MAINTENANCE: CONCEPT & PRACTICE FOR

MUSLIM WOMEN

SUBMITTED TO MS. ANKITA SHUKLA

SUBMITTED BY
MD ABID HUSSAIN ANSARI
1ST SEMESTER
LLM – FAMILY LAW
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ACKNOWLEDGEMENT
Firstly, I would like to express my profound sense of gratitude towards the Almighty
“ALLAH” for providing me with the authentic circumstances which were mandatory for the
completion of my project work.

I am thankful to Ms. Ankita Shukla, our family law faculty, who built on this interest and
has given me the opportunity to delve deep into the various laws affecting families in India
today and also for her invaluable support, encouragement, supervision and useful suggestions
throughout this assignment. Her moral support and continuous guidance enabled me to
complete my work successfully. Her intellectual thrust and blessings motivated me to work
rigorously on this study. In fact this study could not have seen the light of the day if her
contribution had not been available. It would be no exaggeration to say that it is her
unflinching faith and unquestioning support that has provided the sustenance necessary to see
it through to its present shape.

I am also thankful to my father for providing enough materials on this particular matter.

I would like to extend my gratitude to Shazia Ilyas Mam, who helped me during the research
work by providing me enough resources in the library.

Among those who have sustained me over the years with their loyalty and friendship, I would
particularly mention my friends; Harsh Narayan, Aman Jain and Namrata Khurana have
always taken a special interest in my work and unconditional support at each turn of the life. I
express my deep sincere gratitude towards my parents for their blessing, patience, and moral
support during this LLM course. I express my gratitude to my all teachers and friends who
has supported and encouraged me during my study at Amity Institute of Advanced Legal
Studies, Amity University, Noida, Uttar Pradesh.

MD ABID HUSSAIN ANSARI

1ST SEMESTER

LLM – FAMILY LAW

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TABLE OF CONTENT
1. OBJECT OF THE STUDY……………………..................................................................4
2. RESEARCH METHODOLOGY………………………….................................................4
3. HYPOTHESIS………………………………......................................................................
4
4. MAINTENANCE – GENERAL INTRODUCTION………...............................................5
5. MAINTENANCE OF WIFE………………………………................................................6
6. MAINTENANCE IN PART……………………................................................................7
7. CONDITIONS OF MAINTENANCE……………………….............................................8
8. MAINTENANCE AFTER DISSOLUTION OF MARRIAGE………………...................9
9. MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT 1986..............13
10. CONCLUSION..................................................................................................................18
11. BIBLIOGRAPHY……………………………………......................................................19

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OBJECT OF THE STUDY
The main objective of the study of this assignment is to analyse and to find out the loop holes
under the personal law which is prevailing in Indian Society in regards to a wife’s
maintenance be it during the marriage or after divorce.

RESEARCH METHODOLOGY
The present work has been undertaken with guided intellectual inquisition based on organized
and systematic investigation by employing doctrinal and partly empirical research
methodology.

For the purpose of preparing this work, the Researcher has relied on various books, statutes,
articles, journals, newspaper articles, and other such literature. The Researcher has also relied
on various case laws to substantiate or refute his points as and when they arise.

HYPOTHESIS
The study on this topic is carried out by me to ascertain the position of maintenance of wives
of the Muslim population groups in our country and how it intermingles and is affected by the
secular provisions for maintenance that has been given under the Code of Criminal
Procedure.

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 MAINTENANCE – GENERAL INTRODUCTION
India (Being a secular state) is a land of multi-religion and multi-ethnic societies for centuries
and yet it has got distinction in maintain its unity in such kind of diversities. Usually in our
country the social relationship is totally governed by their personal laws.

The Islamic Law (Sharia Law) was introduced in the Indian sub-continent in the early eight
century and has its own value today.1 The personal law is constitutionally recognized2 and
judicially enforced and that has now become an integral part of the Indian civil law system.
The various members of Muslim community have high regard for their personal law and
consider this to be one of their distinct religious based possessions.

During the pre-independence era, the British legislature has enacted the Shariat act in 1937 3.
It is the Islamic code of life and the common belief among Muslims is that it is divine.

The Arabic equivalent of ‘maintenance’ is Nafaqa, which literally means, “What a

person spends over his family”. In its legal sense, maintenance signifies and includes three
basic things:

1. food;
2. clothing, and
3. Lodging.

Generally, it includes food, clothing and lodging. Maintenance is the name given to the
weekly or monthly payments which may be ordered on a decree of divorce, or nullity to be
made for the maintenance and support of the wife.

