Mcnaghten Rule, No Longer a Golden Scale Rule

(By V.K. Babu Prakash, Judicial First Class Magistrate, Karunagappally)

To bring home a charge for most of the offences of the Indian Penal Code, the prosecution has to bring about the fact that the accused had committed the act of offence which do not require the state of mens rea, nevertheless they are very few countable by the finger tips. The element of mens rea rhytmes through the latin Maxim “actus non facit reum, nisi mens sit rea” which is a running thread in the web of Indian Penal Code, in the sense that an act which would otherwise be a crime, if done without a criminal intention, the doer of the act cannot be held liable. Judicial interpretation of the element of mens rea has widened the scope of the expression which looms large now in the act of doing things voluntarily, knowingly, fraudulently, dishonestly and like wise negligently. In all these aspects, the element of mens rea or mental element can be seen or precipitated. Chapter IV of Indian Penal Code under the caption General Exceptions formulate various categories of exceptions which an accused can put forth as defence. Ss.76 to 106 are those kinds of exceptions which the accused gets to crack the wall of prosecution case. S.81 IPC touches upon the aspect of mens rea which makes out the rule that one cannot be held liable for an act which would otherwise be a crime, but for that alone he cannot hold liable if the act was done without any criminal intention. Among the other kinds of exceptions, this article wishes to think around S.84 of the Code which streamlines the exception of insanity. The plea of insanity or unsoundness of mind goes along with the wisdom of exception formulated under S. 81 regarding lack of mens rea as a madman does not know how his mind moves on.

S.84 of the Code says that nothing is an offence which is done by a person who at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. Plea of insanity sometimes may be used by the defence, though not often as a shield to ward off the prosecution attribution. The principal embodiment of S.84 goes hand in hand with S.81 in the sense that a close scanning of these sections ekes out the aspect that it does not contain mental element or criminal intention of the act done of. The four kinds of persons who can succeed to be non compos mentis (not of sound mind) in defending an offensive act area:- (1) An idiot (2) Unsound mindness by illness (3) lunatic (4) one who is drunk. When History rolls back to the Shakespherean's realm and gives a cue on the drama Hamlet, we see that prince Hamlet the delusive minded hero of Shakesphere was cornered with plea of insanity for his misdeeds. Hamlet being charged with his nocturnal activities termed it as coinage of the brain and Hamlet answers to the charge as "it is not madness, that I have uttered, bring me to the Test, and I the matter will re word, which madness would gambol from". So do the way of Hamletian tell tale the codification of insanity as a general defence of exception stems up from an 18th century incident happened. It was the murder of Mr. Edward Drummond, the Private Secretary to Sir Robert peel. Drummond was shot dead by a man called Mcnaghten, who was suffering from delusions of persecution and who killed Drummond in mistake for Sir Robert Peel himself. Mcnaghten was tried and after evidence as to his delusions had been heard, he was acquitted on the ground of insanity. The House of Lords had to accept the plea of defence of insanity and public reaction was so furious so that certain principles had to be formulated by the House of Lords on this score which are called the famous Mcnaghten Rules. The rule takes the following essentials in its periphery. In order to establish a defence on the grounds of insanity, it must be clearly proved that at the time of committing the act, the accused was labouring under such defect of reason from disease of mind as not to know the nature and quality of the act he was doing, or if he did know what he was doing that he did not know that it was wrong. The second important element is that if the accused commits the act by reason of a delusion, the degree of responsibility which must be attached to him, and therefore, in law the degree of culpability which must be attributed is based upon the justification which the delusion would provide if it were true.

This rule ruled the roost of England for a considerable period and very much culprits escaped through the golden scale of rule either by clinical psychologist's report or by some stray behaviour of past delusions for which the accused had undergone some treatment or other. At last the Lord Chancellor's committee and the Royal Medico Psychological Association as a sequel decided to sweep away the golden wing of this rule and recommended that the legal criteria of responsibility expressed in the rule should be abrogated and the responsibility of an accused to shoulder the criminal liability or to make a plea of defence on the ground of insanity should be left as question of fact to be decided by the jury. The jury has to frame up questions as follows:- (1) Did the person commit the act. (2) If he did, was he at the time of insane. (3) If insane, the act of crime unrelated to his mental disorder?

