decision was set at nau ht. 8t is to beobserved that in the said case the 8ndian upreme Court was considerin an application formaintenance of a divorced uslim woman filed under section 15; of the Code of CriminalProcedure, 1974 and particularl the provision in the said section which reads

, 1 &1(&a( Eif an person ne lects or refuses to maintain his wife, unable to maintain

herself> underlined b me(.

19. 8n considerin the defence ta6en b the husband and the interveners includin All 8ndiauslim Personal Haw 0oard on the basis of aforesaid personal law of the uslims, the Court

observed

EWe are of the opinion that the application of those statements of law must berestricted to that class of cases in which there is no possibilit of va ranc ordestitution arisin out of the indi ence of the divorced wife. We are not concernedhere with the broad and eneral !uestion whether a husband is liable to maintain hiswife, which includes a divorced wife, in all circumstances and at all events. ?hat is notthe sub:ect matter of section 15;.F

5@. ?he 8ndian upreme Court then considered the aforesaid A ats 541 and 545 of the ura0a!ara and observed

E?hese A ats leave no doubt that the uran imposes an obli ation on the uslimhusband to ma6e provision for or to provide maintenance to the divorced wife. ?hecontrar ar ument does less than ustice to the teachin s of the uranF.

51. ?he hah 0ano decision was thus a limited one iven in the conte#t of section 15;Cr.P.C. and the impu ned decision before us is a eneral one and it is a reed b all theparties that it is uni!ue.

55. ?he !uestion before us is whether b puttin the interpretations on A at 541 & ura0a!ara( in the manner done b the learned ud es, the traditional uslim Haw as tomaintenance of a divorced wife prevalent for centuries was lawfull and le itimatel6noc6ed down. 2urin the hearin of the appeal several ?afsirs of the )ol uran brenowned and famous commentators have been placed before us b the learned Advocates.

rs. +abe a 0hui an, learned Counsel, who supported the plaintiffs case or cause withcommendable *eal cited 8mam hafei on Al urDan &11 541( commentar on the )ol urDan b 8bn atheer &d 1'7' AC 2amas Cus( ?ranslated b 2anial Hatifi( and ?afsere ?abare

harif, 4th -olume, Allama Abu afar ?abari &published b 8slamic oundation in 199'(. 8n


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one of the ?afsirs, there is support for the view ta6en b the learned ud es as tomaintenance till remarria e.

5'. On behalf of the 8nterveners supportin the respondents some translation of A at /o541 b some Authors and opinions b some authorities have been referred to where themeanin of the word ataa has been iven as maintenance. ?he have referred to thetranslation of ohammad Asad and the =rdu translation b hai6ul )ind A6iama ahmood)asan 2eobandi. 8n his, note to A at /o 541. uhammad Asad sa s

E?his obviousl relates to women who are divorced without an le al fault on theirpart. ?he amount of alimon Dpa able unless and until the remarr Dhas been leftunspecified since it must depend on the husband>s financial circumstances on thesocial consideration of the timeF

54. hai6ul )ind in his =rdu translation !ualified maintenance Eas per provisions of lawF.

5;. 0aidavi in his commentar on the )ol uran observes E aintenance is madeobli ator so as to remove despair and rief caused to the woman b separation as a result

of divorce. ?he !uantum is to be determined b the Bovernment authorit F.

5". 8mam urtubi in his commentar observes that Epa ment of maintenance is ordered forthe reason that disrespect has been shown a ainst marital contractF.

57. We shall notice that the interpretation of the particular A at 541 is difficult andha*ardous because of the meanin s attributed to the various Gwords used thereinI fore#ample, the allDimportant word ا ت ataa has been understood and interpreted in various مsenses. Althou h Abdallah Kousuf Ali ori inall translated it as Gmaintenance> and in the0en ali translation b the 8slamic oundation it is said to be @ & 0 N& &as !uoted above( &itis however clearl !ualified b sa in A> f6ptd( there is formidable diver ence of opinionover the meanin .

