Interpretation of statutes by the Courts is an issue that has drawn widespread interest of critics and law researchers alike. It is something that has far reaching consequences. Laws are enacted by the Legislature for the benefit of people, and whole lot of thinking and deliberation is presumed to have undergone before their enactment. Still, when it comes to implementation, issues crop up requiring interpretation one way or the other. This situation, in effect, calls upon the Courts to decide true meaning of the letter of law. Modern jurisprudence has delved upon various theories of interpretation, bringing in focus law making role of the Legislature vis-à-vis law interpreting role of the Court. To my mind the latter is as important as the former. Without doubt, the interpretative role of Courts focusses upon the approach of individual Judges in looking at the issues to be addressed, purposively or literally
One such issue arose before the Hon’ble Supreme Court in Rana Nahid alias Reshma V. Sahidul Haq Chisti1, whether a Family Court constituted under the Family Courts Act, 1984 (for short ‘the 1984 Act’) can entertain a petition for maintenance filed by a divorced Muslim woman under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ‘the 1986 Act’). The Hon’ble Supreme Court could not reach a conclusion on the issue and rendered a split verdict on the issue vide judgment dated 18.06.2020. Two Hon’ble Judges, who constituted the Bench, gave diverse opinion by way of separate judgments, and the matter was ordered to be placed before the Hon’ble Chief Justice of India for referring it to a Larger Bench, which has not rendered any judgment so far. The instant piece looks upon the split judgment from jurisprudential point of view, and tries to analyse the two different approaches adopted to interpret same provisions of law, leading to distinct effects. Of the two which one should prevail is not being looked into or being commented upon here, as that would be decoded by the larger Bench to be constituted for the purpose.
The facts of the case which led to the aforesaid split judgment are, a divorced Muslim Woman (appellant no.1), whose marriage was solemnized with the respondent husband on 08.03.1998 as per Muslim rites, and had a son (appellant no.2) born out of the wedlock, approached the Hon’ble Supreme Court against dismissal of her petition for maintenance by the High Court of Rajasthan, which held the Family Court had no jurisdiction to convert the appellants’ application under Section 125 Cr.PC into an application under Section 3 of the 1986 Act. Liberty was, however, granted to the appellants to file application under Section 3 of the 1986 Act before the Court of competent Magistrate. The issue raised in the case revolves around provisions of Section 7, 8 and 20 of the 1984 Act, and Section3 of the 1986 Act.2
The Split Judgment
One of the Hon’ble Judges (Justice Indira Banerjee) in her separate judgment3 upheld the appeal by setting aside the impugned judgment of the Rajasthan High Court and taking a purposive view of the issue. It has been held that the Family Courts, on account of non-obstante clause in Section 20 of the 1984 Act, have overriding effect. Resultantly, the Court of a Magistrate under the 1986 Act for Muslim Women would come under the Family Court as per the 1984 Act as well. It was further held by the Hon’ble Judge that reading of Section (1) & (2) of the 1984 Act makes it patently clear that a Family Court was deemed to be a District Court, or as the case as may be, a subordinate Court, in the area to which the jurisdiction of Family Court extends in respect of proceedings of the nature referred to therein. It was pertinently noted in the judgment that non-obstante clause in the 1986 Act is confined only to sub-section (1) of Section 3 of the Act. It does not apply to sub-sections 2 & 3 of the 1986 Act for Muslim Women. Therefore, the 1986 Act in its entirety cannot be said to have overriding effect vis-a-vis provisions of the 1984 Act. Consequently, the Family Court will have jurisdiction to entertain a maintenance petition filed by a Muslim woman under the 1986 Act.
The judgment touched upon another very vital aspect of the issue regarding jurisdiction of the 1984 Act with respect to personal and family matters of all men and women. It was specifically held that a Family Court alone has jurisdiction in respect of personal and family matters relating to all men and women irrespective of their religion. The faith of respective parties as well as their religion cannot have any bearing on the jurisdiction conferred on Family Courts under the 1984 Act. The right to equality, irrespective of religion, is a basic human right conferred on the citizens by the Constitution of India.