The position has undergone a sea-change now in England, where the right or wrong test of Mcnaghten rule no longer dominates this branch of criminal law to the exclusion of mental abnormality falling short of complete insanity as a limited defence establishing a claim of limited responsibility. Under the Homicide Act of 1957 if two psychiatrists certify that the Homicidal act of the accused was influenced by abnormal conditions of his mind, he cannot be convicted of murder but be held liable for manslaughter. In India, whereas he sets up such a plea of insanity and proves it, he gets a clean acquittal and not hold liable for culpable homicide not amounting to murder under the Indian Penal Code which is equivalent to manslaughter under the Homicide Act of England.

In India it is the burden of proof to establish legal insanity upon the accused himself. It is not insanity of every description that can be pleaded in defence, but it must be legal insanity which exhonerates the act of criminal liability. Medical insanity is not a ground of defence in India. By medical insanity is meant the prisoner's consciousness of the bearing of his act on those affected by it and legal insanity is meant the prisoner's consciousness in relation to himself. There can be no legal insanity unless the cognitive faculties of the accused are as a result of unsoundness of mind completely impaired. Likewise though drunkness is kept in par with insanity, mere drunkness is no excuse, but delirium tremens caused by drinking, if it produces such a degree of madness, even for a time as to render a person incapable of distinguishing right from wrong, relieves him from criminal liability. Thus to sum up, the defence of Mcnaghten rule or plea of insanity is not a golden scale rule which could precisely draw a sketch of effective defence at all the times.

The Late T.M. Mahalinga Iyer - A Tribute

(By V.R. Venkita Krishnan, Advocate, Cochin)

A distinguished lawyer and an intellectual of a rare order has left us forever. I have known the late Mr. T.M. Mahalinga Iyer for the last nearly 40 years ever since I came down to Kerala and I have not seen another brilliant lawyer with such scintillating eminence and versatility. As a Lawyer he was one, whose words always left a lasting impression on those who heard him and he was an intellectual with a rare sense of humility, a quality which is seldom present now-a-days. His arguments were unforgettable and piercing and the legal language that he displayed can be hardly excelled and seldom substituted. His utterances in court and outside displayed an aura of academic brilliance and he was a fair lawyer though a tough opponent. His capacity for analysing the finer aspects in law was almost a legend in this court and even his adversaries had a word of praise for his forensic eloquence. His knowledge of law would create and has always created an impression that he was a Professor with an academic bent and he can argue a case even when there are no facts to support a point. His depth of knowledge is unfathomable and he used to entertain the Judges of this Court for hours, without interruption, especiallywhen he argued a pure question of law. His analytical capacity was a marvel which will silence the opposite side.

He was a Musician on his own right and an uncompromising critic in the field of Carnatic Music because of his insistence on perfection. He has had his own concerts and even performed Harikathakalashepams and in fact he started his career with a minus budget. He was not born with a silver spoon; in fact he had no spoon at all. He built his career brick by brick and he moved forward, inch by inch by the sheer brilliance that he possessed and indefatigable industry that he pursued. I should say that he deserved many more things in life and he was not as lucky as he should have been. This is something for which there is no explanation in this world.

His knowledge in Sanskrit is amazingly diversified. He can quote chapter and verse from Sanskrit Literature and his quotations were handed down from generation to generation, since those quotes never found a place in any text book. The late Mahalinga Iyer was a man who could think on his legs and who can give a discourse on any subject with half an hour's notice. His dissertation on music was a rare treat for his audience and he arrested the attention of his listeners with his witty remarks and thought-provoking comments. Anyone who listened to him could not afford to forget him. His remarks and observations were deep and incisive and they were studded with sparkling diamonds.

He had a large family to support with 5 daughters and a son and he brought them up well in life beyond anybody's capacity. Having lost his wife early in life, he had to meet heavy-odds which he met with rare patience and resoluteness.

The present generation is not likely to know much of this multifaced personality. He was rare in may ways; he never made a display of his deep knowledge on various subjects including law and he did not suffer from intellectual arrogance but when you hear him, you will have every reason to say that he has a right to be aloof and arrogant but he was not and this quality marked him out as very different from others.

A person with variegated talents of an incredible diversity, with his deep knowledge, erudition and rare insight in human affairs he cannot be forgotten and will not be forgotten for generations to come. His humility was disarmingly singular and with all his knowledge, he never had any ego. A rare quality these days.

Forget him not.

