Muslim Wife Who Files For Divorce Is Entitled To Claim Interim Maintenance U/S 151 CPC: Madras High Court

The Madras High Court has ordered that courts have power under Section 151 of the Code of Civil Procedure to grant interim maintenance to a Muslim woman who has filed for divorce under the Dissolution of Muslim Marriage Act 1939. Justice V Lakshminarayanan noted that though the Act does not have a provision for granting interim maintenance, the court cannot shut its eyes when the wife comes to the court saying that she has no means. The court added that the Dissolution of Muslim Marriage Act was introduced to ameliorate the status of Muslim women and thus had to be given a purposive interpretation. “For the mere fact that in 1939, a colonial central legislation did not make a provision for grant of interim maintenance does not mean the Courts are powerless…. The Courts have to inform themselves about the social and economic justice that the wife is entitled to, while interpreting the right to claim for interim maintenance. A Court cannot shut its eyes, when the wife pleads before it that she is unable to maintain herself,” the court observed. Relying on the decision of the Madras High Court, the judge observed that when the marital relationship between the parties was not disputed, there was no bar for the court to grant maintenance in the exercise of its inherent powers. The court also considered the full bench decision of the Andhra Pradesh High Court wherein it was held that Section 151 of the CPC empowers the court to grant maintenance to the wife and minor children where the circumstances so warrant and justify on a prima facie satisfaction of the case on merits. “A perusal of these judgments would lead us to the conclusion that in case the claim of maintenance by a person claiming to be the wife is contested by the husband stating that there is no marriage at all, then the Court cannot grant interim maintenance as the same requires the Court to come to a conclusion that there in fact exists a marriage and consequently, fix the liability on the husband to maintain his wife. However, as seen from the judgment of Justice Horwill, which found acceptance at the hands of Rajamannar, C.J., and Venkatarama Aiyer. J., in case the relationship is not in dispute, there is no bar for the Court to grant maintenance in exercise of its inherent power,” the court said. The court also noted that the purpose of granting maintenance was to give a level playing field to the wife and thus to ensure equal opportunity to all parties to promote justice. The court thus observed that if it were to hold that the court did not have power to grant maintenance, it would be against the principles of justice, equity and good conscience. The court was hearing a petition filed by a husband against the order of Family Judge, Udhagamandalam granting interim maintenance to the wife. Before the Family judge, the wife had contended that as she had lost her employment, she was amidst a severe financial crisis and didn't have any savings. She added that since the husband was a Pediatric Cardiologist and was also an Assistant Professor, he was earning a handsome salary and thus sought for an interim maintenance. Though the husband had claimed to be in debt, the Family court, taking note of the status of the parties including their social needs, financial capacity, and other obligations, ordered interim maintenance of Rs 20,000 to enable the wife to live with dignity and comfort and also granted Rs. 10,000 as litigation costs. Against this, the husband had filed the revision petition. On behalf of the husband, it was argued that Section 151 CPC only provides procedural relief and not any substantial relief and thus could not be utilized for ordering interim maintenance. He thus argued that the trial judge had erred in ordering maintenance and since the order was without jurisdiction, it required interference. The court however did not accept this submission. The court noted that in the present case the marriage and birth of child was admitted. Thus, the court noted that the husband had a duty to maintain the wife and the child as per the pristine Islamic law and the statutory duty imposed under the Dissolution of Muslim Marriage Act. The court also noted that as per Section 2(ii) of the Act, the husband not providing maintenance to his wife for a period of two years was a ground for divorce. The court thus noted that the duty to provide maintenance to the wife as an obligation on the husband. The court added that even as per the Protection of Women From Domestic Violence Act, the wife could claim relief of protection order, residence order, monetary relief, custody order, and compensation order before the Civil court, family court, or criminal court. Thus, the court noted that the Family court could direct the husband to pay interim maintenance under the Act. Thus, finding no arbitrariness in the order of the Family Court, the court dismissed...

Muslim Wife Who Files For Divorce Is Entitled To Claim Interim Maintenance U/S 151 CPC: Madras High Court

Upasana Sajeev

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