Muslim Women (Protection of Rights on Divorce) Act | Divorced Woman Entitled To Maintenance Regardless Of Remarriage: Bombay High Court

The Bombay High Court recently held that a Muslim woman is entitled to maintenance from her first husband after divorce under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPA) despite remarrying.

Justice Rajesh Patil observed that there is no condition under section 3(1)(a) of MWPA disentitling a Muslim woman from getting maintenance after remarriage.

“The protection referred to in the MWPA is unconditional.  Nowhere does the said Act intend to limit the protection that is due to  the former-wife on the grounds of the remarriage of the former-wife. The essence of the Act is that a divorced  woman is entitled to a reasonable and fair provision and maintenance  regardless of her remarriage. The fact of divorce between the husband  and wife is in itself sufficient for the wife to claim maintenance under  section 3 (1) (a)”, the court held.

The court dismissed a revision application filed by a man challenging orders of the JMFC, Chiplun, and the Sessions Court, Khed, Ratnagiri, ordering him to pay maintenance to his wife.

The couple married on February 9, 2005, and had a daughter born on December 1, 2005. It was argued that the husband went to Saudi Arabia for employment, while the wife and daughter stayed with his parents in Chiplun, Ratnagiri. In June 2007, the wife submitted that she, along with their daughter, left the matrimonial house and moved to her parents' house.

Thereafter, the wife filed a maintenance application under Section 125 of the CrPC and the husband divorced her in April 2008.

The JMFC, Chiplun, initially dismissed the maintenance application, but the wife filed a fresh application under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPA). Resultantly, the court ordered the husband to pay maintenance for the daughter and a lump sum amount for the wife.

The husband challenged the orders, and the wife also filed an application seeking an increased amount. The Sessions Court partly allowed the wife's application, increasing the lumpsum maintenance amount to Rs. 9 lakhs, leading to the husband filing the present revision application.

During the proceedings, it was shown that the wife had remarried in April 2018 but again divorced in October 2018.

Advocate Shaheen Kapadia for the applicant contended that the wife, having remarried, was not entitled to maintenance from her first husband. The wife can seek maintenance only from the second husband, she said.

The court noted that Section 3(1)(a) of the Act provides for a reasonable and fair provision and maintenance without any condition against remarriage. This highlights the Act's objective to prevent destitution and ensure the protection of the rights of divorced Muslim women, irrespective of their remarriage, the court said.

The court rejected the argument that a husband's duty to provide maintenance after divorce dissipates upon the wife's remarriage, stating that such a condition would contravene the legislative intent of the MWPA.

“Such entitlement of a reasonable and fair provision and maintenance is crystallised on the date of divorce”, said the court. The court held that while Section 4 imposes a limitation on the relatives' obligation to maintain a divorced woman until her remarriage, Section 3 does not absolve the husband of this duty even if the former wife chooses to remarry.

The court relied on the Supreme Court's judgment in Danial Latifi v. Union of India (2001), and emphasized that the liability of a Muslim husband to provide maintenance is not only for the iddat period but throughout the life of the divorced wife unless she remarries. However, the husband has to pay the maintenance within the iddat period, the court said.

In the present case, the court noted the husband did not produce income proof and details during the trial court proceedings. It noted that the husband had belatedly submitted a salary certificate during the High Court proceedings, indicating a monthly income of Rs. 15,000. The wife contended that the husband's income was higher, drawing on information obtained from the Indian Embassy's website.

Acknowledging that the MWPA lacks provisions for the enhancement of the maintenance amount once granted, the court reasoned that the amount payable by the husband had already been crystallized. It underscored that even if the wife were to remarry in the future, it would not impact the lump sum amount ordered by the court.

Therefore, the court dismissed the husband's revision application, granted the wife permission to withdraw the Rs. 2 lakhs deposited by the husband with accrued interest, and gave her the liberty to file an application for the enhancement of maintenance for their daughter.

Advocates Shaheen Kapadia, Mahenoor Khan, Irfan Unwala i/b. Vrushali Maindad represented the husband.

Advocates Saurabh Butala, PV Shekhawat, Shagufa Patel, Swati Khot, Nitita Mandaniyan represented the wife.

APP SS Kaushik represented the State

Case no. – Criminal Revision Application No. 368 of 2017

Case Title – Khalil Abbas Fakir v. Tabbasum Khalil Fakir @ Tabbasum Gulam Husain Ghare & Anr.

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