It also means that the other person who is getting the maintenance should be able to live the
life as he or she lived before marriage in case of divorce and in case where the two partners
are not living together and they seek maintenance than the spouse getting maintenance should
be able to live a life as when they lived together. At this point of time I would also like to
mention that according to my understanding maintenance not only includes basic necessities
like food, clothing and residence but it also includes the things necessary for comfort and
status in which the person entitled is reasonably expected to live. According to me the main

1
David Pearl, A Text book of Muslim Law, Croom Helm, London, 1979 21.
2
Article 225 of the Constitution of India.
3
Muslim Personal Law (Shariat) Application Act, 1937.

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aim of providing maintenance is that the wife should not be left destitute on separation or
divorce from her husband.

Prior to the amendment, as per section 125 Cr. P. C, maintenance clause is applicable only to
the ‘Wife’ and therefore the husband started taking shield that the divorced women is no
more his wife and henceforth not entitled for any maintenance. Then the legislature amended
this section and inserted an explanation which clarifies that ‘wife’ includes divorced wives
too.

However, the husbands used another shield to protect themselves from the liability of
maintaining their wife which was available under section 127(3) Cr. P.C., which says that if a
woman, gets any customary payment after divorce then husband will not be responsible for
her maintenance. In numerous cases, it was held that ‘Maher/Dower’ is the sum mentioned
under sec 127 (3) but I do not agree with this point because maher is something which is to
be given by the husband as a mark of respect as agreed during the time of Nikaah.

MAINTENANCE OF WIFE
In the case of maintenance during the continuance of the marriage, if a wife is validly married
then her husband would be liable for her maintenance even if she can maintain herself or
when the husband is poor. This is subject to the following conditions:

 the wife should have attained an age at which she can render conjugal rights to the
husband;
 except for some reasonable cause, she should be accessible for sexual intercourse; and
 Except for some reasonable cause, she should reside with the husband and obeys his
all reasonable demands.

In this case, the wife is entitled to maintenance, except where the divorce is the result of her
own misconduct, till the date of the expiry of the period of iddat or the date of
communication of the divorce to her, whichever is later but not after that.

According to the percepts in Quran and the traditions, maintenance of the wife is the duty of
the husband. In some cases even the wife is entitled to a separate apartment for herself.
According to Abu Hanifa and Muhammad, a husband, in certain circumstances, is liable to
maintain one servant of the wife. But, according to Abu Hanifa, a poor husband is not

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required to maintain the servant of the wife. According to the Shafei law, the husband even
though he is poor is under a duty to maintain a servant for his wife.

The wife is absolutely entitled to get maintenance from the husband even though she may
have means to maintain herself4, and the husband may himself be without any means. The
obligation to maintain the wife cannot be shared.

MAINTENANCE IN PART
The Mulla’s Muhhamedan Law has stated as follows:

“ 278. Order for maintenance – If the husband neglects or refuses to maintain his
wife, without any lawful cause, the wife may sue him for maintenance, but she is not entitled
to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she
may apply for an order of maintenance under the provisions of the Code of criminal
Procedure, 1898, s. 488, in which case the court may order the husband to make a monthly
allowance in the whole of her maintenance not exceeding five hundred rupees.”5

According to Shafai law, a wife is entitled to past maintenance though there may be no
agreement. In the Madras High court decision in the matter of Mohammad Haji v.
Kalimabi6, a Division Bench consisting of Abdur Rahim and Srinivasa Ayyangar, JJ.,
held:

“That in Shafei law the wife is entitled to recover arrears of maintenance, though not
due under a decree of court or mutual agreement, contrary to the Hanafi Law, admits no
doubt. For according to the theory of the former system, maintenance is a debt and not in the
nature of a gratuity as is the doctrine of Hanafi lawyers.”

The Madras Decision quotes the following passage of Hedaya7 as the rule of Hanafi Law on
the subject:

“If a length of time should elapse during which the wife has not received any
maintenance from her husband, she is not entitled to demand any for that time except when
the Kazee had before determined or decreed it to her..”