The Speaker and the Oath Controversy

(By P.K.R. Menon, Senior Advocate)

Relying on Art.212 of the Constitution of India the Speaker of the Kerala Legislative Assembly has taken the stand that the legality of the oath taken by a legislator of the Kerala Assembly in the name of "Shree Narayana" cannot be gone into by a Court of law. The administration of oath by the protem (for the time being) Speaker, according to the Speaker is beyond judicial scrutiny. According to him under Art.212(1) of the Constitution "the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure". In answer to a Presidential Reference made under Art.143 of the Constitution of India, - Special Reference No. 1 of 1964 the Supreme Court had occasion to consider the scope and ambit of Art.212(1) of the Constitution of India. The Hon'ble Supreme Court opined thus:

"It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. Art.212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. Art.212(1) seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the Legislative Chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular". (AIR 1965 SC 745 at 768) (emphasis supplied)

Under Art. 188 of the Constitution

"Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule."

Art.199 deals with vacation of seats by members of the Legislative Assembly. And in Art. 199 the words used in various places are 'his seat', "resigns his seat", the House may declare his seat vacant".

On a fair reading of Arts.188 and 199 of the Constitution of India, the emphasis is not on the membership of the legislature but on a legislator occupying his seat what the legislator resigns is not his membership but his seat. Again under Art. 190(4) the House may declare a legislator's seat vacant.

In the light of the emphasis given to seat (and not membership) in the relevant Articles of the Constitution of India any proceedings in the legislature of a State can have reference to proceedings participated by members who have taken their seats on oath or affirmation according to the form set out for the purpose in the Third Schedule.

Form of Oath or affirmation to be made by a member of the legislature of a State provided in the third Schedule of the Constitution of India reads:-

"1, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."

(emphasis supplied)

Administering or making and subscribing before the Governor or some person appointed in that behalf by him an oath or affirmation do not form part of proceedings contemplated under Art.212 of the Constitution.

The words "I am about to enter" obtained in the form of the oath or affirmation extracted above would also vouch safe for the fact that only on Oath or affirmation a member of the legislature could occupy a seat and proceedings subsequent to the occupation of the seat alone is taken care of by Art.212 and that too subject to the limitations or norms laid down by the Supreme Court in AIR 1965 SC 745 extracted earlier in this Article.

Administration of Oath or affirmation is either before the Governor or some person appointed in that behalf by him; Members of the legislature after taking Oath or affirmation before the Governor or some person appointed in that behalf by him elects the Speaker. So far as the elected Speaker is concerned, the proceedings he is concerned with can and could be only proceedings starting with his election and after. The Speaker is elected by legislators who have taken their seats on oath or affirmation.

The administration of Oath or affirmation does not form part of the proceedings contemplated under Art.212 of the Constitution. So if the Oath or affirmation is not in accordance with the Constitution and the law, the same shall be gone into by a High Court.

If an oath or affirmation is not in accordance with law, it does not invalidate the actions of the elected representative. And Art.193 provides only for penalty in such an event.

Art.193 leaving out details not necessary for the issue involved reads:

"If a person sits or votes as a member of the Legislative Assembly.... of a State before he has complied with the requirements of Art.188.........he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State"

If the Court is to declare that the Oath or affirmation is not in accordance with the third Schedule of the Constitution the only consequence is one of payment of penalty contemplated under Art.193 till the concerned legislator makes an Oath or affirmation as provided in the third Schedule of the Constitution.

The honour and dignity with which the office of the Speaker is looked up to is reflected in the following speech made by Mr. Jawaharlal Nehru, on the occasion of the unveiling of a portrait of the Late Vithalbhai Patel (the first Indian who presided over the Central Legislative Assembly) on March 8,1948 in the Constituent Assembly of India (Legislative). He said:

"Now, Sir, on behalf of the Government, may I say that we would like the distinguished occupant of the chair now and always to guard the freedom and liberties of the House from every possible danger, even from the danger of executive intrusion. There is always a danger..... from majority that it may choose to ride roughshod over the opinions of minority, and it is there that the Speaker comes into protect each single member, or each single group from any such unjust activity by a dominant group or a dominant Government.... The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the Nation, in a particular way, the Speaker becomes the symbol of the Nation's freedom and liberty. Therefore, it is right that should be an honoured position, a free position and it should be occupied always by men of outstanding ability and impartiality".

The Article is confined to the jurisdiction of courts to go into the question of the validity of the Oath taken by a Legislator.

