In a first, Karnataka HC relies on Doctrine of Progressiveness to guarantee muslim ex wife the right to sustenance

In a first, the Court, while quoting Navtej Singh Johar wherein the doctrine of Progressiveness was expansively discussed to uphold LGBTQ rights, has held that if it were to hold that the Muslim man is not bound to make provisions for his ex-wife beyond iddat, it will amount to setting the clock back by at least a few centuries.

Recently, the Karnataka High Court has upheld the right of sustenance of a muslim ex-wife.

While doing so and quoting Navtej Singh Johar’s case, court held that in our realm, several human rights have been progressively realised over the years through process of socio-economic development accelerated by legislative and judicial processes.

In light of Article 38 of the constitution, the judicial, quasi judicial and administrative functions of the State aimed at furthering social welfare has to be consistent with the concerns voiced, the Court stated.

A single judge bench of Karnataka High Court has stated that the duty of a Muslim man to provide sustenance to his ex-wife is co-extensive with her requirement, the yardstick being life essentials and not luxury.

The court passed this judgment in a case were the litigants, who are Muslims contracted marriages in 1991 and the mehr was fixed at Rs.5000. However the marriage was short-lived as the wife complained about dowry harassment and left for her native.

The husband uttered talaq to her on November 25, 1991 and paid mehr money to her along with a sum of Rs.900 for maintenance during iddat (a period of 3 month post divorce). The (now) ex-wife had filed a civil suit for maintenance in 2002, during the intervening time the husband had gotten married again and had a child too through the marriage.

Eight years after the filing of the suit, the court granted the ex-wife a maintenance of Rs.3000 from the date of suit till the date she gets married again.

The ex-wife tried enforcing the decree by way of arrest & detention of the ex-husband. The husband then pleaded lack of means to pay the amount, however the court did not agree and sent him to civil prison. He was finally released on paying Rs.30,000/-. The husband filed a petition Under Order XXI and Rule 37 CPC seeking determination of his financial incapacity. This being rejected, the husband approached this court by filing this writ.

The judgment goes on to state that the assistance from the bar has been frugal in this matter, however it is the duty of the court to adjudicate the matter.

The court framed 3 questions of law prior to adjudicate the issue better

A) Whether a Muslim man is duty bound to make provision for his ex-wife beyond iddat, despite paying a paltry mehr if she remains unmarried and incapable of maintaining herself?

B) Whether a decree for maintenance like any other decree can be resisted on the ground of lack of financial capacity of the judgment debtor?

C) Whether a Muslim contracting another marriage and begetting children from it can resist execution of the maintainence decree obtained by ex-wife, on the ground per se?

The court held that the ex-husband’s contention that amongst Muslims, marriage is only a civil contact is indisputable. If children are born, they earn a promotional status of parents and of grandparents too if the lineage continues, when a marriage is dissolved only the spousal tie is torn, however the blood of the divorced spouses flows through the veins of the children. Thereby making all kinds of relationship that the marriage as a social institution brings in, regardless of religion which the parties belong to and contractual elements.

In the light of the the above principle, it gives rise to certain justiciable obligations they are ex contractu. Thus a Muslim marriage is not a sacrament and does not repel certain rights and obligations arising from its dissolution.

The court in its considered view holds that a pious Muslim owes a moral/religious duty to provide subsistence to his destitute ex-wife. According to the judgment the Holy Quran & Hadith lays foundation to the accrual fo a corresponding right in favour of a divorced wife for maintenance unless she is remarried.

According to the judgment, the right of a Muslim ex-wife is not limited to iddat or Meher. Iddat and Meher as maintenance has not been treated as a thumb rule for in Islamic jurisprudence to provide maintenance. The judgment holds that it is a matter of common knowledge that more often than no Meher is fixed inadequately and the inadequacy of Meher would affect the validity of marriage.

The court holds that the payment of frugal Mehr money cannot be a defence availed by an able bodied man for denying the claim or defying the decree for maintenance. According to the judgment, Mehr cannot be the basis for the quantification of the amount of maintenance nor for limiting its duration to iddat.

According to the judgment divorce brings a trainload of difficulties to thr women, is obvious. Divorced women in general and divorced Muslim women in particular undergo a lot of hardship; the tears they shed are hidden in their veils it is not that the unscrupulous Muslim men do not know all this.

The court holds that the duty to furnish essentials to the the ex-wife is conterminous with iddat period post divorced that the quantum of maintenance amount cannot exceed the size of mehr money are difficult to sustain in Law in a changing society. It further holds that in a contemporary society wherein blood is cheaper than bread, the tokenistic amount of Rs.5000 paid by the husband to the ex-wife as mehr is militantly unjust.

The court thus noted that if it were to hold that the Muslim man is not bound to make provisions for his ex-wife beyond iddat, it will amount to setting the clock back by at least a few centuries.

On the question of the ex-husband’s plea of pecuniary incapacity the court held that the maintenance jurisprudence as developed by legislative & judicial process in this country shows that this right to sustenance is not founded on contract and that the courts have repelled the argument of financial incapacity if the husband is able bodied.

The court held that the husband contending that he has contracted another marriage and and has further begotten another child is not a justification for not obeying maintenance decree.

The court further held that a Muslim hurriedly contracting another marriage after pronouncing talaq upon his first wife, cannot be heard to say that since he has to maintain the new spouse and child he cannot pay for the maintenance of his ex-wife.

Since this responsibility fell on him from his own act of divorce and prior to marrying another woman, the responsibility and duty owed to the ex-wife cannot be destroyed by his contracting another marriage.

The court after holding the above concluded that the writ petition is devoid of merits and dismissed it by imposing a cost of Rs.25,000.

Case Title: Ezazur Rehman Vs Saira Banu