Ex-Wife Unable To Maintain Herself Has Right To Maintenance: Kerela HC

Key Takeaways

• In 2002 the ex-wife filed a Civil Suit asking for maintenance from the petitioner. The petitioner resisted this on the grounds that talaq had been declared, and he has contracted another marriage, and is fathering a child too. Further he was acquitted in the dowry suit filed by the ex-wife.
• A Muslim must provide support to his ex-wife. The frugal mehr paid is not a defense available to an able-bodied man, for denying maintenance
• The petitioner should have known his responsibility to the first wife, before hurriedly contracting another marriage.

Facts

• The parties in the caseof Ezazur Rehman v. Saira Banu, are Sunni Muslims who got married in 1991. The marriage was short lived and concluded by the end of the year. The wife complained of dowry harassment and sought shelter at her native. The petitioner paid the mehr money to the wife, and added a sum of Rs.900/- to it, for her maintenance during the iddat period (ordinarily three months post-divorce).
• In 2002 the ex-wife filed a Civil Suit asking for maintenance from the petitioner. The petitioner resisted this on the grounds that talaq had been declared, and he has contracted another marriage, and is fathering a child too. Further he was acquitted in the dowry suit filed by the ex-wife.
• He suggested she turn to Muslim Women (Protection of Rights on Divorce) Act, 1986; and in no circumstance, he would pay anything.
• Eight years after this the family court fixed the monthly maintenance to the wife, the husband pleaded lack of means to pay the decretal amount, which was not accepted by the trial court. He was sent to prison but got out by paying the amount. After that he appealed the present suit.

Courts Findings

• The parties being Muslim’s are guided by Mohammedan law, which is a civil contract. Further the court states that Muslim marriage is not a sacrament, when such a marriage is dissolved, the rights and duties are not annihilated. New obligations may arise from divorce, one such being “duty of a person to provide sustenance to his ex-wife who is destitute by divorce.”
• A Muslim ex-wife has a right to maintenance subject which is indisputable. The court found that the obligation of a Muslim to provide support to his ex-wife is co-extensive with her requirements, the standard being the life essentials and not luxury items.
• The frugal mehr paid is not a defense available to an able-bodied man, for denying maintenance. Thus, the defense of pecuniary incapacity does not come to the rescue of the petitioner.
• The contention that the petitioner has contracted another marriage is not justification for not providing maintenance. The petitioner ought to have known his responsibility to the first wife, before hurriedly contracting another marriage.
• The writ petition was the petitioner was denied for being devoid of merits.

Questions

• Why were contentions of the petitioner denied by the court?
• What is the to Muslim Women (Protection of Rights on Divorce) Act, 1986?

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