Distinction Between Mandatory and Directory Provisions in a Statute : The Law

Justice Dr. B.S. Chauhan

The Bench comprising Justice B.S. Chauhan and Justice Swatanter Kumar of the Supreme Court, in May George v. Special Tehsildar & Ors., dealt with the distinction between Directory provisions and Mandatory provisions as contained in a statute, in a matter involving the interpretation of Section 9 of the  Land Acquisition Act. The Bench culled out the distinction between the two aspects, observing inter alia that;

12. The only question remains for our consideration is as to whether the provisions of Section 9(3) are mandatory in nature and non-compliance thereof, would vitiate the Award and subsequent proceedings under the Act. Section 4 Notification manifests the tentative opinion of the Authority to acquire the land. However, Section 6 Declaration is a conclusive proof thereof. The Land Acquisition Collector acts as Representative of the State, while holding proceedings under the Act, he conducts the proceedings on behalf of the State. Therefore, he determines the pre-existing right which is recognised by the Collector and guided by the findings arrived in determining the objections etc. and he quantifies the amount of compensation to be placed as an offer on behalf of the appropriate government to the person interested. It is for the tenure holder/person interested to accept it or not. In case, it is not acceptable to him, person interested has a right to ask the Collector to make a reference to the Tribunal.

13. Section 9(3) of the Act reads as under :-

“The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate”

Section 9 of the Act provides for an opportunity to the “person interested” to file a claim petition with documentary evidence for determining the market value of the land and in case a person does not file a claim under Section 9 even after receiving the notice, he still has a right to make an application for making a reference under Section 18 of the Act. Therefore, scheme of the Act is such that it does not cause any prejudicial consequence in case the notice under Section 9(3) is not served upon the person interested.

14. While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things.

15. In Dattatraya Moreshwar Vs. The State of Bombay & Ors., AIR 1952 SC 181, this Court observed that law which creates public duties is directory but if it confers private rights it is mandatory. Relevant passage from this judgment is quoted below:–

“It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provision of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done.”

16. A Constitution Bench of this Court in State of U.P. & Ors. Vs. Babu Ram Upadhya AIR 1961 SC 751, decided the issue observing :- 

“For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.”

17. In Raza Buland Sugar Co. Ltd., Rampur Vs. Municipal Board, Rampur AIR 1965 SC 895; and State of Mysore Vs. V.K. Kangan, AIR 1975 SC 2190, this Court held that as to whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law-maker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other. 

18. In Sharif-Ud-Din Vs. Abdul Gani Lone AIR 1980 SC 303, this Court held that the difference between a mandatory and directory rule is that the former requires strict observance while in the case of latter, substantial compliance of the rule may be enough and where the statute provides that failure to make observance of a particular rule would lead to a specific consequence, the provision has to be construed as mandatory.

19. Similar view has been reiterated by this Court in Balwant Singh & Ors. Vs. Anand Kumar Sharma & Ors. (2003) 3 SCC 433; Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. & Ors. AIR 2003 SC 511; and Chandrika Prasad Yadav Vs. State of Bihar & Ors., AIR 2004 SC 2036.

20. In M/s. Rubber House Vs. M/s. Excellsior Needle Industries Pvt. Ltd. AIR 1989 SC 1160, this Court considered the provisions of the Haryana (Control of Rent & Eviction) Rules, 1976, which provided for mentioning the amount of arrears of rent in the application and held the provision to be directory though the word “shall” has been used in the statutory provision for the reason that non-compliance of the rule, i.e. non-mentioning of the quantum of arrears of rent did involve no invalidating consequence and also did not visit any penalty.

21. In B.S. Khurana & Ors. Vs. Municipal Corporation of Delhi & Ors. (2000) 7 SCC 679, this Court considered the provisions of the Delhi Municipal Corporation Act, 1957, particularly those dealing with transfer of immovable property owned by the Municipal Corporation. After considering the scheme of the Act for the purpose of transferring the property belonging to the Corporation, the Court held that the Commissioner could alienate the property only on obtaining the prior sanction of the Corporation and this condition was held to be mandatory for the reason that the effect of non-observance of the statutory prescription would vitiate the transfer though no specific power had been conferred upon the Corporation to transfer the property.