4
Said Ahmad v. Sultana Bibi; AIR 1943 Pesh. 73
5
Mulla, Mohammedan law, 18th Ed., at p.300
6
AIR 1918 Mad. 722
7
(Hamilton Vol. I, p. 398)

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CONDITIONS OF MAINTENANCE
The right of the wife to maintenance depends on the following conditions:

1. THE WIFE MUST BE CAPABLE ON ENTERING INTO MATRIMONIAL

RELATIONSHIP- If the wife is minor i.e. she has not attained maturity then she will
not be entitled to maintenance. The Hanafi Law and the Shia law also proposed the
same but according to the Shafei Law, it makes no difference whether the wife is
minor or not.
2. THE WIFE MUST BE ACCESSIBLE FOR CONJUGAL INTERCOURSE – if
the husband is unable to have sexual intercourse with his wife because of any act or
conduct of the wife, then the husband is not liable to maintain her. In the case where
the wife is residing at a place other than her husband’s home and which is preventing
the husband from having sexual intercourse with her, then in that case the husband is
not liable to maintain her wife. And is she makes unjustified refusal to stay with her
husband, then also she is not entitled to maintenance.8

But where the wife is an adult and the husband is a child or if the husband is
sick or impotent, she would be entitled to maintenance. The reason for this is, if the
husband is impotent and unable to discharge his marital obligations, how could he
fulfil the main object of marriage, more particularly, under the Mohammedan Law
where the marriage is a sacrosanct contract and not a purely religious ceremony as in
the case of Hindu Law. 9

3. SHE MUST OBEY THE REASONABLE COMMANDS OF THE Husband - the

wife should obey all the commands of her husband which can be considered as just
and reasonable. If the wife leaves the husband’s place without his permission she will
lose her right of maintenance. 10 The wife is under a duty to obey the reasonable
commands of the husband.

8
Ali Akbar v. Fatima Begum, AIR 1929 Lah 902
9
Sirajmohmedkhan Janmohammadkhan v. Hafizunnisa Yasinkhan, AIR 1981 SC 1972
10
Aamir Ali, Mohammedan Law, Vol. II, at p . 419

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MAINTENANCE AFTER DISSOLUTION OF
MARRIAGE
The wife is entitled to maintenance only when the marriage is in continuance but not during
the term of natural life.11 As a general rule, a husband is bound to maintain her wife as long as
she is faithful to hum and obeys his reasonable orders, but she will not be entitled to past
maintenance until there is an agreement to the contrary.12

DISSOLUTION OF MARRIAGE BY DEATH -Where the marriage is dissolved as a

result of the death of the husband, then in that case the widow is not entitled to maintenance
either during iddat or even though she is pregnant. 13 Shia Law has also proposed the same
thing.

DISSOLUTION OF MARRIAGE BY DIVORCE – Where the marriage is dissolved as a

result of divorce, then in that case the wife is entitled to maintenance irrespective of the fact
that the divorce is a revocable one or an irrevocable one, or, whether the wife is pregnant or
not.14 In this case the wife is entitled to maintenance only till the expiry of iddat, or till the
communication of the divorce. However, if the divorce is a result of the misconduct of the
wife then she is not entitled to maintenance during iddat.

The wife is also entitled to sue for interim maintenance at the place where she resides at the
time of the divorce and receives notice thereof.15

Under Hanafi Law, a wife is entitled to maintenance on divorce during the iddat; but under
Shafei and Shia Law, a wife is entitled to maintenance only when the divorce is revocable;
but if the wife is irrevocably divorced then she will be entitled to maintenance only when the
wife is pregnant.16

DISSOLUTION OF MARRIAGE BY APOSTASY – where the marriage is dissolved in

the ground of apostasy of the husband the wife would be entitled to maintenance during iddat
but not in the case where she herself had apostatized. In the case where the talaq was
revocable and the woman apostatizes during iddat, then also she will not be entitled to

11
Abdool Fateh v. Zubinissa, ILR 6 Cal. 631
12
Mohammad Ali v. Fareedunissa, AIR 1970 A.P. 298
13
Agha Mohd. Jaffar v. Koolsom Babi, ILR 25 Cal 1 (PC)
14
Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25
15
Mohd. Ibrahim v. Jaithoon, AIR 1951 Mad. 831
16
Mohd. Tyabji’s, Mohammedan Law, 3rd. Ed. at p. 322

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maintenance but if the talaq was irrevocable and she returns to faith, then she would be
entitled to maintenance. Shia Law says that, if a wife returns back to faith then her right of
maintenance would revive immediately even though the husband was absent.

MAINTENANCE WHEN DUE

The court may direct the husband to pay daily, monthly or even annually or as may be most
convenient to him. Under Shia and Shafei law, maintenance is payable from day to day.

