Purposivism and Literalism as Trends of Interpretation: Analysis in the Context of Split Judgment in Rana Nahid alias Reshma V. Sahidul Haq Chisti

  • Senior Advocate Tribhuvan Dahiya
  • 12:01 AM, 26 Aug 2021

Interpretation of statutes by the Courts is an issue that has drawn widespread interest of critics and law researchers alike. It is something that has far reaching consequences. Laws are enacted by the Legislature for the benefit of people, and whole lot of thinking and deliberation is presumed to have undergone before their enactment. Still, when it comes to implementation, issues crop up requiring interpretation one way or the other.

This situation, in effect, calls upon the Courts to decide true meaning of the letter of law. Modern jurisprudence has delved upon various theories of interpretation, bringing in focus law making role of the Legislature vis-à-vis law interpreting role of the Court. To my mind the latter is as important as the
former. Without doubt, the interpretative role of Courts focusses upon the approach of individual Judges in looking at the issues to be addressed, purposively or literally.


One such issue arose before the Hon’ble Supreme Court in Rana Nahid alias Reshma V. Sahidul Haq Chisti [1], whether a Family Court constituted under the Family Courts Act, 1984 (for short ‘the 1984 Act’) can entertain a petition for maintenance filed by a divorced Muslim woman under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ‘the 1986 Act’).

The Hon’ble Supreme Court could not reach a conclusion on the issue and rendered a split verdict on the issue vide judgment dated 18.06.2020. Two Hon’ble Judges, who constituted the Bench, gave diverse opinion by way of separate judgments, and the matter was ordered to be placed before the Hon’ble Chief Justice of India for referring it to a Larger Bench, which has not rendered any judgment so far. The instant piece looks upon the split judgment from jurisprudential point of view, and tries to analyse the two different approaches adopted to interpret same provisions of law, leading to distinct effects. Of the two which one should prevail is not being looked into or being commented upon here, as that would be decoded by the larger Bench to be constituted for the purpose.

Facts

The facts of the case which led to the aforesaid split judgment are, a divorced Muslim Woman (appellant no.1), whose marriage was solemnised with the respondent husband on 08.03.1998 as per Muslim rites, and had a son (appellant no.2) born out of the wedlock, approached the Hon’ble Supreme Court against dismissal of her petition for maintenance by the High Court of Rajasthan, which held the Family Court had no jurisdiction to convert the appellants’ application under Section 125 Cr.PC into an application under Section 3 of the 1986 Act. Liberty was, however, granted to the appellants to file application under Section 3 of the 1986 Act before the Court of competent Magistrate. The issue raised in the case revolves around provisions of Section 7, 8 and 20 of the 1984 Act, and Section3 of the 1986 Act[2].

One of the Hon’ble Judges (Justice Indira Banerjee) in her separate judgment [3] upheld the appeal by setting aside the impugned judgment of the Rajasthan High Court and taking a purposive view of the issue. It has been held that the Family Courts, on account of non-obstante clause in Section 20 of the 1984 Act, have overriding effect. Resultantly, the Court of a Magistrate under the 1986 Act for Muslim Women would come under the Family Court as per the 1984 Act as well. It was further held by the Hon’ble Judge that reading of Section (1) & (2) of the 1984 Act makes it patently clear that a Family Court was deemed to be a District Court, or as the case as may be, a subordinate Court, in the area to which the jurisdiction of Family Court extends in respect of proceedings of the nature referred to therein. It was pertinently noted in the judgment that non-obstante clause in the 1986 Act is confined only to sub-section (1) of Section 3 of the Act. It does not apply to sub-sections 2 & 3 of the 1986 Act for Muslim Women. Therefore, the 1986 Act in its entirety cannot be said to have overriding effect vis-a-vis provisions of the 1984 Act. Consequently, the Family Court will have jurisdiction to entertain a maintenance petition filed by a Muslim woman under the 1986 Act.

The judgment touched upon another very vital aspect of the issue regarding jurisdiction of the 1984 Act with respect to personal and family matters of all men and women. It was specifically held that a Family Court alone has jurisdiction in respect of personal and family matters relating to all men and women irrespective of their religion. The faith of respective parties as well as their religion cannot have any bearing on the jurisdiction conferred on Family Courts under the 1984 Act. The right to equality, irrespective of religion, is a basic human right conferred on the citizens by the Constitution of
India.

