Karnataka High Court: Krishna S. Dixit dismissed the petition being devoid of merits.
The facts of the case are such that the parties are Sunni Muslims who contracted marriage in March 1991 and the marriage was a short lived one as the wife complained of dowry harassment and the petitioner husband uttered talaq and paid 5000 to her as mehr amount and additional 900 as her maintenance amount during iddat. The ex wife filed a civil suit for maintenance on grounds that the ex husband got married and has a child too wherein he was acquitted. A suit was thus instituted by the wife where the decree was given in favour for which she sought enforcement by filing an execution petition wherein the petitioner husband was sent to civil prison due to non payment but was later released. The petitioner husband then filed the instant writ petition after his interim application under Order XXI Rule 37 Civil Procedure Code, 1908 i.e. CPC seeking determination of his financial capacity got rejected.
Issues:
- Whether a Muslim is duty bound to make provision for his ex wife beyond iddat despite paying paltry Mehr if she remains un-remarried and is incapable of maintaining herself?
- Contention: In Islam, Marriage is a civil contract.
The Court observed that marriage in Islam is not a sacrament unlike a Hindu marriage as it crowns the parties with status like husband, wife, in-laws, etc; if children are born, they earn the promotional status of father and mother and of grandparents and even 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, and demise of a spouse renders the other a widow/widower and succession also gets effected. Hence all the above shows that marriages even in Islam begins with the contract but graduates to the status as in any other community and thus gives rise to certain justifiable obligations and they are ex contractu.
Thus, even on dissolution by divorce will not annihilate all the duties and obligations of parties by lock, stock & barrel in law and new obligations may arise including providing sustenance to the ex wife who is destituted by divorce.
- The Holy Quran also suggests to the fact that a pious Muslim owes a moral/religious duty to provide subsistence to his destitute ex wife:
“When you divorce women, and they (are about to) fulfill the term of their (iddat), either take them back on equitable terms or set them free on equitable terms, but do not take back to injure them (or) to take undue advantage, if anyone does that, he wrongs his soul…”(Surah Al Bakhra Aiyat No.231);
“There is no sin on you, if you divorce women while you have not touched (had sexual relation with) them nor appointed them unto their Mehr, but bestowed on them (as suitable gift) the rich according to his means and the poor according to his means, a gift reasonable amount is a duty on the doers of good” (Surah Al Bakhra Aiyat No.236).
- The Court relied on Danial Latifi v. UOI, AIR 2001 SC 3958, observed that in Islamic jurisprudence, ordinarily, the right of an ex-wife to maintenance does not extend beyond iddat however 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; 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, that being altogether a different matter. It was further observed that for how long the right to maintenance enures to a divorced muslim wife, largely is no longer res integra; subject to all just exceptions, the duty of a muslim to provide sustenance to his ex-wife is co-extensive with her requirement, the yardstick being the life essentials and not the luxury. Hence a muslim is duty bound to make a reasonable & fair provision for the future of his divorced wife, and this duty, as of necessity, extends for a period beyond iddat.
- The Court relied on Keshvananda Bharati v. State of Kerala, AIR 1973 SC 1461 and observed that if an illusory compensation for the public acquisition of private property is ‘no compensation’, then 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 amount by the husband as mehr on talaq, by its very nature has compensatory elements. The tokenistic amount of Rs.5,000/- paid by the husband to the ex-wife as mehr or its quantification on the basis of mehr, is militantly unjust and illusory; the petitioner has paid another 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.
- Whether a decree for maintenance like any other money decree can be resisted on the ground of lack of financial capacity of the judgment debtor?
The Court observed that the decree in question is not a money decree and the decree holder is not a ‘money lender’ instead it is a hapless divorced woman who has secured a decree for her maintenance after years of struggle; she is relentlessly battling for its enforcement; it is a distinct case involving the jural correlatives resting on the shoulders of ex-spouses by virtue of Talaq. Hence, the maintenance jurisprudence as developed by legislative & judicial process in this country shows that this right to sustenance is not founded on contract; 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.
- Whether a Muslim contracting another marriage and begetting children from it can resist execution of the maintenance decree obtained by his ex wife, on that ground per se?
The Court observed that 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.
The Court held “this Writ Petition being devoid of merits, is liable to be dismissed and accordingly, it is, with a cost of Rs.25,000/-; the learned judge of Court below is requested to accomplish the execution on a war footing and report compliance to the Registrar General of this Court within three months.”
[Ezazur Rehman v. Saira Banu, Writ Petition No. 3002 of 2015, decided 08-08-2021]
Arunima Bose, Editorial Assistant has reported this brief.
For Petitioners: Mr. K N Haridasan Nambiar
For Respondents: Mrs. Rashmi C