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

The Karnataka High Court has held that a Muslim man is duty-bound to make provision for his ex-wife's maintenance beyond iddat period, despite paying Mehr, if she remains un-remarried and is incapable of maintaining herself. 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 ...

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

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