22. In State of Haryana & Anr. Vs. Raghubir Dayal (1995) 1 SCC 133, this Court has observed as under:–

“The use of the word ‘shall’ is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand. Normally, the word ‘shall’ prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word ‘shall’, therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be described to the word ‘shall; as mandatory or as directory accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory.”

23. In Gullipilli Sowria Raj Vs. Bandaru Pavani @ Gullipili Pavani (2009) 1 SCC 714, this Court while dealing with a similar issue held as under :

“…The expression “may” used in the opening words of Section 5 is not directory,as has been sought to be argued, but mandatory and non-fulfilment thereof would not permit a marriage under the Act between two Hindus. Section 7 of the 1955 Act is to be read along with Section 5 in that a Hindu Marriage, as understood under Section 5, could be solemnised according to the ceremonies indicated therein” 

24. The law on this issue can be summarised to the effect that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance of the provision could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject matter and object of the statutory provisions in question. The Court may find out as what would be the consequence which would flow from construing it in one way or the other and as to whether the Statute provides for a contingency of the non-compliance of the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid.

Talaq & Halala under Muslim Law : Bombay High Court explains

Justice D.B. Bhosale
Bombay High Court

The Bench comprising Justice D.B. Bhosale and R.Y. Ganoo of the Bombay High Court in Sabah Adnan Sami Khan v. Adnan Sami Khan have explained the concept of 'triple talak' under Muslim Law. 

The High Court examined the above concepts in the following terms;

7. The Holy Quran is the primary source of Mohammedan Law and represents the God’s Will communicated to the Prophet through the Angel Gabriel. (See: Masroor Ahmed Vs State (NCT of Delhi) and Anr, and the Full Bench Judgment of this Court in Dagdu Pathan Vs Rahimbi Dagdu Pathan, 2003 (1) HLR 689). Section 34, Chapter IV in Mulla’s Principles of Mahomedan Law by Hidayatullah, Nineteenth Edition, (for short, “Mulla’s Mahomedan Law”) deals with Interpretation of the Quran. It states that the Courts, in administering Mahomedan law, should not, as a rule, attempt to put their own construction on the Quran in opposition to the express ruling of Mahomedan commentators of great antiquity and high authority.

8. The Holy Quran recites on the issue of Halala, with which we are concerned in the present appeal, as under : Sura 230 (i e. Verse 230).

“And if he hath divorced her (the third time), then she is not lawful unto him thereafter until she hath wedded another husband. Then if he (the other husband) divorces her, it is no sin for both of them that they come together again if they consider that they are able to observe the limits of Allah. These are the limits of Allah. He manifesteth them for people who have knowledge”.

What it means is that if the Talak was “the third time”, such a Talak was pronounced, then they cannot re-marry unless the wife were to have, in the intervening period, married someone else and her marriage had been dissolved either through divorce or death of that person and the iddat of divorce or death has expired. This is considered as “Halala”. 

9. Marriage, according to Muslim Law, is a civil contract, the object of which is to legalize sexual intercourse and the procreation of children. (See: Smt Joygun Nessa Bibi Vs Muhammad Ali Biswas, AIR 1938 Calcutta 71). Divorce is another name of dissolution of marriage under three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated.The existence of conjugal relations in the case of Mahomedans has to be determined by reference to the provisions of the Mahomedan Law and not by considerations of equity and good conscience as understood in any other system of law (See: Zohara Khatoon Vs Mohd Ibrahim, AIR 1981 SC 1243).

10. In Mullas Mahomedan Law, section 311 provides, three modes of Talak, with which we are concerned in the present appeal, namely Talak Ahsan; Talak Hasan; and Talak-i-badai. Talak “Ahsan” consists of a single pronouncement of divorce (Talak) made during a tuhr, period between two menstrual course, followed by abstinence from sexual intercourse for the period of Iddat. (See. Section 311(1)). Talak “Hasan” consists of three pronouncements made during successive tuhrs without sexual intercourse during any of the three tuhrs. The Talak becomes irrevocable on pronouncement of divorce during all the three tuhrs. In other words, before the third pronouncement, Talak Hasan is revocable by conduct of the parties. However, once the third pronouncement of divorce is made without sexual intercourse during all the three tuhrs, the divorce becomes irrevocable and in that case after Iddat, the former husband and wife cannot enter into a Nikah unless the wife undergoes the process of Halala. (See. S.311(2). The third mode of Talak, namely, “Talak-i-badai” consists of two modes. Firstly, it consists of three pronouncements made during a single tuhr. For instance, three pronouncements in one go (Triple Talak) either in one sentence, e.g, “I divorce you three times or in separate sentences, e.g., Talak, Talak, Talak. (See : S. 311(3)(i)). The second mode of Talak-i-badai consists of a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage. For instance, “I divorce you irrevocably”. (See: S.311(3)(ii)). 