The Law Relating to Contempt of Courts

(By K. Chandrasekharan, Sr. Advocate, Ernakulam)

Contempt of Courts is a difficult question and is a touchy question so far as Judges and other judicial officers are concerned. There is another field, difficult and touching and that relates to the executive and covers the field of official secrets. With imparting information and maintaining transparency in matters of Government the place for the Official Secrets Act gets limited to some aspects of defence and external affairs mostly. That is the reason why the freedom of information bill pending before Parliament has become necessary. Several provisions of the Official Secrets Act, 1923 will get obsolete once the bill is enacted into law, as there are alternative or new provisions of the Official Secrets Act, 1923, to that extent 1923 will not be law. The Official Secrets Act is not repealed as such, but large portions of it are replaced by the new enactment.

The field of Contempt of Court is however more difficult to tackle. The three wings of the Indian Constitution are the Executive, the Parliamentary and the Judicial Wings, Contempt of the Legislature or Parliament are to be dealt in accordance with rules framed by them. Contempt of the Executive can be punished by the ordinary law of defamation covered by Ss.499 to 502 of the Indian Penal Code, 1860. Contempt of Courts (of the Judiciary, the Judges, the Sub Judges, Munsiffs and Magistrates) were dealt with in periods past by the provisions of the Civil Procedure Code, the Criminal Procedure Code, the Indian Penal Code and under the inherent powers of Courts. There has been changes after the country became free. Art.129 with reference to the Supreme Court and Art.215 of the Constitution relating to High Courts, treat the two Courts as Court of record having all powers of such a Court including the power to punish contempt of itself. Parliament has since enacted the Contempt of Courts Act, 1971, Central Act 70 of 1971 and this covers both civil contempt and criminal contempt and also covers all Courts including the High Courts. It is also necessary to mention here that Art. 19(l)(a) of the Constitution which refers to all citizens having the right to freedom of speech and expression do not include Contempt of Courts in view of the various laws and Constitutional provisions sighted earlier. The Supreme Court has also held more than once that the prestige or authority of the Court cannot be lowered even in the garb of criticising a Judgment.

Inspite of the definition of Contempt of Court in the 1971 enactment and inspite of the fairly reserved manner in which the Supreme Court, the High Courts and other courts in the country have acted in the matter of contempt proceedings coming for an enquiry and decision, the subject of contempt remains a dicey question. The subject also has a large coverage on who can pursue contempt proceedings, what can be the subject matter, and what is the decision to be in particular cases. An element of controversy is inherent in all the above. One that came before the Delhi High Court recently is against the editor of a Magazine, 'Wah India'. The magazine published in its issue of April 16-30, 2001 a ranking given by fifty senior advocates about Delhi High Court Judges - their manners in Court, general reputation on personal integrity, quality of Judgment, knowledge of law, punctuality, receptiveness in the arguments addressed. With the Court ordering confiscation of copies of the particular issue of the magazine, reproduction of the contents is not possible. However, many had already read it, some others taken notes and some taken copies also. The credibility of the judiciary as such was not questioned and cannot be considered also. But there are certain side issues that arise. The petition against the magazine and its editor was filed in the High Court by the Bar Council of Delhi. The editor in chief of the journal rendered an apology to Court when the hearing started. The question arises as to how the Bar Council is aggrieved? Apart from the court Suo Moto taking up proceedings, any person or any public man for that matter can pursue the matter since the subject undoubtedly is one in the public interest. If the Bar Council as such is not a person particularly outraged or aggrieved, the Bar Council will be only in the nature of any person who in the public interest has acted. The Editor-in-chief of the Magazine tendered apology and the proceedings were terminated. Is the apology tendered in a genuine and bona fide manner? Do the apologies tendered in contempt cases flow from the heart or they are prompted by the need to escape from the consequences of conviction namely fine or imprisonment. There are suggestions that the provisions for tendering apology contained in S. 2(c)(i) of the 1971 Act should be deleted. Probably that cannot be because fine or imprisonment will then become mandatory.

