DOUBLE   BENEFITS   AND   MUSLIM   WOMEN’S   POSTNUPTIAL   RIGHTS

(By Werner Menski, Professor of South Asian Laws, SOAS, University of London)

 

Yet again, the Kerala High Court is found at the forefront of developing Indian law in a plurality-conscious and equitable manner. Earlier, following the Shah Bano case (Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945) and the rapidly passed and much misunderstood Muslim Women (Protection of Rights on Divorce) Act 1986,¹ this High Court courageously interpreted S. 3 of the 1986 Act in Ali v. Sufaira, 1988(2) KLT 94 and a list of subsequent cases which remain useful precedents today.² This assisted divorced Muslim wives in securing not only maintenance during the iddat period but also appropriate provision for a decent life after the marriage, to be made and paid, as the 1986 Act quite clearly provides, during the iddat period. It also helped to teach the nation that this was a proper way of dealing with the rights of women to postnuptial maintenance, against which there remains a lot of opposition all over the country.

 

Particularly since 2006, mainly through Basant J. but also others, the Kerala High Court has been engaged in the complex next stage of the debate, focusing on the extent to which divorced Muslim wives should be entitled to such post-divorce provision. A pro-women approach continues to be called for, but some urgent comments need to be made to ensure that appropriate balances are struck and that Indian women are not simply allowed to claim what V.R. Krishna Iyer in Bai Tahira v. Ali Hussain Chothia, AIR 1979 SC 362, at p. 365, ominously referred to as “double benefits”. 

 

If Indian law on post-nuptial maintenance were now to turn the scales of justice too far in favour of women, as Professor Mahmood warned earlier,³ this may cause new problems. The Indian goddess of justice is not blindfolded. Has she inspired the learned Judges of Kerala to secure a proper gender balance? The present analysis of recent cases reported in the KLT seeks to find an answer.

 

The  earlier  foundations

 

The positive spirit of pro-women decisions on post-divorce maintenance can be traced back to the changed definition of ‘wife’ in S. 125 of the Criminal Procedure Code of 1973 (CrPC), a potentially radical measure. Soon, much-needed judicial activism occurred and we see V.R. Krishna Iyer J (as he then was) at his very best in Bai Tahira, with the forceful famous statement that any payments made to a divorced wife should be such that they would allow the woman to keep body and soul together.⁴ This directly addressed middle class concerns, no longer a matter of relieving utter vagrancy.

 

Bai Tahira (1979) predates the much more prominent Shah Bano (1985) decision by 6 years and set the tone at the right level, with constitutionally grounded concern about forcing divorced women into destitution and immoral trafficking. This judicial activism was also protest about lack of concern for women’s welfare by the lower courts, more strongly expressed in Fuzlunbi.⁵

 

Indian men might have been put on red alert after Bai Tahira. There had been quite a generous post-nuptial settlement, the woman had obtained a flat in Bombay with full ownership. Was that postnuptial agreement binding? Inflation had kicked in, and the 1973 CrPC encouraged the ex-wife, since there was simply not enough cash to ensure decent survival, to go for revision of the earlier agreement. It is remarkable how the lower courts, including the High Court, deprived this woman of a proper hearing, refusing to apply their minds to this new legal issue arising in urban middle class India. Kerala cases now reflect a very different approach: Nobody questions the right of ex-wives to claim postnuptial provision, what we are concerned about now is the extent of such claims. 

 

Bai Tahira succeeded before the Supreme Court mainly because Krishna Iyer J employed constitutional provisions to assess the claim of an indigent divorced wife, mentioning Article 15(3) and Articles 37-39, not yet Article 21. This could not be clearer in terms of diversity-sensitive constitutional rationale and vagrancy-conscious social welfare policy, which is as valid as ever and quite evidently still required in India today to protect most women. Kerala Judges evidently remain aware of such guiding principles.

 

A year later in Fuzlunbi v. K. Khadir Vali, AIR 1980 SC 1730, we saw Krishna Iyer J. irritated and annoyed because a lower Court in Bombay had disingenuously dared to distinguish his “crystal clear ruling” in Bai Tahira (p. 1730). In Fuzlunbi, the facts are much more harsh and the mahr (merely Rs. 500/-) was a totally illusory amount. Krishna Iyer J. insisted that his decision in Bai Tahira was correct and binding, thundering that “no judge in India, except a large bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio thereof” (p. 1732). 