11. A Talak in the “Ahsan” mode becomes irrevocable and complete on the expiration of the period of iddat. (See: S.312(1) in Mulla’s Mahomedan Law) Similarly, a Talak in the “Hasan” mode becomes irrevocable and complete on the third pronouncement, irrespective of the iddat, (See: S.312(2))and a Talak in the “badai” mode becomes irrevocable immediately it is pronounced, irrespective of the iddat. As the Talak becomes irrevocable at once, it is called talak-i-bain, that is, irrevocable Talak (See: S.312(3)). Thus, in case of a Talak in the Ahsan mode and in the “Hasan” mode do not become absolute until a certain period has elapsed. In case of these two modes of Talak the husband has an opportunity of reconsidering his decision and he has the option to revoke it before the certain period is elapsed. The essential feature of a talak-ul-bidaat or talak-i badai is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talak-ulbidaat, and the intention to render a talak-irrevocable may be expressed even by a single declaration. Thus if a man says : “I have divorced you by a talaka-ul-bain (irrevocable divorce)”, the talak is talak-ul-bidaat or talak-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression “bain” (irrevocable) manifests of itself the intention to effect an irrevocable divorce.

12. “Iddat” has been described in Mulla’s Mahomedan Law, as the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death to remain in seclusion, and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. When the marriage is dissolved by divorce, the duration of the iddat, if woman is subject to menstruation, is three course; if she is not so subject, it is three Lunar months. If the woman is pregnant at the time, the period terminates upon delivery. When the marriage is dissolved by death, the duration of the iddat is four months and ten days. If the woman is pregnant at the time, the iddat lasts for four months and ten days or until delivery, whichever period is longer (See: Section 257, Chapter XIV in Mulla’s Mahomedan Law). The period of iddat prescribed by Muslim Law is 90 days.

13. As the Talak becomes irrevocable at once, it is called Talak-i-bain, that is, irrevocable Talak. (See: S.312, Mulla’s Mahomedan Law). Thus it is clear that a Talak can be revoked by conduct before it becomes irrevocable. The Talak is, however, complete on the expiration of the period of iddat. Until the talak becomes irrevocable, the husband has the option to revoke it which may be done either expressly, or implied as by resuming sexual intercourse. Every mode of Talak, when is complete, it becomes irrevocable. The question that we have to consider is whether in case of every irrevocable talak, irrespective of its mode, for remarriage with the same husband the wife requires to observe the “Halala”.

14. The Delhi High Court in Masroor Ahmed’s case, after considering different forms of Talak, so also the provisions of Sections 311 and 312 in Mulla’s Mohamedan Law, in paragraphs 26 and 27 of the judgment held thus: 

“26. ... .... ... There are views even amongst the sunni schools that the triple talaq pronounced in one go would not be regarded as three talaqs but only as one. Judicial notice can be taken of the fact that the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation. It is an innovation which may have served a purpose at a particular point of time in history but, if it is rooted out such a move would not be contrary to any basic tenet of Islam or the Quran or any ruling of the Prophet Muhammad.

27. In this background, I would hold that a triple talaq (talaq-e-bidaat), even for sunni muslims be regarded as one revocable talaq. This would enable the husband to have time to think and to have ample opportunity to revoke the same during the iddat period. All this while, family members of the spouses could make sincere efforts at bringing about a reconciliation. Moreover, even if the iddat period expires and the talaq can no longer be revoked as a consequence of it, the estranged couple still has an opportunity to re-enter matrimony by contracting a fresh nikah on fresh terms of mahr etc.”

15. The Full Bench in Dagdu Versus Rahimbi Dagdu Pathan (supra) had an occasion to consider the provisions in Chapter II and III of Part-I of a Compendium of Islamic Laws published by the All India Muslim Personal Law Board, dealing with the conditions of effectiveness of Talak so also Chapter XVI in Mulla’s Mahomedan Law dealing with the subject Divorce. The Full Bench, after considering section 310, Chapter XVI in Mulla’s Mahomedan Law in respect of Talak in writing, made the following observations:

“Talak in writing is a written mode of Talak reduced in a Talaknama which may only be the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. The deed may be effected in the presence of a Qazi or the wife’s father or of two witnesses. In the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce (Talak-i-bain) and takes effect immediately on its execution. Talak by a delegation is permissible and it is called as a Talak by Tafweez. 

