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Can Muslim husband stop giving maintenance if wife remaries
09-May-2023 (In Child Custody Law)
I want to inquire few things with regard to Muslim Divorce case. Firstly we are Indian Muslim couple and got married in Mumbai India few years back but due to some issues we have to go for divorce and we were granted divorce in the court of Dubai, UAE as per the the Sharia Law, as the court ordered me to pay the Kids maintenance some amount per month. Now I came to know my ex-wife got married again few days back so is it possible for me to put the case in India as we are Indian Citizen to stop the maintenance payment and possible to apply for the custody of my daughter in Indian court as when we got divorce the judgement was passed in Dubai Court. So possible to know if the judgement was passed in Dubai court but there was no clause in the judgement for the custody of child a year back and as now my ex-wife had married again can i apply for the custody of my daughter and stop the maintenance payment in Indian court in Mumbai??
Pursuant to your question, a foreign national can file for divorce and custody of children in the UAE as per Federal Law No. 28 of 2005 regarding Personal Status ('Personal Status Law').
The Personal Status Law permits the parties to choose the application of their personal law of their home country in their petition. This is in accordance with Article 1 (2) of the aforementioned law states: "The provisions of this law shall apply to citizens of the United Arab Emirates unless non-Muslims as they have special provisions applicable to their community or confession. The provisions shall equally apply to non-citizens unless one of them asks for the application of their home country's law."
Therefore in accordance with the aforementioned provision of Personal Status Law, you were within your rights to seek application of your Personal Status Law by Dubai Courts.
In furtherance, Section 13 of the Civil Procedure Code of India 1980 (the 'CPC of India') states the grounds under which the foreign court judgements are not valid. It reads as below,
"A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim to litigate under the same title except:
(a) Where it has not been pronounced by a Court of competent jurisdiction;
(b) Where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) Where the proceedings in which the judgement was obtained are opposed to natural justice;
(e) Where it has been obtained by fraud;
(f) Where it sustains a claim founded on a breach of any law in force in India."
Thus, you can file for child's custody and for stopping maintenance in either India or UAE.
The Personal Status Law permits the parties to choose the application of their personal law of their home country in their petition. This is in accordance with Article 1 (2) of the aforementioned law states: "The provisions of this law shall apply to citizens of the United Arab Emirates unless non-Muslims as they have special provisions applicable to their community or confession. The provisions shall equally apply to non-citizens unless one of them asks for the application of their home country's law."
Therefore in accordance with the aforementioned provision of Personal Status Law, you were within your rights to seek application of your Personal Status Law by Dubai Courts.
In furtherance, Section 13 of the Civil Procedure Code of India 1980 (the 'CPC of India') states the grounds under which the foreign court judgements are not valid. It reads as below,
"A foreign judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim to litigate under the same title except:
(a) Where it has not been pronounced by a Court of competent jurisdiction;
(b) Where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) Where the proceedings in which the judgement was obtained are opposed to natural justice;
(e) Where it has been obtained by fraud;
(f) Where it sustains a claim founded on a breach of any law in force in India."
Thus, you can file for child's custody and for stopping maintenance in either India or UAE.
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Adv. Siddhant Sharma
Delhi | 500+ Answers
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Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at lawrato.com and has been responded by one of the Divorce Lawyers at lawrato.com to address the specific facts and details.
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