The argument raised by the respondent that Family Courts do not have jurisdiction exercisable by a Magistrate of the First Class for Muslim Women under the 1986 Act, since this Act does not specifically confer any jurisdiction on the Family Courts; and Section 7 read with Section 8 of the 1984 Act only
clothes the Family Court with the jurisdiction of First Class Magistrate in respect of the proceedings for maintenance under Chapter-IX of the Cr.P.C., did not find favour. The Hon’ble Judge held, in case there was any ambiguity with regard to the jurisdiction of the Family Court on account of use of the
expressions ‘subordinate civil court’ in Section 7 (1)(a) and (b) of the 1984 Act, and also the ‘First Class Magistrate exercising jurisdiction under Chapter- IX of Cr.P.C.’ in Section 7 (2) (a) thereof, this Court was duty bound to clear the ambiguity by interpreting the law in consonance with the Fundamental Rights conferred under Article 14 & 15 of the Constitution. A Family Court having jurisdiction in the area is to be deemed to be the Court of Magistrate for the purpose of deciding maintenance claim of a divorced Muslim woman also, on a harmonious construction of Section 7 & 8 of the 1984 Act with Sections 3 (2) and (3), Section 4 (1) & (2), 5 and 7 of the 1986 Act for Muslim
women in the light of overriding provisions of Section 20 of the 1984 Act.

Besides, the 1986 Act is essentially a civil law and not a criminal statute as it does not contain any penal provision for any default. Finally, it was opined that intention of the 1986 Act was not to deprive a divorced Muslim woman of the litigant friendly provisions of the 1984 Act, nor to denude the Family
Courts of jurisdiction to decide applications for maintenance by such women.

The contrary view, which is literal in nature, was rendered by Justice R. Banumathi by a separate judgment [4] dismissing the appeal preferred by the appellants, and holding that the Family Courts do not have jurisdiction to entertain maintenance application filed by a divorced Muslim woman underthe 1986 Act. Reliance was placed upon the non-obstante Clause contained in sub-section 1 of Section 3 of the 1986 Act, to hold that the clause has to be understood fairly and reasonably. The 1986 Act has conferred more rights on a divorced Muslim woman but the same have been conferred notwithstanding Section 125 Cr.P.C. Provisions of Section 7 of the 1986 Act were also relied upon to hold that the power had been given therein to the Magistrate only to dispose of any pending application under Section 125 Cr.P.C, as per provisions of 1986 Act. This, in view of the ld. Judge, is a clear indication in legal provision that only a Magistrate of the First Class exercising jurisdiction under Cr.P.C. can dispose of the application under the 1986 Act, and not a Family Court. It was further held that Section 7 (1) of the 1984 Act is to apply only when the proceedings of a suit of the nature envisaged by Clause (a) to (g) of the Explanation to this Section arise; and as per Section 7 (2), with respect to the matter where jurisdiction is exercisable by the Magistrate of the First Class under Chapter-XI of the Cr.P.C. Therefore, on a plain reading of these provisions, an application under Section 3 of 1986 Act was held not maintainable before a Family Court under Section 7 of the 1984 Act. It was further held that the legislature has not conferred jurisdiction on a Family Court under the provisions of the 1986 Act, which is a subsequent Act to that of the 1984 Act. Nothing more is to be read into it. Reliance was also placed on a judgment Anjum Hasan Siddiqui V. Smt. Salma [5] rendered by ld. Single Judge of Allahabad High Court, and also on the Full Bench Judgment of Bombay High Court in Karim Abdul Rehaman Shaikh V. Shehnaz Karim Shaikh & Ors [6].

