FACULTY OF LAW, JAMIA MILIA ISLAMIA

FAMILY LAW - 1

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MAINTENANCE
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SUBMITTED BY SUBMITTED TO
MOHAMMAD ARISH PROF. KAHKASHAN Y DANYAL
SEMESTER - IV

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 TABLE OF CONTENTS



1. INTRODUCTION ____________________________________________ [3]


2.MAINTENANCE UNDER MUSLIM LAW_________________________ [4]


3. CLAIM OF MAINTENANCE OUT OF DIVORCE__________________ [6]

4. MAINTENANCE OF MUSLIM WIFE UNDER S.125 OF CRPC______ [7]

5. MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT,

1986: AN ILLUSION_____________________________________________ [10]

6.CONCLUSION________________________________________________[13]

7.BIBILOGRAPPHY_____________________________________________[14]

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Introduction

Personal laws relating to marriage do not allow bigamy or polygamy except for Muslim law. Such a
marriage is treated as void. The law has made this point quite clear. Nevertheless, second marriage
is a common practice in our Indian society. As a result of the aforesaid contrast between the law and
social practice, second Hindu wives in India are not properly protected under the law. Whereas, in
Muslim law, where polygamy is permitted, the issue that Muslim women have had to face was
regarding the claim to alimony. Thus, the issue which the present study focuses on is whether a
married woman, whose marriage is void, is entitled to maintenance or not. And it also seeks to
determine the position of Muslim women in the current scenario as compared to the situation before
1986. The paper presents a look into the present legal regime as well as studies various judicial
decisions in order to find out the status of the second Hindu wife and a divorced Muslim wife.

The distinction between legal and moral duty to maintain has been well brought out by the Bombay
high court in Mohd. Jusab v. Haji Adam1

It has, however, been contended that in any case the Mahomedan law as to maintenance is a law of
imperfect obligation imposing a moral and not a legal obligation. The distinction between laws of
perfect and imperfect obligation has been discussed in detail by Abdur Rahim at page 62 of his
Principles of Mahammadan Jurisprudence, where he has described the laws as to domestic relations
to be laws of perfect and not imperfect obligation. Later on at page 343, Abdur Rahim has referred
to the maintenance of children being a right against their father. So also Wilson in Chapter VI of his
Anglo Mahammedan Law has treated the rights of maintenance as rights enforceable under Anglo
Mahammedan law, and in para. 142 has asserted the right of minor sons to maintenance from their,
father on the authority of page 456 of Baillie's Digest. The remarks of Trevelyan in Chapter XXII of
his Law Relating to Minors would not appear to be based on any authority relating to Anglo
Mahomedan Law. So that there would appear to be no reason to doubt that rights of maintenance
are enforceable under Anglo Mahomedan law. That being so the right to enforce them in civil
Courts, under Section 9 of the Civil Procedure Code, is unaffected by the fact that there is a

1 ILR 1911 37 BOM 71

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concurrent provision for their enforcement in criminal -Courts under Section 488 of the Criminal
Procedure Code as pointed out in the case of Ghana v. Gereli2

The Muslim law of maintenance may be discussed from the point of view of the persons
entitled to maintenance:

1. Wife,

2. Decendents,

3. Ascendents, and

4. Other relations.

To summarise, the wife loses her right to maintenance in the following circumstances:

1. She is a minor, incapable of consummation.

2. Refuses free access to the husband at all reasonable times.

3. Is disobedient.

4. Never visited his house.

5. Refuses to live with him in the conjugal home, without a reasonable excuse.

6. Abandons conjugal home without any reasonable ground.

7. Deserts him.

8. Elopes with another person.

Maintenance under Muslim Law

The concept of maintenance under Muslim personal law is distinct and shows a substantial contrast
to the concepts which are reflected under the personal laws of other communities in India.
Maintenance, under the Muslim law, is known as ‘nafqah‘. This includes food, clothing and
lodging. A woman, whose marriage is performed as per Muslim law and who has attained an age at
which she can render conjugal rights to her husband is entitled to receive maintenance. If the
marriage is void or irregular, except where there were not sufficient witnesses, the Muslim husband
is not obliged to pay any amount of maintenance to his wife.

