Case Type: Civil Appeal (for stay)
Case No: 2012 of 2019
Appellants: Tarif Rashidbhai Qureshi
Respondents: Asmabanu D/O Alimohmmad Idarbhai Qureshi And W/O Tarif Rashidbhai Qureshi
Decided On: 19-03-2020
Statues Referred:
- Family Courts Act, 1984
- Dissolution of Muslim Marriages Act, 1939
- Protection of Women from Domestic Violence Act, 2005.
- Muslim Women (Protection of Rights on Divorce) Act, 1986.
Case Referred:
- Mohd Sayeed vs. Rehana Begum
- Shabana Bano vs. Imran Khan
- Grindlays Bank Ltd. v. Central Govt.
- Shabbir Ahmed Sheikh vs. Shaikilabanu
- K.A. Abdul Jaleel V/s. Shahida
- Nanigopal Chakravarty vs. Renubala Chakravarty
- Dharamshi Premji vs. Bai Sakar Kanji
- Shabana Bano vs. Imran Khan
- Nanigopal Chakravarty vs. Renubala Chakravarty
- Jafar Abbas Rasool Mohammad Merchant vs. State of Gujarat
Bench: Justice J.B.Pardiwala, Justice Vireshkumar B. Mayani
Facts:
The respondent-plaintiff got married to appellant-defendant on 13th June, 2009 according to Muslim rites and ceremony. The appellant is alleged with inflicting physical cruelty upon the respondent and his family members. An FIR was also logged by the respondent for an offence punishable U/S 4989A IPC.
On account of persistent harassment the respondent left the matrimonial home and went back to parental home. The respondent then filed an application U/S 125 of CrPc. Whereafter the Family Court issued an order awarding 2,000 pm as maintenance.
Later an application under the provision of Protection of Women from Domestic Violence Act, 2005 was filed with Metropolitan Magistrate, Ahmedabad. Also in those proceedings the order of maintenance of 2,000 pm was sustained. But the defendant failed to pay the maintenance by ignoring the order of both the authority.
Later a suit for dissolution of marriage was filed with the Family Court on the ground of cruelty and prayed for permanent alimony. The Family Court however passed an order directing the appellant to pay ₹10,000 pm to the respondent as interim alimony.
The instant order was challenged by the appellant by filing a Special Civil Application in the High Court of Gujarat. The learned Single Judge allowed the appeal. The order of interim alimony was also quashed and set aside on the ground that the provision of Section 24 of Hindu Marriage Act, 1955 was inapplicable in the instant case.
Rather the provision of Dissolution of Muslim Marriage Act was a fit law to be applied.
The High Court sent back the case to the Family Court for decision afresh. The Family Court observed that the liability of a Muslim Husband to pay maintenance emerged U/s 3(1)(a) of Dissolution of Muslim Marriages Act, 1939 and without any limitation of Iddat period.
The Family Court also ordered for payment of ₹10,00,000 as permanent lifetime lump sum maintenance.
Aggrieved by the decision the appellant therefore applied to the High Court for adjudication.
Issue:
Whether the permanent alimony as ordered by the Family Court was erroneous in nature
Obiter Dicta:
Muslim women held exiled position in the early period of Islam and was given position of equality with opposite gender. When a women has a right to marry, then she also has the right to be maintained by the husband. Such principle has been recognised by the Article 6(1) of the Universal Declaration of Human Rights adopted and proclaimed by the General Assembly of the United Nations on 10th December 1948.
Men and women of legal age, without any limitation as to race, nationality, or religion have the rights to marry and found a family. They are equally entitled to rights arising out of marriage, during marriage, and at its dissolution.
The social condition prevalent in our society needs consideration when question or disputes relating to matrimonial relationship is concerned. In our society there is huge gap between man and women especially relating to economic resourcefulness. Both economically and socially our society is male dominated. A woman after marriage, even though highly qualified, quits her vocation to devote herself for the welfare of the family.
But when the relationship shatters, how can such emotional fracture or loss of investment be compensated or even be evaluated. It’s a petty solace to affirm that such a women be awarded monetary compensation to leave her livelihood.
The well-known rule of statutory construction lays dawn that a tribunal is bestowed with such inherent or ancillary or incidental powers as are necessary to discharge its noble duty of securing justice to the last man standing.
Ratio Decedendi:
Section 3(1) of the Family Court Act, 1984 provides for the establishment of a Family Court by the State Government in consultation with the High Court in every area whose population exceeds one million. Section 7 provides for the jurisdiction of the Family Court.
The jurisdiction exercisable by the Family Court shall be the one as exercisable by the District Court or Subordinate Civil Court in respect of all proceeding of the nature as referred to in the explanation.
Section 3 of the Protection of Women from Domestic Violence Act, 2005 enumerates proceeding between parties to the marriage for a divorce and for maintenance. Under Section 3 the respondent is the claimant of maintenance for the period of Iddat after divorce and the maintenance for the child from the appellant.
