ADVOCATEMMMOHAN: Mansoor Saheb (Dead) v. Salima (D) by LRs (2024 IN...

ADVOCATEMMMOHAN: Mansoor Saheb (Dead) v. Salima (D) by LRs (2024 IN...: advocatemmmohan A Doctrinal Reconciliation: The Interplay of Absolute Ownership and Family Settlements in Mohammedan Law I. Introduction The...

A Doctrinal Reconciliation: The Interplay of Absolute Ownership and Family Settlements in Mohammedan Law

I. Introduction

The recent decision of the Supreme Court in Mansoor Saheb (Dead) v. Salima (D) by LRs (2024 INSC 1006) has reignited a critical debate: To what extent can a Muslim owner distribute property during their lifetime?

The controversy is often framed as a conflict between the "unavailability of partition" and the "validity of family settlements." However, once the issue is correctly framed, the apparent friction between classical doctrine and modern jurisprudence dissolves. This article highlights that the 2024 ruling is not a restriction on power, but a mandate for juristic precision.

II. Absolute Ownership: The Bedrock of the Law

A foundational principle of Mohammedan law—affirmed by the Privy Council and the Supreme Court in Gulam Abbas v. Haji Kayyum Ali—is the maxim nemo est heres viventis (no one is the heir of a living person).

• No Birthright: Unlike the classical Hindu Mitakshara system, there is no "Joint Family" property in which a child gains an interest upon birth.

• Spes Successionis: Heirs possess only a "mere chance of succession."

• Plenary Dominion: So long as a Muslim is alive, they are the absolute owner. Their right to alienate property inter vivos (during life) is unfettered by the expectations of heirs.

III. The Source of Confusion: Partition vs. Disposition

The 2024 Supreme Court judgment clarifies a structural limit: Partition presupposes pre-existing joint ownership.

1. Since heirs have no vested interest while the owner is alive, they cannot "partition" what they do not yet own.

2. In this sense, a son cannot demand partition from a living father. The Court’s observation that "partition is unknown to Mohammedan law" is a restatement of this fundamental truth.

IV. The Parallel Evolution: Modern Hindu Law

It is vital to note that even in Hindu Law, the "old law" has evolved. Post the Hindu Succession (Amendment) Act, 2005, and subsequent rulings like Vineeta Sharma v. Rakesh Sharma, the law moved to equalize rights. However, the concept of Individual/Self-Acquired property in Hindu law now mirrors the Mohammedan law position: if the property is self-acquired, the children have no birthright, and the father has an absolute right to dispose of it.

The "Partition" we see in modern Hindu families is often actually a Settlement of coparcenary property. By ruling as it did in 2024, the Supreme Court ensured that Mohammedan law does not accidentally adopt Hindu concepts of "Jointness" that are alien to its own framework.

V. Judicial Pillars: High Courts and the Bridge of Equity

Before the 2024 clarification, several High Courts (Madras, Andhra Pradesh, and Karnataka) upheld lifetime divisions by applying the Doctrine of Family Arrangement:

• The "Peace" Doctrine: In K. Mahammad Ghouse Sahib v. Jamila Bi, the Madras High Court held that family arrangements are binding as contracts to maintain family peace.

• Statutory Harmony: The Karnataka High Court has noted that "Settlement Deeds" are religion-neutral instruments under the Stamp Act, allowing Muslims to distribute property effectively.

VI. The Apex Court’s Approval of Family Arrangements

Crucially, the Supreme Court has consistently leaned in favor of Family Settlements, even for Muslims. In the landmark Kale v. Deputy Director of Consolidation (1976), and later in Hafeeza Bibi v. Shaikh Ramatulla (2011), the Court established:

• Favoring Harmony: Courts should lean against technicalities to uphold arrangements that bring about harmony.

• Oral Validity: For Muslims, a family arrangement or a gift (Hiba) can be oral, provided the three essentials (Declaration, Acceptance, and Possession) are met.