QUANTUM OF MAINTENANCE

The condition of both the husband and wife should be taken into consideration while
determining the quantum of maintenance.

In the case of Khwaja Ali v. Smt. Fatmabi17, the husband nominated a sharer in General
Provident Fund, Gratuity, Insurance, etc. The court held that there would be no reduction in
the quantum of punishment since the quantum of maintenance can only be determined by
considering the condition of the husband and not by any other person.

In a case where a poor husband became rich, the court then altered the amount of
maintenance initially fixed by it. Under the Shia Law, the quantum of punishment is decided
by taking the requirements of a wife into consideration. Under Shafei Law, the quantum of
punishment is determined by considering the post of husband.

ARREARS OF MAINTENANCE

Under Hanafi Law, a wife is not entitled to recover arrears of maintenance unless there is an
agreement to or a decree passed by the court.

According to Shafei school, maintenance due to a wife is a debt and not in the nature of a
gratuity and in all cases the wife is cannot be precluded from claiming such maintenance.

MAINTENANCE UNDER AN AGREEMENT

If there is an agreement between the wife and the husband that in case of any ill-treatment or
disagreement, etc., the agreement would be considered as valid and the wife would be
entitled to maintenance.

17
1987 (I) DMC 374

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 It has been held that an application on future separation between the husband and
the wife is bad and thus the agreement providing that the husband would give maintenance to
the wife in the event of future separation on the desire of the wife or mere disagreement is
opposed to public policy and would be void 18. Also, an agreement in the marriage that the
wife would not be entitled to maintenance is void.

Even the agreements made with third parties are enforceable and it doesn’t matter that
whether they are made before or after the marriage. Thus, an agreement with the mother-in-
law providing for an allowance for mewakhori (it is a custom in Muslim families to fix a
personal allowance for females, this is called kharch-i-pandan, or allowance for mewakhori )
is enforceable19.

In one of the remarkable judgement, Mohd. Muin-ud-din v Jamal Fatima20, the Allahabad
High Court has amply clarified the legality or otherwise of ante-nuptial agreements between
husband and wife or their guardians.

In sharp contrast to the decision of Bai Fatma v Ali Muhomed Aiyeb21 is the case of Mansur
v Azizul22. In this case, an arrangement between a Muslim and his first wife made after his
marriage with a second wife providing for a certain amount of maintenance for her if she
could not in future get on with the second wife was held not void on the ground of public
policy.

In all such cases, the key consideration is that the agreement for future should not be opposed
to public policy or Muslim law. Thus an agreement for future separation between husband
and wife and providing maintenance to wife is bad in law. Similarly is the case of an
agreement that the wife would not be entitled to maintenance.

Nevertheless, agreements to provide betel allowance (karch-e-pandan) or allowance for dry

fruits (mewa khori) are valid and binding. These are not opposed to public policy, and thus
such agreements even entered into by guardians of minor parties to a marriage are valid and
binding on the husband.23

18
Bal Fatima v. Ali Mohd. , ILR 37 Bom 280
19
Sikandar Ara v. Hasan Ara, AIR 1936 Oudh. 196
20
(1921) 43 All 650
21
(1928) 3 Luck 603
22
Ibid
23
http://jurisonline.in/2008/03/law-of-maintenance-in-india/

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HUSBAND CONTRACTING SECOND WIFE – WHETHER FIRST WIFW IS
ENTITELD TO MAINTENANCE?

The explanation to Section 125(3) provides that if a husband continues has contracted with
another wife or keeps mistress it shall be considered as a just ground for his wife’s refusal to
live with him. Even where a husband takes another wife with the permission of his wife then
also refusal of the wife to live with the husband is a just ground for claiming maintenance and
also she need not to prove the neglect on the part of her husband. 24 In the case of Badruddin
v Aisha25 that where husband has married a second wife or keeps a mistress, the wife may
refuse to live with the husband and still claim maintenance from him.

MAINTENANCE OF MUSLIM WIFE UNDER S.125 OF CRPC

Under section 125 of Cr. P. C, 1973 26, 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.

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 the matter of Bai Tahira v. Ali Hussein
Fidaalli Chothia27.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.
24
Abdul Gaffar v. Bibi Hafeeza Khatoon, AIR 1968 Pat. 307
25
1957 All LJ 300
26
Section 125 of Code of Criminal Procedure - Order for maintenance of wives, children and parents.
27
AIR 1979 SC362

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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 the case of Mst. Zohara Khatoon v. Mohd. Ibrahim28the 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 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.

