(C) MAINTENANCE UNDER THE MUSLIM WOMEN ACT, 1986

The Muslim Women (Protection of Rights on Divorce) Act, 1986 is the outcome of the
controversy that usurped the attention of the Muslim community all over India after the Shah
Bano Begum's case. Besides other provisions, this Act was enacted to negative the law laid
down in Shah Bano's case, in so far as divorced Muslim woman's claim of maintenance
beyond Iddat, is concerned.

The Act extends to the whole of India and makes provisions for the maintenance of a
divorced Muslim woman during and after the period of Iddat and also for enforcing her claim
to unpaid dower and other exclusive properties.

The Act is applicable to every such divorced woman who was married according to Muslim
law and has been divorced by, or has obtained divorce from her husband under the provisions
of Muslim law.

Thus, the Act is applicable to a woman who had contracted marriage according to the
provisions of Muslim personal law and her marriage dissolves through any of the kinds of
judicial or extra-judicial divorce recognised under Muslim law such as, Talaq, lla, Zihar,
Khula or Mubarat and also under the Dissolution of Muslim Marriages Act, 1939.

Relevant Provisions of the Muslim Women Act, 1986

(1) Maintenance During the Iddat. -The divorced woman is entitled to a reasonable and fair
amount of maintenance for herself during the Iddat period from her former husband. Section
3(1)(a).

Where the divorced woman herself maintains the children born to her before or after the
divorce, she is entitled to get a reasonable and fair amount from her former husband also for
the maintenance of the children till such children attain the age of two years. Section 3(1)(b).

(2) Maintenance After the Iddat. —

The divorced woman who remains unmarried after the Iddat, and is unable to maintain
herself, is entitled to get maintenance from her such relatives who would inherit her
properties upon her death. In the absence of any of such relatives or, where they have no
sufficient means, then, ultimately the liability to maintain her is cast upon the Waqf Board
of the State in which she resides.
Section 4(1) of the Act provides that where the Magistrate is satisfied that a divorced woman
has not remarried and is not able to maintain herself after the Iddat period, he may make an
order directing such of her relatives as would be entitled to inherit her property on her death
according to Muslim law, to pay a reasonable amount to her.
Where the divorced woman has children, the Magistrate shall order on such children to pay
maintenance to her, and in the event of any such children being unable to pay such
maintenance,

the Magistrate shall order the parents of such divorced woman to pay maintenance to her.
First Proviso to Section 4(1).

The Act further provides that if any of the parents is unable to pay his or her share for want of
sufficient means, the Magistrate may order that his or her share in the maintenance ordered
by him be paid by such other relatives who have means of paying the same. Second Proviso
to Section 4(1).

While ordering for the amount of maintenance to be paid to a divorced woman, the liability
of the relatives to pay maintenance shall be in proportions of their respective shares in her
property.

The Magistrate may specify also the duration upto which the relatives are required to pay
maintenance to such divorced woman.

Section 4(2) provides that where a divorced woman who is unable to maintain herself, has no
relatives as mentioned above or, where such relatives (or any one of them) have no enough
means to pay maintenance, the Magistrate may, by order, direct the State Waqf Board
(established under the Waqf Act, 1954 or under any law for the time being in force in the
State) to pay such maintenance as determined by him or, as the case may be, to pay the shares
of such relatives who are unable to pay at such periods as he may specify in his order.

It is significant to note that under the Muslim Women Act, 1986, the Waqf Board may be
made liable to maintain a divorced Muslim woman, only where she has no parents,
children or other relatives or, where such persons are unable to maintain her.

Therefore, the normal procedure is that order for maintenance be issued first to the above-
mentioned persons under Section 4 (1) and on their being unable to maintain her, ultimately
to the Waqf Board under Section 4 (2).

But, in Secretary Tamil Nadu Waqf Board v. Syed Fatima Nachi, AIR (1996) SC 2423.

The Supreme Court has held that where the circumstances suggest that relatives mentioned
above are unable to maintain the divorced woman, she is entitled to plead and prove in one
proceeding, the inability of these relations by directing her claim against Waqf-Board in the
first instance.

The Court observed that she is not required to proceed first against her each relative
successively 'in order to obtain negative orders justificatory to the last resort' and then finally
to initiate proceeding against Waqf Board.
(3) Option of Section 125 Cr.P.C.

This Act does not totally bar the application of Sections 125 to 128 of the Criminal Procedure
Code, 1973. The Muslim Women Act, 1986 has now made the operation of Sections 125-128
of the Criminal Procedure Code optional in respect of the Muslim women.