Written Talaq may have several forms and some of them are (a) Kitabat-e-mustabinath (legible writing). It is of two kinds – Mustabinah Marsumah (formal legible writing and Mustabinah Ghair Marsumah (informal legible writing) Kitabat-emustabinath Marsumah which is a formal divorcedeed or letter which is written with a title and the addressee’s name.”

16. A Talak may be effected orally (by spoken words) or by a written document called a Talaknama. A Talaknama may only be the record of the fact of an oral Talak; or it may be the deed by which the divorce is effected. Section 313 in Mulla’s Mahomedan Law provides that in the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce that is, talak-i-bain, and takes effect immediately on its execution. Deed of Divorce in writing constitutes a valid divorce (Rasul Bakhst Vs Bholon and others, AIR 1932 (Lah.498). Under Hanafi Law, divorce of wife by a written document is irrevocable (Hayat Khatun Vs Abdullah Khan, AIR 1937 Lah.270). As most Sunni’s are Hanafis the presumption is that a Sunni is governed by Hanafi Law. It is thus clear Talaknama may be only the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. (See: S.310(2)).

17. At this stage, it is also necessary to refer to the rules of revocable and irrevocable Talak and they are in sections 17,18,19 and 20 in Chapter III of Part-I of a Compendium of Islamic Laws, published by the All India Muslim Personal Law Board, dealing with the conditions of effectiveness of Talak, (See: Dagdu Vs Rahimbi Dagdu Pathan) which read thus :

“Section 17 : In a revocable Talaq the husband can take back the wife during “Iddat” without her consent and without a remarriage; but after the expiry of “Iddat” she will become irrevocable divorced and can be lawfully taken back only by a fresh marriage. 

Section 18 : Revocable may be either by conduct – e.g., if the husband had had coitus, kissing and caresses with the wife – or by spoken words, e.g. If the husband says that he has taken back his wife and informs her of the same. Revocation by words is preferable in the presence of witnesses (two men or a man and two women).

Section 19: An irrevocable Talaq, whether express or implied, (words of complication are explained hereinafter) is of two kinds; bainunat-e-khafifah (minor separation) and bainunat-e-ghalizah (major separation). Less than three Talaqs effect bainunat-e-khafifah, otherwise there will be bainunat-e-ghalizah. 

Section 20 : In bainunat-e-khafifah though the wife goes out of the marital bond but the parties may by mutual consent remarry during or after the “Iddat”. In bainunat-e-ghalizah remarriage is possible only where after the expiry of “Iddat” the woman has married another man who has either died or divorced her and the “Iddat” of death or divorce has expired.”

From perusal of these sections, it is clear that once Talak becomes irrevocable, the wife can be lawfully taken back only by a fresh marriage. Revocation during iddat may be either by conduct or by spoken words. An irrevocable Talak is of two kinds: Bainunat-e-khafifah (minor separation); and Bainunat-eghalizah (major separation). Less then three Talaks effect minor separation, otherwise there will be major separation. If it is minor separation (Bainunat-e-khafifah) the parties may by mutual consent remarry during or after the iddat. However, in case of major separation (Bainunat-e-ghalizah) they cannot remarry unless Halal formality is complied with by the wife.

18. Thus, in our opinion, where Talak becomes irrevocable through any mode between the parties, for re-marriage between them, it is not necessary that the Halala must be observed. In other words, merely because a talak has become irrevocable, does not mean that in case of every irrevocable Talak, irrespective of its mode, for re-marriage between the same couple, it is necessary that the Halala formality must be complied with by the wife.