 

The Supreme Court was then indeed skillfully invited to constitute itself into a larger Bench in the Shah Bano case,⁶ but readers will know that this well-prepared patriarchal challenge failed miserably, and it was held that a Muslim ex-husband, like any other Indian ex-husband, would have to provide for his ex-wife till her death or remarriage. The subsequent 1986 Act, as Kerala’s lawyers have long known, and the world at large now has to swallow after Danial Latifi v. Union of India,⁷ has all along favoured the rights of divorced Muslim wives. Meanwhile, as explained earlier,⁸ the entire Indian law on postnuptial maintenance payments has been drastically modified, with no more upper limits on the amounts that women may claim. As we say in London, it appears that Indian men may now be taken “to the cleaners” by their ex-wives, unless the law finds the right balance.

 

Until recently, we were told to believe that Indian Muslim wives do not know much about their new legal rights, and if they wanted to implement them, they would face huge hurdles. Research in the Chennai Family Court,⁹ with statistics from 1996/97, suggested “a ‘paternalistic’ approach towards women and their needs” (p. 226) and claimed that such women rarely succeeded. That may often still be true, but ten years is a long time also in family law. There appear to be significant changes now in the awareness levels of many potential claimants, at least if we go by the pages of the KLT in recent years.

 

The   case   law   evidence

 

Checking this material is much easier now through the smart choice of using VerDis, for which the KLT producers deserve enormous thanks. I examined all relevant cases in the KLT since 2002, basically after Danial Latifi , 2001(3) KLT 651 (SC), which explicitly mentions also Article 21 (at pp. 660 and 669) to protect divorced women’s rights.

 

In 2002(2) KLT there are three notable cases. Gladstone v. Geetha Gladstone, 2002(2) KLT SN 126, a Christian case under s. 125 CrPC, holds that “[e]very Indian citizen is bound to maintain his wife and children. That is a tradition of the society”. K. Padmanabhan Nair J. held that the quantum of maintenance was a question of fact, to be determined in accordance with some principles, giving the Court discretion “to fix a reasonable amount which it considers necessary for the maintenance of wife and children. No hard and fast rule or straight jacket formula can be made in fixing that quantum” (p. 127). The main facts to take into account are (id.): “(i) income and other property of the parties; (ii) conduct of the applicant and non-applicant, and (iii) any particular or special circumstances”. Further, we find more elaborate judicial guidance on how a Court should exercise its discretion, probably directed at lower courts (id.). 

 

While fixing the quantum, the Court shall take into account the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; the financial obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; the standard of living enjoyed by the parties to the marriage and conduct of the parties; and any other matter which in the circumstances of the case the Court may consider relevant.

 

In a case under S. 125 CrPC involving a Muslim couple,¹⁰ N. Krishnan Nair J faced a mischievous husband, arguing that the wife was staying away from him without good reason after a decree for restitution of conjugal rights. The wife did not even have the means to defend herself, and the earlier decree had been obtained ex parte. The man’s claim was swiftly dismissed.

 

The third case, Rasiya v. State of Kerala, 2002(2) KLT 825, is decided by T.M. Hassan Pillai J. and refers explicitly to Danial Latifi. This concerns a subject that remains hotly contested today. The wife had aggressively claimed Rs. 4 lakhs under various headings and had been awarded Rs. 1,92,000/-, including Rs. 1,25,000/- as provision for her future livelihood. The husband had filed a revision petition claiming that the wife had remarried, her award had been reduced by Rs. 50,000/- and the wife now appealed to the High Court, claiming entitlement for life.

 

She relied on Nizar v. Hyrunneessa, 1999(1) KLT 709, decided by K.A. Mohamed Shafi J. Here, the wife had in 1996 secured a total award of Rs. 1,85,000/-, including Rs. 90,000/- as future maintenance. The husband had challenged this once without success and appealed to the High Court because the wife had remarried, asking for a refund. The judge explains that the Rs. 90,000/- calculated maintenance at Rs. 1500/- per month for five years. Was that calculation reasonable and fair, to fall within s. 3(1)(a) of the 1986 Act? Shafi J. points out at p. 713 that the 1986 Act did not specify the period for which such provision should be made. He then holds that “[o]f course, if the wife gets remarried during the pendency of the petition, that fact also is a factor to be considered by the Magistrate” (id.). Finding that the Magistrate had taken the remarriage into consideration, and had nevertheless decided that Rs. 90,000/- was fair and reasonable in the circumstances, this particular award is upheld. It does not help the husband’s lawyer to argue at length about delay. 