MUSLIM WOMEN (PROTECTION OF RIGHTS ON

DIVORCE) ACT 1986
The Muslim Women (Protection of Rights on Divorce) Act (hereinafter referred to as the
Act) was passed after the controversial Shah Bano case to once and for all settle the rights of
a Muslim woman on divorce. The Preamble to this Act says that ‘an Act to protect the rights
of Muslim women who have been divorced and further to provide for matters connected and
incidental thereto.’

28
1981 Cr LJ 754

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Section 3 of the Act entitles a divorced woman to:

1. reasonable and fair provision

2. maintenance to her
3. provisions and maintenance to her children for two years
4. mehr amount and
5. all properties given to her before or at the time of and after her marriage

Out of these, the ‘provision’ and the ‘maintenance’ are to be ‘made and paid to her within the
iddat period by her former husband’. The vague wording of this law lead to controversy when
the court was asked in the matter of Arab Abdulla v Arab Bail Mohmuna Saiyadbhai29,
whether the liability of the husband was restricted only to the iddat period. In this case the
petitioner had appealed against the order of the magistrate ordering him to pay Rs 250 per
month to his divorced wife under section 125.

The petitioner’s case was that in terms of Section 3(1) (a) of the Act, the maintenance
allowance was payable within the iddat period, which implied that it was to be paid only
during the iddat period and not beyond rejecting this contention, the court pointed out that the
act nowhere specified the period for which she was entitled to get maintenance, nor did the
act provide that it was for iddat only.

Basically the court interpreted Section 3 to state that the maintenance for the entire course of
her life should be paid within the period of iddat thus reducing the iddat to be a deadline
rather than a limitation to pay maintenance. The court further stated that the Section 4, which
allows the woman to approach the Wakf boards was only in addition to the maintenance from
the husband, if she needed further support. On the issue of Section 5 the court stated that the
husband cannot choose between the Code (Code of Criminal Procedure) or the Act as in such
matters, the husband would never abide by the Code and that would be unacceptable. The
Court further held that Section 7 of this Act in no situation whatsoever repelled or restricted
Section 125 or 127 of the Code of Criminal Procedure.

The Kerala High Court went against this decision and held in the case of Abdul Gafor Kunju
v. Pathumma Bevi30 that the Act was a special law and it is to be considered over the general
law that is the Code of Criminal Procedure. The Court stated that the only reason Section 125
and 128 has not been repealed is because they apply to other people as well. The court held
29
AIR 1988 Guj 141
30
(1989) 1 KLT 337

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that the Act restricts Section 125 of the Criminal Procedure Code as the object and reasons of
the Act were to specify a divorced woman’s rights and not to add to the rights given under
Sections 125 and 128.

There is no consensus over this decision of the Gujarat High Court which can be labelled as
liberal at the very least. The other courts such as the High Court of Andhra Pradesh 31, Kerala
High Court32, Madhya Pradesh High Court33, Guwahati High Court34 and the Calcutta High
Court35 have not consented to the view of the Honourable Gujarat High Court and have held
the interpretation of section 3 to restrict maintenance only till the Iddat period.

The Calcutta High Court adopted a softer stand in the matter of Shakila Parveen v Haider
Ali36 and agreed with the Gujarat High Court decision; this was reinforced by a decision of
the full bench of the Bombay High Court in the case of Karim Abdul Rehman Shaikh v.
Shehnaz Karim Shaikh37.

Similar decisions have also been made in various other cases such as Haron Rashid v.
Raqueeba Khatoon38, Majitha v Beevi v. Yakoob39 and lastly in Nizar v Hyrunnessa40.

In the landmark case of Shah Bano Begum v. Mohd. Ahmad Khan, it has led to some
controversy as to the obligation of the Muslim husband to pay maintenance to the divorced
wife. 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 were
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
31
Usman Khan Bahamani v Fathimunnisa Begum, 1990 Cri. LJ 1364 AP HC
32
Ali v Sufaira, (1988) 3 Crimes 147
33
Rafiq v. Farida BI 2000 (2) MPWN 77 MP, Julekha v. M.Fazal 2000 (1) Vidhi Bhaswar 123 MP
34
Begum v Fazar Ali, (2001) 3 Gau Law Reports 576
35
1992 Cri LJ 147
36
2000(1) CLJ 608
37
2000 (3) Mh LJ 555
38
(1997) 1 BLJR 93
39
1999 (1) KLT 796
40
Ibid

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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.
Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman
is entitled to at the time of divorce and to protect her interests.