The argument raised by the respondent that Family Courts do not have jurisdiction exercisable by a Magistrate of the First Class for Muslim Women under the 1986 Act, since this Act does not specifically confer any jurisdiction on the Family Courts; and Section 7 read with Section 8 of the 1984 Act only clothes the Family Court with the jurisdiction of First Class Magistrate in respect of the proceedings for maintenance under Chapter-IX of the Cr.P.C., did not find favour. The Hon’ble Judge held, in case there was any ambiguity with regard to the jurisdiction of the Family Court on account of use of the expressions ‘subordinate civil court’ in Section 7 (1)(a) and (b) of the 1984 Act, and also the ‘First Class Magistrate exercising jurisdiction under ChapterIX of Cr.P.C.’ in Section 7 (2) (a) thereof, this Court was duty bound to clear the ambiguity by interpreting the law in consonance with the Fundamental Rights conferred under Article 14 & 15 of the Constitution. A Family Court having jurisdiction in the area is to be deemed to be the Court of Magistrate for the purpose of deciding maintenance claim of a divorced Muslim woman also, on a harmonious construction of Section 7 & 8 of the 1984 Act with Sections 3 (2) and (3), Section 4 (1) & (2), 5 and 7 of the 1986 Act for Muslim women in the light of overriding provisions of Section 20 of the 1984 Act. Besides, the 1986 Act is essentially a civil law and not a criminal statute as it does not contain any penal provision for any default. Finally, it was opined that intention of the 1986 Act was not to deprive a divorced Muslim woman of the litigant friendly provisions of the 1984 Act, nor to denude the Family Courts of jurisdiction to decide applications for maintenance by such women.
The contrary view, which is literal in nature, was rendered by Justice R. Banumathi by a separate judgment4 dismissing the appeal preferred by the appellants, and holding that the Family Courts do not have jurisdiction to entertain maintenance application filed by a divorced Muslim woman under the 1986 Act. Reliance was placed upon the non-obstante Clause contained in sub-section 1 of Section 3 of the 1986 Act, to hold that the clause has to be understood fairly and reasonably. The 1986 Act has conferred more rights on a divorced Muslim woman but the same have been conferred notwithstanding Section 125 Cr.P.C. Provisions of Section 7 of the 1986 Act were also relied upon to hold that the power had been given therein to the Magistrate only to dispose of any pending application under Section 125 Cr.P.C, as per provisions of 1986 Act. This, in view of the ld. Judge, is a clear indication in legal provision that only a Magistrate of the First Class exercising jurisdiction under Cr.P.C. can dispose of the application under the 1986 Act, and not a Family Court. It was further held that Section 7 (1) of the 1984 Act is to apply only when the proceedings of a suit of the nature envisaged by Clause (a) to (g) of the Explanation to this Section arise; and as per Section 7 (2), with respect to the matter where jurisdiction is exercisable by the Magistrate of the First Class under Chapter-XI of the Cr.P.C. Therefore, on a plain reading of these provisions, an application under Section 3 of 1986 Act was held not maintainable before a Family Court under Section 7 of the 1984 Act. It was further held that the legislature has not conferred jurisdiction on a Family Court under the provisions of the 1986 Act, which is a subsequent Act to that of the 1984 Act. Nothing more is to be read into it. Reliance was also placed on a judgment Anjum Hasan Siddiqui V. Smt. Salma5 rendered by ld. Single Judge of Allahabad High Court, and also on the Full Bench Judgment of Bombay High Court in Karim Abdul Rehaman Shaikh V. Shehnaz Karim Shaikh & Ors. 6
The analysis of separate judgments by two Hon’ble Judges, as above, point to their different interpretative approaches. The judgment rendered by Justice Indira Banerjee takes purposive view of the issue, whereas the other judgment rendered by Justice R. Banumathi takes literal view; and both reach opposite conclusions. The purposive view leads to the benefit of Muslim women, allowing them access of litigant friendly procedures of Family Courts established under the 1984 Act. Simplied procedures would undobtedly lead to quick justice and less hardship to them. The 1984 Act as well as the 1986 Act were apparently enacted to ameliorate the plight of persons suffering from trauma related to disturbed or broken marital life. The children born out of such wedlocks suffer more than their fighting parents. The issues affecting such persons and their children are more psychological than legal. It was with a view to putting an end to this agony that the Family Courts were established under the 1984 Act. All issues pertaining to matrimony, including maintenance, were brought under its jurisdiction to be tried without adhering to the rigid rules of procedure, and laying emphasis on reconciliation with a view to achieving socially desirable results. The 1986 Act was enacted for the related purpose of redressing maintenance issues of divorced Muslim women. In case on literal interpretation of the provisions, access to the litigant friendly procedures of Family Courts could not have been specifically provided by the 1986 Act or the 1984 Act, should the Court not take a purposive view of the issue and try to reach the object behind the legislations keeping in view the background, aim, practical and social aspects of the enactments. After all, the purposive interpration of a procedural law, which opens up quick and simplified legal avenues of justice for the hapless divorced women and their children, appears more desirable.
