Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit dismissed the petition being devoid of merits.

 The facts of the case are such that the parties are Sunni Muslims who contracted marriage in March 1991 and the marriage was a short lived one as the wife complained of dowry harassment and the petitioner husband uttered talaq and paid 5000 to her as mehr amount and additional 900 as her maintenance amount during iddat. The ex wife filed a civil suit for maintenance on grounds that the ex husband got married and has a child too wherein he was acquitted. A suit was thus instituted by the wife where the decree was given in favour for which she sought enforcement by filing an execution petition wherein the petitioner husband was sent to civil prison due to non payment but was later released. The petitioner husband then filed the instant writ petition after his interim application under Order XXI Rule 37 Civil Procedure Code, 1908 i.e. CPC seeking determination of his financial capacity got rejected.

Issues:

  1. Whether a Muslim is duty bound to make provision for his ex wife beyond iddat despite paying paltry Mehr if she remains un-remarried and is incapable of maintaining herself?
  • Contention: In Islam, Marriage is a civil contract.

The Court observed that marriage in Islam is not a sacrament unlike a Hindu marriage as it crowns the parties with status like husband, wife, in-laws, etc; if children are born, they earn the promotional status of father and mother and of grandparents and even when marriage is dissolved only the spousal tie is torn and the status comes to an end however the blood of divorced spouses flows in the veins of their children and grandsire, and demise of a spouse renders the other a widow/widower and succession also gets effected. Hence all the above shows that marriages even in Islam begins with the contract but graduates to the status as in any other community and thus gives rise to certain justifiable obligations and they are ex contractu.

Thus, even on dissolution by divorce will not annihilate all the duties and obligations of parties by lock, stock & barrel in law and new obligations may arise including providing sustenance to the ex wife who is destituted by divorce.

  • The Holy Quran also suggests to the fact that a pious Muslim owes a moral/religious duty to provide subsistence to his destitute ex wife:

“When you divorce women, and they (are  about to) fulfill the term of their (iddat), either take them back on equitable terms or set them free on equitable terms, but do not take back to injure them (or) to take undue advantage, if anyone does that, he wrongs his soul…”(Surah Al Bakhra Aiyat No.231);

“There is no sin on you, if you divorce women while you have not touched (had sexual relation with) them nor appointed them unto their Mehr, but bestowed on them (as suitable gift) the rich according to his means and the poor according to his means, a gift reasonable amount is a duty on  the doers of good” (Surah Al Bakhra Aiyat No.236). 

  • The Court relied on Danial Latifi v. UOI, AIR 2001 SC 3958, observed that in Islamic jurisprudence, ordinarily, the right of an ex-wife to maintenance does not extend beyond iddat however this norm has to be subject to the rider that the amount paid to the ex-wife, be it in the form of mehr or be it a  sum quantified on the basis of mehr, or otherwise, is not an  inadequate or illusory sum; it is a matter of common  knowledge that more often than not, mehr is fixed  inadequately, bride-side lacking equal bargaining power inter  alia because of economic & gender-related factors; this is not  to say that the inadequacy of mehr would affect the validity of nikah, that being altogether a different matter. It was further observed that for how long the right to maintenance enures to a  divorced muslim wife, largely is no longer res integra; subject  to all just exceptions, the duty of a muslim to provide  sustenance to his ex-wife is co-extensive with her requirement, the yardstick being the life essentials and not  the luxury. Hence a muslim is duty bound to make a reasonable & fair provision for the future of his divorced wife, and this duty, as of necessity, extends for a period beyond iddat.
  • The Court relied on Keshvananda Bharati v. State of Kerala, AIR 1973 SC 1461 and observed that if an illusory compensation for the public acquisition of private property is ‘no compensation’, then the reason & justice tell us that an illusory mehr cannot be the basis for the quantification of the amount of maintenance nor for limiting its duration to iddat. The analogy of “illusory compensation” is logically invocable since the payment of amount by the husband as mehr on talaq, by its very nature has compensatory elements. The tokenistic amount of Rs.5,000/- paid by the husband to the ex-wife as mehr or its quantification on  the basis of mehr, is militantly unjust and illusory; the  petitioner has paid another paltry sum of Rs.900/- to the  respondent ex-wife as maintenance during iddat i.e., for a  period of about three months, only celebrates the inadequacy & illusoriness; this amount will not be sufficient to buy a cup  of popcorn a day from the street carter too.
  1. Whether a decree for maintenance like any other money decree can be resisted on the ground of lack of financial capacity of the judgment debtor?

The Court observed that the decree in question is not a money decree and the decree holder is not a ‘money lender’ instead it is a hapless divorced woman who has secured a decree for her maintenance after years of struggle; she is relentlessly battling for its enforcement; it is a distinct case involving the jural correlatives resting on the shoulders of ex-spouses by virtue of Talaq. Hence, the maintenance jurisprudence as developed by legislative & judicial process in this country shows that this right to sustenance is not founded on contract; courts have repelled the argument of financial incapacity while awarding maintenance when the husband has an able body; therefore, the pecuniary incapacity of the judgment debtor that ordinarily avails as a ground for resisting the execution of a money decree does not come to the rescue of the petitioner.