 

However, Shafi J skilfully re-balanced the scales of justice in this case by withdrawing the award of another Rs. 50,000/- that had allegedly been given by the wife’s father to the husband as a gift or a loan,¹¹ probably illegal dowry payments. This skilful decision leaves the question of extent of the remarrying wife’s entitlement to postnuptial provision somewhat open, while establishing firmly the principle that if a divorcing husband has failed to make and pay fair and reasonable provision within the iddat period, he remains liable for payment of postnuptial provision.

Three years later, in Rasiya v. State of Kerala, 2002(2) KLT 825, the wife cheekily pleads entitlement to postnuptial provision till death, relying on Nizar, which cannot be right and is rejected. Pillai J rapidly turns to Danial Latifi for guidance and finds that the disputed entitlement “would extend to the whole life of the divorced wife unless she gets married for a second time” (p. 827). Thus, in accordance with Nizar, remarriage does become a relevant factor and will be taken into account in fixing the quantum. 

 

Pillai J then raises two fascinating hypothetical questions. What if the husband had already paid the wife provision for her whole life during the iddat period, and she then remarries? It is observed at p. 828 that “[n]o provision is there in the Act to get back the express amount paid (reasonable and fair provision received by the divorced wife beyond the period of remarriage) by the erstwhile husband. It appears, remedy of the erstwhile husband, if any, lies elsewhere”. Secondly, Pillai J raises the moot question whether such a remarrying wife would then be entitled to a fair and reasonable provision also from her second husband? Staring into the abyss, the learned judge swiftly states that he need not attempt to answer this question. 

 

To support his refusal to allow the greedy ex-wife’s appeal, Pillai J then refers to Majitha Beevi v. Yakoob, 1999(1) KLT 796, involving a Muslim ex-wife who ended up obtaining only Rs. 1500/- as iddat money and Rs. 51/- as unpaid dower, though she had claimed Rs. 2,76,551/-. In this case Shafi J had found that the wife had been given abundant property by a husband working in the Gulf. The learned judge thus prevented her from harassing the husband with further demands under the heading of provision (p. 802). Notably, the first sentence of this statement is cited by Pillai J in Rasiya, at p. 829, to deprive the demanding ex-wife of her inflated claim. We note at this stage that by 2002, the extent of liability of a second husband for postnuptial provision remains largely open, but the first husband appears to receive a balanced treatment by the courts. There is a general presumption that making provision for five years may be fair. In their efforts to reach fair and reasonable decisions, Kerala High Court judges have become alert to several potential pitfalls.

 

During 2003, several cases confirm that both Hindu and Muslim wives and their children have definite rights to maintenance under s. 125 CrPC.¹² A helpless widowed Hindu stepmother is rescued by a socially conscious judge in Karnataka.¹³ In Kerala, a newly elevated, highly experienced member of the lower judiciary, Basant J. instantly makes an impact at High Court level. He establishes a firm presumption of marriage in a Muslim case under s. 125 CrPC,¹⁴ assists a woman and her child against vagrancy by confirming that where people hold themselves out to be legally wedded in their community, the protective mechanism of s. 125 CrPC applies,¹⁵ and protects another woman against contracting out of maintenance entitlements, probably undue pressure to give up her claims.¹⁶ Significantly, however, Basant J also protects a Muslim father against the claim of his unmarried able-bodied daughter of 20 years for maintenance under S. 125 CrPC,¹⁷ establishing firmly that maintaining one’s wife, children or parents is a legal duty of all Indians (p. 108), but it all depends on circumstances. Again, this is a carefully balanced judgment. The year does not document any progress on clarifying the rights of divorced Muslim wives under the 1986 Act.

 

In 2004, Mr. Justice J.B. Koshy heard a maintenance petition in Sainulabdheen v. Beena, 2004(1) KLT 859 on a procedural point. Basant J, in a Short Note,¹⁸ provides more specific guidance on the extent of fair and reasonable provision under the 1986 Act, at pp. 102-3:

 

It cannot be an illusory amount. It cannot be a pittance. It cannot be a bounty too. The totality of circumstances must be alertly considered by the court in its attempt to answer the question as to what amounts must be fixed in a just and reasonable manner. Without intending to be exhaustive, it can certainly be stated that the following circumstances would be relevant. What is the age of the wife at the time of marriage and at the time of divorce? What is the total period of marriage? What is [sic] the prospects of her re-marriage? Is she likely to get back a life, even after such re-marriage, consistent with the standard, status and affluence which she was used to in her life with her former husband. What are her expenses? What are the conveniences which she was used to? When the couple were residing together? What is the income of the husband? What are the commitments? What amount can he, as a reasonable and sublime person, be expected to spare for his wife? It can also be said that the liabilities which the husband and wife are forced to endure because of the marriage and divorce can also be taken into account. The fact that the wife is responsible to look after an infant after the marriage would certainly fetter and hamper her chances of re-marriage. The strata of society to which parties belong will also have to be considered to ascertain whether remarriage within a reasonable time can be expected. 

