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KARNATAKA HIGH COURT: IS SECOND WIFE AND CHILD ENOUGH REASON TO NOT PAY MAINTENANCE?
Recently, in a very important judgment, the High Court of Karnataka held that maintenance to one wife cannot be denied because the husband has another wife and a child under the Muslim Law.
Hence, the court said, "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 destitute by divorce".
BACKGROUND
The situation is such that the woman and man married each under the Muslim Law in March 1991. The Mehr was fixed at Rs. 5,000. However, the marriage was pretty short-lived. The woman left the marital home in December 1991 under the complaints that the husband was harassing for Dowry.
The husband paid the Mehr back after he uttered divorce. Also, he paid Rs. 900 extra as maintenance.
The wife in 2002 filed for maintenance in the district court. The husband pleaded about another wife and child as a reason for not being able to pay the maintenance. The wife again filed a petition for maintenance in 2010 in the Family Court of Bengaluru. The husband hit back with a lack of means as a reason for not being able to pay the maintenance. However, the wife complained about cruelty in marriage in court. The husband still denied pay but was detained by the police in the case. In the end, he had to pay Rs 30,000.
Now, the husband decided to file a writ petition in the High Court of Karnataka under Articles 226 and 227 to quash the previous order of the Family Court.
HELD
The High Court, while hearing the case said mentioned three important points that arise for consideration in the case:
Whether a Muslim is duty-bound to make provision for his ex-wife beyond iddat despite paying paltry Mehr 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 the execution of the maintenance decree obtained by his ex-wife, on that ground per se?
The court then held that the answers to point number (i) are affirmative, and point no (ii) and (iii) is negative.
The court also quoting the Holy Quran stated that the wife is granted the right to maintenance under a few conditions such as (i) mehr amount is insignificant; (ii) she is incapable of paddling her lifeboat on her own; & (iii) she has remained unmarried.
Hence, the respected court, in the end stated that, "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 exwife; 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; an argument to the contrary would amount to placing premium on the irresponsibility of a husband who divorces the existing wife and soon espouses another; 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".
Therefore, the court ordering in favour of the wife and upholding the decision of the Family Court held that the writ petition filed by the husband is to be dismissed with a cost of Rs. 25,000.
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