VII. The Reconciled Proposition

The tension is resolved by this singular distinction:

"The law denies the heir the right to demand a partition, but it never denies the owner the right to make a distribution."

Mode of Transfer	Status	Legal Context
Partition	Invalid	Conceptual impossibility for a living Muslim owner.
Family Arrangement	Valid	Upheld by the SC (Kale) to maintain peace and settle disputes.
Hiba (Gift)	Valid	The primary mode for 100% transfer during lifetime.
Wasiyat (Will)	Restricted	Limited to 1/3 of the estate to protect heirs post-death.

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VIII. Conclusion: The Harmony of Law and Peace

The 2024 Supreme Court judgment in Mansoor Saheb is not a cage, but a clarification. It does not silence the voice of a Muslim owner; it simply asks that they speak the correct legal language.

The law does not seek to frustrate the heart of a parent who wishes to see their children settled, or a family that desires to avoid the bitterness of the courtroom. It merely insists that such noble intentions be clothed in the correct legal garment. By distinguishing between the forbidden "Partition" (which implies a right the heirs do not yet have) and the protected "Family Arrangement" (which honors the owner's desire for peace), the law achieves a beautiful equilibrium.

In the final analysis, the jurisprudence of the Apex Court ensures that the "Will of the Living" is not frustrated by the "Rules of the Dead." Whether under the evolved Hindu law or the classical Shariat, the modern legal spirit favors the Settlement over the Suit. In the silence of the law regarding "partition," we find the eloquent, plenary freedom of the living owner to provide for their family in peace.

Table of Authorities: The Judicial Pillars of Lifetime Disposition

Case Name	Citation	Holding / Key Proposition
Mansoor Saheb (Dead) v. Salima (D) by LRs	2024 INSC 1006	Supreme Court (Karol & Ravikumar JJ, 19 Dec 2024) held that partition during the owner’s lifetime is unknown to Mohammedan law; only a valid gift (hiba) with its three essentials (declaration, acceptance, delivery of possession) can transfer title.
Kale v. Deputy Director of Consolidation	(1976) 3 SCC 119	Landmark SC ruling (Fazal Ali, Krishna Iyer, Sarkaria JJ, 21 Jan 1976) that family settlements are to be upheld to promote harmony; courts should lean in favor of them to avoid families “being at the mercy of lawyers”.
Hafeeza Bibi v. Shaikh Farid (Dead) by LRs	(2011) 5 SCC 654	SC (Lodha & Nijjar JJ, 5 May 2011) confirmed that a Muslim gift (hiba) or family arrangement can be oral and valid without registration, provided possession is delivered.
Gulam Abbas v. Haji Kayyum Ali	(1973) 1 SCC 1	SC (Beg & Grover JJ, 18 Sep 1972) held heirs have only spes successionis (mere hope of succession) and cannot demand property or partition during the owner’s lifetime.
K. Mahammad Ghouse Sahib v. Jamila Bi	AIR 1950 Mad 433	Madras HC (Subba Rao J, 16 Nov 1949) recognized equitable estoppel: heirs who accept benefits under a deed executed during the owner’s life are estopped from challenging its validity later.
Md. Aliuddin Farooqui v. Mohd. Karamath Hussain	AIR 1992 AP 196	Andhra Pradesh HC (2003 appeal, Swamy & Reddy JJ) held that though Muslims lack a “joint family” concept, they can enter into binding family arrangements to settle disputes.
Sultan Mohiyuddin v. Habeebunnissa	2024 (Kar HC)	Karnataka HC (Anant Ramanath Hegde J, 25 Apr 2024) ruled that a settlement deed is valid among Muslims; Shariat Act does not override the Stamp Act provisions. Settlement is a religion‑neutral contract.
Mt. Bibbi v. Mt. Bibi	AIR 1937 Pat 454	Patna HC (1937) clarified that family settlements among Muslims do not require pre‑existing legal title; the bona fide intent to preserve family peace is sufficient consideration.

