Bad Marriage: Women Are Dependent On Courts In Divorce, But Always Do Not Get Adequate Cover

On April 23, 1985, Indians were introduced to Shah Bano Begum. A Muslim woman, who had been divorced by her husband, but had won the right to alimony through a criminal suit in the Supreme Court. The judgment had granted maintenance to an aggrieved, divorced Muslim woman. However, a powerful Muslim leader mounted pressure on the then Congress government at the Centre for the nullification of the verdict. The community leaders quoted from the Quran, claiming that the judgment was in conflict with Islamic juriprudence.

The Congress government then enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the judgment of the SC and restricted the rights of Muslim divorcees from their former husbands to only 90 days after the divorce. This period is known as iddah in Islamic Law. This Act, which triggered numerous controversies, was considered to be the political undoing of the Congress. But the controversy had made Shah Bano a household name.

In subsequent years, judgments in the Daniel Latifi case and the Shamima Farooqui vs. Shahid Khan case, upheld the judgment in the Shah Bano case and nullified the Muslim Women (Protection of Rights on Divorce) Act, 1986. These judgments made the right to maintenance absolute for a divorced Muslim wife. Pan to Sharmila and Vilas who got married in 2000 in an opulent five-day wedding. Three months later, Sharmila walked out of her marital home and went on to stay with her parents. Despite several attempts by Vilas, she refused to return and live with him. At the core of the marital dispute was the issue of cohabiting with Vilas’s parents in the marital home. Before they could celebrate the first anniversary of their marriage, Sharmila filed for divorce from Vilas. Both came from well-heeled families. In her divorce petition, Sharmila sought alimony from Vilas, which he fought tooth and nail.

Finally, after years of court battles that saw several complaints against each other, they were granted divorce by the family court. Vilas had refused to pay any alimony to his ex-wife, stating that although she had money of her own, she demanded a sizable quantum of alimony from Vilas. Legal sources tell Outlook that Sharmila could benefit from an April 2017 order of the Supreme Court in the Kalyan Dey Chowdhury vs. Rita Dey Chowdhury case.

In the case of the Chowdhurys, the SC order stated that maintenance is dependent on the factual situation of the case. That the court would be justified in moulding the claim for maintenance based on various factors, was an important aspect of the order. The amount of permanent alimony awarded must be befitting the status of the parties and the capacity of the spouses to pay maintenance, said the order and set a benchmark rate of payment of permanent alimony. The court held that 25 per cent of the net income of the husband is a just and proper amount as alimony. “The financials of the divorced wife will be an important consideration when deciding the quantum of alimony. Therefore, the benchmark rate set by the court in the case of the Chowdhurys may work here,” says the legal source to Outlook.

Later in November 2020, the SC judgment held that deserted wives and children are entitled to alimony and maintenance from their husbands, from the date they apply for it in the court of law. The bench constituting Justices Indu Malhotra and R. Subhash Reddy said that women deserted by their husbands were in dire straits and often reduced to a state of destitution due to a lack of means to sustain themselves and their children. The 67-page judgment laid down guidelines that are uniform and comprehensive for family courts, magistrate courts and lower courts to follow, while hearing applications filed by women seeking maintenance from their estranged husbands. This created a format for the way maintenance and alimony were to be looked at by these courts. A woman from Maharashtra, estranged from her husband, had filed a petition seeking maintenance for her and their son. The case had been dragging on for months. The SC judgment was based on this matrimonial plea.

The Apex Court observed that despite there being a multitude of maintenance laws, women were left empty-handed for years, struggling to make ends meet after a bad marriage. In her ruling, Justice Malhotra said, “The view that maintenance ought to be granted from the date when the application was made is based on the rationale that the primary object of maintenance laws is to protect a deserted wife and dependent children from destitution and vagrancy. If maintenance is not paid from the date of application, the party seeking maintenance would be deprived of sustenance, owing to the time taken for disposal of the application which often runs into several years.”

Speaking to Outlook, Jai Vaidya—a lawyer in the family court and the Bombay high court—felt that the court’s ruling on grant of alimony and maintenance is a good step. “No law can be foolproof. However, it puts in place protective measures. The divorce laws are putting everything on equal grounds,” says Vaidya.

The onus to pay maintenance or alimony was pushed on to the husbands by the courts. If the man failed to pay his estranged wife, he would get civil detention, including the attachment of his property. The court order was clear that the husband could not be absolved of the moral duty to maintain his wife. If he is able-bodied and had educational qualifications, then the husband’s plea that he did not have any source of income would still bind him to provide maintenance. The education expenses of the children must be normally borne by the father, but if the wife is working and earning a sufficient income, the expenses may be shared proportionately between the parties, observed Justice Malhotra.

The court also observed that it would not be equitable to order a husband to pay his wife a permanent alimony for the rest of her life, considering the fact that in contemporary society, marriages do not last for a reasonable period of time. Therefore, the period of the marriage too would be considered when granting alimony. The judgment reiterated that Section 125 of the CrPC would also include within its ambit couples who have been living together for years. According to the court ruling, strict proof of marriage should not be a pre-condition for the grant of maintenance under the said section. “Considering the social and cultural setting of our society, the laws do not give any cover for the woman. All is left to the interpretation of the judges. Therefore, we have to depend on the judgments and their applications,” Vaidya tells Outlook.

(This appeared in the print edition as "How the Judiciary Interprets Divorce")

Haima Deshpande in Mumbai