Case BriefsHigh Courts

Gujarat High Court: The Division Bench of J.B. Pardiwala and Vireshkumar B. Mayani, JJ., while addressing the issue of grant of permanent alimony to a Muslim Woman noted the significant difference between permanent alimony and periodical maintenance.

An instant appeal under Section 19 of the Family Courts Act, 1984 was filed at the instance of the original defendant (husband) and was directed against the judgment and decree passed by Principal Judge, Ahemdabad for a decree of divorce under the provisions of Dissolution of Muslim Marriages Act, 1939.

Analysis, Law and Decision

Question for consideration:

Whether the Family Court committed any error in passing the order of permanent alimony in favour of the wife while granting the decree of divorce to the wife?

There are two types of alimony:

1. Given at the time of court proceedings- This is usually the maintenance amount.

2. Given at the time of legal separation- This can be given either in a lump sum or as a fixed monthly or quarterly payment or as per the requirements of the spouse.

Supreme Court on a creative and meaningful interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the Iddat period.

In the Supreme Court decision of Shabana Bano v. Imran Khan, (2010) 1 SCC 666, the question that fell for consideration was whether a Muslim Divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 CrPC, and if yes, then through which forum.

In the above decision of the Supreme Court, it was held that petition under Section 125 CrPC would be maintainable before the family court as long as the wife does not remarry. The amount of maintenance to be awarded under Section 125 of the CrPC cannot be restricted for the Iddat period only.

Main Argument

The most significant submission on behalf of the appellant was that no provision exists in the Dissolution of Muslim Marriage Act, 1939 for the maintenance or permanent alimony. Further, it was stated that Family Court had no jurisdiction to pass any order with respect to maintenance or permanent alimony once the suit is allowed and the marriage is dissolved at the instance of the wife.

Muslim Women (Protection of Rights on Divorce) Act, 1986

The Muslim Women Act is “to protect the rights of Muslim women who have been divorced by or have obtained a divorce from their husbands and to provide for matters connected therewith or incidental thereto.

Hence the Muslim Women Act professes to deal with Muslim divorced women and their rights against their former husbands.

Family Court

Bench observed that, where a Family Court has been established, the power and the jurisdiction of the Family Court under Section 7(2) of the Family Courts Act, 1984 to entertain an application for maintenance, even by a divorced Muslim wife, under Chapter IX of the Code of Criminal Procedure has not been taken away, either expressly or even by implication by the Muslim Women Act of 1986.

And once such an application is made to a Family Court under Section 7(2) of the Family Courts Act, and not to a Magistrate, the same has got to be disposed of by the Family Court in accordance with the provisions of Chapter IX of the Code of Criminal Procedure, and the Muslim Women Act of 1986, including its Section 5, would have no manner of application.

Matrimonial Property

Further, it was stated that the right to maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of ‘dissolution of marriage’ and therefore, these reliefs are very much an integral part of the decree of ‘dissolution of marriage’.

Section 4 of the Act, 1986

It was also sought to be argued on behalf of the appellant that in view of Section 4 of the Act, 1986, the former husband had no liability to make any provision for the Post-Iddat period.

Bench observed that the right of maintenance given to the wife and the minor children under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, is in addition to the right, which the minor children are having under Muslim Law to get maintenance from the father. The law expects that the parties should not be driven to approach the different forums but in one forum itself, they should be granted whatever reliefs to which they are entitled.

Supreme Court in the decision of K.A. Abdul Jaleel v. Shahida, (2003) 4 SCC 166 was concerned with the provisions of Section 7 of the Family Courts Act, 1984 as to whether the Family Court had the jurisdiction to adjudicate upon any question relating to the properties of the parties not only of the subsisting marriage but also divorced parties and the Supreme Court was pleased to hold that the reason for the enactment of the Family Courts Act, 1984, was to set up a Court to deal with all the disputes concerning with the Family and it is now a well-settled principle of law that the jurisdiction of a Court created specifically for the resolution of disputes of certain kinds should be construed liberally.

Wife has remarried

Counsel submitted that the wife was remarried and in view of there was no question of any lump sum permanent alimony.

Bench observed that

A divorced Muslim woman is entitled to receive, from her husband, inter alia, “maintenance”, “reasonable and fair provision”, “Mahr” etc. under Section 3 of the Act, 1986.

Permanent Alimony

Bench stated that what is significant to note is that the relief of permanent alimony is a relief incidental to the granting of the substantive relief by the Court in the main proceeding. It is an incidental relief claimed in the main proceeding, though an application is necessary for claiming it.

The Supreme Court had the occasion to consider the question whether a Muslim woman obtaining a divorce under the provisions of the Act, 1939 is entitled to maintenance under Section 125 CrPC, and it was held in Zohara Khatoon v. Mohd. Ibrahim, (1981) 2 SCC 509 that there are three distinct modes in which a dissolution of marriage can be brought about and Clause(b) of the Explanation to Section 125(1) envisages all the three modes, whether a wife is divorced unilaterally by the husband or where she obtains divorce under the other two modes, she continues to be a wife for the purpose of getting maintenance under Section 125 of the Code.

The Supreme Court held that divorce resulting from the dissolution of marriage under the provision of Dissolution of Muslim Marriage Act, 1939 is also a legal divorce under the Mohammedan law by virtue of the Statute (1939 Act).