Section 5 of the Act provides that, on the date of the first hearing of the application if the
divorced woman and her former husband declare by affidavit or any other declaration in such
form as may be prescribed, either jointly or separately, that they would prefer to be governed
by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973, and file
such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose
of such application accordingly.

(4) Cases Pending Under the Criminal Procedure Code. -

Section 7 of this Act lays down that every application by the divorced woman under Section
125 or 127 of the Code of Criminal Procedure, 1973, pending before a Magistrate on the
commencement of this Act, shall be disposed of by such Magistrate in accordance with the
provisions of this Act, provided the parties have not opted, under Section 5 of this Act, that
they want their case to be decided under the Criminal Procedure Code.

(5) Orders Already Passed Under Cr.P.C.—The orders already passed for maintenance
under Section 125 of the Cr.P.C. are not affected. The Muslim Women Act, 1986 is not
retrospective. Thus, the maintenance allowance granted to a divorced Muslim woman under
Section 125 Cr.P.C. before commencement of the Muslim Women Act, shall continue even
beyond the period of Iddat.

Constitutionality of the Muslim Women Act, 1986

Danial Latifi and others v. Union of India 2001 (8) S.C. 218.
The constitutionality of the Muslim Women Act, 1986 had been challenged in the Supreme
Court of India. A verdict was given by the Supreme Court upholding the validity of this
controversial Act in the case.

The Supreme Court dismissed the writ petitions challenging the validity of the Muslim
Women Act, 1986. Upholding the validity of the Act, the Apex Court arrived at the following
conclusions and held as under:

(1) The former husband of a divorced Muslim wife is liable to make a reasonable and fair
provision for the future of such 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 also within the Iddat period in terms of Section 3(1)(a) of the Act.

(2) Liability of Muslim husband towards his divorced wife to pay maintenance is not
confined to Iddat period. It would extend to the whole life of the divorced wife unless
she gets married for a second time.

(3) A divorced Muslim woman who remains unmarried 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 including her children and parents. If any of the relatives or, children or parents
being unable to pay maintenance, the magistrate may direct the State Wakf Board to pay such
maintenance.

(4) The provisions of the Muslim Women Act, 1986 are not violates of Articles 14, 15 and 21
of the Constitution of India. Elaborating the reasons for each of the above-mentioned points
in its judgement, the Supreme Court made the following observations:

"A careful reading of the provisions of the Act would indicate that a divorced woman is
entitled to a reasonable and fair provision for maintenance. It was stated that Parliament
seems to intend that the divorced woman gets sufficient means of livelihood, after the
divorce, and therefore, the word 'provision' indicates that something is provided in advance
for meeting some needs .... ...... . Reasonable and fair provision may include provision for her
residence, her food, her clothes 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 filing 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."

Dwelling upon the decision in the Shah Bano's case and its impact on this Act, the Supreme
Court observed that:

“As on the date the Act came into force the law applicable to Muslim divorced women is
as declared by this Court in Shah Bano's case .............All that needs to be considered is
whether in the Act specific deviation has been made from the personal laws as declared by
this Court in Shah Bano's case without mutilating its underlying ratio. We have carefully
analysed the same and came to the conclusion that the Act actually and in reality,
codifies what was stated in Shah Bano's case.”
Further, while explaining its viewpoint on the related issues under Section 125 of the
Criminal Procedure Code, the relevant provisions of the Muslim Women Act, 1986 and the
Constitutionality of the Act, the Apex Court observed thus:

"This Court in Olga Tellis v. Bombay Municipal Corporation (1985 (3) SCC 545] and
Maneka Gandhi v. Union of India (1978 (1) SCC 248), held that the concept of 'right to life
and personal liberty' guaranteed under Article 21 of the Constitution would include the right
to live with dignity'.

Before the Act, Muslim woman who was divorced by her husband was granted a right to
maintenance from her husband under the provisions of Section 125 Cr.P.C. until she may re-
marry and such a right, if deprived, would not be reasonable just and fair. Thus, the
provisions of the Act depriving the divorced Muslim Women of such a right to maintenance
from her husband and providing for her maintenance to be paid by the former husband only
for the period of iddat and thereafter to make her run from pillar to post in search of her
relatives one after the other and ultimately to knock at the doors of the Wakf Board,does not
appear to be reasonable and fair substitute of the provisions of Section 125 of Cr.P.C.

