Un-Remarried Ex-Wife Incapable Of Maintaining Herself Has Right To Maintenance Beyond Iddat Period: Karnataka High Court

Justice Krishna S Dixit said, 

"Marriage amongst Muslims begins with the contract and graduates to the status as it ordinarily does in any other community; this very status gives rise to certain justiciable obligations...such a marriage dissolved by divorce, per se does not annihilate all the duties & obligations of parties by lock, stock & barrel; in law, new obligations too may arise, one of them being the circumstantial duty of a person to provide sustenance to his ex-wife who is destituted by divorce."

The Court made it clear that the right of an un-remarried ex-wife to received maintenance is co-extensive with her requirement, the yardstick being the life essentials and not the luxury.

It added,

"The approach of courts should be consistent with the progression of law achieved precedent by precedent through judicial activism, despite some clergical resistance thereto; this branch of Muslim personal law has marched from April to May in Shah Bano (1985) 2 SCC 556 and now finds June of its life in Shayara Bano (2017) 9 SCC 1; any adjudication of maintenance disputes without reference to this progression of law runs the risk of being tainted as an unfair treatment of the subject matter."

Case Background

The couple married in March 1991, the mehr amount was fixed at Rs 5,000. The marriage was short-lived after the wife complained of dowry harassment etc and left the matrimonial house. The husband on November 25, 1991, uttered talaq and paid the wife the mehr amount and Rs 900 for her maintenance during the iddat period.

In 2002, the un-remarried wife filed a civil suit seeking maintenance from the ex-husband. The ex-husband resisted the same on the grounds that he contracted another marriage after talaq; he has begotten a child too; the ex-wife had filed a dowry harassment case wherein he has been acquitted. Moreover, the ex-wife should invoke the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986; in no circumstance, he would pay anything.

Eight years after the filing of the suit, the issues were framed and after nine years on August 12, 2011, the Family court ordered that the ex-wife was entitled to monthly maintenance of Rs 3,000 from the institution of the suit till her death or till she gets remarried or till the death of the ex-husband.

The ex-wife filed an execution application for having the decree executed. The husband resisted the same and the trial court on December 14, 2012, sent him to civil prison. However, he was released within a month on payment of an amount of Rs.30,000. Following which the husband filed an application under Civil Procedure Code for determining his financial incapacity, which came to be rejected. Thereafter he moved the High Court.

Court's Findings

On going through the records, the court firstly lamented that "This is yet another case of a hapless Muslim divorced wife battling for two decades for executing a maintenance decree."

The court then proceeded to analyse marriage under the Mohammedan Law, which is a civil contract. It said, "Ex-husband's contention that amongst Muslims, marriage is only a civil contract, cannot be disputed."

However, the Court noted that, "Marriage is a contract" has many shades of meaning; it is not sacrament unlike a Hindu marriage, is true; whatever be the epistemology, marriage crowns the parties with status like husband, wife, in-laws, etc; if children are born, they earn the promotional status of father & mother, and of grand-parents too, if the lineage continues; 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; added, demise of a spouse renders the other a widow/widower; succession to estate may also open."

It added, "All the above shows the kinds of relationship that the marriage as a social institution brings in, regardless of religion which the parties belong to and the contractual elements; to put it succinctly, marriage amongst Muslims begins with the contract and graduates to the status as it ordinarily does in any other community; this very status gives rise to certain justiciable obligations; they are ex contractu; a Muslim marriage is not a sacrament, does not repel certain rights & obligations arising from its dissolution; such a marriage dissolved by divorce, per se does not annihilate all the duties & obligations of parties by lock, stock & barrel; in law, new obligations too may arise, one of them being the circumstantial duty of a person to provide sustenance to his ex-wife who is destituted by divorce."

Justice Dixit then quoted from the Holy Quran and said "There is also sufficient intrinsic material in the Holy Quran & Hadith, which lays foundation to the accrual of a corresponding right in favour a divorced wife for maintenance; generally it is conditioned by three cumulative factors viz (i) mehr amount is insignificant; (ii) she is incapable of paddling her life boat on her own; & (iii) she has remained un-remarried."

The court then discussed the right of indigent Muslim wife for maintenance and whether it is confined to iddat or limited to mehr amount. It said,

"Ordinarily, the right of an ex-wife to maintenance does not extend beyond iddat. I should hasten to add that Islamic jurisprudence has not treated this as a 'Thumb Rule' ever, although there is some juristic opinion in variance. 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."

Further, it observed,

"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." It added, "The payment of frugal mehr money per se cannot be a defence availing to an able bodied man for denying the claim or defying the decree, for maintenance."

The court also said, "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 the amount by the husband as mehr on talaq, by its very nature has compensatory elements."

The court also noted that divorce brings a trainload of difficulties to the women; divorced women in general and divorced Muslim women, in particular, undergo a lot of hardship; the tears they shed are hidden in their veils.

Following which it said, "The contentions that the duty to furnish essentials to the ex-wife is coterminous with iddat period post talaq and that the quantum of maintenance amount cannot exceed the size of Mehr money, are difficult to sustain in 'Law in a Changing Society'; in the contemporary costly society wherein blood is cheaper than bread."

Commenting on the amount paid by the ex-husband to his wife the court said "The tokenistic amount of Rs.5,000 paid as mehr or its quantification on the basis of mehr, is militantly unjust and illusory. The 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."

The court then relied on the judgement of the Supreme Court in the case of Navtej Singh Johar's, (2018) 10 SCC 1 (decriminalizing homosexuality), wherein it recognized the Doctrine of non-retrogression of rights. The court said,

"In our realm, several human rights have been progressively realized over the years through the process of socio-economic development accelerated by legislative and judicial process; in the light of Article 38 of the Constitution. The judicial, quasi-judicial and administrative functions of the State aimed at furthering social welfare has to be consistent with the concerns which this new doctrine voices."

It added, "A survey of law relating to rights of women in general and of divorced women in particular in all civilized jurisdictions, is marked by a progressive trend protective of the vulnerable; in the backdrop of all this, if the above question (i) is answered in the negative, it would only take the "maintenance jurisprudence" in retrogression imperiling the interest of divorced Muslim women; a negative answer to the question virtually amounts to setting the clock back at least by a few centuries turning a Nelson's Eye to all the progress that the civilized world has made."

The court rejected the grounds raised by the ex-husband resisting the payment of maintenance and said "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."

Further, it junked the contention of the petitioner that he has contracted another marriage and begotten a child. The court said, "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, an argument to the contrary would amount to placing premium on the irresponsibility of a husband who divorces the existing wife and soon espouses another."

It added, "Countenancing the contention of the kind virtually amounts to permitting a person to take the advantage of his own wrong; this contention is repugnant to law, morality & ethics; if such a contention is countenanced, that would only encourage talaq which the law Shuns."

Accordingly, the court dismissed the petition and directed the ex-husband to pay a cost of Rs 25,000 and also directed the trial court to accomplish the execution on a war footing and report compliance to the Registrar General of the High Court within three months.

Case Title: Ezazur Rehman v. Saira Banu

Case No: Writ Petition No.3002 of 2015

Date of Order: 7th Day Of October, 2021

Appearance: Advocate K.N Haridasan Nambiar for petitioner; Advocate Rashmi C for respondent.

Click Here to Read/Download The Order