Analysis

The analysis of separate judgments by two Hon’ble Judges, as above, point to their different interpretative approaches. The judgment rendered by Justice Indira Banerjee takes purposive view of the issue, whereas the other judgment rendered by Justice R. Banumathi takes literal view; and both reach opposite conclusions.
The purposive view leads to the benefit of Muslim women, allowing them access of litigant friendly procedures of Family Courts established under the 1984 Act. Simplifiedd procedures would undoubtedly lead to quick justice and less hardship to them. The 1984 Act as well as the 1986 Act were apparently enacted to ameliorate the plight of persons suffering from trauma related to disturbed or broken marital life. The children born out of such wedlocks suffer more than their fighting parents. The issues affecting such persons and their children are more psychological than legal. It was with a view to putting an end to this agony that the Family Courts were established
under the 1984 Act. All issues pertaining to matrimony, including maintenance, were brought under its jurisdiction to be tried without adhering to the rigid rules of procedure, and laying emphasis on reconciliation with a view to achieving socially desirable results. The 1986 Act was enacted for the
related purpose of redressing maintenance issues of divorced Muslim women. In case on literal interpretation of the provisions, access to the litigant friendly procedures of Family Courts could not have been specifically provided by the 1986 Act or the 1984 Act, should the Court not take a purposive view of the issue and try to reach the object behind the legislations keeping in view the background, aim, practical and social aspects of the enactments. After all, the purposive interpretation of a procedural law, which opens up quick and simplified legal avenues of justice for the hapless divorced women and their children, appears more desirable.

The ‘interpretative’ judgments by the Courts, more often than not, have been criticised in situations leading to conferring of substantive rights. The procedural aspects opening up new vista of accessing justice for the needy, should not hold the Court back from going behind the letter of law, reaching out to true legislative intent and giving full effect to the intending purpose.

The primary function of the Court is not to legislate, so to say; nonetheless, its prime function is to visualise and comprehend a provision of law in the context it has been enacted, and interpret it in the manner that would ameliorate, rather than endure, the situation for the affected within the broader
Constitutional framework.

Trends of Interpretation

The literalists argue, the Constitution has assigned the role of enacting statutes to the Legislature. It is in the realm of policy framework. The policies government consider appropriate for the people are enacted into law. The Courts, in the process of interpretation, are only to interpret and not legislate
or enact. They are endowed with the power to review an enactment on the touchstone of the Constitution, and strike it down in case of violation. Once the Courts start making law, wittingly or unwittingly, they step out of their jurisdiction, disregarding the principles of Separation of Powers. Such proclivity holds no good for the working of a rule based society, governed by the coded Constitution.

Further, the classical literalists would draw strength from the school of jurisprudence subscribing to the theory that the law is as good or bad for the people as the Legislature enacted it for them. In case the law was bad, deficient, unworkable, the Courts had to declare it thus, leaving it for the Legislature to rectify, repeal or adopt other remedial measures. They have to adopt strict laissez faire approach; that would force the Legislature to act, perform, and carry out the rectification, as may be needed, to remedy the situation. The Courts’ job is to examine a law, and leave it there, even if unworkable, as that would have its own effect by mounting public pressure in forcing the Legislature to come up with an appropriate law.
Well, how far the laissez faire approach is to be followed in the present day situation, is another debatable question. Hands-off approach for the Courts, leaving them content with the only function of interpreter of the sovereign’s command in the form of enactments, having no role in actively redressing the situation and ensuring Constitutional rights and protections to the people, looks outmoded. The modern Constitutional Courts, exercising the sovereign State power on equal footing as the Legislature, cannot be mute spectators to the situation unfolding before them which makes the litigants
suffer inadequacies of laws framed by the Legislature. This approach would only add insult to the injury suffered by them; no Court of law can afford to be that insensitive.

Undoubtedly, the role of different organs of the State is separately defined under the Constitution. At the same time, it must be appreciated that we cannot speak in absolute terms; nor does the Constitution do so. The role to interpret laws assigned to the Courts itself, to some extent, compels them to step into the realm of law making in the process of discharging the Constitutionally assigned job of interpreting and pronouncing what the law would actually mean. It would mean what the Court thinks it to mean; and the Court is supposed to think what the Legislature thought it to be meant. This thinking alignment between the two organs of State, the Court and the Legislature, is not organic, since one of the organs, the Legislature, is physically absent. It has already spoken through the letter of law, which actually needs to be deciphered. It cannot be done without reference to the context in which the law in question has been framed as well as its objects. No law can be divorced from its context, background, purpose, aims and objects; doing so would amount to taking life out of the enactment. This process of interpretation is purpovism, which perceives the enactment as an organism, in the context it has been conceptualised, and tries to make it relevant to serve the purpose it has been enacted for, within the four corners of law.
One of the reasons the purposive approach gained currency, it appears, was the realisation that no legislation can be drafted with absolute perfection, nor can it perceive and take care of all the situations that might arise in the process of its implementation. The English Courts as well did not look too
favourably to the Literal method of interpretation, it was eschewed long back.