Under Mohammedan Law, an owner cannot partition his property among his heirs during his lifetime, as heirs acquire rights only upon his death; lifetime transfer can occur only through a valid gift (hiba), which requires clear declaration, acceptance, and delivery of possession, and a mutation entry describing a transaction as ‘partition’ neither proves a gift nor confers title.

 APEX COURT 

Mohammedan Law – Partition during Lifetime – Impermissibility

Under Mohammedan Law, heirs acquire no right in the property during the lifetime of the owner; consequently, partition of property between an owner and his heirs during his lifetime is unknown to and impermissible under Muslim law.
(Paras 2(a), 14–21)

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Mohammedan Law – Succession – No Birthright

Unlike Hindu law, Mohammedan law does not recognise any right by birth; heirs succeed only upon the death of the owner, and until then the owner is the absolute master of his property.
(Paras 14–17, 19–20)

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Gift (Hiba) – Essentials

For a valid gift (hiba) under Mohammedan Law, three essential requisites must be cumulatively satisfied: (i) clear and unequivocal declaration of gift by the donor, (ii) acceptance by or on behalf of the donee, and (iii) delivery of possession, actual or constructive.
(Paras 23–27)

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Gift – Registration – Not Mandatory

A gift under Mohammedan Law need not be in writing or registered; however, absence of registration does not dispense with proof of the three essential requisites of a valid gift.
(Paras 27–28; relying on Hafeeza Bibi v. Sk. Farid)

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Mutation Entry – Evidentiary Value

Mutation entries are maintained for fiscal purposes and do not confer, extinguish, or create title; they cannot substitute proof of a valid transfer under personal law.
(Paras 35–36; relying on Sawarni v. Inder Kaur)

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Mutation Entry – Nomenclature – Intention

Where a mutation entry expressly records a transaction as ‘partition’, it cannot be recharacterised as a ‘gift’ in the absence of evidence of clear donative intent; partition and gift are conceptually and legally distinct transactions.
(Paras 29–34)

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Oral Gift – Proof – Burden

The burden of proving a valid oral gift lies strictly on the person asserting it; vague or unreliable oral testimony, unsupported by contemporaneous evidence of declaration, is insufficient to establish a valid hiba.
(Paras 36–38)

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Civil Procedure – First Appellate Court

Where concurrent findings of fact by the Trial Court and the High Court are based on correct appreciation of Mohammedan Law and evidence, interference by the Supreme Court is unwarranted.
(Paras 7–8, 38)

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ANALYSIS (Paragraph-wise)

Paras 1–2

The Supreme Court frames two core questions:
(i) whether partition during the lifetime of a Muslim owner is permissible; and
(ii) whether, on facts, a valid gift was proved and whether a mutation entry could evidence such intention.

Paras 3–8 (Factual Matrix)

The dispute concerns agricultural land and house property allegedly divided by Sultan Saheb during his lifetime. Plaintiffs sought partition after his death, while defendants relied on a mutation entry claiming prior partition/gift.

Paras 12–21 (Personal Law & Partition)

Relying on Quranic verses, classical texts, and authoritative commentaries, the Court holds that:

• heirs have no vested or contingent right during the ancestor’s lifetime, and

• partition is conceptually alien to Mohammedan Law during the owner’s lifetime.

The only lawful method for lifetime transfer is hiba, subject to strict conditions.

Paras 23–28 (Law of Gift / Hiba)

The Court consolidates precedent and classical authorities to reaffirm:

• oral gifts are valid,

• registration is unnecessary,

• but all three essentials—declaration, acceptance, and delivery of possession—must coexist.

Paras 29–35 (Mutation Entry)

The Court rejects the argument that the word “partition” in the mutation entry could be read as “gift”.
Key holdings:

• intention must be gathered from the words used,

• mutation entries do not convey title, and

• fiscal records cannot override substantive personal law.

Paras 36–38 (Application to Facts)

The defendants failed to prove:

• any clear declaration of gift by Sultan Saheb, and

• credible supporting evidence.