19. Where the husband has repudiated his wife by three pronouncements (Triple Talak), as provided for in the Hasan mode of Talak (See: S.311(2)) and in Talak-i-badai by three pronouncements (See: S.311(3)(i)), it is not lawful for him to marry her again until she remarries another man and the later divorced her or he dies after actual consummation of the marriage. In other words, in case of a Talak in the Hasan mode and a Talak in Talak-i-badai by the three pronouncements mode, remarriage is possible only if Halala is observed by the wife. A Talak in the Ahsan mode and a Talak in the Talak-i-badai by a single pronouncement mode, Halala need not be observed. Where the husband has repudiated his wife by three pronouncements, even if re-marriage between them is proved, the marriage is not valid unless it is established that the bar to remarriage by observing Halala was removed. The mere fact that the parties have remarried does not raise any presumption as to the fulfillment of Halala formality. (See: Akhtaroon–nissa Vs Shariutoollah Chowdhry, (1867) 7 WR 268). 

20. That takes us to consider “Khula”. In Moonshee Buzu – Ul-Rahem Vs Luttee Fatoonisa (1961) 8 MIA 399, Khula is defined as “a divorce by khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. It signifies an arrangement entered into for the purpose of dissolving a connubial connection in lieu of compensation paid by the wife to her husband out of her property. 

21. Section 319, Chapter XVI in Mulla Mahomedan Law deals with “Khula and Mubara’at”. In this section, it is stated that a marriage may be dissolved not only by talak, which is the arbitrary act of the husband, but also by agreement between the husband and wife. A dissolution of marriage by agreement may take the form of Khula or Mubara’at. A divorce by Khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a case, the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, release her dower and other rights, or make any other agreement for the benefit of the husband. A Khula divorce is effected by an offer from the wife to compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (talak-i-bain, that is, Irrevocable divorce) (Ss.311(3), 312), and its operation is not postponed until execution of the Khulanama (Deed of Khula).

22. Mubara’at means mutual release. A Mubara’at divorce like Khula, is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife, and she desires a separation, the transaction is called Khula. When the aversion is mutual, and both the sides desire a separation, the transaction is called Mubara’at. The offer in a Mubara’at divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates as a Talaki- bain as in the case of Khula. As a talak, so in khula and mubara’at, the wife is bound to observe the iddat. 

23. Khula is a form of divorce recognised by the Muslim Law. It is virtually a right of divorce purchased by the wife from her husband. It is complete from the moment when the husband repudiates the wife. There is no period during which such a divorce can be revoked at the instance of the husband. Thus, a divorce by Khula is complete if the following conditions are satisfied : (i) if it is at the instance of the wife or there must be an offer from the wife; (ii) she gives or agrees to give a consideration to the husband for her release; and (iii) acceptance by the husband of the offer. Over and above this, under Sunni law, the husband must be adult and of sound mind. A proposal by Khula made by the wife may be retracted by her at any time before the acceptance by the husband and the proposal stands revoked if the wife rises from the meeting where the proposal is made. Abu Hanifa has provided three days of options for wife to accept or revoke Khula but does not allow this option to husband but his disciples are of the opinion that the option is for the both sides. (See: Principles of Muslim Law by Yawer Qazalbash, page 135) Under Hanafi law, no form is necessary but only intention must be proved besides the proposal, acceptance and consideration. In case of a divorce by Mubara’at, offer may be either from the side of wife or from the side of husband. When an offer for mubara’at is accepted it becomes irrevocable divorce. (Talak-Ul-bain). No particular form is required under Sunni law but mutual agreement must be made at the same time and the word Mubara’at must be clearly expressed in the proposal and if ambiguous expressions are used intention must be proved. Under Sunni law, when the parties enter into a mubara’at all mutual rights or obligations came to an end. Thus, Khula is redemption of the contract of marriage while Mubara’at is a mutual release from the marriage tie. In Khula the offer is made by the wife and its acceptance is made by the husband, whereas in Mubara’at any of the two may make an offer and other accepts it. In Khula, a consideration passes from wife to husband, whereas in Mubara’at the question of consideration does not arise.

24. In Asaf A.A.Fyzee, Outlines of Muhammadan Law, Fifth Edition in Chapter IV dealing with divorce by consent after defining Khula and Mubara’at so also after narrating the distinguishing factors between the two, the learned author has concluded the discussion stating that “Khula and Mubara’at operates as a single irrevocable divorce. Therefore, marital life cannot be resumed by mere reconciliation; a formal remarriage is necessary. In either case iddat is incumbent on the wife and, in the absence of agreement to the contrary, the wife and her children do not lose the rights of maintenance during the period”. The learned author has not made any reference to Halala formality in case of remarriage of the couple. In either case, iddat only is incumbent on the wife. 

