New wife, child not ground to deny maintenance to ex-wife in Muslim law! Muslim marriage is a contract, not a ritual like Hindu marriage!
Ezazur Rehman Vs Smt Saira Banu
Writ Petition No. 3002 of 2015
About/from the judgment:
The High Court in this case has held that having a wife (from a second marriage) and begetting a child from the second marriage is not ground for a Muslim husband to justify the denial of maintenance ordered to be paid to his ex-wife/ first wife.
-> In the present case, the couple got married in 1991 and the Mehr was fixed at Rs 5,000. The marriage ended in a short time due to dowry harassment complaint by the wife. She also left the matrimonial house.
-> The husband uttered talaq on November 25, 1991, and paid his wife the Mehr amount and a sum Rs 900 for maintenance during iddat period. In 2002, the un-married wife filed a civil suit seeking maintenance from the ex-husband.
-> The ex-husband resisted the demand on the ground that he had contracted another marriage after divorcing. He had also begotten a child too. The ex-wife had also filed a dowry suit against him wherein he was acquitted.
-> On August 12, 2011, after almost nine months, the family court ordered the ex-wife to be entitled to a monthly maintenance of Rs 3,000 as per the institution of the suit, till her death or ex-husband's death or her remarriage.
-> The ex-wife tried to have the decree executed through an execution application. However, her husband refused to carry out the order and was sent to civil prison in December 14, 2012. The husband was released in a month on a payment of Rs30,000. He filed an application determining his financial incapacity, which was rejected. He then approached the High Court.
-> Whether a Muslim is duty bound to make provision for his ex-wife beyond iddat if she remains un-remarried and is incapable of maintaining herself?
-> 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?
-> Whether a Muslim contracting another marriage and begetting children from it can resist execution of the maintenance decree obtained by his ex-wife?
-> The court then noted that this case was yet another example of a Muslim woman who had to go through a maintenance proceeding for two decades. The court then looked into the issue of marriage under the Mohammedan Law.
-> The Supreme Court noted that marriage is a contract, and it has many shades of meaning. It is not a sacrament like a Hindu marriage is true but it crowns the parties with status of husband, wife, in-law, if children are born, they receive promotional status of father and mother.
-> When a marriage is dissolved, only the physical tie is torn, and the status of the marriage ends. However, the blood of the divorced spouses flows from their children and grandsire.
-> Regardless of their religion or contractual elements, a marriage is a social institution. It carries out its duties regardless of the parties' religious beliefs. When it comes to marriage among Muslims, it is a contract and graduates to the status as it ordinarily does in any other community.
-> The High Court observed that as per Quran the right to maintenance is conditional on three factors - the amount of Mehr, her inability to sustain herself, the likelihood of her not remarrying. It is commonly known that the lack of equal bargaining power between a bride-side & a groom-side because of economic & gender-related factors.
-> 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 and report the compliance within three months.
It has been evident that divorce brings a lot of difficulties to the women, especially those who are divorced Muslim women. The argument that the duty to furnish the ex-wife's essential items is coterminous with the iddat period and that the maintenance amount can't surpass the size of Mehr money is difficult to sustain in today's society.
Read the Judgment
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