Even if possession or acceptance were assumed, absence of proven declaration was fatal. The oral gift plea therefore failed.

Paras 38–39

The Supreme Court affirms concurrent findings of the Trial Court and High Court and dismisses the appeals.

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RATIO DECIDENDI

Under Mohammedan Law, an owner cannot partition his property among his heirs during his lifetime, as heirs acquire rights only upon his death; lifetime transfer can occur only through a valid gift (hiba), which requires clear declaration, acceptance, and delivery of possession, and a mutation entry describing a transaction as ‘partition’ neither proves a gift nor confers title.

Muslim Personal Law – Mubaraat / Mutual Divorce Marriage between Muslim spouses may be dissolved by mutual consent (Mubaraat) in terms of Muslim Personal Law, and such dissolution can be recognised and given effect to by the Supreme Court. (Paras 2, operative directions)

 APEX COURT 

Transfer Petitions – Matrimonial & Criminal Proceedings – Settlement

Where matrimonial and connected criminal proceedings are pending in different jurisdictions and the parties arrive at a comprehensive settlement through Supreme Court Mediation, the transfer petitions may be disposed of in terms of such settlement without adjudicating the transfer prayers on merits.
(Paras 1–2, 8)

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Mediation – Supreme Court Mediation Centre – Binding Effect

A settlement agreement arrived at before the Supreme Court Mediation Centre, signed by the parties, their counsel, and the Mediator, and supported by affidavits, is binding and can form the basis for final disposal of proceedings.
(Paras 2, 5–7)

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Article 142, Constitution of India – Plenary Power – Divorce by Mutual Consent

The Supreme Court may, in exercise of powers under Article 142 of the Constitution, dissolve a marriage by mutual consent and grant a decree of divorce, even while dealing with transfer petitions, to do complete justice between the parties.
(Para 6)

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Muslim Personal Law – Mubarat – Recognition by Court

A mutual divorce (‘Mubarat’) agreed between Muslim spouses and recorded in a settlement can be recognised and given effect to by the Supreme Court while passing a decree of divorce under Article 142.
(Paras 4(1), 6)

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Custody of Minor Children – Consent Arrangement

Custody and visitation arrangements agreed between the parties as part of a mediated settlement, including permanent custody with one parent and visitation rights to the other, can be accepted and directed to be strictly complied with by the Court.
(Paras 4(2)–(9), 7)

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Settlement Amount – Full and Final Resolution

A lump-sum monetary settlement agreed between the parties as full and final settlement of all matrimonial claims is enforceable when incorporated in the Court’s order, with liberty to impose consequences for non-compliance.
(Paras 4(6), 4(12), 7)

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Withdrawal / Disposal of Pending Proceedings

Upon dissolution of marriage and acceptance of settlement, the Supreme Court may permit withdrawal and disposal of all pending civil, criminal, and transfer proceedings arising out of the matrimonial relationship.
(Paras 4(15), 6, 8)

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ANALYSIS (Paragraph-wise)

Paras 1–2

The Court notes that multiple civil and criminal transfer petitions were filed seeking transfer of family court proceedings and domestic violence proceedings from Mumbai to New Delhi. During pendency, the parties were referred to mediation and arrived at a comprehensive settlement.

Paras 3–4

An application seeking directions for dissolution of marriage and disposal of pending cases is placed on record. The settlement agreement dated 21.03.2025 is extracted in detail, covering:

• mutual divorce (Mubarat),

• permanent custody of both children with the father,

• visitation rights to the mother,

• financial settlement of ₹1.45 crore in instalments,

• withdrawal of all pending cases, and

• undertakings regarding future conduct.

Para 5

The Court formally takes the settlement agreement and the application, supported by affidavits of both parties, on record, lending procedural sanctity to the settlement.

Para 6

This paragraph constitutes the operative core. The Court records satisfaction that the matter is fit for exercise of powers under Article 142, dissolves the marriage by mutual consent, and permits withdrawal of all pending cases, thereby granting complete relief beyond the narrow scope of transfer petitions.