53. 8t has been brou ht to our notice that the translation of the )ol uran b AbdallahKusuf Ali &which was relied upon b the )i h Court 2ivision to read Gmaintenance> for theword ataa in A at 541( has been revised and corrected b the Presidenc of 8slamic+esearches, 8 ?A, call and uidance, under a +o al decree issued b the Custodian of the?wo )ol os!ues. rom the preface of the said revised translation of the )ol urDan it willappear how much care and pains have been ta6en in revision and correctin the wor6 ofAbdallah Kusuf Ali. 8n this revised 0oo6 the meanin of the word ataa as occurrin in A ats/os 5'" and 541 is found to be the same, that is Ga suitable iftF. $videntl , the )i h Court2ivision had not had the benefit of loo6in into the revised meanin of ataa which isdifferent from the ori inal translation done b Abdallah Kusuf Ali.

59. 8n a wellDchronicled Article on E2ivorced uslim Women in 8ndiaF b Huc Carrolproduced b rs. 0hui an it has been pointed out that the usual word for maintenance is/afa!a. ?his meanin is to be found in the atwaiDAlam iri &8ndian $d., 5nd -olume p 144(and has been attributed to as such b both the Alims who appeared before us.

'@. ?he aforesaid Article reads

E+eadin the in:unction contained in 11 541 a ainst the bac6 round of theseverses, the )anafi :urists concluded that the mataa &provisionI ift( is onl


28/65

obli ator when the woman has been divorced before consummation incircumstances where no mahr has been set &i.e., in circumstances where, hadthe marria e been consummated, she would have been entitled to the propermahr or the mahr of her e!uals(. 8t is, however, ElaudableF to ive the divorcedwoman a GpresentF in other cases as well. 8 e it is not contrar to, i.e. orprohibited b , uslim law, even as narrowl interpreted b the )anafi :urists,

that the husband should ma6e some consolator offerin to his divorced wife.?he mandator mataa or ift due to the woman divorced both beforeconsummation and before an amount of mahr had been settled, is defined bthe classical )anafi :urists in terms of three items of clothin , the fabric of whichdepends on the economic position of the husband.F

'1. ?he other unni chools and the hias re ard mataa as somethin &in addition to hermahr( that the husband is obli ed to provide to his wife in ever case of divorce b tala!.?he fourteenth centur hafi :urist, ibn atheer &as translated and !uoted b 2anial Hatifi(said of mataa in his commentar on the uran

aid Abdur +ahman bin aid bin Aslam

EWhen Bod revealed the A at reasonable provision is due from the 6indl &11 5'"(,some said> if 8 wish to be 6ind 8 ma pa and otherwise not>. ?hen Bod revealed thisA at F And for divorcees reasonable provision is due from the ri hteous &ii 541(.F

'5. And because of l this A at a roup of scholars hold mataa obli ator in all cases whetherof divorce b dele ation &tala!DiDtafwid( or of mahr paid or of those divorced beforeconsummation or those QdivorcedR after consummation. o held 8mam Al hafi.F Bod blesshim and his.F

''. ?he 0oard of 8slamic Publications, 2elhi in E?he eanin of the uranF &-ol.1( translatedA at 541 thus Hi6ewise, the divorced woman should also be iven somethin in accordancewith the 6nown fair standard. ?his is an obli ation upon the Bod fearin people.

'4. ?he interveners &for respondent( have ultimatel submitted that whatever meanin beattributed to the word ataa, i.e. maintenance, reasonable provision, suitable ift orwhatever, it cannot be denied that the divorced woman is entitled to somethin after divorcewhich is an obli ation cast upon the husband. r. Amirul 8slam in particular upon citinsome verses from the )ol urDan pointed out that as the revealation pro ressed thetreatment to be meted out to divorced woman has been pro ressivel made more e!uitable,humane and enerous. ?he concept of ataa therefore has an essential element of e!uitand humanit . 0oth r Amirul 8slam and ed 8shtia! Ahmed ar ued that maintenance for8ddat period onl has lost relevance under the uslim amil Haws Ordinance 19"1 becausedivorce does not become effective until e#piration of 9@ da s as provided under section 7&'(thereof.

