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Muslim marriage is a contract, not sacrament like a Hindu marriage: Observes K’taka HC

By Saima Siddiqui 
Updated Date
Muslim marriage is a contract, not sacrament like a Hindu marriage: Observes K’taka HC

Bengaluru: The Karnataka high court while hearing a civil suit for maintenance in a divorce case, observed that the Muslim marriage is a “contract with many shades of meaning, not a sacrament unlike a Hindu marriage”. The bench further added, that “such a marriage dissolved by divorce per se does not annihilate all the duties and obligations of parties by lock, stock and barrel”.

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The bench made the remarks in an order dated October 7 while hearing a PIL filed by Ezazur Rehman (52) in Bengaluru. Rehman was seeking quashing of an order passed by the First Additional Principal Judge of Family Court on August 12, 2011, which held that the plaintiff is entitled to monthly maintenance at the rate of ₹3,000 from the date of the suit till the death of the plaintiff or till she gets remarried or till the death of the defendant.

Rehman had divorced his wife Saira Banu by uttering Talaq on November 25, 1991, months after the marriage with a ‘Mehr’ of ₹5,000. After the divorce, Rehman then contracted another marriage and became the father of a child. Banu then filed a civil suit for maintenance on August 24, 2002.

The plea was, however, dismissed by Justice Krishna S Dixit who said, “‘marriage is a contract’ has many shades of meaning; It is not a sacrament unlike a Hindu marriage, is true.”

Elaborating further, Justice Dixit said, “Such a marriage dissolved by divorce, per se does not annihilate all the duties and obligations of parties by lock, stock and barrel.”

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The Judge said the marriage amongst Muslims begins with the contract and graduates to the status as it ordinarily does in any other community. “This very status gives rise to certain justiciable obligations. They are ex contractu,” the court said.

The court said a Muslim ex-wife has a right to maintenance subject to satisfying certain conditions, is indisputable.

In law, new obligations too may arise, of them being the circumstantial duty of a person to provide sustenance to his ex-wife who is affected by divorce. Quoting verses from Surah Al Bakra in Qur’an, Justice Dixit said a pious Muslim owes a moral and religious duty to provide subsistence to his destitute ex-wife.

“Ordinarily, the right of an ex-wife to maintenance does not extend beyond ‘Iddat’. I should hasten to add that Islamic jurisprudence has not treated this as a thumb rule ever, although there is some juristic opinion in variance,” Justice Dixit observed. “This norm has to be subject to the rider that the amount paid to the ex-wife, be it in the form of ‘Mehr’ or be it a sum qualified on the basis of ‘mehr’, or otherwise, is not an inadequate or illusory sum,” the judge noted.

He also pointed out that ‘Mehr’ is fixed inadequately and bride lacks equal bargaining power inter alia because of economic and gender-related factors.

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