2 1904 ILR 32 Cal. 479

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Under Islamic or Muslim law, men are allowed to practice polygamy, meaning they have a right to
marry more than one wife at one point in time, though the upper limit is four. Unlike Hindu law,
such marriage, while the first marriage subsists is not declared void. Hence, a second wife is
entitled to all the rights as the first. The wife of a Muslim man, whether she is the first wife or the
second, has the right to claim maintenance from her husband. From the time she is old enough for
matrimonial intercourse, the Muslim husband’s duty to maintain her arises. However, the death of
the husband puts an end to the right of the wife to claim maintenance. Prior to Mohammad Ahmed
Khan v. Shah Bano Begum3 , a Muslim wife was not entitled to claim maintenance after the
completion of her iddat period. Shah Bano was a 62-year-old Muslim woman. Her husband
divorced her and she filed a criminal suit in the Supreme Court of India. She claimed maintenance
and the same was granted in her favor. It was held that, a Muslim wife is entitled to the right to
claim maintenance under Section 125 of Criminal Procedure Code even after the expiry
of iddat period as long as she is not remarried and she is not able to sustain herself from the dower
received at the time of divorce. Yet, the Indian Parliament reversed the judgment, and consequently,
she was denied the right to claim alimony. The judgment raised controversies among Muslims since
the judgment was in conflict with Islamic Law. With this case the Muslim Women (Protection of
Rights on Divorce) Act, 1986 was passed, which diluted the judgment of the Supreme Court and
denied the right to claim maintenance to a Muslim woman from her former husband. According to
Section 3 of this act:

A Muslim woman is entitled to be maintained only within her iddat

Where she gives birth to children, whether before or after divorce, she is entitled to maintenance for
a period of 2 years from the date of birth of such children.

If her husband fails to provide for her maintenance, she has a right to claim it from the relatives who
are entitled to inherit her property after her death.

It is quite an irony that the Act has been named the Muslim Woman (Protection of Rights on
Divorce) Act as at the same time it took away whatever rights have been guaranteed to Muslim
divorced women by the holy Quran.

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But, in Daniel Latifi v. Union of India,4 the court upheld the judgment of Shah Bano case. It was
done to give regard to the constitutional validity of Section 3(1) (a) of the Muslim Women
(Protection of Rights on Divorce) Act, 1986. The statutory provision should be given interpretation
in such a manner that it does not stand in conflict with Articles 14, 15 and 21 of the Indian
Constitution. Thus, a Muslim husband had a duty to make reasonable provision for the maintenance
of the divorced wife even after the completion of her iddat period.

In Shabana Bano v. Imran Khan,5 it was held that Section 125 of Criminal Procedure Code read
with the Muslim Women (Protection of Rights on Divorce) Act, 1986, stated that a Muslim woman
should be designated to demand alimony from her husband even after she completes her iddat but
only until the time she remarries.

Many Muslims including All India Shia Personal Law Board supported the Supreme Court of
India‘s order to make the right to maintenance of a divorced Muslim wife absolute.

CLAIM OF MAINTENANCE OUT OF DIVORCE

Under other personal laws a divorced wife is entitled to maintenance until her remarriage or
indulgence in post-divorce adultery. But the Muslim law does not provide for any maintenance to a
divorced wife after the period of Iddat.

With respect to maintenance of divorce wife under the Muslim Law, the right of maintenance
commences on divorce or when she comes to know of the divorce and ceases on the death of her
husband, as her right of inheritance supervenes. In other cases where husband is alive and has
divorced the wife, she can claim maintenance only during the Iddat6 period and not beyond that.

6 It is duration to be observed by Muslim wife in case of divorce by the husband or death of the husband and serves as a
prohibition for any person to marry with her. Sec. 2 of the Muslim Women (Protection of Rights on Divorce) Act, 1986
defines “Iddat”:
” iddat period” means, in the case of a divorced woman
(i) three menstrual courses after the date of divorce, if she is subject to menstruation; and
(ii) three lunar months after her divorce, if she is not subject to menstruation; and
(iii) if she is enceinte (pregnant) at the time of her divorce, the period between the divorce and the delivery of her child
or the termination of her pregnancy, whichever is earlier;”

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The widow is therefore not entitled to maintenance during the Iddat period commencing after death
of the Husband.

This rule has been a bone of contention and on this count there has been a debate in a society as to
uniformity7 of the personal laws. Since in Muslim law it is very easy for the husband to get or to
give divorce to the Muslim wife, he can very easily escape the liability of providing maintenance to
the wife. As mentioned above it is no longer obligatory for the erstwhile husband to provide
maintenance beyond Iddat period.