';. ?hat ataa is somethin to which a divorced woman is entitled and which the formerhusband is under an obli ation to pa seems to follow naturall from the A at itself. 0ut thewhole !uestion is whether ataa can be e!uated with maintenance as has been done b the)i h Court 2ivision. We shall see whatever be the meanin of ataa it is certainl notmaintenance as can be claimed within the meanin of maintenance under the amil CourtOrdinance.


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'". r. d. )annan, learned Counsel for the appellant, produced the 0en ali version of theA at from ?A )8 =H =+A/ b ed Abul A>la aududi which reads

S ( B @ 0 h) 0 ' 0 / @ ' ( ' ( - 4 , %+ ( < ) - 5 ,S

'7. r. )annan in course of his submission laid reat stress on the word Gmaruf> andsubmitted that the )i h Court 2ivision totall failed to appreciate the meanin of the saidword and put a whimsical meanin thereto. ?he true meanin of the word, he submits, is tobe found in the annotation of verses 1D" of ura AtD?ala! b )a:rat oulana ulti

uhammad hah &+A( in his ?afsire a>areful urDan &translated in 0en ali b oulanaohiuddin han(I the relevant portion reads thusI

Nf U P h) 2 0 8 ( . 0 , -@ i 0 5 B# 8 " 8 ( . j ' G B# > k 8 4

j , - P " % 0 , 0 j ) ( l & % 6 ( " &@ " , 0 j W , % 0 , % 6 " 2 h)

( 8 A S , - ( = 0 % 6 0 > 4 E> 3 & ? , U A m " 6 n , ( 0 . ; S , C ( . 2 ( j % 0 , o 0 8 > G > ; 08 p I 6 " " , 0 5 " " 5 l & 5 ' 0 , 0 h A M C 0 d % 6 0 0 i A , 0# % & ,

'3. ?he impu ned :ud ment is uni!ue in the sense that it ives no reason whatsoever forcompletel i norin all the lessons and learnin of fourteen hundred ears and underta6esto declare the law upon the claim that E a Civil Court has the :urisdiction to follow the law asin the uran disre ardin an other law on the sub:ect, if contrar thereto even thou h laiddown b the earlier :urists or commentators ma be of reat anti!uit and hi h authoritand thou h followed for a considerable period.F And what is this law in the uranT ?helearned ud es sa JAs we find it to mean b ivin a literal construction and ordinarmeanin to its words and phrases in as much the same wa as we interpret an ordinarstatue. ?his is the entire rationale of the impu ned :ud ment.

'9. 8n m opinion, this attitude, sa in with respect, is not onl le all wron but moralldespicable and, if 8 ma o further ver e on sacrile e. ?he urDan is not a le al draftsman>swor6, who is uided b r a#well>s rules of interpretation. ?he urDan was revealed b theCreator of all a#wells and the person to whom it was revealed is the a#well of thatsacred 0oo6.

4@. ?he urDan has been revealed in Arabic lan ua e and its Author sa s

ا ن اإ ل ز ن نأ آ ر يق ب ر كع ول !

& ura KusufDA atD5(

8" , ( 5 , 5 )& ' 5 ) @ N 0 ( q ,


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?hou h Arabic was the common lan ua e of the whole of Arabia, it is accepted that theurDan was revealed in the dialect of the uraish of a66ah. ?rue it is that the uran invites

ever one to read it and et uidance and its verses are Eeas to understandF. 8t will be easto understand for a person who has ot command over the Arabic lan ua e. 8t is notnecessaril so for a person who is readin uran in a different lan ua e. or e#ample, theimport of the word ataa should be understood in the sense the hol Prophet &Allah>s peace

b upon him( and his companions had understood it and not accordin to later datranslations of the said word which are conflictin . ?he more important point, however, isthat a verse of the uran has to be understood not in isolation, and less with a shallow6nowled e of lan ua e and certainl not with the interpretative techni!ues of manDmadelaws but with the help of first the Prophet>s &Allah>s peace b upon him( teachin s andpractices and subse!uentl b the enunciations of 8slamic :urists and scholars. ?he)amiltons and 0aillies did not ive their own interpretations but compiled and translated the

uslim law from authorities in the ori inal Arabic which came down from the earl da s of8slam. ?herefore, it will be totall unwise to discard the views of 8slamic urists and scholarsalto ether which held the field for centuries and to rel merel upon one>s own readin andunderstandin of a verse of the uran for la in down a law on the basis thereof.

