HC upholds family court’s lump sum order
Ahmedabad: In an important judgment, the Gujarat high court on Thursday ruled that a family court is empowered to direct a Muslim man to pay lump sum as permanent alimony to his wife on divorce, and payment of this alimony is not conditional to the wife’s remarriage.
In its order, the high court narrated the progression of the rights of Muslim women in India from pure Sharia law that was in existence before 1939, and said that a family court can order a Muslim man to pay permanent alimony not only under the Family Courts Act, but also under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The HC was hearing a case, in which an Ahmedabad family court had ordered the man to pay Rs 10 lakh as permanent alimony to his wife while granting a divorce decree in January 2019 on the wife’s application. She re-married, but the husband had contracted another marriage in 2014. The husband challenged the family court’s jurisdiction to order permanent alimony saying that the power lies with the magistrate under the 1986 Act, which was passed by Parliament after the Shah Bano case. Later, he also pointed out that the wife had remarried after divorce and he was not therefore liable to pay her the alimony.
A bench of Justice J B Pardiwala rejected the man’s contention and said, “The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution…very much an integral part of the decree of ‘dissolution of marriage’.”
On the husband’s claim that no law provides for permanent alimony on a divorce petition by the wife, the court said, “The everchanging needs and situations may require judicial determination: it cannot be that the courts are powerless to act in the absence of specific provisions in the codes.” The HC further said that the 1986 Act very much provides for this relief for a woman on divorce. Besides Indian laws, the HC cited various verses from the Quran and their interpretations to assert the women’s right to equality in marriage among Muslims and how the religious law itself has provisions for alimony for women at the time of separation.
On the woman’s right to permanent alimony in case of her remarriage, the HC clarified, “Such sum is not granted on the condition against remarriage for all times to come or for any particular period.
Courtesy : TNN