There is another aspect in regard to Contempt of Court and that is the contempt of the Constitution or negation of the Constitution that is committed by the Executive, say taking away life under Art.21 of the Constitution. Can a mere Presidential proclamation of Emergency as in 1975 clear that way for acceptance by Court! Attorney General Niren De told the Supreme Court that Courts are helpless if life was taken away illegally, I would add, even as against the specific provision contained in Art.21. I believe that the statement by itself is a Contempt of Court. How can an executive act of the President negate an Article of the Constitution. Such situations cannot be repeated and some method has to be found out to fill up the loop holes in the law of Contempt. Blatantly submitting that a provision of the Constitution would become unimplementable, before court, whose duty is to implement the Article should be treated as Contempt of Court. Either 1971 Act should be amended or the Constitution amended and specific provisions included. There is no question of any interpretation of an Article of the Constitution, when a provision containing a basic feature of the Constitution is before Court. The Keshavananda Bharathi case has held that basic features cannot be taken away or nullified. Here an executive act like a Presidential proclamation has taken away the rights and jurisdiction of Courts is the plea. The plea itself is in Contempt of Court. The canvas of contempt should be available wherever the law is in danger on account of contempt, and thus it would include every authority and every person including Government dealing with law and the constitution.

Shah Bano's Case in Retrospect

(By Kaleeswaram Raj, Advocate, High Court of Kerala)

The recent decision of the Supreme Court on the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is significant in several ways. In Danial Latifi & Ann v. Union of India, 2001 (3) KLT 651, the Apex Court held that the entitlement for maintenance under the Act is not confined to 'iddat' period. On the one hand the judgment removes the doubts if any regarding the true meaning and intent of S.3 of the Act concerning the divorced women's entitlement for maintenance. On the other and more importantly, the judgment shatters the misconception that the legislation of 1986 was an attempt to sabotage the 'revolutionary' verdict in Shah Bano Begum's case (AIR 1985 SC 945). Though the Apex Court attributed motive to the statute in para 28 of the judgment in Danial Latifi's case, it only remains as a passing comment.

The notion that Shah Bano judgment was a seminal one which came to the rescue of deserted Muslim Women is a myth. The propaganda that the legislation of 1986 was designed to woo the orthodox Muslim sect also is equally a myth.

In Shah Bano's case the Supreme Court held that a divorced Muslim Woman is entitled for maintenance as in the case of women belonging to other sects. The Court also held that Talaq does not ipso facto or ipso jure take away the women's right for maintenance. Shah Bano judgment was delivered in the context of S.125 of Criminal Procedure Code (Cr.p.C.) which is the general provision for maintenance, irrespective of religion or personal laws.

Therefore, it is clear that Shah Bano judgment has only interpreted S.125 of Cr.P.C. as amended in 1973. It has not in any way widened or modified the scope of the said provision. Therefore it goes without saying that judgment in turn perpetuates the inherent limits and deficiencies of S.125 of Cr.P.C. It is also not possible nor plausible to contend that courts are entitled to fill up the legislative dearths. To limits of S.125 may be broadly summarized as follows:-

1. The section provides only for bare maintenance for subsistence. The maximum amount that could be awarded as per the provision is Rs.500/-. In the celebrated judgment in Shah Bano's case, she was awarded a monthly maintenance of Rs.25/- by the learned Magistrate. Even in cases where the husband earns substantial income, there is no provision in Cr.P.C. to take the financial position and standard of living into consideration and to fix a higher amount due to statutory ceiling. (Only very recently the Parliament has passed a bill removing the said ceiling).

2. Cr.P.C. contains provisions only for maintenance and not for other incidental entitlements that may arise out of the matrimonial bond. As such the code does not visualise the claim of a deserted wife to get back the properties like ornaments, land etc. which would have been obtained by the husband at the time of marriage.

It was in this context that the legislation of 1986 made a radical change in the law relating to maintenance. It is fallacious to think that merely due to incorporation of principles of personal law (Shariah) a statute becomes conventional or orthodox. It is equally fallacious to argue that negation of personal laws (as in Cr.P.C.) would perse make the legislation progressive. From the women's point of view, the statute of 1986 has been more beneficial and purposive when compared with the general law as explained in Shah Bano Begum. S.3 of the statute would show as to how the deserted women are taken care in a more pragmatic and comprehensive manner. The relevant part of the provision is extracted below:-

"Maher or other properties of Muslim woman to be given to her at the time of divorce- (i) 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 iddat period 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 or 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 anytime thereafter according to Muslim Law; and

(d) all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

(2) Where a reasonable and fair provisions 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-s. (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-s. (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 provisions 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-s. (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 fit 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-s.(1) to the divorced woman"..........(Emphasis added)

Therefore it is clear that the provisions in the statute enable the Muslim wives to claim reasonable and fair provision and maintenance, to be made and paid to her within the Iddat period by former husband. On a plain reading of the statute, the entitlement for reasonable provision is contemplated apart from maintenance to be made and paid to her within the iddat period by former husband. Unlike Cr.P.C. the Act also provides for redelivery of properties obtained by the husband at the time of or after the marriage. The Act of 1986 also enables the courts to consider the income and standard of living while fixing the quantum of maintenance. It does not prescribe any upper limit as regarding the amount of maintenance.