41. ?he learned ud es in doin so too6 inspiration from a verse in ura Al amar which hasbeen repeated four times in the said ura and reads thus

" ن #ل آ %$ر ( )'&ل ر /م "'.م - ,+*ل

8 5 ( 5 A ' - = & A " ,

- - = 0 5 '

45. Het us see from one of the ?afsirs what has been said b the ufassirs about the saidverse. ufti uhammad hafi &+A( in ?afsire aa>reful uran &translated in 0en ali b

oulana ahiuddin han( sa s

A 8 ) 4 A " 0 5 A U 5 4" 5 ا ن % %$ر( )'ر 8 6 ل ( . 5 ' 0 , ( d - = & ) 0 5 A ', # " 5 A 0' + M @ % l - ; , % AB ) 0 , 0 5 08 ) 4 0 A , r " , %+ ^ * ] h, 0 > s Y ) 5 % h > N& A) , 0 % h ( < A , %+ " 4 & CE ,

0 0 ( - . 5 W 0 5 3 ) 3 3 7 5 < ( A 4 % 6 ) 4 & 4 , - . . " l t # ( + - ] ', 3 " , %+ p 8tS ,

4'. 8n order to invo6e the individual>s ri ht to interpret uran the learned ud es havereferred to %L$ &!' Lahore &&+2 referred to before. 8n that case, the learned ud e notonl said that in understandin the uran one can derive valuable assistance from thecommentaries written b different learned people of ore, but also stated particularl aboutpractical aspects which the learned ud es of the )i h Court 2ivision completel missed. 8treads


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E8:tihad or e#ercise of :ud ment is a reco nised source from which the laws of 8slam aredrawn%%% 8:tihad b a sin le individual or b a few individuals was considered even b the

uslim urists as dan erous. ?he , therefore, preferred the e#ercise of the :ud ment b theconsensus of opinion of the ma:orit of the u:tahids or an a reement of the uslim uristsof a particular a e on a !uestion of law. 8t was perhaps correct for the people of that a e toconfine 8:ithad to a few urists because 6nowled e was not imported to other people so

freel and so commonl , but at the present time, 8 thin6, this dut should be performed bthe representatives of the people because as 8 have alread stated the readin ,understandin of the uran and the application of its eneral principles is not the privile eof one or two persons but a ri ht and a dut of all uslims which should be e#ercised b thepersons chosen b them for this purposeF.

44. ?he impu ned decision appears to be pri)a acie ill considered and illDconceived as itapparentl failed to ta6e into consideration riot onl the whole conspectus of uslim lawrelatin to marria e and divorce but even the various other. A ats on divorce occurrin inthe same ura 0a!ara and ura AtD?ala! and Al Ah:ab. ?he learned ud es held interpretin

Gmataaoon bil maaroof> in A at 541 rel in on Kusuf Ali that a divorcee is entitled tomaintenance on a reasonable scale till her remarria e. ?he same phrase Gmataaoon billmaaroof> occurs in A at 5'" which reads

^̀ p q ̀ \ \U Q̂ g Y ^ \k Q̂ w q x \ yg

j gz\{] \ Z | }~ •[ Y€ j g \` {‚ \ [ Yƒ „̂ Z ̂j gz\{p †_ „

} ‡\̂ \‰ Š [ YYU _̂ \` ̂ Q Z ‡\̂ \‰ Š ‹ YŒY {_ \` ̂ Q

j kqYpY _̂ \` ̂ Q U W XY Z[ \] ̂_ ̀ ̂ Y4; ?he translation thereof b Kusuf Ali is as follows

?here is no blame on ou

8f e divorce women

0efore consummation

Or the fi#ation of their dowerI

0ut bestow on them

&A suitable ift(,

?he wealth

Accordin to his means,

And the poor

Accordin to his means J A ift of a reasonable amount


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8s due from those

Who wish to do the ri ht thin .