This point was a great controversy among the judiciary, when the Supreme Court has taken a
landmark step and has led to the conflict of law between two different branches of law: Muslim
Personal law and general law under Section 125 of Criminal Procedure code, 1973 so far as the
claim of (Muslim) divorced wife is concerned, which subsequently led to the enactment of new
piece of legislation/law8 applicable exclusively to the Muslim divorced wife.

So with respect to the claim of Muslim women’s right of maintenance, law is divided and reflected
in following legislations:

1. Muslim Personal Law (Shariat Application) Act, 1937

2. Code of Criminal Procedure, 1973

3. Muslim Women (Protection of Rights on Divorce) Act, 1986

MAINTENANCE OF MUSLIM WIFE UNDER S.125 OF CRPC

Under section 125 of CrPC, 1973,9 a wife, whether Muslim or non-Muslim is entitled to claim
maintenance against the husband on the ground of the husband’s neglect or refusal to maintain her.
S. 125 of the new code includes every divorcee-wife, Muslim or non-Muslim.

Second proviso to s. 125(3) lays down that if the husband makes an offer to the wife to maintain
her provided that she should live with him and if the wife refuses to live with the husband, then the
Magistrate may consider any ground on which the refusal has been made and may make an order
for maintenance notwithstanding the offer made by the husband.

7 Mohammad Ahmed khan V/s Shaha Bano Begum (AIR 1985 SC 945)

8 Muslim Women (Protection of Rights on Divorce) Act, 1986.

9 S.125 order for maintenance for wives, children and parents

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The section also lays down that if the husband has contracted marriage with another woman, then it
is a just ground for wife’s refusal to live with the husband. Similarly, where a husband is impotent
and is unable to discharge the marital obligations, this would also amount to a just cause.

Sub-section 4 of section 125 contemplates that if a wife is living in adultery or without any reason
refuses to live with her husband; the wife would not be entitled to maintenance.

The question as to whether Section 125 of the code of Criminal Procedure applies to Muslims also
was concluded by two decisions of this court in Bai Tahira v. Ali Hussein Fidaalli Chothia10. The
Criminal Procedure Code provides maintenance under Section 125 for wife, sons, and daughter up
to age of majority only permitted. Section 125 of Criminal Procedure Code is common to all people
to move to the court for getting maintenance.

Section 3(1) (b) of the Muslim Women (Protection of Rights on Divorce) Act provides statutory
liability of providing maintenance extends beyond attainment of a dependent girl till marriage. In
this circumstance she has to move to the Civil Court under the personal law to obtain maintenance.
This process leads to delay and multiplicity of proceedings.

In Bai Tahira’s case Justice Krishna Iyyer held that:

“Welfare laws must be so read as to be effectively delivery system of salutary objects sought to be
served by the legislature and when the beneficiaries are weaker section like the destitute women.
The spirit of Article 15(3) has compelling compassionate relevance in the contest of Section 125
Cr.P.C. and the benefit if any in the statutory interpretation goes in favour of ill used wife and the
derelict divorcee. So the Section 125 and the sister clauses must receive a compassionate expansion
of sense that the words used permit.”

In Mst. Zohara Khatoon v. Mohd. Ibrahim11 the question before the court was that whether a
Muslim wife who has obtained divorce from her husband under Dissolution of Muslim Marriage
Act, 1939 entitled to claim maintenance under Section 125 of CrPC. Answering to this question the
Allahabad High Court was of the view that clause(b) of the explanation to Section 125 would apply
only if divorce proceeds from the husband that is to say that the said clause would not apply unless
the divorce was given unilaterally by the husband or was obtained by the wife from the husband.
But on appeal the Supreme Court held that the view taken by the Allahabad High Court was

10 AIR 1979 SC362

11 1981 Cr LJ 754
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erroneous and is based on wrong interpretation of clause (b) of the explanation to Section 125.
Therefore it suggests that a Muslim wife whose divorce has been done under the Dissolution of
Muslim Marriage Act, 1939 may also claim maintenance from the husband.

The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others12 has held that if the
divorced woman is able to maintain herself, the husband's liability ceases with the period of iddat,
but if she is unable to maintain herself after the period of iddat, she is entitled to maintenance under
section 125 of the Code of Criminal Procedure. This led to controversy as to the obligations of the
Muslim husband to pay maintenance to the divorced wife.