The ‘interpretative’ judgments by the Courts, more often than not, have been criticised in situations leading to conferring of substantive rights. The procedural aspects opening up new vista of accessing justice for the needy, should not hold the Court back from going behind the letter of law, reaching out to true legislative intent and giving full effect to the intending purpose. The primary function of the Court is not to legislate, so to say; none the less, its prime function is to visualise and comprehend a provision of law in the context it has been enacted, and interpret it in the manner that would ameliorate, rather than endure, the situation for the affected within the broader Constitutional framework.
Trends of Interpretation
The literalists argue, the Constitution has assigned the role of enacting statutes to the Legislature. It is in the realm of policy framework. The policies government consider appropriate for the people are enacted into law. The Courts, in the processs of interpretation, are only to interpret and not legislate or enact. They are endowed with the power to review an enactment on the touchstone of the Constitution, and strike it down in case of violation. Once the Courts start making law, wittingly or unwittingly, they step out of their jurisdiction, disregarding the principles of Separation of Powers. Such proclivity holds no good for the working of a rule based society, governed by the coded Constitution.
Further, the classical literalists would draw strength from the school of jurisprudence subscribing to the theory that the law is as good or bad for the people as the Legislature enacted it for them. In case the law was bad, deficient, unworkable, the Courts had to declare it thus, leaving it for the Legislature to rectify, repeal or adopt other remedial measures. They have to adopt strict laissez faire approach; that would force the Legislature to act, perform, and carry out the rectification, as may be needed, to remedy the situation. The Courts’ job is to examine a law, and leave it there, even if unworkable, as that would have its own effect by mounting public pressure in forcing the Legislature to come up with an appropriate law.
Well, how far the laissez faire approach is to be followed in the present day situation, is another debatable question. Hands-off approach for the Courts, leaving them content with the only function of interpreter of the sovereign’s command in the form of enactments, having no role in actively redressing the situation and ensuring Constitutional rights and protections to the people, looks outmoded. The modern Constitutional Courts, exercising the sovereign State power on equal footing as the Legislature, cannot be mute spectators to the situation unfolding before them which makes the litigants suffer inadequacies of laws framed by the Legislature. This approach would only add insult to the injury suffered by them; no Court of law can afford to be that insensitive.
Undoubtedly, the role of different organs of the State is separately defined under the Constitution. At the same time, it must be appreciated that we cannot speak in absolute terms; nor does the Constitution do so. The role to interpret laws assigned to the Courts itself, to some extent, compels them to step into the realm of law making in the process of discharging the Constitutionally assigned job of interpreting and pronouncing what the law would actually mean. It would mean what the Court thinks it to mean; and the Court is supposed to think what the Legislature thought it to be meant. This thinking alignment between the two organs of State, the Court and the Legislature, is not organic, since one of the organs, the Legislture, is physically absent. It has already spoken through the letter of law, which actually needs to be deciphered. It cannot be done without reference to the context in which the law in question has been framed as well as its objects. No law can be divorced from its context, background, purpose, aims and objects; doing so would amount to taking life out of the enactment. This process of interpretation is purposivism, which perceives the enactment as an organism, in the context it has been conceptualised, and tries to make it relevant to serve the purpose it has been enacted for, within the four corners of law.
One of the reasons the purposive approach gained currency, it appears, was the relisation that no legislation can be drfated with absolute perfection, nor can it perceive and take care of all the situations that might arise in the process of its implementation. The English Courts as well did not look too favourably to the Literal method of interpretation, it was eschewed long back.
To quote Lord Denning,
The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as ‘purposive approach”…. In all cases now in the interpretation of statutes we adopt such a construction as will “promote the general legislative purpose” underlying the provision. It is no longer necessary for the judges to wring their hands and say: “There is nothing we can do about it.” Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it – by reading words in, if necessary – so as to do what Parliament would have done, had they had the situation in mind. 7
The debate of literalism versus purposivism will go on, the Courts would also be leaning in favour of either of the two in given situations. That apart, in practice the Supreme Court has been resorting to various tools of statutory interpretation, with the cardinal settled legal proposition in mind, “If the precise words used are plain and unambiguous, they are bound to be construed in their ordinary sense.”8 In Tirath Singh v. Bachittar Singh9 the Court travelled far and observed, in case the language leads to manifest contradiction with the avowed object of the Act itself, or to ‘hardship or injustice’, appropriate construction has to be given by the Courts ‘which may modify meaning of the words’. The Hon’ble Supreme Court observed:
…But it is a rule of interpretation well-established that, ‘Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence….