 

This insightful catalogue of criteria focuses ultimately on the chances of the divorced wife to rebuild her life, and her scope for re-marriage, which would have an impact on the amount granted as postnuptial provision. In Assya v. State of Kerala, 2004(3) KLT 54, Basant J seeks to answer the question whether he has powers to direct interim conditional attachment of properties belonging to a husband seeking to defeat the divorced wife’s claim. The wife, who divorced the husband in 2002,¹⁹ complained that he had failed to pay due amounts and was trying to dispose of his assets. Basant J is highly critical of the Magistrate’s Court which refused to help the wife and comments at p. 56, in terms that gently pick up where Krishna Iyer J left matters in Bai Tahira in 1979, reminding Judges about their constitutional obligations. But what if the statute does not provide direct guidance? We find a thoughtful deliberation on the role of an activist, but balanced judge when Basant J concludes, at p. 56, that the shortcomings of the draftsman cannot prompt a court to throw its hands up in helplessness.

 

Basant J further notes, at pp. 56-7 that the primary purpose of the 1986 Act “is to make the amounts due available to the hapless woman. If law has no teeth to overcome obstacles and enforce such a direction, the legislative dream and vision cannot be translated into the tangible assistance to the woman”. Here again, the civil/criminal nature of such proceedings is an issue, and thus the relationship between proceedings under S.125 CrPC and the 1986 Act.²⁰ The learned judge notes that there is no specific provision in the CrPC for conditional attachment of property, while the 1986 Act stipulates that the procedures of the CrPC are to be followed. However, under S.421 of the CrPC amounts due can be recovered through attachment of property. Reasoning that where such a power exists, then all incidental and ancillary powers must also exist, it is easy for the learned Judge to refer to Supreme Court precedent,²¹ aiming ultimately “to show that a real, reasonable, meaningful and purposive interpretation has got to be adopted to make the provisions of the Act work effectively and achieve the intended result” (p. 58).

 

Faced with a manifestly recalcitrant respondent and typically delayed proceedings, the learned Judge clearly realises the need for a dynamic interpretation: “The mandate is to ensure that the woman gets the amount which is her due. Anything done by the respondent which would frustrate the remedy has to be effectively prevented” (p. 59). However, the Court must also guard itself against arbitrary action, since “[a]ttachment may be ordered for the amounts which are not really due. This may work out prejudice and hardship to the respondent” (p. 59). With such justice-sensitive deliberations, clearly demonstrating a sense of balance and not unwarranted pro-women activism, the wife’s petition is allowed and the matter sent back to the learned Magistrate for disposal within seven days.

 

Finally in 2004, a divorced wife’s remarriage comes up in a focused manner in Abdul Hameed v. Fousiya, 2004(3) KLT 1049, a case referred by Justice Basant to a larger bench, composed of M. Ramachandran and M. Sasidharan Nambiar JJ, because by then there were a number of contradictory decisions on the effect of the woman’s remarriage. 

 

This Muslim couple married in August 1995. By March 1996 the wife felt forced to live separately, alleging that the husband had married another woman. The husband refused to maintain the wife, she claimed in 1997 under S. 125 CrPC, an order for Rs. 500/- per month had been granted, but the husband still did not pay. The wife then obtained an ex parte divorce in February 2000 and claimed maintenance under the 1986 Act in June 2001, asking for Rs. 4.500/- as iddat money, Rs. 105/- as mahr, Rs. 2,25,000/- for the value of gold sovereigns, return of Rs. 1,00,000/- for gift given by her father,²² and Rs. 3,00,000/- towards reasonable and fair provision. Here again, we find evidence that marriage for Keralite men today, especially those working in the Gulf, may be a risky business. Was this woman exploiting the man, or was he cheating her?

 

By March 2003, the wife had obtained a decree granting her Rs. 4.500/- of iddat money, Rs. 90,000/- as reasonable and fair provision, as well as her mahr and some dowry-related properties. The husband appealed, claiming the wife had been remarried since at least June 2000. Faced with various pleadings, the Court establishes that the wife had been remarried from at least June 2000. How was this to affect her postnuptial provision from the first husband?