26. Thus, a Khula divorce is effected by an offer from the wife to compensate the husband if he releases her from her marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (Talak-i-bain, that is, irrevocable divorce), and its operation is not postponed until execution of Khulanama. In our opinion, merely because Khula becomes irrevocable (talak-i-bain) on complying with all the three conditions, (that is, i. it should be at the instance of the wife or there must be an offer from the wife; ii. the wife gives or agrees to give a consideration to the husband for her release; and iii. acceptance by husband of the offer) does not mean that the rigors of irrevocable divorce by Triple pronouncements are applicable and Halala is mandatory. There is a clear distinction between “Triple Talak” and “talak by single pronouncement” and, therefore, the Talak by single pronouncement cannot be treated as a talak by triple pronouncement, only because at some stage it becomes irrevocable (talak-i-bain). If a talak is the talak by single pronouncement, in our opinion, Halala need not be observed.

The Law relating to Dowry Death : Supreme Court Explains

Justice Dr. B.S. Chauhan
Supreme Court of India

The Supreme Court Bench comprising Justice B.S. Chauhan and Justice Swatanter Kumar had the opportunity to deal with provisions of Section 304 B of the Criminal Procedure Code relating to 'Dowry Deaths', in Ashok Kumar v. State of Haryana. The bench, while examining a plethora of judgments on the aspect, examined the law relating to dowry deaths, as it stands today. Some excerpts from the Judgment are given below;

10. The appellant was charged with an offence under Section 304-B of the Code. This penal section clearly spells out the basic ingredients as well as the matters which required to be construed strictly and with significance to the cases where death is caused by burns, bodily injury or the death occurring otherwise than under normal circumstances, in any manner, within 7 years of a marriage. It is the first criteria which the prosecution must prove. Secondly, that ‘soon before her death’ she had been subjected to cruelty or harassment by the husband or any of the relatives of the husband for, or in connection with, any demand for dowry then such a death shall be called ‘dowry death’ and the husband or the relative, as the case may be, will be deemed to have caused such a death. Explanation to this section requires that the expression ‘dowry’ shall have the same meaning as in Section 2 of the Act. The definition of dowry under Section 2 of the Act reads as under : 

“In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly--

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation II.--The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).”

11. From the above definition it is clear that, ‘dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law. All the expressions used under this Section are of a very wide magnitude. The expressions ‘or any time after marriage’ and ‘in connection with the marriage of the said parties’ were introduced by amending Act 63 of 1984 and Act 43 of 1986 with effect from 02.10.1985 and 19.11.1986 respectively. These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression ‘in connection with the marriage’ cannot be given a restricted or a narrower meaning. The expression ‘in connection with the marriage’ even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be ‘in connection with the marriage’ and not so customary that it would not attract, on the face of it, the provisions of this section.

12. At this stage, it will be appropriate to refer to certain examples showing what has and has not been treated by the Courts as ‘dowry’. This Court, in the case of Ram Singh v. State of Haryana [(2008) 4 SCC 70], held that the payments which are customary payments, for example, given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression ‘dowry’. Again, in the case of Satbir Singh v. State of Punjab [AIR 2001 SC 2828], this Court held that the word ‘dowry’ should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word ‘dowry’. This Court, in the case of Madhu Sudan Malhotra v. K.C. Bhandari [(1988) Supp. 1 SCC 424], held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances etc., to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry within the meaning of Section 2 of the Act. The definition of ‘dowry’ is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands, was the dictum of this Court in the case of State of Andhra Pradesh v. Raj Gopal Asawa [(2004) 4 SCC 470].

13. The Courts have also taken the view that where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of ‘dowry’ under the Act. Section 4 of the Act is the penal Section and demanding a ‘dowry’, as defined under Section 2 of the Act, is punishable under this section. As already noticed, we need not deliberate on this aspect, as the accused before us has neither been charged nor punished for that offence. We have examined the provisions of Section 2 of the Act in a very limited sphere to deal with the contentions raised in regard to the applicability of the provisions of Section 304-B of the Code.

14. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the Section is ‘soon before her death’. In our view, the expressions ‘soon before her death’ cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other. 

15. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in the case of Tarsem Singh v. State of Punjab [AIR 2009 SC 1454], held that the legislative object in providing such a radius of time by employing the words ‘soon before her death’ is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her. Similar view was expressed by this Court in the case of Yashoda v. State of Madhya Pradesh [(2004) 3 SCC 98], where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case. 