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.

The restrictive interpretation of Section 3 of this act was put under the scanner by the Hon’ble
Supreme Court of India in the matter of Danial Latifi v. Union of India41, where the court
held that:

“If the construction of Section 3 is under question, the construction that does not
make it ultra vires should be considered. The Muslim Women (Protection of Rights on
Divorce) Act, 1986 was a codification of the Shah Bano 42 decision and not against it in
anyway. The Act therefore guaranteed the right of a divorcee to claim maintenance under
Section 125 of the CrPC.”

While upholding the validity of the Act, the Supreme 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. 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 and it was concluded that:

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
41
(2001) 7 SCC 740
42
Infra note ----

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 her children and parents. If any of the relatives being unable to pay maintenance, the
Magistrate may direct the State Wakf Board established under the Act to pay such
maintenance.

The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India
as a comparison of these provisions with Section 125 Code Of Criminal Procedure will make
it clear that requirements provided in Section 125 and the purpose, object and scope thereof
being to prevent vagrancy by compelling those who can do so to support those who are
unable to support themselves and who have a normal and legitimate claim to support is
satisfied.

Even under the Act, the parties agreed that the provisions of Section 125 Code of
Criminal Procedure would still be attracted and even otherwise, the Magistrate has been
conferred with the power to make appropriate provision for maintenance and, therefore, what
would be earlier granted by a Magistrate under Section 125 Code of Criminal Procedure
would not be granted under the very Act itself. This being the position, the Act cannot be
held to be unconstitutional.

Also, in the case of Shabana Bano v. Imran Khan,43 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.

CONCLUSION
To conclude, I would like to state that as per my hypothesis, I have looked into the various
provisions available to Muslim wives for maintenance. Each case is certainly different and
the Muslim wife is closely linked to the provisions of the Criminal Procedure code for her
right of maintenance. It is seen that over a period of time, the condition and availability of

43
AIR 2010 SC 740

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maintenance has greatly increased and the laws of maintenance have begun to bend to the
needs of the women, who are unfortunately marginalized in our society.

The reform in maintenance law has been more the work of the judiciary in case of
interpretation of the Muslim Woman’s act and Cr. P. C. The judiciary has played an
important part in allowing Muslim woman maintenance after the iddat period and at all times
keeping the provisions of Cr. P. C separate and available to destitute women.

The legislation has also in the recent past joined in with the judiciary of finally redressing the
problems of wives by removing the ridiculous limit of Rs500/- per month on section 125 of
the CrPC.

It is my view and hopes that this trend continues in this direction and finally come to a point
where the man and woman can stand at equal footing in all matters of family decisions and
privileges.

BIBLIOGRAPHY

PRIMARY SOURCES

STATUTES

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 The Code of Criminal Procedure, 1973
 Muslim Women (Protection of Rights on Divorce) Act, 1986

SECONDARY SOURCES

 Muslim Law of Mariage and Succession in India, S.A. Kader, Eastern Law House,
Calcutta, 1998
 Outlines of Muhammadan Law, Asaf A. A. Fyzee, 4th Edition, Oxford University Press,
New Delhi, 2005
 Syed Khalid Rashid’s Muslim Law, 4th Edition, Eastern Book Company, Lucknow, 2006
 Asaf A.A. Fyzee, Cases in the Muhammadan Law of India, Pakistan and Bangladesh,
Second edn, edited and revised by Tahir Mahmood, Oxford University Press, New Delhi,
p. 161
 M Hidayatullah and Arshad Hidayatullah (eds), Mulla’s Principles of Mahomedan Law,
19th edn, Twenty First Reprint, 2010, p.241.
 Tahir Mahmood, The Muslim Law of India, Third edn, LexisNexis (A divison of Reed
Elsevier India Pvt Ltd), New Delhi, p.120

ONLINE ARTICLES/E-JOURNALS/ WEBSITES

 http://supremecourtofindia.nic.in/FileServer/2015-04-06_1428310549.pdf
 http://www.csss-isla.com/wp-content/uploads/2015/06/July-16-30-y2k.pdf
 https://www.ijhsss.com/files/Taranam-Siddique_h3ncq829.pdf
 http://www.helplinelaw.com/family-law/MWRM/muslim-women-right-to-maintenance-
us-125.html
 http://www.legalserviceindia.com/articles/hmcp.htm

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