Conclusion

Bench observed that when the Court would make an award of permanent alimony or for one-time payment, it is not founded on any stipulation that any part of the sum would be either actually refunded in whole or in part. Such sum is not granted on the condition against remarriage for all times to or for any particular period.

The permanent alimony in a way is an estimated sum in a lump sum to discharge the judgment debtor from his future liabilities unconditionally.

The grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation to the spouse to maintain her so long as she enjoys the continued status of a divorcee.

On remarriage status of divorcee comes to an end and she acquires another marital status as someone’s spouse. Under the Act, 1986 as under Section 125 CrPC, the wife includes a divorcee.

In view of the above discussion, it can be said that:

when the wife remarries, her claim of maintenance primarily comes to stand against her new husband coming into existence in a new relationship.

The proposition of law laid down by the Court should be looked into keeping in mind Section 3(1)(a) of the Act, 1986.

A divorced woman is entitled to ‘a reasonable and fair provision” and “maintenance” to be made and paid to her within and post the Iddat period by her former husband.

Point-wise Conclusion of the decision:

  • After the Act of 1939, a wife had a statutory right to obtain a divorce from her husband through the Court on proof of the grounds mentioned in the Act.
  • The ex-wife, having obtained a divorce from her erstwhile husband under the provisions of the Act, 1939 is entitled to the reasonable and fair provision under Section 3 of the Act, 1986.
  • The Family Courts Act has in its comprehension all community including the Muslims. All disputes between the Muslim community within the purview of the Family Courts Act are to be settled by the Family Courts.
  • Dispute contemplated by Section 3 of the Act, 1986 is within the purview and four corners of the Family Courts Act as the dispute under Section 3 of the Act, 1986 also relates to matrimonial relations between the parties.
  • Right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution.
  • The Law contemplates that the husband has two separate and distinct obligations; (I) to make “reasonable and fair provision” for his divorcee wife and (ii) to provide “maintenance” for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in the discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.
  • Provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.
  • The permanent alimony in a way is an estimated sum in a lump sum to discharge the husband from her future liabilities unconditionally.
  • If the wife gets remarried, her status of divorcee comes to an end and the liability of the husband to pay periodical maintenance would also come to an end.

Another significant observation of the High Court was which was placed by the counsel for the parties was that the appellant had remarried way back in the year 2014. Before the respondent herein instituted the proceedings in the Family Court for divorce, the husband had already remarried and raised a family. The appellant could do so because polygamy is permissible amongst the Muslim Community. It does not constitute an offence of bigamy punishable under Section 494 of the Penal Code.

The materials on record indicated that the husband hardly paid anything towards maintenance. The respondent had to leave her matrimonial home soon after the marriage, i.e., sometime in 2010. Ultimately, she was constrained to institute the proceedings of divorce in the Family Court. Even during the pendency of such proceedings, nothing was paid to the wife. The wife, ultimately, succeeded before the Family Court in getting the marriage dissolved and was also successful in getting an order of permanent alimony. The husband now cannot turn around and say that he is not liable to pay the lump sum amount because the respondent is remarried.

Hence, in Court opinion, the Family Court’s line of reasoning ad the ultimate conclusion that was drawn by the family court was just and proper.

Therefore the appeal was dismissed.[Tarif Rashidbhai Qureshi v. Asmabanu, 2020 SCC OnLine Guj 711, decided on 19-03-2020]


Advocates who appeared for the parties:

Nishant Lalakita for Appellant 1

Javed S Qureshi for Appellant 1

SP Majmudar for Defendant 1

Shashvata U Shukla for Defendant 1

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]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of C.K. Abdul Rehim and R. Narayana Pisharadi, JJ. while hearing a matrimonial appeal ruled that remarriage by the opposite spouse during pendency of an application for setting aside ex-parte divorce decree would not render such application as infructuous. 

The appellant-husband was granted an ex-parte divorce decree against which the respondent-wife filed an application to set aside the said decree along with an application for condonation of delay of 48 days. By that time, the appellant had married another woman. Respondent’s submission before the Family Court was that she had delivered a premature baby through cesarean operation during the hearing of case due to which she could not enter her appearance before the court. Appellant’s contention was that he had remarried after the grant of divorce decree and therefore the application for setting aside the ex-parte decree had become infructuous. The Family Court allowed respondent’s applications and set aside the divorce decree, against which order the appellant preferred the instant appeal. 

The High Court refused to interfere with the findings of fact of Family Court and noted that the appellant had remarried after receiving notice in the application for setting aside the divorce decree and during the pendency of that application. Relying on the dictum of Apex Court in Chandra Mohini Srivastava v. Avinash Prasad Srivastava, (1967) 1 SCR 864 the court held that remarriage of a spouse who obtained ex-parte divorce decree would not render the application filed by opposite spouse for setting aside the ex-parte decree, as infructuous and the said application must be considered on its own merits notwithstanding the remarriage. However, Family Court’s observation that remarriage by appellant could amount to bigamy, was dismissed as unwarranted. Thus, the instant appeal was dismissed. [Denny Pazhoor v. Greeta Sunitha Vincent,2018 SCC OnLine Ker 3921, decided on 17-10-2018]