16. The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression ‘demand for dowry’ will have to be construed ejusdem generis to the word immediately preceding this expression. Similarly, ‘in connection with the marriage’ is an expression which has to be given a wider connotation. It is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. These are penal provisions but ultimately these are the social legislations, intended to control offences relating to the society as a whole. Dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with cruelty for satisfaction of demands in consideration and for subsistence of the marriage.

17. The Court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304-B. Where other ingredients of Section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its case with regard to the basic ingredients of Section 304-B, the Court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the Court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code. 

18. Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304-B were not satisfied, rebut the same. While referring to raising of presumption under Section 304-B of the Code, this Court, in the case of Kaliyaperumal v. State of Tamil Nadu [AIR 2003 SC 3828], stated the following ingredients which should be satisfied :

“4 ... 1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B, IPC). 

2) The woman was subjected to cruelty or harassment by her husband or his relatives.

3) Such cruelty or harassment was for, or in connection with, any demand for dowry. 

4) Such cruelty or harassment was soon before her death.” 

19. In light of the above essential ingredients, for constituting an offence under Section 304-B of the Code, the Court has to attach specific significance to the time of alleged cruelty and harassment to which the victim was subjected to and the time of her death, as well as whether the alleged demand of dowry was in connection with the marriage. Once these ingredients are satisfied, it would be called the ‘dowry death’ and then, by deemed fiction of law, the husband or the relatives would be deemed to have committed that offence. The learned counsel appearing for the appellant, while relying upon the case of Tarsem Singh (supra), contended that the concept of ‘soon before the death’ is not attracted in relation to the alleged harassment or cruelty inflicted upon the deceased, in the facts of the present case. The oral and documentary evidence produced by the prosecution does not suggest and satisfy the essential ingredients of the offence. 

20. Similarly, reference was also made to the judgment of this Court in the case of Appasaheb v. State of Maharashtra [(2007) 9 SCC 721], to substantiate the contention that there was no co-relation between giving or taking of the property with the marriage of the parties and, as such, the essential ingredients of Section 2 of the Act were missing. Accordingly, it is argued that there was no demand of dowry by the appellant but it was merely an understanding that for his better business, at best, the amounts could be given voluntarily by the father of the deceased. This fact was further sought to be substantiated while referring to the following abstracts of the judgment in the case of Appasaheb (supra):

“6.…….The learned trial Judge then sought clarification from the witnesses by putting the following question: 

“Question: What do you mean by ‘domestic cause’?

Answer: What I meant was that there was a demand for money for defraying expenses of manure, etc. and that was the cause."

In the very next paragraph she stated as under:

“It is not true to suggest that in my statement before the police I never said that ill-treatment was as a result of demand for money from us and its fulfilment. I cannot assign any reason why police did not write about it in my statement.” xxx xxx xxx xxx

9. Two essential ingredients of Section 304-B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub-section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. xxx xxx xxx xxx

11. In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well-known social custom or practice in India. It is well-settled principle of interpretation of statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd. and Chemical and Fibres of India Ltd. v. Union of India[(1997) 2 SCC 664].) A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.”

Bond v. Promissory Note | Bhismat Pandey v. Phoola, AIR 2010 MP 147

The Madhya Pradesh High Court recently had the opportunity to clarify the law relating to the distinction between a Bond and a Promissory Note.  

6. To appreciate the rival contention of the parties, it would be appropriate if the definition of bond in the Indian Stamp Act, 1899 may be referred which reads thus:
Bond: Section 2(5) "Bond" includes:

(a) any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;

(b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and 

(c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another. 

Promissory note has been defined in Section 2(22) which reads thus:

Promissory Note: Section 2(22) "Promissory note" means a promissory note as defined by theNegotiable Instruments Act, 1881;

It also includes a note promising the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency which may or may not be performed or happen.

As per Section 2(22) the definition of Promissory note shall be as defined by Negotiable Instruments Act, 1881. For ready reference the definition of promissory note as defined in Section 4 of the Negotiable Instruments Act may be referred, which reads as under:

4. "Promissory note".- A "promissory note" is an instrument in writing (not being a bank-note or a currency- note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument.

Now in the light of aforesaid definitions firstly the definition of promissory note may be looked into. Section 4 of the Negotiable Instruments Act provides as under:

(a) An instrument in writing. 