 

Ramachandran J first examines the decision in Nizar v. Hyrunneessa, 1999(1) KLT 709 by Shafi J, which seemed to suggest that the wife’s remarriage was not a factor to be taken into account. He then turns to Rasiya v. State of Kerala, 2002(2) KLT 825, where the remarried wife’s provision had been reduced by Basant J after the husband’s appeal. It is correctly held, I submit, that there was really no difference between those cases. The learned Judge then proceeds to recount the history of this kind of litigation since before Shah Bano and up to Danial Latifi, which confirmed that the Shah Bano case had been codified by the 1986 Act. Thus, if a husband fails to make adequate provision during the iddat, it is a statutory obligation on the Magistrate, on the wife’s application, to direct payment of reasonable and fair provision (p. 1058). The right to this provision accrues to the divorced woman during the iddat period, so that “the impact of a remarriage can have little effect” (p. 1059). However, this does not mean it has no effect at all, especially in view of delays in proceedings. Thus, as is stated at p. 1059, “the question is as to whether the remarriage is wholly a circumstance to be ignored, as in very many cases, the adjudication process might be time consuming although the proceedings are intended to be of summary nature”. Ramachandran J then turns back to Nizar and Rasiya and finds it established (p. 1059) that:

 

…a remarriage becomes a relevant criterion for adjudging the compensation package…Remarriage has only a limited impact on the claim, and that too only in the matter of fixation of a fair provision. Likewise, we hold that a remarriage of [a] divorced woman will not confer a cause of action for the former husband for a direction for regurgling the benefits ordered/paid, as the statute has not envisaged such a contingency. When the liabilities had been enquired and adjudged under a special enactment, by indirect methods, the benefits payable cannot be withheld or recovered.

 

Turning to the facts of the case, the learned judges follow Shafi J in Nizar v. Hyrunneessa, 1999(1) KLT 709. Again, while upholding the amount of provision granted to the remarried wife, the judges reduce the payments under other headings, notably dowry-related claims, with reference made to allegedly given 75 gold sovereigns. The wife is only allowed to claim for 50 sovereigns. Notably, there is also a reference to harassment of the husband, because the wife made her various claims when she was already remarried and was certainly not destitute.

 

I calculated the final financial outcome: Apart from mahr and iddat money, which remain unchanged, the wife demanded Rs. 3,00,000/- for provision and the Magistrate awarded her Rs. 90,000/-, plus 3,25,000/- for dowry-related presents. The High Court’s intervention, firmly upholding the principle that a wife’s remarriage does not terminate her claims, resulted in withdrawal of most of the dowry-related claims, so the remarried wife keeps her Rs. 90.000/- of provision, but only obtains a further Rs. 1,50,000/- for 50 gold sovereigns. The husband’s appeal has been quite successful, and the court has managed to balance the parties’ conflicting claims while maintaining the principle that remarrying wives are not losing their entitlements on remarriage. Notably this balancing of scales is facilitated by skilful use of dowry-related payments.

 

In 2005, no case of direct relevance appears. Geetha v. State of Kerala 2005(2) KLT 407 concerns DNA technology in maintenance cases for children, another contested area of gender equity where harassment or desertion may be a problem. In 2006, however, we find a rich crop of cases. A useful Short Note from Karnataka applies the Bai Tahira principle that a divorced wife who had earlier surrendered maintenance rights can petition under s. 127 CrPC in changed circumstances.²³ Mrs. Justice K.Hema in Petricia v. Purushothaman 2006(2) KLT 800 reinforces presumptions of marriage between Hindus and Christians where a section 125 CrPC petition arises. Judges also appear to have become more skilled in identifying the key issue of a case upfront. A nice example is the order by Basant J in Muraleedharan v. Vijayalakshmi, 2006(3) KLT 635, at p. 636:

 

How unable should a wife be to maintain herself in order to entitle her to claim maintenance under S. 125 Cr.P.C.? This is the crucial question that arises for consideration in this revision petition. 

 