  1. Whether a Muslim contracting another marriage and begetting children from it can resist execution of the maintenance decree obtained by his ex wife, on that ground per se?

The Court observed that a Muslim hurriedly contracting another marriage after pronouncing talaq upon his first wife, cannot be heard to say that he has to maintain the new spouse and the child begotten from her as a ground for not discharging the maintenance decree; he ought to have known his responsibility towards the ex-wife who does not have anything to fall back upon; the said responsibility arose from his own act of talaq and prior to espousing another woman; the responsibility & duty owed by a person to his ex-wife are not destroyed by his contracting another marriage.

The Court held this Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, with a cost of Rs.25,000/-; the learned judge of Court below is requested to accomplish the execution on a war footing and report compliance to the Registrar General of this Court within three months.”

[Ezazur Rehman v. Saira Banu, Writ Petition No. 3002 of 2015, decided 08-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


For Petitioners: Mr. K N Haridasan Nambiar

For Respondents: Mrs. Rashmi C

Case BriefsHigh Courts

Allahabad High Court: Pradeep Kumar Srivastava, J., while addressing the present matter, observed that:

… right of maintenance available to wife from husband is an absolute right and even divorce cannot affect this right unless the wife is disqualified on account of remarriage or her sufficient earning.

It was also observed:

Gender justice is a constitutional promise and the provision of maintenance provided under Section 125 of the Code is one of the tools to translate the constitutional promise into social reality. Moreover, Article 21 of the Constitution guarantees every person a right to live with dignity and a dignified life is not possible unless a fair and reasonable provision is made by the husband towards the maintenance of his divorced wife. Therefore, while interpreting and applying this beneficial legislation, the Constitutional vision of equality, liberty and justice, more particularly social justice to the women and marginalized sections of society, must be present when the courts are dealing with an application of destitute wife or helpless children and aged and infirm parents. Social justice adjudication or social context adjudication requires application of equality jurisprudence where the parties to a litigation are unequally situated in terms of socio-economic structure and dilution of the technical procedure often followed in adversarial system.

Instant criminal revision was preferred against the impugned judgment passed by Family Court under Section 125 of the Criminal Procedure Code, 1973 by which OP 2 – Divorced Wife was awarded Rs 3,000 as maintenance.

Before the Court below, the wife gave an application under Section 125 CrPC stating that she was married to revisionist according to the Muslim Personal Law and later during the course of her marriage, her husband and his family demanded motorcycle, refrigerator and dowry and on non-fulfilment of the same, she was beaten up and expelled along with her daughter. On being expelled she along with her daughter started living with her parents.

The wife was totally dependent on her father, later after the death of her father she was facing financial trouble and was not able to maintain herself, hence she claimed maintenance.

Present revision was filed by the husband challenging the impugned judgment on the ground that earlier a case under Section 125 CrPC for maintenance which was filed by wife was decided wherein the maintenance claim of the wife was rejected on the ground that being Muslim she was not entitled for maintenance after divorce beyond period of iddat and by this impugned judgment, the said judgment has been reviewed, which is contrary to law.

Revisionist’s Counsel contended that divorced Muslim wife is not entitled to maintenance under the law applicable to parties and the subsequent application is barred by the principle of res judicata.

In Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, the issue before the court was that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband from his obligation to pay maintenance under the provisions of Section 125 CrPC. A five-Judge Constitution Bench of the Supreme Court held that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties and in case of conflict between the terms of the Code and the rights and obligations of the individuals under personal law, the Code would prevail.

In the above-cited case, the important feature of the case was that the wife had managed the matrimonial home for more than 40 years and had borne and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life and remarriage was an impossibility in that case. The husband, a successful Advocate, with an approximate income of Rs 5,000 per month provided Rs 200 per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

Supreme Court interpreted the provisions of the Act and Section 125 CrPC in such a way as to give recognition to the right of divorced Muslim wife to claim maintenance under Section 125 even for the period beyond iddat period and for the whole life unless she is disqualified for the reasons such as entering into marriage with someone else.

Hence, in view of the above Court found no force in the argument that a divorced Muslim wife is not entitled to maintenance beyond the iddat period.

Section 125 of the Code of Criminal Procedure has been enacted to achieve a social object and the object is to prevent vagrancy and destitution and to provide speedy remedy to deserted or divorced wife, minor children and infirm parents in terms of food, clothing and shelter and minimum needs of one’s life.

 Bench held that when the Supreme Court has interpreted and clarified the law and has laid down that the Muslim divorced wife can still claim maintenance under Section 125 CrPC despite the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, her claim cannot be defeated on the basis of an earlier decision of the court below and the earlier judgment cannot operate as res judicata.

Court while concluding its decision held that:

Section 125 of the Criminal Procedure Code has been enacted with a specific purpose to protect women and children and to prevent vagrancy and destitution among them. This law is not community-centric or religion centric and perhaps, one of the most secular enactment ever made in the country. It is an instrument of social justice and aims to render justice on the basis of equality to wife, in particular, may be divorced including a divorced Muslim wife.

In view of the above, the revision petition was dismissed and the Family Court’s decision was upheld. [Jubair Ahmad v. Ishrat Bano, 2019 SCC OnLine All 4065, decided on 18-10-2019]