(b) An unconditional undertaking, signed by the maker, to pay a certain sum of money only.

(c) Money is payable to the person in whose favour the promissory note is executed or to the order of a certain person or to the bearer of the instrument. It should be signed by the maker. From the perusal of aforesaid document, it is apparent that except the money was payable to the order of or the bearer of instrument, other conditions were incorporated in the document.

7. Under Section 2(h) of the Indian Contract Act, 1872, an agreement enforceable by law is a contract. Under Section 10 of the Contract Act all agreements are contracts if they are made by free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void. An "agreement" or a "memorandum of agreement to sale of immovable property" has been provided in Schedule 1-A of Indian Stamp Act, which provides stamp duty when possession of property is delivered or is agreed to be delivered without executing the conveyance, the stamp duty as of conveyance on the market value of property is to be paid. But when possession of property is not given 1 % of the total consideration of property, set forth in the agreement or in the memorandum of agreement, is payable. But in the present case, the sale deed was already executed and possession was also delivered to the petitioner herein. In the set of facts, it does not fall within the purview of agreement as provided under Schedule 1-A of Indian Stamp Act.

8. Now the definition of "bond" may be looked into, as provided under Section 2(5) of the Indian Stamp Act, which has been referred hereinabove. As per the definition, the essential ingredients of bond are as under:

(1) The person obliges himself to pay money to another.

(2) On a condition that the obligation shall be void if the specific act is performed or not performed, as the case may be.

(3) The instrument must be attested by a witness.

(4) That the amount shall not be payable to order or bearer and a person obliges himself to pay money to another.

9. A Full Bench of this Court had an occasion in Sant Singh (supra), to consider the essential and distinctions of bond and promissory note. The Full Bench held the essentials of a promissory note as under:

(1) An unconditional undertaking to pay; 

(2) The sum should be a sum of money and should be certain; 

(3) The payment should be to the order of a person who is certain, or to the bearer of the instrument; and 

(4) The maker should sign it.

If these four conditions exist, the instrument is a promissory note.

In respect of bond, the Full Bench held that following are the essentials of a "bond":

(1) There must be an undertaking to pay;

(2) The sum should be a sum of money but not necessarily certain;

(3) The payment will be to another person named in the instrument;

(4) The maker should sign it;

(5) The instrument must be attested by a witness; and

(6) It must not be payable to order or bearer.

The Full Bench on a comparison between the essentials of promissory note and those of bond found that there are three distinguishing features, which are as under:

(i) If money payable under the instrument is not certain, it cannot be a promissory note, although it can be a bond.

(ii) If the instrument is not attested by a witness, it cannot be a bond, although it may be a promissory note.

(iii) If the instrument is payable to order or bearer, it cannot be a bond, but it can be a promissory note.

Defining aforesaid the two peculiar features of bond has been narrated as under:

(a) Positive - it must be attested by a witness.

(b) Negative - it must note be payable to order or bearer.

Appreciating aforesaid, the Full Bench held in Paras 7, 8 and 9 as under:

7. It is also clear that if in an instrument the above two distinguishing features positive and negative) are present, then, even if the four essentials of a promissory  note are also present, the instrument will still be a bond, because all the ingredients of a promissory note are also present in a bond with the exception that whereas a promissory note can be payable, apart from the person named in it, to the order of that person or to the bearer of the instrument, a bond cannot be payable to order or bearer. 

8. Therefore, an instrument, which is not payable to bearer or order but is attested by a witness will also be a bond within the definition of Section 2(5) of the Stamp Act, although simultaneously it may also fall within the definition of a promissory note within the meaning of Section 2(22) of the Stamp Act read with Section 4 of the Negotiable Instrument Act.

9. Having thus opined out the distinction between promissory note and a bond, we may at once say that in the last mentioned situation that is, where an instrument comes within the description of a promissory note as well as that of a bond, by virtue of Section 6 of the Stamp Act, it will be chargeable only with the highest of the duties chargeable, i.e., stamp duty as chargeable on a bond. That section reads thus: 

Subject to the provision of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different be chargeable only with the highest of such duties: 

Provided that nothing in this Act contained shall render chargeable with duty exceeding one rupee a counterpart or duplicate of any instrument chargeable with duty and in respect of which the proper duty has been paid. 

Full text of the High Court Judgment.