8t will be seen that the meanin of G )ataaoon bil )aaroo > iven here isJEA ift of areasonable amountF. )ow do ou then reconcile the two meanin s of the same phraseT 8fthe learned ud es are ri ht in their interpretation then there is an obvious conflict betweenthe said two A ats & #au(ubilla hi )in :ali (.

4". ?he openin verses of ura At ?ala! also relate to divorce and conse!uent provisionsand particularl verse /o." ma be referred to which reads &translation b Kusuf Ali(

". Het the women live &8n iddat( in the same

t le as e live,

Accordin to Kour means

Anno them not, so as

to restrict them,

And if the carr &life

8n their wombs(, then

pend & our substance( on them

=ntil the deliver

?heir burdenI and if

?he suc6le our &offsprin (

ive them their recompense

47. 8t is si nificant that emphasis has been laid on the period of 8ddat and in the openinverse of the said ura, it has been ordained &translation from Kusuf Ali(

Prophet when e

2o divorce women

2ivorce them at their

Prescribed periods

And Count &accuratel (


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?heir prescribed periods

%%%%%%%%%%%%%%%%%%%%%%.

?here is a clear direction in respect of a pre nant woman who has been divorced and thedirection is to bear her e#penses till she has delivered. 8n the previous -erse, it has beenstated that in the case of a pre nant woman her period of 8ddat will be till deliver . 8t istherefore apparent that the maintenance has been related to the period of 8ddat. ?heinterpretation iven b the learned ud es is thus apparentl in conflict with the aforesaidverse. 8 am sure the learned ud es will be the last persons to su est that there areconflictin provisions in the uran. Allah Almi ht , AllD6nowin proclaims in the uran

{U \ g• ^ \Q g] ̀ g Ž{ Y ‘Y [ k ’̂ k Y[ “ } [ ̂Š \

& ura umarDA at 53(

8 5 ) @ N % ( F ) " ( . , ( N W ,

1 ( # - e

43. rom the above, it is clear that the interpretation iven b the learned ud es is not andcannot be acceptable because it brin s conflict and even on the eneral criterion ofinterpretation as the also would not den that a document should be read as a whole, theinterpretation of the learned ud e must be re:ected.

49. rs. +abe a 0hui an, learned Counsel for the respondent and some of the intervenerssupportin the respondent, have referred to some authorities where the word mataa has

been interpreted as maintenance, reasonable provision>. ?he have also !uoted fromProfessor ?ahir abmood, said to be one of the most eminent scholars of present da 8ndia,which, however, does not support the meanin of the word mataa as understood b thelearned ud es of the )i h Court 2ivision. rs 0hui an submits that Professor ?ahir

ahmood in his boo6 ?ersonal 2a s in 1sla)ic Countries , &5nd $d. 199;( P 5"1D5"5 hasiven e#amples of different uslim countries. ataa has been translated into $n lish as

consolator ift, or Gcompensation> or Gindemnit >. ataa is thus basicall different fromre ular maintenance of the divorcee.

;@. ?here is also a reference to this sub:ect in the written submission of an intervener,0an ladesh He al Aid and ervices ?rust, filed in the form of a concise statement. 8t reads

?hat accordin to Professor ?ahir ahmood &as cited in the forthcomin boo6 titled E hah0ano and the uslim Women Act a 2ecade on ?he ri ht to 2ivorced uslim women tomataaF, bein published b women livin under uslim Haw, for Brabels, rance and0omba , 8ndia, 1993 at pp.( a divorced wife is entitled to receive from her former husbandwhat is called mut>a. ?his concept is referred to in the urDan &5 541( and has beenrendered into $n lish as Gconsolator ift>.