In Prakash Nath Khanna & Anr. v. Commissioner of Income Tax & Anr. 10, another dimension to the tools of interpretation was added by laying down that the words of a statute need to be construed with some ‘imagination’ of purpose that lies behind them. The observations are:
13. … The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. “Statutes should be construed, not as theorems of Euclid”, Judge Learned Hand said, “but words must be construed with some imagination of the purposes which lie behind them”. (See Lenigh Valley Coal Co. v. Yensavage…
The Court has also provided in unambiguous terms as to in which situations ‘violence’ with the language of a statute is permissible, while at the same time asserting that to realise true intent of law every word used by the Legislature must be given effect to. The judgment in State of Jharkhand V. Tata Steel Ltd. 11 lays down:
As Judge Learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should not make a mockery of legislation.
26. Sabharwal, J. (as His Lordship then was) has observed thus:-
“… It is said that it is now well-settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the court may modify the language used by the legislature or even “do some violence” to it, so as to achieve the obvious intention of the legislature and produce a rational construction. In such a case the court may read into the statutory provision a condition which, though not expressed, is implicit in construing the basic assumption underlying the statutory provision. …”
The way law on judicial interpretation of statutory provisions has taken shape, it can safely be said that the underlying principle undoubtedly is to make a statute workable, just and reasonable, keeping in focus its objects and social realities. In case this endeavour requires reading down, or adding or modifying the language or sentence structure used by the Legislature, it is permissible. The purposive interpretation of a statute to achieve obvious intention of the Legislature has been adopted, that may allow the Court to read into the statutory provision a condition that is implicit in construing its basic object, though not explicit. The golden words of Lord Denning on interpretation must always be remembered, as they lay the very basis of meaningful and just interpretation by the Courts; he says,
Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity….when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, he must do it not only from the language of the statute, but also from a consideration of social conditions which gave rise to it, and the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature.12
It would be interesting to know the mode and manner of interpretation that would be adopted by the larger Bench to look into the issue as of whether a Family Court constituted under the 1984 Act can entertain a petition for maintenance filed by a divorced Muslim woman under the1986 Act.
by Tribhuvan Dahiya
LL.M., Senior Advocate, practicing at Punjab & Haryana High Court, Chandigarh
- Criminal Appeal No.192 of 2011 decided on 18.06.2020 by the Hon’ble Supreme Court; Law Finder Id #1726432.
- Family Courts Act 1984.
7. Jurisdiction .(1) Subject to the other provisions of this Act, a Family Court shall
(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends.
Explanation. The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment.
8. Exclusion of jurisdiction and pending proceedings .Where a Family Court has been established for any area,
(a) no district Court or any subordinate civil Court referred to in sub-section (1) of section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;
(b) no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),
(i) which is pending immediately before the establishment of such Family Court before any district Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.
20. Act to have overriding effect .The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
Muslim Women (Protection of Rights on Divorce) Act, 1986
3. Mahr or other properties of Muslim woman to be given to her at the time of divorce.—
(1) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to—
(a) a reasonable and fair provision and maintenance to be made and paid to her within the idda tperiod by her former husband;
(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
(2) Where a reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be.
(3) Where an application has been made under sub-section (2) by a divorced woman, the Magistrate may, if he is satisfied that—
(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provision and maintenance for her and the children; or
(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-section (1) have not been delivered to her, make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as it and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or, as the case may be, for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-section (1) the divorced woman:
Provided that if the Magistrate finds it impracticable to dispose of the application within the said period, he may, for reasons to be recorded by him, dispose of the application after the said period.
(4) If any person against whom an order has been made under sub-section (3) fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or mahr or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 (2 of 1974), and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. 5. Option to be governed by the provisions of sections 125 to 128 of Act 2 of 1974.—If on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.
Explanation.—For the purposes of this section, “date of the first hearing of the application” means the date fixed in the summons for the attendance of the respondent to the application.
- Supra n. 1.
- AIR 1992 All 322.
- 2000 (3) Mh.L.J. 555.
- The Rt Hon LORD DENNING, The Discipline of Law 16 (First Indian Re-print 1993)
- Nasiruddin v. STAT, (1975)2 SCC 671.
- (1955) 2 SCR 457.
- (2004) 9 SCC 686
- Civil Appeal No.4285 of 2007, decided on 12.02.2016; Law Finder Doc. Id # 742321.
- The Rt Hon LORD DENNING, The Discipline of Law 12 (First Indian Re-print 1993)