Also claims relating to Mahr and dower or sum equivalent thereto are all covered in the aid section. And all the claims as aforesaid mentioned are covered U/S 7 of the Family Courts Act.
Section 2 of the Dissolution of Muslim Marriages Act, 1939 provides for grounds of decree for dissolution of marriage, namely
- i) that the whereabouts of the husband have not been known for a period of four years;
- ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;
- iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
- iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
- v) that the husband was impotent at the time of the marriage and continues to be so;
- (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
- vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years:
- (viii) that the husband treats her with cruelty, that is to say,
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;
ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law:
The personal law of different religion governs the maintenance rights of a woman in India. According to Sharia, the Muslim women are given the absolute right to maintenance. The right remains unprejudiced even if the wife has a good financial standing and the husband is poor.
The maintenance amount is decided by the court on the basis of some parameters such as spouse’s income, net worth and investment. Standard of living, financial needs, liabilities are also taken into consideration.
Following the Kalyan Dey Chowdhury vs. Rita Dey Chowdhary Nee Nandy, the Supreme Court has pronounced that 25% of the net salary of the husband should be taken as a benchmark to constitute a just and proper amount of alimony.
A Muslim husband is entitled to maintain his wife so long as she is loyal and faithful and gives due diligence to his orders. But after divorce, she is entitled to maintenance in accordance with law in force in India namely, Muslim Women (Protection of Rights on Divorce) Act, 1986.
On a heedful perusal of the provision of Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 would stipulate that a reasonable and fair maintenance must be accorded to divorced women. Such maintenance may include provision for her accommodation, her food, her clothes, and other necessary articles. Such maintenance must be mandatorily be made or paid on or before the Iddat period.
But if the husband fails to provide maintenance after the period of Iddat then the maintenance could be recovered from the persons mentioned in section 4 of the Act or from Wakf Board. Section 4 of the Act empowers the Magistrate to order the payment of maintenance to the divorced woman against several of her relatives.
A Muslim women who is divorced cannot be deprived of the provision of Section 125 CrPc because Article 21 of the Constitution provides for right to life and personal liberty which include the right to live with dignity.
So on the failure of the husband of the husband to pay maintenance and thereafter to make the wife run from pillar to post in search of her relatives and ultimately to knock at the doors of wakf board appears to be unreasonable and unfair.
A divorced women is entitled to maintenance even after the period of Iddat. It is incumbent upon the husband to pay a reasonable and fair provision U/S 3(1)(a) of the Act.
Section 20 of the Family Act provides that the provision of this act shall have effect irrespective of anything inconsistent contained in any other law for the time being in force. It makes it crystal that the Family Court shall have an exclusive jurisdiction to adjudicate upon the application filed U/S 125 CrPc.
And such petition U/S 125 CrPc would be maintainable as long as the wife does not remarry and is not limited by the period of Iddat.
The counsel submitted before the Court that the wife had remarried in the year 2014. But the facts shows that the respondent barely had anything towards her maintenance. Even during the pendency of the suit the respondent wasn’t paid anything towards her maintenance.
The Family Court however granted the decree of divorce and permanent alimony in respondent’s favour. And the husband had no turning back from such order.
Judgment
The Gujarat High Court’s bench comprising of Justice J.B.Pardiwala, Justice Vireshkumar B. Mayani held the following:
A decree of divorce obtained a Muslim women under the Dissolution of Muslim Marriages Act, 1939 would be a legal divorce under Muslim Law. And such divorced wife shall be entitled to a just, reasonable, and fair provision U/S 3 of the Act of 1986.
All disputes arising within the Muslim community under the purview of the Family Courts Act, 1984 shall be adjudicated by the Family Court. Section 20 of the Act of 1984 gives an overriding effect to the provision of all other enactments in force.
Since Section 3 of the Act of relates to matrimonial disputes between parties, it is well within the purviews of the Family Courts Act.
The relief of maintenance is a consequence of dissolution of marriage and therefore they constitute an integral part of the decree of dissolution of marriage.
The provision of permanent alimony is incidental to the issuance of decree of divorce. And when such decree is awarded by the Family Court it should not be stipulated that any part of the sum be refunded. It is not granted on condition of remarriage for all times to come or for any particular period. Such lump sum money is ordered to discharge the husband from the future liabilities.
The permanent alimony of ₹10,00,000 awarded by the Family Court was convincing in accordance with the rationale given by the Family Court. The order is just and proper.
Hence the appeal failed and was dismissed.
Conclusion:
The right of maintenance and matrimonial property is the result of marriage or its annulment. A wife who has obtained divorce under the Act of 1939 is legally entitled to reasonable and fair provision U/S 3 of the Act.
Since the husband failed to pay anything towards maintenance neither any sum was paid during the pendency of the suit the Family Court’s decision to grant the permanent alimony was held convincible by the High Court.
Kaushal Agarwal.