Paras 7–9

The Court directs strict adherence to the settlement terms, disposes of all transfer petitions and applications, and directs the Registry to draw a decree accordingly.

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RATIO DECIDENDI

When parties to multiple matrimonial and connected criminal proceedings arrive at a comprehensive and voluntary settlement through Supreme Court Mediation, the Supreme Court may, in exercise of its plenary powers under Article 142 of the Constitution, dissolve the marriage by mutual consent, give effect to agreed custody and financial arrangements, permit withdrawal of all pending proceedings, and dispose of transfer petitions in terms of such settlement to secure complete justice.

ADVOCATEMMMOHAN: Under Section 3(1)(d) of the Muslim Women (Protect...

ADVOCATEMMMOHAN: Under Section 3(1)(d) of the Muslim Women (Protect...: advocatemmmohan Apex Court  uslim Women (Protection of Rights on Divorce) Act, 1986 – Section 3(1)(d) – Scope Section 3(1)(d) entitles a div...

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Apex Court 

uslim Women (Protection of Rights on Divorce) Act, 1986 – Section 3(1)(d) – Scope

Section 3(1)(d) entitles a divorced Muslim woman to claim and recover all properties given to her before, at, or after marriage by her relatives, friends, husband, or husband’s relatives; the provision is remedial and must be purposively construed to secure dignity and financial protection of the divorced woman.
(Paras 7, 9)

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Marriage Gifts – Dowry / Articles – Return after Divorce

Goods, money, or ornaments given by the bride’s father at the time of marriage, even if handed over to the bridegroom, are recoverable by the divorced wife under Section 3(1)(d) of the 1986 Act, unless there is clear proof that such properties were not meant for her benefit.
(Paras 3, 7–10)

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Evidence – Marriage Register (Qabilnama) – Evidentiary Value

Where the Marriage Registrar admits an erroneous or overwritten entry in the marriage register and produces the original register in Court, his testimony cannot be discarded merely on suspicion, particularly when contrary oral evidence has already failed in criminal proceedings and attained finality.
(Paras 8, 9)

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Criminal Proceedings – Acquittal – Effect on Subsequent Claims

Statements relied upon in proceedings under Section 498-A IPC and Dowry Prohibition Act, 1961, which resulted in acquittal and attained finality, cannot be accorded overriding evidentiary value in subsequent proceedings under the 1986 Act.
(Para 8)

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High Court – Article 227 – Limits of Supervisory Jurisdiction

Though the High Court’s power of superintendence under Article 227 extends to judicial orders, interference is impermissible where such exercise defeats the object of a beneficial legislation and reduces proceedings under the 1986 Act to a mere civil dispute.
(Paras 5.2, 9)

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Statutory Interpretation – Beneficial / Social Justice Legislation

The Muslim Women (Protection of Rights on Divorce) Act, 1986 must be interpreted in the light of constitutional values of equality, dignity, and autonomy under Article 21, keeping in view lived realities of women, particularly in patriarchal and rural settings.
(Para 9)

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Precedent – Constitution Bench

Daniel Latifi v. Union of India reaffirmed that Sections 3 and 4 of the 1986 Act are substantive, rights-conferring provisions with an overriding effect, enabling a divorced Muslim woman to seek return of mahr and properties through a Magistrate.
(Para 7; relying on Daniel Latifi v. Union of India)

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ANALYSIS (Paragraph-wise)

Paras 2–4

The Court identifies the narrow legal issue: whether properties and valuables given at the time of marriage by the bride’s father—whether to the bride or to the bridegroom—can be claimed by the divorced woman under the 1986 Act.

Paras 4–6

A detailed procedural history reveals repeated remands and conflicting findings. Ultimately, the High Court exercised Article 227 jurisdiction to deny the claim, primarily relying on the father’s statement that the articles were given to the husband.