Case study of landmark cases

Mohd. Ahmed Khan vs Shah Bano Begum And Ors

The facts of the case can be stated as; Shah Bano a lady from Indore was married to Mohd. Ahmed
Khan in 1932. They had five children out of which 3 sons and 2 daughters. After 14 years of
marriage Mohd. Ahmed khan married a younger woman. Thereafter, almost 62 year old shah bano
was asked to leave her matrimonial home in 1975. Further, her husband promised to pay
maintenance of Rs.200 per month in order to look after herself and her children. For almost 2 years
Mohd. Ahmed Khan paid maintenance to her at the rate of Rs. 200 per month and then stopped
paying her. In April 1978, Shah Bano filed a petition against the husband under Section 125 of the
Criminal Procedure Code 1973 (hereinafter referred to as the ‘Code’/ ‘CrPC’) in the court of the
learned Judicial Magistrate (First Class), Indore, where she asked for maintenance at the rate of Rs.
500 per month. On November 1978 her husband gave an irrevocable talaq (divorce) to her. His
defence was that she had ceased to be his wife by reason of the divorce granted by him and he
therefore claimed to be under no obligation maintenance for her. In August, 1979 the learned
Magistrate directed appellant to pay a princely sum of Rs. 25 per month to the respondent by way of
maintenance. In July, 1980 in a revision application filed by the respondent, the High court of
Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per month. The husband
further filed a Special Leave petition before the Supreme Court. His main contention in appeal was

12 AIR 1985 SC 945

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that after divorce any form of relation with the divorced wife is Haram as it is against will of God as
well as Islam thus, he is not liable to maintain her.

Judgement :

1. It was held that sec125 of the code is truly secular in character. It was enacted to provide
quick and summary remedy to the class of persons who are unable to maintain
themselves.

2. Irrespective of the person being of any religion sec 125 is applicable because it is a part
of Criminal Procedure Court and not Civil Laws.

3. Neglect by a person of sufficient means to not give maintenance to any dependents leads
to invoking of 125.

4. The rights conferred by sec125 can be exercised irrespective of Personal Law of the
Parties.

5. In this case Husband Liabilities to provide maintenance doesn’t get limited into the
boundation of time period of Iddat but as long as the wife is unable to maintain herself or
remarried even though Iddat period is over.

Muslim Women (Protection of Rights on Divorce) Act, 1986: an illusion.

The Muslim Women (Protection of Rights on Divorce) Act, 1986 is a declaratory law and codifies
some pre-existing rules of Muslim Law. Under this law, maintenance can be claimed from divorced
husband, relatives or from Wakf Board. The Act makes provision for:

Maintenance of a divorced Muslim woman during and after the period of Iddat and For enforcing
her claim to unpaid dower and other exclusive properties.

Mainly the Act provides reasonable and fair provision and maintenance to be made and paid from
her former husband within the period of Iddat. The word ‘provision’ in relation to the Act would
mean an action of providing something beforehand or arranging in advance to meet the needs of the
divorced wife. It may be that provision can be made for her other needs such as clothes, food and
such other things depending upon the means of the husband.

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But the usage of some words such as ‘within’, ‘reasonable’ & ‘fair’ and ‘provision’ for future life
created a problem in interpretation of the Act in favor of divorced Muslim lady. Prima facie it
appears that woman is the beneficiary of this Act which is entirely an illusion. Muslim Woman Act
seems arbitrary with respect to:

Firstly, Act does not provide a provision by empowering her to get maintenance beyond the period
of Iddat, since the word used is ‘within.’

Secondly, Act restricted the application of Section 125 of Cr. P.C. to the Muslim divorced lady as it
is left optional for the husband and/or for the Parties to the litigation to be governed by Section 125
of Cr. P.C.

The Judiciary started interpreting the provisions of the Act in different directions, since as stated
above provisions & words (including Preamble) of the Act seems unclear and ambiguous.

Daniel Latifi V. Union of India13

With respect to the controversial nature of this Act, a writ petition under Article 32 of the Indian
Constitution was filed challenging the constitutional validity of the Act by making Section 3 of the
Act as the pivotal point since this provision was interpreted restrictively.

By analyzing the Preamble of the Act, Statement of Objects and Reasons of the Act, and the
judgment given by Supreme Court in Mohammad Ahmed Khan V/s Shaha Bano Begum, Court
has advocated the validity of the Act and came to the following conclusion:

1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced
wife which obviously includes her maintenance as well. Such a reasonable and fair provision
extending beyond the iddat period must be made by the husband within the iddat period in terms of
Section 3(1)(a) of the Act.