To quote Lord Denning,

The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as ‘purposive approach”.... In all cases now in the interpretation of statutes we adopt
such a construction as will “promote the general legislative purpose” underlying the provision. It is no longer necessary for the judges to wring their hands and say: “There is nothing we can do about it.”
Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it – by reading words in, if necessary – so as to do what Parliament would have done, had they had the situation in mind[7].

 

The debate of literalism versus purpovism will go on, the Courts would also be leaning in favour of either of the two in given situations. That apart, in practice the Supreme Court has been resorting to various tools of statutory interpretation, with the cardinal settled legal proposition in mind, “If the precise words used are plain and unambiguous, they are bound to be  construed in their ordinary sense.”[8] In Tirath Singh v. Bachittar Singh [9] the Court travelled far and observed, in case the language leads to manifest contradiction with the avowed object of the Act itself, or to ‘hardship or
injustice’, appropriate construction has to be given by the Courts ‘which may modify meaning of the words’. The Hon’ble Supreme Court observed:

...But it is a rule of interpretation well-established that, 'Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of
the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence....

In Prakash Nath Khanna & Anr. v. Commissioner of Income Tax & Anr. [10], another dimension to the tools of interpretation was added by laying down that the words of a statute need to be construed with some ‘imagination’ of purpose that lies behind them. The observations are:

13. ... The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed, not as theorems of  Euclid", Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage...

The Court has also provided in unambiguous terms as to in which situations ‘violence’ with the language of a statute is permissible, while at the same time asserting that to realise true intent of law every word used by the Legislature must be given effect to. The judgment in State of Jharkhand V. Tata Steel Ltd. [11] lays down:

As Judge Learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should not make a mockery of legislation.

26. Sabharwal, J. (as His Lordship then was) has observed thus:-

"... It is said that it is now well-settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the court may modify the language used by the legislature or even "do some violence" to it, so as to achieve the obvious intention of the legislature and produce a rational construction. In such a case the court may read into the statutory provision a  condition which, though not expressed, is implicit in construing the basic assumption underlying the statutory provision. ..."

Conclusion

The way law on judicial interpretation of statutory provisions has taken shape, it can safely be said that the underlying principle undoubtedly is to make a statute workable, just and reasonable, keeping in focus its objects and social realities. In case this endeavour requires reading down, or adding or
modifying the language or sentence structure used by the Legislature, it is permissible. The purposive interpretation of a statute to achieve obvious intention of the Legislature has been adopted, that may allow the Court to read into the statutory provision a condition that is implicit in construing its basic object, though not explicit. The golden words of Lord Denning on interpretation must always be remembered, as they lay the very basis of meaningful and just interpretation by the Courts; he says,

"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity....when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, he must do it not only from the language of the statute, but also from a consideration of social conditions which gave rise to it, and the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature" [12]

It would be interesting to know the mode and manner of interpretation that would be adopted by the larger Bench to look into the issue as of whether a Family Court constituted under the 1984 Act can entertain a petition for maintenance filed by a divorced Muslim woman under the1986 Act.

 

 

1. Criminal Appeal No.192 of 2011 decided on 18.06.2020 by the Hon’ble Supreme Court;
Law Finder Id #1726432
2. See Family Courts Act, Sections 7,8,20 & Muslim Women (Protection of Rights on Divorce) Act, 1986, Section 3
3. Ibid.
4. Supra n. 1
5. AIR 1992 All 322.
6. 2000 (3) Mh.L.J. 555
7. The Rt Hon LORD DENNING, The Discipline of Law 16 (First Indian Re-print 1993)
8. Nasiruddin v. STAT, (1975)2 SCC 671
9. (1955) 2 SCR 457
10. (2004) 9 SCC 686
11. Civil Appeal No.4285 of 2007, decided on 12.02.2016; Law Finder Doc. Id # 742321.
12. The Rt Hon LORD DENNING, The Discipline of Law 12 (First Indian Re-print 1993)