Para 7

The Supreme Court extracts and emphasises Section 3(1) of the 1986 Act, particularly clause (d), reiterating its overriding nature and its focus on return of properties to the divorced woman.

Para 8

The Court finds fault with the High Court’s evidentiary appreciation. The father’s statement relied upon by the High Court had already been tested and rejected in criminal proceedings ending in acquittal. In contrast, the Marriage Registrar’s testimony explaining the erroneous entry was corroborated by production of original records.

Para 9

This paragraph constitutes the normative core of the judgment. The Court criticises the High Court for adopting a narrow civil-law lens and ignoring the purposive, social-justice orientation of the 1986 Act. The judgment expressly links the Act to Article 21 values—dignity, equality, and autonomy of divorced Muslim women.

Para 10

The appeal is allowed; the High Court judgment is set aside; directions are issued for payment with interest in default, reinforcing the enforceability of Section 3 remedies.

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RATIO DECIDENDI

Under Section 3(1)(d) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman is entitled to recover money, gold, and other articles given at the time of marriage by her father or relatives, even if such properties were handed over to the husband, and courts must interpret the provision purposively to advance dignity, equality, and financial security of divorced women rather than treating the claim as a mere civil dispute.

Dhṛtarāṣṭra World

ధృతరాష్ట్ర ప్రపంచం 

హే ధృతరాష్ట్ర…
నీవు ఎక్కడికీ పోలేదు!

ప్రతి మానవుని ఆలోచనలలో
నీవు కొలువై ఉన్నావు —
అంతరంగాల రాజ్యాలను ఏలుతున్నావు!!

హే ధృతరాష్ట్ర…

"యథా రాజా తథా ప్రజా" అనే నానుడి
రాజులతోనే పోయింది.
"యథా ప్రజా తథా రాజా" అనే
కొత్త సూక్తి
ప్రజారాజ్యంలో ప్రబలింది.

కలిపురుషుడు
ధృతరాష్ట్ర రూపంలో
ప్రజల మధ్య కొలువైనాడు.

ఆశల దోశలకు,
తప్పెట్లు–తాయిలాలకు
తమ హక్కును తాకట్టు పెట్టారు.

శ్రీలంక శిధిలమైంది,
బంగ్లాదేశ్ భ్రష్టు పట్టింది,
నేపాల్ నేలకొరిగింది.

ఇరాన్, ఇజ్రాయిల్, యుక్రెయిన్ ,
పాలస్తీనా, ఘనా —
శవాల దిబ్బ లయ్యాయి.

పాకిస్తాన్
తనవారిని, పక్కవారిని మ్రింగే
టెర్రరిస్టుల రాజ్యంలా మారిపోయింది.

అమెరికా
అసలు ప్రపంచగతిలో
పరమ దుర్మార్గపు దేశంగా
ట్రంపెట్ వాయిస్తోంది.

ప్రజలే ధృతరాష్ట్రులైతే
ప్రపంచగతి ఇలానే తిరుగుతుంది —
తిరోగమనం వైపు.

Dhṛtarāṣṭra World

O Dhṛtarāṣṭra…
You have gone nowhere!

In the thoughts of every human,
You are measured —
Conquering the kingdoms of the inner worlds!

O Dhṛtarāṣṭra…

As the saying goes, “As the king, so the people”,
It was with the kings that this path ended.
A new proverb emerged: “As the people, so the king”,
And it gained strength in the realm of democracy.

The composite man
took the form of Dhṛtarāṣṭra
and was measured among the people.

For the hunger of desires,
for the temptations and indulgences,
They struck down their own rights.

Sri Lanka has crumbled,
Bangladesh has fallen into corruption,
Nepal has collapsed.

Iran, Israel, Iraq,
Palestine, Ghana,Ukraine —
Have become monuments of death.

Pakistan has turned into a kingdom of rampaging terrorists,
consuming both its own and others’.

America now trumpets itself
as the supreme evil power in the world.

If the people themselves are Dhṛtarāṣṭras,
the world will continue
to spiral backward.