Permanent Alimony not granted on condition against Remarriage: Gujarat High Court.

The Gujarat High Court was hearing an appeal under Section 19 of the Family Courts Act, 1984 at the instance of the original defendant (husband) against the judgment and decree passed by the Principal Judge, Family Court, Ahmedabad in a family suit instituted by the respondent herein original plaintiff (wife) for a decree of divorce under the Dissolution of Muslim Marriages Act, 1939.


The original plaintiff (wife) got married with the defendant in accordance with the Muslim rites and customs. The defendant started harassing the plaintiff soon after the marriage. The plaintiff conceived but allegedly on account of physical cruelty at the end of the defendant and his family members, the plaintiff gave birth to a still born child. A FIR was also lodged by the plaintiff for the offence punishable under Section 498A of the Indian Penal Code. As the plaintiff was unable to continue with the marriage on account of incessant harassment, she left her matrimonial home and went back to her parental home.

The plaintiff also preferred an application in the Family Court under Section 125 of the Criminal Procedure Code seeking maintenance. The Family Court passed an order awarding Rs.2000/- per month towards the maintenance. However, the defendant failed to comply with the order passed by the Family Court for maintenance. Later, an application was filed in the Court of the Metropolitan Magistrate under the provisions of the Protection of Women from Domestic Violence Act, 2005. In those proceedings also, the Metropolitan Magistrate, Ahmedabad passed an order of maintenance of Rs.2000/- per month. However, the defendant ignored the same.

Ultimately, the plaintiff instituted a family suit for the dissolution of marriage on the ground of cruelty and for appropriate permanent alimony. The plaintiff preferred an application for interim alimony as well.

Family Court’s impugned decision:

The Family Court passed an order directing the defendant to pay Rs.10,000/- to the plaintiff towards the interim alimony. This order of interim alimony passed by the Family Court was challenged by the defendant by filing the Special Civil Application which was allowed by Single Judge of the High Court. The Order of interim alimony passed by the Family Court in favour of the plaintiff was quashed and set aside by the HC, observing that Section 24 of the Hindu Marriage Act, 1955 provides for maintenance pendente lite, but the statute of Dissolution of Muslim Marriage Act, did not provide for grant of interim alimony. The High Court remitted back the proceedings to the Family Court for deciding the same afresh.

Observing that Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to Iddat period, the Family Court ordered payment of Rs.10,00,000/- by way of permanent lifetime lump sum maintenance. Husband filed the appeal against this order.

High Court’s observations

The bench made the following important observations:

“a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.
A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
Section 20 of the Family Courts Act, 1984 gives an overriding effect to the provisions of the Act over all other enactments. The Family Courts Act has in its comprehension all community including the Muslims. All disputes between the Muslim community within the purview of the Family Courts Act are to be settled by the Family Courts.
The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of ‘dissolution of marriage’ and therefore, these reliefs are very much an integral part of the decree of ‘dissolution of marriage’. The Law contemplates that the husband has two separate and distinct obligations; (i) to make “reasonable and fair provision” for his divorcee wife and (ii) to provide “maintenance” for her. The obligation to make a reasonable and fair provision for the divorced wife is not restricted until the divorced wife remarries. It is within the jurisdiction of the Family Court to pass an order for a lump sum amount to be paid to the wife in discharge of the obligation of the husband under Section 3(1)(a) of the Act, 1986 and such order cannot be modified upon remarriage of the divorced Muslim wife.
When the Family Court makes an order of permanent alimony or for one time payment in the proceedings instituted by the wife for divorce, it is not founded on any stipulation that any part of the sum would be refunded either in whole or in part. Such sum is not granted on the condition against remarriage for all times to come or for any particular period. It is something different from the obligation to her husband to maintain his divorced wife for his life or until remarried. The permanent alimony in a way is an estimated sum in lump sum to discharge the husband from her future liabilities unconditionally.
The grant of periodical payment by way of maintenance to a divorced wife is in recognition/obligation of the spouse to maintain her so long as she enjoys the continued the status of divorcee. If the wife gets remarried, her status of divorcee is come to an end and the liability of the husband to pay periodical maintenance would also come to an end.”
The High Court upheld the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

High Court held:

The High Court held that the wife, ultimately, succeeded before the Family Court in getting the marriage dissolved and was also successful in getting an order of permanent alimony. The husband now cannot turn around and say that he is not liable to pay the lump sum amount because the respondent is remarried and therefore considered it just and proper to grant Rs.10,00,000/- to the plaintiff towards her lifetime permanent lump sum maintenance, which the bench considered to be reasonable and fair provision for future maintenance of plaintiff.

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