2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay
maintenance is not confined to iddat period.

3) A divorced Muslim woman who has not remarried and who is not able to maintain herself
after iddat period can proceed as provided under Section 4 of the Act against her relatives who are
liable to maintain her in proportion to the properties which they inherit on her death according to
Muslim law from such divorced woman including her children and parents. If any of the relatives

13 AIR 2001 SC 3958

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being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under
the Act to pay such maintenance.

4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

Observation: At the same time Court has observed on the basis of appropriate reading of the Act:

“the word ‘provision’ indicates that something is provided in advance for meeting some needs. In
other words, at the time of divorce the Muslim husband is required to contemplate the future needs
and make preparatory arrangements in advance for meeting those needs. Reasonable and fair
provision may include provision for her residence, her food, her cloths, and other articles. The
expression “within” should be read as “during” or “for” and this cannot be done because words
cannot be construed contrary to their meaning as the word “within” would mean “on or
before”, “not beyond” and, therefore, it was held that the Act would mean that on or before the
expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and
if he fails to do so then the wife is entitled to recover it by filling an application before the
Magistrate as provided in Section 3(3) but nowhere the Parliament has provided that reasonable and
fair provision and maintenance is limited only for the iddat period and not beyond it. It would
extend to the whole life of the divorced wife unless she gets married for a second time.

In this case though Courts were of opinion that prima facie the provisions of the Act appear to be
violative of Article 14 of the Constitution mandating equality and equal protection of law to all
persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution which
prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim
divorced women only and solely on the ground of their belonging to the Muslim religion.

On an analysis of this judgment we can say that the Act is valid and operative since as it is rightly
said by the Court in the same case that Legislature does not intend to enact unconstitutional
laws and in fact “an appropriate” reading of the Act would reveal that nowhere the Parliament has
provided that reasonable and fair provision and maintenance is limited only for the Iddat period and
not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a
second time.

With respect to the validity of the Act Court has provided that “it is well settled that when by
appropriate reading of an enactment the validity of the Act can be upheld, such interpretation is
accepted by courts and not the other way.” Thus the Supreme Court held that a construction that

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results in making an Act ultra vires has to be discarded and one that upholds the validity of the Act
preferred.14

CONCLUSION

From above, it is therefore, concluded that the position of divorced wife under other personal laws,
is quite different and distinct to that of a Muslim divorced woman. Even the application of general
law (Section 125 of Cr. P.C.) was subjected to the fulfilment of the conditions as mentioned under
section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 as an option. When a
deserted or destitute Muslim (divorced) wife who is unable to get maintenance by virtue of
prohibition in Muslim Law, approaches & files application under Section 125 of Cr. P.C., the usual
Defence adopted by the husband was to plead that he has already divorced his wife and hence he is
not labile to pay maintenance. This argument became stronger after the enactment of Muslim
Women (Protection of Rights on Divorce) Act, 1986.

Fortunately, the judiciary has shown awareness and took initiative in protecting the interest of
Muslim woman and has in real sense empowered Muslim women, especially divorced woman to
maintain an adequate standard of life and to defeat the injustice done to them as according to
Muslim personal law, it is very easy to get rid of the wife by mere pronouncing Talaq. The decision
given by the Supreme Court in Danial Latifi case settles the law in favor of the divorced Muslim
wife and vests her with a “constitutional right” to livelihood through maintenance which was first
made as an issue in the Shah Bano Begum case. The present Act invites more criticism than praise.
The content of the Muslim Women (Protection of Rights on Divorce) Act, 1986 has left an
opportunity to the judiciary to not only provide some relief to the divorced Muslim wives but also
lead to the growth of an awareness and need to look after them and not to abandon them to
destitution. And to provide them dignity and respect of a human being and not to consider them as
an object which is used for pleasure and when bored thrown out of the house. Maintenance, thus is a
means of surviving and to lead a happy and respectful life.

14 Syed Khalid Rashid, MUSLIM LAW, Eastern Book Company, 5th Ed., at page no. 189.
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BIBILOGRAPHY

1. ABDUR RAHIM, MOHAMMDEN JURISPRUDENCE

2. AAA. FYZEEE, OUTLINE OF MOHAMMEDAN LAW
3. TAHIR MAHMOOD, FAMILY LAW REFORMS IN THE MUSLIM WORLD

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