Such deprivation of the divorced Muslim women of their right to maintenance from their
former husbands under the provisions of Cr.P.C. which are otherwise available to all other
women in India, cannot be stated to have been effected by a reasonable, right. just and fair
law and, if these provisions are less beneficial than the provisions of Chapter IX of the Code
of Criminal Procedure a divorced Muslim woman has obviously been discriminated and got
out of the provisions of the general law as indicated under the Code which are available
to......................... Women belonging to any other community."

Therefore. 'the provisions of the Act, prima facie may appear to be violates Article 14 and
also violative of Article 15 of the Constitution as the Act would obviously apply to Muslim
divorced women only and solely on the ground of their belonging to Muslim religion. It is
well settled, that on a rule of construction if a given statute will become ultra vires' or,
'unconstitutional' and, therefore, void, whereas another construction which is permissible,
the statute remains effective and operative, the court will prefer the latter on the ground that
legislature does not intend to enact unconstitutional laws. We think, the latter interpretation
should be accepted and, therefore, the interpretation placed by its results in upholding the
validity of the Act."

Accordingly, the writ petitions challenging the constitutional validity of the Act were
dismissed and the Muslim Women (Protection of Rights on Divorce) Act was held
constitutional and valid.

MAINTENANCE OF THE WIDOW

The wife's right to claim maintenance from husband ceases as soon as her husband dies. After
the husband's death the widow is not entitled to maintenance even during her period of Iddat.
Husband's liability to maintain his wife is his personal liability which comes to an end upon
his death.

She is neither entitled to be maintained by relatives of her husband, nor out of her husband's
properties. Section 125, does not include 'widow' in the term 'wife' therefore, a widow has no
right to claim maintenance also under the Criminal Procedure Code, 1973.

In Aga Mohammad Jaffer v. Koolsoom Bibi, the Privy Council observed that under Muslim
personal law, a widow is not entitled to get maintenance out of the properties of her deceased
husband even during her Iddat.

MAINTENANCE OF THE CHILDREN

Father is the legal guardian of his children. Therefore, it is the father who is primarily
responsible for the maintenance of his male and female children. Under Muslim law, a father
is under an obligation to maintain his son till the son attains puberty.

Under the Criminal Procedure Code, 1973, a son is entitled to claim maintenance upto the
age of eighteen years. But the father is not bound to maintain his adult son unless such a son
is infirm or disabled and is unable to maintain himself. Under Muslim law, the father is liable
to maintain his daughter till she gets married. The father is liable to provide maintenance also
to his widowed or divorced daughter if she is unable to maintain herself.

Maintenance of Children Under Muslim Women Act, 1986

It is significant to note that under Section 3(1) (b) of the Muslim Women Act, 1986, a
divorced Muslim woman is entitled to claim maintenance from former husband also for
children under her custody, for a period of two years.

In other words, this section has limited Muslim father's liability to maintain his children born
from his divorced wife only upto the period of two years. Thus, such children would be
entitled to claim maintenance from their father only for two years.

But, Section 125 Criminal Procedure Code 1973 provides that children (belonging to every
community including Muslims) are entitled to be maintained by their father till they attain the
age of majority (18 years) or, until they become competent to maintain themselves.
Therefore, apparently there appears to' be a conflict between the provisions of these two
enactments. However, the law relating to Muslim children's right of maintenance from their
father is clear.
As regards, maintenance of children after the dissolution of their parent's marriage is
concerned, under Section 125 of the Criminal Procedure Code, such children are entitled to
be maintained by father till they become adult (18 years).

Their right to be maintained by father till they attain majority is their separate right which is
not dependent on their mother's claim of maintenance from her former husband. Under
Muslim Women Act, 1986 maintenance of such children by father is limited upto two years
under the special circumstances. But, after this period, father's liability is not
extinguished; it continues till the children attain majority.

Noor Saba Khatoon v. Mohd. Quasim, AIR (1997) S.C. 3280:

The Supreme Court has held that the obligation of a Muslim father, having sufficient means,
to maintain his minor children, unable to maintain themselves, till they attain majority and in
case of females till they get married, is absolute, notwithstanding the fact that the minor
children are living with the divorced wife.

In this case, the question arose as to whether the rights of maintenance of the children (of
divorced-couple) under Section 125 of the Criminal Procedure Code would be affected by
their rights under Section 3 (1) (b) of the Muslim Women Act, 1986?

Explaining the law on this point, the Supreme Court held that minor children's right to
be maintained by father under Section 125 Cr.P.C. is not, in any way, affected,
restricted or controlled by their right of maintenance under Section 3 (1) (b) of the
Muslim Women Act.