Here a Hindu wife was granted monthly maintenance of Rs. 2.000/- under S. 125, confirming that the lifting of the Rs. 500/- ceiling in 2001 is beginning to show effects in society. Perhaps more middle class women will now claim maintenance, and more husbands will feel aggrieved that a wife who could look after herself should harass them about maintenance - much new business for lawyers! The question, neatly identified by Basant J, is about the right balance. The wife, aged about 39, was a postgraduate and had a law degree. She spent many years at home while the husband worked abroad. She could have taken a B.Ed. degree, did not pursue it, and now found securing full employment after divorce difficult. Basant J is reminded of the pro-women approach in Bai Tahira by the wife’s advocate (p. 637), while the husband claims that law should be fair and realistic: his wife can earn her own money because she is able-bodied. This is a skilful reference to cases elsewhere in India, ridiculing Hindu men who seek to claim maintenance from their wives.²⁴ The husband’s counsel in Muraleedharan, at p. 638, claimed that “[w]hen a husband without employment is expected by law to put to use his able body to work and earn livelihood to support himself and his family, it would be irrational and unjust not to expect such efforts on the part of a woman”. While the judge admits that s. 125, as conceived in 1973, thought of women unable to maintain themselves, his analysis, reported at p. 638-9, results in the conclusion that “[p]rotective discrimination in law-making and law-interpretation is not anathema to law”. But, cautious not to be seen as unduly activist, Basant J refers to precedent in Rajathi v. C. Ganesan,²⁵ where a woman faced destitution because the husband took a different wife. The Supreme Court had laid down two basic principles, (i) that a statement of the wife that she is unable to maintain herself would shift the burden to the husband; and (ii) that the wife’s ability to maintain herself depends on facts and circumstances prevailing while the spouses were living in matrimony. Thus, “[t]hereafter, even if the wife had kept body and soul together by engaging herself in some activities, that, it is held unambiguously will not take her out of the category of persons ‘unable to maintain themselves’” (p. 640).

 

This quote confirms the continuing impact of Bai Tahira (1979) on judicial minds and allows Basant J to apply these principles to an educated wife who claims to find it difficult to obtain adequate employment. It is held, at p. 640:

 

…the plight and situation of even the educated half of the Indian polity show clearly that the qualification by itself cannot be synonymous with ability to maintain themselves. Many a qualified housewife after marriage relegates herself to the kitchen and the homefront looking after children. She opts herself to be or is compelled to be satisfied with the role of a home maker. After playing that role for sometime she renders herself unable to do anything more than that. The expression able to maintain must receive a dynamic and realistic interpretation in the light of the indisputable plight of the Indian woman. The mere fact that she has qualification is not sufficient ipso facto to conclude that she is in a position to maintain herself.

 

Though the woman before him had studied law, she had never practised, and without a B.Ed. she could not be a proper teacher. In these circumstances, the husband’s appeal fails, since “[t]he evidence clearly shows that it was not an adamant refusal on the part of the claimant/wife to engage herself in any income earning activity to maintain herself.  It was clearly a case of her inability to secure any such income earning activities and income to be able to maintain herself” (p. 641).

 

This is Indian poverty jurisprudence in action, but also a middle class scenario, as in Bai Tahira in 1979. The Judge is acutely conscious of the task to find a reasonable and fair balance. That is how the qualifying comments on Rajathi, prior to the final verdict have to be understood (pp. 640-641):

 

If a qualified woman is actually able to engage herself in some stable and settled employment after the spouses started separate residence, it may not be fair or correct to say that such subsequent stable employment and income must be ignored solely for the reason that she had taken up such employment only after the spouses separated and while in matrimony she was not engaging herself in any income earning activities.

 

Basant J. again firmly upheld the general basic principle that a divorced wife under s. 125 CrPC is entitled to be maintained by the former husband, but did not hold that such a divorced wife is always totally dependent on such maintenance. We also learn, in Ashraf v. Fousia, 2006(4) KLT SN 67 that Basant J opposes ritualistic adherence to specific words and prefers to consider substance in assessing whether claimants are unable to maintain themselves. Thus, “[a] claimant, who is able to maintain himself or herself will certainly not be entitled to the compassion of the law embodied in S. 125 of the Cr.P.C. but this is far from saying that the words of [the] statute must be ritualistically repeated by such claimant” (p. 68). 

 

In Sundaran v. Sumathi, 2006(3) KLT 725, Basant J considers the extent of powers to sentence defaulters of maintenance payments. Defences available to children who wish to resist claims by their parents for maintenance under S. 125 CrPC are at issue before Basant J in Selvan Singh v. Nagamani, 2006(4) KLT 125. An old father had been granted Rs. 350/- and Rs. 250/- as monthly maintenance from two of his sons. They protested that their father could maintain himself, pleaded insufficient means and argued that he had not treated them well during their minority, living with other women. These contentions are treated as “totally irrelevant” (p. 126) and Basant J upholds the awards since there is no evidence of mala fide approach on the part of the father. 

 

Two important cases in 2006 before Basant J. concern Muslim women’s entitlements under the 1986 Act. In Musthafa v. Fathimakutty, 2006(3) KLT 690, the key issue is the concept of iddat and its implications for maintenance. The divorced wife had been granted a total sum of Rs. 1,29,000/- by the Magistrate under S. 3 of the 1986 Act, Rs. 9,000/- as iddat money, and the rest as postnuptial provision. The husband claimed the wife had not observed iddat properly. Basant J swiftly responded that the secular State had no business to enforce religious observances (p. 692).