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;1. $#tensive reference has been made b the respondent and the interveners supportinher to the application of mataa in different uslim countries, such as ala sia, $ pt,

ordan, ria, orocco, Hebanon, Al eria, uwait, ?unisia, ?ur6e , /orth Kemen, etc.

;5. ?he common feature which is to be found in the relevant provisions of all thesecountries is that mataa has been made a sub:ect of le islation of the respective countriesand invariabl it has been sub:ected to certain conditions, namel , where a divorce has beenmade arbitraril , without a :ust cause, etc. Another invariable feature is that mataa wasnever considered as maintenance but somethin as a recompense for some blame on thepart of the husband. And in no countr there is found to be an provision of rantin mataafor a lifetime or till remarria e of the divorcee enerall . or e#ample, the ala sian Hawprovides that a woman who has been divorced without :ust cause would be paid an amountthat is fair and :ust. A woman who has been arbitraril divorced b her husband ma beawarded, b wa of mataa, maintenance of one ear in ordan, two ears in $ pt andthree ears in ria pa able in a lump sum or in instalments dependin on the financialcondition of the husband. 8n ?unisia and ?ur6e a married person, husband or wife, whoinsists on divorce a ainst the wishes of the other spouse and without his or her fault, can bedirected to suitabl indemnif the other spouse. o, the wife also ma be liable to pamataa. 8 thin6 that is ver fair and hi hl e!uitable.

;'. /one of the e#amples cited supports or is an where near to the interpretation iven inthe impu ned :ud ment in an manner. We are not considerin a le islative provision

rantin mataa as a recompense but whether the )i h Court 2ivision was ri ht ininterpretin A at 541 & ura 88(. r a*lul arim, learned Advocate, althou h appeared foran intervener supportin the wife, submitted that the maintenance allowed b the )i hCourt 2ivision till reDmarria e was abrupt and without an reason but he supports theprovision of maintenance to a divorcee who is unable to maintain herself &as in the 8ndiacase of hah 0ano(.

;4. rs 0hui an submits that althou h the period of postDdivorce maintenance is notdefinitel a reed upon b all the authorities the fact of the e#istence of a reasonableprovision, mataa, for, women who are divorced irrevocabl b their husbands isindisputable. he submits that the decision of the )i h Court 2ivision, althou h, pri)a

acie , too wide, is :ustifiable, e!uitable and reasonable for the ma:orit of women in ourcountr who are divorced for no fault of their own, who are no lon er of marria eable a eand whose economic and educational bac6 rounds compel them to remain dependent onsomeone for survival. he submits that this )on>ble Court can !ualif the impu ned decisionand ma6e observation to provide for a fair, :ust and reasonable provision for a reasonableperiod to remove the destitution or e#treme hardship of such women who are not at fault inappropriate circumstances li6e the present case.

;;. ?he line ta6en b the numerous interveners supportin the respondent echoes more orless the ar ument of rs. 0hui an with repeated emphasis that it is open to the Court,

rather it is the dut of the Court, to ive innovative interpretation of the orthodo# norms inthe li ht of the chan in notions of :ustice, e!uit and e!ualit , particularl when it involvesmaintenance of divorced uslim wives who are often victims of eas divorce.

;". ?he !uestion precisel raised in this appeal is not the ri ht of the Court to iveinterpretation of uslim law in the li ht of chan in conditions and notions, but whether the)i h Court 2ivision correctl interpreted A at 541 & ura 88( and laid down a correct lawsettin at nau ht the a eDold uslim personal law that a divorced woman is entitled tomaintenance from her husband durin the period of iddat onl . ?he respondent and her


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supporters could onl show that in different uslim countries le islative provision has beenmade in accordance with which mataa or recompense has been provided to divorced womenunder certain circumstances even after the period of iddat. ?he have, however, not beenable to show one instance from an :urisdiction where A at 541 has been interpreted tomean that maintenance is to be provided till remarria e. ?he )i h Court 2ivision is at leasthonest to admit that it has not cared for an support for its decision from an authorit or

precedent. ?he learned ud es read the words of A at 541 and put a meanin to itaccordin to their own wisdom which is uni!ue and first of its 6ind. or the reasons statedabove 8 feel no hesitation in re:ectin their interpretation and in settin aside the resultantdecision which automaticall falls throu h.

