New wife, child not ground to deny maintenance to ex-wife in Muslim law: Karnataka High Court

In a significant decision, the Karnataka High Court has held 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. (Ezazur Rehman vs Saira Bhanu).Justice Krishna S Dixit said that the responsibility towards the ex-wife is not extinguished by contracting another marriage.."The contention of counsel for the petitioner that his client has contracted another marriage and further, begotten a child from it, hardly provides a justification for not obeying the maintenance decree that is secured by his ex-wife; 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 said. .The Court added that if a contrary position is accepted, then it would amount to placing a premium on a the irresponsibilityof a man who divorces his wife and marries another soon thereafter. Such a position would only encourage talaq, the Court said. ."Countenancing the contention of the kind virtually amounts to permitting a person to take the advantage of his own wrong; added this contention is repugnant to law, morality & ethics; if such a contention is countenanced, that would only encourage talaq which the law shuns", the judgment stated. .The Court also imposed a cost of ₹ 25,000 on the Muslim-petitioner before the Court who had resisted the payment of maintenance to his ex-wife, citing his second marriage. .The petitioner had challenged a civil court decree directing him to pay ₹ 3,000 as monthly maintenance to his ex-wife (first wife)..The petitioner had divorced his first wife by way of talaq after eight months of marriage, back in 1991. The wife moved a plea for maintenance and obtained a decree in her favour. In 2012, the petitioner was put in civil prison for non-payment of maintenance. He was released after he paid ₹ 30,000..However, what prompted him to file a plea before the High Court in 2014 was the fact that the civil court had rejected his submissions on financial incapacity to pay maintenance to his ex-wife..The petitioner contended that he could not pay maintenance to his ex-wife since he had remarried and had to provide for his new wife and the child born out of the second marriage..The High Court, after adverting to the Quran and Hadith, observed that the right of a divorced woman for maintenance is conditioned on three cumulative factors - insignificant Mehr amount, inability of the woman to sustain herself, and if she does not remarry. .The Court also opined that marriage among Muslims begins with a contract but also gives a"status" as it ordinarily does in any other community. Such status gives rise to certain justiciable obligations, said the Court. .Muslim marriage is not a sacrament and divorce does not annihilate all the duties and obligations, the Court added.."Such a marriage dissolved by divorce, per se does not annihilate all the duties & obligations of parties by lock, stock & barrel; in law, new obligations too may arise, one of them being the circumstantial duty of a person to provide sustenance to his ex-wife who is destituted by divorce," the judgment said..The Court also highlighted that right of an indigent Muslim wife for maintenance is not confined to iddat (a certain period after divorce). The Court added that an illusory mehr cannot be the basis the quantify the amount payable as maintenance. ."Ordinarily, the right of an ex-wife to maintenance does not extend beyond iddat; I should hasten to add that Islamic jurisprudence has not treated this as a Thumb Rule ever, although there is some juristic opinion in variance; 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", the Court observed..Speaking on the difficulties faced by divorced women, the Court went on to comment, "Divorce brings a trainload of difficulties to the 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 men do not know all this...".With these observations, the Court imposed costs and dismissed the husband's petition. .The High Court also urged the court below to carry out the execution of the maintenace decree obtained by the first wife on a war footing and to report compliance to the Registrar General of High Court within three months..[Read Judgment]