 

The ex-husband’s contention that the postnuptial provision was too generous in light of the wife’s conduct (alleged elopement with another man) and his financial situation is also rejected. It transpires that he works in the Gulf, there are two children, and no evidence of the wife’s remarriage. The man being employed abroad, Basant J finds no reason to reduce the amount granted.

 

In Abdulla v. Subaida, 2006(3) KLT 699, the question is whether a divorced Muslim wife must be unable to maintain herself to claim under S. 3 of the 1986 Act. The husband was well off, the wife also earning, and there were three children. The lower court had granted the wife Rs. 2,73,000/- under various headings, including Rs. 1,80,000/- as postnuptial provision. The husband’s plea that a Muslim wife would need to be unable to maintain herself is thrown out by reference to Kunhammed Haji v. Amina, 1995(1) KLT 765. Basant J confirms (p. 702) that “even a millionaire wife will be entitled to claim amounts under S.3 of the Act from her billionaire husband”. Thus, “[t]he relative affluence of the husband and the wife will be relevant while considering the fairness and reasonableness of the provisions to be made” (p. 702). In calculating sums, it is evident that postnuptial provision for five years is found reasonable, offering no reason to interfere with the wife’s award. The only difference relates to the Rs. 72,000/- directed to be paid to the wife for maintaining her children. This sum, it is correctly found, cannot be claimed since the children were above two years.

 

In 2007, too, dowry-related matters and Muslim women’s entitlement have been keeping Kerala’s courts busy. On recovery of dowry items, Amirshah v. Salimabi, 2007(1) KLT SN 2 indicates several remedies for Muslim women to reclaim dowry articles. In Moidu Haji v. Mariyam, 2007(1) KLT 598, A.K. Basheer J. deals with two questions, (i) whether consummation of marriage is a sine qua non for entitlement to postnuptial provision, and (ii) whether a Court is debarred from entertaining a wife’s claim prior to the end of the iddat period. In this particular case, an elderly Muslim sought to save himself from inflated claims by an imperfect wife. Only the iddat money and a fair sum of Rs. 60,000/- as postnuptial provision were upheld. The discussion about iddat clarifies that even an unconsummated marriage would give rise to a claim under S. 3 of the 1986 Act (p. 602). A divorced Muslim wife does not have to wait until the end of the iddat period before she can file a claim under S. 3 (p. 604).

 

In Bapputty v. Shahida, 2007(1) KLT 703 Basant J had to determine whether a remarrying divorced wife could claim postnuptial provision several times in her life. The short answer is in the affirmative. The woman had married three times, and it was the second marriage for the husband. Their ages are not given, but both had tested HIV positive, adding an element of urgency to the discussion about financial provisions. The sums involved are fairly low, the baseline being that the wife requires about Rs. 1,000/- per month. Hence Rs. 3,000/- as iddat money remain uncontested, but this woman had been granted only Rs. 35,000/- as provision by the Magistrate, reduced on revision to Rs. 30,000/- and confirmed by Basant J as reasonable. It remains unclear, given the standard practice since Nizar in 1999 to allow provision for five years, why this wife was granted a lump sum for less than three years. The decision is, however, useful in highlighting the entitlements of Muslim divorced wives as “specific advantages” (p. 706) compared to other wives. Brief comparison with s. 125 CrPC is made (id.) to indicate that divorced Muslim wives are basically on the same footing as everyone else under India’s recently harmonised mirror image of a uniform law.²⁶ The main point arising from this case, though, is the confirmation by Basant J that “[e]very husband at the time of divorce must independently make reasonable and fair provision” (p. 707). There is no way out for Indian men from that basic legal rule. 

 

Finally, in Haseena v. Abdul Jaleel, 2007(1) KLT 724, K.T. Sankaran J. finds a Muslim Keralite Gulf worker divorcing his young wife and trying to escape from his legal liabilities. Here the added element is that the divorced wife wanted to continue studying and the husband resists having to contribute to such expenditure. The wife had unsuccessfully claimed large amounts of dowry-related money, but was given Rs. 4,500 as iddat money and Rs. 3,00,000/- as provision, which in revision had been reduced to Rs. 2,00,000/-. Thus both parties appealed to the High Court, the wife unhappy about the reduction of provision, the husband still challenging the reduced settlement as “a very huge amount” (p. 726). The Judge is quick to identify that these are upper middle class people, refuses the husband’s claim to have lost his job in Saudi Arabia, and finds that the suggested needs of the woman were assessed rather conservatively:

 

Considering the status in life of the parties and the basic necessities of the divorced wife and child, I do not think that the amount fixed at the rate of Rs. 1,500/- per month is high. It can even be said that the amount fixed is low considering the practical realities of life.

