Supreme Court Appoints Amicus Curiae On Issues Relating To Muslim Woman's Right To Permanent Alimony On Divorce

The Supreme Court recently appointed Solicitor General Tushar Mehta and Senior Advocate Siddhartha Dave as amicus curiae (pro bono) to assist the Court on the question of law whether a Family Court can award permanent alimony to a Muslim woman whose marriage has been dissolved as per the Dissolution of Muslim Marriages Act, 1939 and whether such permanent alimony could be modified on the re-marriage of the woman.

A bench of Justices Sanjay Karol and Prashant Kumar Mishra passed an order "considering the importance of issues" which arise in the matter. The bench was hearing an appeal filed by the man against the Gujarat High Court's order dated March 19, 2020, which upheld the Family Court's order granting a decree of divorce to the Muslim woman along with Rs.10,00,000 by way of permanent lifetime lump sum maintenance.

In a previous hearing(on Feb 17), the bench directed the parties to place on record the 2024 judgment in Mohd. Abdul Samad Vs. State of Telangana which held that Muslim women have the right to seek maintenance under Section 125 of the CrPC.

The Family Court passed the order by relying on the Danial Latifi & Anr vs Union Of India (2001) case, wherein the Supreme Court held that 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.

It was held in Daial Latifi that 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) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. In this case, the Court upheld the constitutionality of the 1986 Act. 

The 1986 says that after divorce, a Muslim woman is entitled to a reasonable and fair amount to be paid during the iddat period. She is also eligible to claim maintenance if she did not remarry and is unable to maintain herself after the iddat period, apart from other things.

The Gujarat High Court passed an order upholding the Family Court's decision after going into a detailed explanation of the status of Muslim women, precedents in this Case, and laws. It refused to modify the Family Court's order upon information the Muslim woman had remarried.

The High Court bench of Justice JB Pardiwala (since elevated to the Supreme Court) and Justice Vireshkumar Mayani set out the following conclusions in their judgment :

(A) Before the enactment of the Act, 1939, a woman, under pure Muslim Law, had no right to get a decree for divorce from the husband if the husband refused to divorce her. The Act, 1939, for the first time, conferred a legal right to move the Civil Court for a decree for dissolution of marriage on the grounds specified in Section 2 of the Act, 1939. After the Act of 1939, a wife thus had a statutory right to obtain a divorce from her husband through the Court on proof of the grounds mentioned in the Act.

(B) A decree for dissolution of marriage obtained by the wife under the provisions of the Act, 1939 is a legal divorce under the Muslim Law by virtue of the statute. The ex-wife, having obtained divorce from her erstwhile husband under the provisions of the Act, 1939 is entitled to reasonable and fair provision under Section 3 of the Act, 1986.

(C ) 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.

(D) The dispute contemplated by Section 3 of the Act, 1986 is within the purview and four corners of the Family Courts Act as the dispute under Section 3 of the Act, 1986 also relates to matrimonial relations between the parties.

(E) 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.

(F) The provision for permanent alimony is incidental to the granting of a decree or judicial separation, divorce or annulment of marriage.

(G) 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.

(H) 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.

Against this order, the ex-husband came in appeal before the Gujarat High Court.

The matter will now be heard on April 15 at 2 pm.

Case Details: TARIF RASHIDBHAI QURESHI v.ASMABANU|Special Leave to Appeal (C) No(s). 3357/2022

Click Here To Read Order