'Muslim Women Act' 1986| Divorced Muslim Wife Entitled To Maintenance Beyond Iddat Period, Until She Re-Marries: Allahabad HC

The Allahabad High Court has observed that as per Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman is entitled to receive maintenance from her former husband not just till the completion of the ‘Iddat’ period, but for the rest of her life until she remarries.

The bench of Justice Surya Prakash Kesarwani and Justice Mohd. Azhar Husain Idrisi observed thus while setting aside an order of the family court wherein a divorced Muslim woman was found entitled to maintenance only for the period of iddat.

The Court noted that the family court had committed a manifest error of law by not taking into account the Apex Court's ruling in the case of Danial Latifi and another Vs. Union of India (2001) 7 SCC 740. The High Court further observed that the Top Court had interpreted Section 3 of the 1986 Act with regard to fair provision and maintenance and held that “it would extend to the whole life of the divorced wife unless she gets married for a second time."

"...at the time of divorce, the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. “Reasonable and fair provision” may include provision for her residence, her food, her cloths, and other articles," the High Court added as it interpreted the true sprit of Section 3 of the 1986 Act.

For context, under Section 3(2), a Muslim divorcee can file an application before a Magistrate, if the former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends.

Further, Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and means of her former husband.

The case in brief

Zahid Khatoon (Appellant-Wife), a resident of Ghazipur, got married in 1989 to one Nurul Haque Khan (Respondent-Husband), who is an employee in the postal department. After living together for almost 11 years, husband Nurul gave triple talaq to his wife Zahid Khatoon and married another woman.

However, he neither paid Mahr nor any maintenance amount nor returned the articles belonging to the applicant/appellant (wife). Aggrieved with the same, Khatoon filed an application u/s 3 of the 1986 Act in the Magistrate's Court in Ghazipur, demanding maintenance. In the year 2014, this case was transferred to the family court of Ghazipur itself.

In September last year, the Family Court gave its verdict ordering the husband to pay maintenance to his wife only for the period of iddat i.e. 3 months and 13 days at the rate of fifteen hundred rupees per month. The wife (appellant) challenged this decision in the Allahabad High Court.

High Court's order

At the outset, the Court rejected the argument raised by the respondent-husband that the court below was not having any jurisdiction to pass the impugned judgment. The Court said that he did not raise the objection before the family court and in fact, he did not challenge the judgment and rather, accepted the impugned judgment.

Further, stressing that the 1986 act is a beneficial piece of legislation, the Court took into account the judgment of the Apex Court in Danial Latifi (supra) and Sabra Shamim vs. Maqsood Ansari, (2004) 9 SCC 616 to note that a divorced wife will be entitled to maintenance not only till the iddat period but beyond until she remarries.

It may be noted that in the Danial Latifi case, taking note of Section 4 of the 1986 Act, the Top Court had also said that the provision has an overriding clause as to what is stated earlier in the Act or in any other law for the time being in force, where the Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim Law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order.

Consequently, the Court set aside the family court's judgment and remitted the matter back to the concerned Magistrate to decide the case determining the amount of maintenance and return of properties to the applicant-appellant (wife) by the respondent-husband in accordance with the law, positively within three months.

The Court also ordered that for a period of three months or till the case is decided, whichever is earlier, the respondent-husband herein shall pay to the applicant/ appellant, a sum of Rs.5000/- per month before the 10th day of each month towards interim maintenance.

Appearances

Counsel for Appellant: Prakhar Saran Srivastava, Pradeep Kumar Rai

Counsel for Respondent: Arvind Srivastava, Mohd. Naushad Siddiqui 

Case title - Zahid Khatoon vs. Nurul Haque Khan [FIRST APPEAL No. - 787 of 2022]

Case Citation: 2023 LiveLaw (AB) 5

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