Point of Law: Under the Indian Constitution, the right to equality is a fundamental right - All persons are equal before the law and are entitled to equal protection of the laws, be it substantive law or procedural law.

ORDER :

This is yet another case of a hapless Muslim divorced wife battling for two decades for executing a maintenance decree; this again reminds of what the Privy Council lamented more than a century & a half ago about the difficulty a decree holder faces in the execution proceedings in THE GENERAL MANAGER OF THE RAJ DURBHANGA VS. MAHARAJAH COOMAR RAMAPUT SINGH, MOORE’S INDIAN APPEALS (1871-72), VOL.14, PAGE 605, it is worth mentioning :

“These proceedings certainly illustrate what was said by Mr.Doyne, and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a Decree…”

The Apex Court in its recent decision affirming the judgment of this court has expressed its concern & aguish against protraction of execution proceedings and advised all the courts of the country to ensure their expeditious disposal vide RAHUL SHAH VS. JINENDRA KUMAR GANDHI & ORS. 2021 SCC Online SC 341.

2. The brief facts that led to the ex-husband filing of this writ petition are as under:

(i) Parties are Sunni Muslims; they had contracted marriage in March 1991; mehr was fixed at Rs.5,000/-; walima was organized at Madikeri; this marriage was short lived; wife complained about dowry harassment, etc; she left for native seeking shelter; the ink of nikahnama had not dried yet and the petitioner uttered talaq on 25.11.1991; he paid to the ex-wife the mehr money; he added another sum of Rs.900/-for her maintenance during the iddat i.e., ordinarily for three months post divorce.

(ii) The un-remarried ex-wife had filed a Civil Suit for maintenance on 24.08.2002; long thereafter it came to be registered as O.S.No.119/2005; the ex-husband filed his Written Statement resisting the suit on several grounds; he has uttered talaq; he contracted another marriage; he has begotten a child too; wife had filed dowry harassment case in CC No.3744/1992, Crl.A.No.468/1998 & Crl.R.P.No.95/2003; he was acquitted in the dowry harassment case; ex-wife should invoke the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986; in no circumstance, he would pay anything.

(iii) The issues having been framed, the recording of evidence began only on 27.10.2010 ie., 8 years after the institution of suit; the learned I Addl. Principal Judge, Family Court at Bengaluru handed the judgment & decree after nine years, i.e., on 12.08.2011; justice delayed is justice buried, being only a meaningless text book mantra; the operative portion of the judgment reads as under:

“The suit in O.S.119/2005 is decreed in part. The plaintiff is entitled to monthly maintenance at the rate of Rs.3000/-from the date of the suit till the death of the plaintiff or till she gets remarried or till the death of the defendant.”

(iv) The ex-wife had put decree in enforcement by filing Execution No.155/2011 on 11.11.2011 inter alia by way of arrest & detention of the ex-husband; that was stoutly resisted; he again pleaded lack of means to pay the decreetal amount and decree being a nullity; the court below did not agree; it had sent him to civil prison on 14.12.2012; however, he was released on 15.01.2013 on paying Rs.30,000/-. The ex-husband had filed another application in I.A.No.10 under Order XXI Rule 37 of C.P.C., 1908 seeking determination of his financial incapacity; the said I.A. having been rejected vide order dated 22.11.2014, the ex-husband has knocked at the doors of writ court.

3. I have heard the learned counsel for the parties and perused the petition papers; I regret to state that the assistance from the Bar was frugal; however, that would not relieve the Court of its duty to adjudge the cause; the following three questions of seminal importance arise for consideration in this case:

(i) whether a Muslim is duty bound to make provision for his ex-wife beyond iddat despite paying paltry Mehr if she remains un-remarried and is incapable of maintaining herself ?

(ii) whether a decree for maintenance like any other money decree can be resisted on t