;7. ?he concern and an#ieties e#pressed on behalf of the respondent and her supporters forthe indi ence and destitution of divorced uslim women of our countr or for their beinvictims of whims and caprices of their husbands can alwa s be met b appropriatele islation as the have done in 8ndia or in other uslim countries referred to at len th bthe supporters. 0ut these laws offer no :ustification for the impu ned decision. /or we arecalled upon in the conte#t of the issue before us to consider how to brin the impu neddecision in line with the present trends of law in other uslim countries as noticed above.

;3. ?he first ob:ection as enumerated in point /os &l( &5( &'( &4( of the leave order aboveraised b the appellant a ainst the suo motu decision is, in m opinion, more formidablethan the second ob:ection on merit. 8ndeed, the decision is liable to be set aside on that,

round alone, as it is violative of the elementar rules and norms of civil procedure.

;9. Admittedl , the plaintiff wife neither made out an case in the plaint claiminmaintenance till remarria e nor pra ed for an relief specificall in that behalf. ?he learned

ud es were, !uite aware of it and therefore posed themselves the !uestion J Gwhether thewife could have claimed maintenance be ond the period of iddat>.

"@. Order -88 rule 7 of the Code of Civil Procedure la s down

7. $ver plaint shall state specificall the relief which the plaintiff claims either simplor in the alternative, and it shall not be necessar , to as6 for eneral or other reliefwhich ma alwa s be iven as the Court ma thin6 :ust to the same e#tent as if it hadbeen as6ed for, And the same rule shall appl to an relief claimed b the defendant inhis written statement.

"1. ?he law re!uires that the relief must be specificall claimed either simpl or in thealternative. 8t is true that eneral or other relief which the Court ma thin6 :ust ma be

ranted althou h not specificall as6ed for. 0ut the essential conditions are that, theaverments in the plaint must :ustif such relief and the defendant must et an opportunitto contest such relief. 8n the name of rantin eneral or other relief, the Court cannot andwould not mount an surprise on the defendant and ma6e him liable for somethin whichdoes not arise out of the plaint and, as such, he had no occasion to answer the same. ?hisis merel an e#tension of the principle of natural :ustice.

"5. 8n the case of irm #ine s s Mahabir %rasad AIR &!5& (#C &// the 8ndianupreme Court held ?he rule undoubtedl is Ethat the Court cannot rant relief to the

plaintiff on a case for which there was no foundation in the pleadin s and which the otherside was not called upon or had an opportunit to meetF. ?he same court in a later case,0m %ra1ash Vs. Ram K"mar AIR &!!& (#C + ! , observed EA part cannot be ranteda relief which is not claimed, if the circumstances of the case are such that the rantin of


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such relief would result in serious pre:udice to the interested part and deprive him of thevaluable ri hts under the statuteF.

"'. ?he Pa6istan upreme Court has one further and refused a decree to the plaintiff ofsome additional amount admitted b the defendant because the plaint was not amended.Construin Order -88 rule 7 and Order 88 rule 5 of the Code of Civil Procedure it was laiddown in #e)retar to 3o t. Vs. Abd"l Kafil, %L$ &!/* #C 2+24

0 readin these provisions to ether, the seem to impose upon a plaintiff theuncompromisable obli ation to include in the suit filed b him the whole of his claim towhich he feels he is entitled and to that end pra for the specific relief which he claimseither simpl or in the alternative, leavin of course the eneral or other relief which maalwa s be iven to him b the Court. ?he e#pression E eneral or other reliefF has been

:udiciall construed to mean the rant of mesne profits Ragh" Mahton s B"lla1 an

habibur rahman molla vs state

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