 

The revisional Court had reduced the wife’s postnuptial provision on the ground that the former husband should not have to finance “a ‘highly expensive education’” (p. 727). Sankaran J refers back to Ali v. Sufaira 1988(2) KLT 94 and Aliyar v. Pathu 1988(2) KLT 446 to support his reasoning that this young woman should be supported in her efforts to obtain education (pp. 728-9). Thus, despite some reservations, expressed as “a former husband cannot be mulcted with the liability to provide for the expensive higher education of the divorced wife” (p. 729), it is not found unreasonable that a divorced wife should wish to continue studying. Here again, we see how carefully Judges have to tread to avoid exploitation by either ex-spouse in relation to the extent of postnuptial provision. The equitable solution found here, nine years after the divorce, is to grant the ex-wife Rs. 2,50,000/-.

 

Conclusions

 

What do we learn from such case-based explorations, which National Law School scholars in India may still tend to dismiss as irrelevant regional irritations? Firstly, the present analysis confirms that law itself is more than just rules, or merely a matter of decreeing top-down what people should do. Life is complex; Parliament can only go so far. Law needs to be negotiated at all times; judicial intervention is crucial in this process. Law, thus, is refined in constant dynamic interaction between (i) social norms and people’s ways of doing things, (ii) state law in various forms, and (iii) the huge amorphous area of values and ethics which infuses all of this.²⁷ Secondly, thinking and well-trained judges are needed to make legal systems function properly, to avoid that all kinds of structural injustice, such as patriarchy and poverty, tip the scales of justice too far in one direction. That challenge, not only in India or Kerala, never stops. Thirdly, even if a country finds good people to appoint as judges, and they build up relevant experience, the challenge of finding justice will never disappear; new situations constantly arise, requiring analysis and guidance. Justice is not served on silver platters,²⁸ it has to be laboriously cultivated, like a tender coconut shoot that could grow into a fruitful tree. Fourthly, Indian post-Shah Bano law in its Keralite manifestations is extremely complex and hardly anti-women. A firm commitment that divorcing men of any community have a legal obligation to provide postnuptial support for their former spouse has been established. How exactly this is worked out depends, as the present analysis shows, on case-by-case equitable balancing between the conflicting expectations of the parties. Equity is a huge unspoken phenomenon here, making a comeback under the ‘fair and reasonable’ label. Fifthly, since few people are just individuals, determining the extent of postnuptial maintenance entitlements under Indian law remains a permanently active challenge involving family arrangements, with no situation exactly identical. What Kerala’s judges, in the spirit of Shri V.R. Krishna Iyer’s sophisticated activist engagement with basic gender justice have shown us through the cases analysed here, is that neither should a divorced wife be allowed to harass former husbands and claim ‘double benefits’, nor should divorcing husbands be permitted to simply desert their wives. Mala fide family intervention will be spotted by eagle-eyed judges. Sixth, though the challenge of finding gender equity is formidable, this case study demonstrates how reasonable and fair justice can be promoted through consistent effort, however diffuse at first sight. Seventh, the present analysis, for the first time, demonstrates the intricate semi-hidden link between maintenance arrangements and dowry payments. And finally, there seems to be a floating assumption that roughly five years is sufficient time for a divorced woman to rebuild her life.

 

It is evident that more research will need to be undertaken on all of these aspects in future. Here is a brilliant topic for a PhD student who wants to benefit practising lawyers. The more people learn about the cases discussed here, the more effective will be the process of curbing unreasonable expectations within society that divorce is either a simple tool to discard an unwanted spouse, or a brilliant chance to exploit a former spouse who is somehow chained through Indian law to the ex-spouse. Advocates all over India will find more cases coming to them in this field. They better study properly what has already been decided – the learned Judges of the Kerala High Court, once again, appear to show the way forward in guiding reasonable policy.

 

Foot Note :

1. Student, B.A ., LLB, VIIth Semester, National University of Advanced Legal Studies, Cochin.

 

2. Sir Robert Jennings and Sir Arthur Watts (ed. Oppenheim’s International Law (8th Edn. Vol. I, Pearson Education, Universal Law Publishing Co. Pvt. Ltd. 2003) at p. 331.

 

3. Encyclopedia of Public International Law (Vol.III, North-Hollan, ELSEVLER 1997) at p.56.