Even before the present judgment by the Supreme Court, the Kerala High Court interpreted the provision in the Act of 1986 as follows:-

"The objects and reasons are stated in unmistakable terms that the purpose of the enactment is to protect the interests of divorced Muslim women. The divorced Muslim women are thus entitled to a reasonable and fair provision and maintenance. The attempt should be to give meanings to all words used in the clause. The Parliament must be taken to have decided to provide the divorced woman with maintenance for the period of Iddat and also a reasonable and fair provision for her. Both these should be paid and made to her during the Iddat.' The word 'provision' means an amount set apart towards a known liability, the amount which cannot be determined with accuracy. The known liability of a husband is to provide for the future of the divorced Muslim woman. He will not be in a position to determine the amount with substantial accuracy. It is for that purpose he has to make provision. That provision will be entirely different from the maintenance due to the divorced Muslim woman for the period of Iddat. The gift, to be paid by the husband at the time of divorce, as commended by the Quran, is recognised in sub clause (a) of clause (i) of S.3. of the Act. This liability is cast upon the husband on account of the past advantage received by him by reason of the relationship with the divorced woman or on account of the past disadvantage suffered by her reason of matrimonial consortion. It is in the nature of compensatory gift or solatium to sustain the women for her life after divorce. In accordance with the principles of Islamic equity the said provision or compensation or support from the former husband is wife's right. This right has been given legislative recognition in the above provision" (Chelangadan Ali's case, 1988 (2) KLT 141).

In the same case S. 3 of the Act was deconstructed by the Kerala High Court, in the following manner:-

"The words appearing on either side of the word 'and' must be taken to have been joined together by it. Those words must be taken to represent two different categories. If those two words stand for two different objects and they are joined together, then words 'provision' must mean something other than 'maintenance'. Viewed in that manner it is evident that a divorced Muslim woman is entitled not only to maintenance for the period of 'lddat' but also to a reasonable and fair provision for her future livelihood from her former husband". The High Courts of Bombay, Gujarat, Punjab and Madras followed the Kerala View.

However, strangely and unfortunately, a Full Bench of the Andhra Pradesh High Court in Usman Khan's case, (AIR 1990 AP 225) interpreted S. 3 as follows:

"There is nothing in the section which can be read to mean that the husband is liable to make reasonable and fair provision and maintenance beyond the period of lddat". The court even interpreted the Shah Bano's judgment as follows:-

"The Act of 1986 has been passed in the wake of the decision of the Supreme Court in Shah Bano case and seeks to remove the difficulties that have arisen as a result of that decision in regard to the liability of the husband to pay maintenance to his divorced Muslim wife. Even in the case of Shah Bano, it is recognised that a Muslim women is entitled to maintenance under the Muslim law only during the period of Iddat. However, it is held that if she is unable to maintain herself then the liability of the husband to pay maintenance arise under S.125 of the Code. Therefore, inherent in the decision of the Supreme Court is the recognition of the principle that while maintenance during the period of Iddat is to be paid under the Muslim law, maintenance beyond the period of Iddat is envisaged only under S.125 of the Code". Thus the Andhra Pradesh High Court opined that "the intention of the legislature is manifestly clear that it envisages the making of reasonable and fair provision and payment of maintenance to the divorced wife commensurable with the period of Iddat to be paid within the period of lddat".

The fundamental flaw in the Andhra decision is that it was carried away by the popular notion regarding the legislative motive behind the Act of 1986. The Court also resorted to the interpretation of the judgment in Shah Bano's case for the interpretation of a subsequent statute. Thus the very methodology of the Andhra High Court suffered logical infirmities.

On a total evaluation one would be tempted to say that it was not the statute which was at fault. It was the misconceived interpretation of the statute that worked apparent injustice to the deserted Muslim women. But it remains as a strange paradox that Parliament was accused of turning 'Shah Bano Revolution' upside down. The uproars against the 1986 statute were accelerated by persons from political, media and even legal platforms. It resulted in one of the strongest supersitions in Indian Law which is now exposed by the Apex Court, though unintentionally and indirectly.