Maintenance of Illegitimate Children

Father is not the legal guardian of his illegitimate children. He is, therefore, under no
obligation to maintain his illegitimate son or daughter. A Muslim is not bound to maintain his
illegitimate issue under his personal law.

According to Hanafi law, an illegitimate child is entitled to maintenance from its mother. But
according to Ithna Asharia school of Shia law, the illegitimate child is not entitled to
maintenance either from father or from the mother.

However, a father whether Muslim or non-Muslim, is under an obligation to maintain

his illegitimate children under the Criminal Procedure Code, 1973.
MAINTENANCE OF THE PARENTS

Under Muslim law, the children are bound to maintain their necessitous parents and grand-
parents. The Islamic principle is that as the children have right to be maintained by their
parents, they have also a corresponding duty to provide maintenance to their parents, if need
be so.

Rules of Muslim law, relating to the maintenance of parents may be stated as under:

(1) The children are bound to maintain their parents only if they are in easy circumstances
and the parents are poor. In other words, only needy parents are entitled to get maintenance
from their children. By easy circumstance is meant a circumstance in which a person need not
depend on begging for his livelihood. On the other hand, a person is needy or necessitous if
he has to beg for his livelihood.

(2) Sons and daughters, both are equally liable to maintain their parents.

(3) If a child is in a position to support only one of its parents, the mother gets priority over
father. But, under the Ithna Asharia Shia law, the child may distribute the maintenance
allowance between father and mother equally, if both of them are needy.

(5) If the children are unable to support their parents separately, they may be compelled to
take their parents with them and to live together.

(6) A son is not bound to maintain his step-mother. Thus, he is not bound to maintain that
wife of his father who is not his own mother.

Maintenance of the Grand-Parents

The children are bound to provide maintenance to their paternal or maternal grandparents if
the grand-parents are poor and need support for their livelihood. But the grand parents are
entitled to maintenance from their grand-children only in the absence of their own children.

Thus, grand-parents are not entitled to maintenance from grand-children if they have their
own children.

Statutory Provisions for the Maintenance of parents.

Under Section 125 of the Criminal Procedure Code, 1973, provision has been made also for
the maintenance of parents.
MAINTENANCE OF RELATIVES

When any of the parents and children fail to provide maintenance to a person in need, his
collaterals are responsible to support him. The Muslim law of maintenance of relatives is
based on the principle of reciprocity.

The relatives, who are entitled to inherit the properties of a person, have a corresponding
obligation to maintain them in case such person is poor and the relative is in the easy
circumstances. No person who is without means, is under any obligation to maintain any
collateral relation.

However, the obligation to maintain a relative arises only when a person is within the
prohibited degrees by consanguinity (blood relationship) of the person claiming maintenance.

Secondly, such relative is liable only to the extent of his or her share (through
inheritance) in the properties of the person maintained.

Shia law. -Under the Shia law, collaterals are not entitled to any maintenance.

Recovery of Maintenance Allowance Granted Under the Cr.P.C.

The Muslim Women Act, 1986 provides for the maintenance of only divorced Muslim
Woman.

It does not deal with maintenance of wife, parents and other dependants. Accordingly,
the maintenance of Muslim wife, parents and other dependants is still being governed by
Sections 125-128 of the Criminal Procedure Code, 1973.

The making orders of maintenance under Section 125 is not sufficient. It is the realisation or
recovery of the amount ordered for immediate relief which actually helps necessitous
claimant.

The Criminal Procedure Code provides that if the person ordered to pay maintenance fails to
give the amount, the Magistrate may issue warrant against him and recover the amount in a
manner provided for levying fines.

Failing this too, the Magistrate may sentence him to imprisonment. See Section 125 (3) of
the Criminal Procedure Code, 1973. But the question is whether imprisonment of the
person liable to pay maintenance would give any relief to applicant who is in urgent
need of money? In other words, whether by undergoing imprisonment the person liable
would become free from his duty to pay?
In Kuldip Kaur v. Surinder Singh, AIR (1989) S.C. 232.

The Supreme Court held that a person who without reasonable cause refuses to comply with
the order of the court to maintain his neglected wife or child, would not be absolved of his
liability merely because he prefers to go to jail. The Supreme Court observed that sentencing
a person to jail is a mode of enforcement and not a mode of satisfaction. The liability is
satisfied only by making actual payment.

It is submitted that this judgment of the Supreme Court, dealing with the problem of recovery
of maintenance allowance, has a far-reaching effect and would help regular recovery of
maintenance allowance to wife and children including Muslim wife and the children.