Assignment- Family Law 1

Topic- MAINTENANCE – PRE AND POST SHAH BANO CASE

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 CONTENT

SR NO. CONTENT PAGE NO.

1 INTRODUCTION 4

2 MAINTENANCE UNDER 5-7

MUSLIM PERSONAL LAW

3 CASE OF MOHD. AHMED 8-10

KHAN VS. SHAH BANO
BEGUM

4 BEFORE SHAH BANO 10

CASE

5 AFTER SHAH BANO CASE 11-12

6 CONCLUSION 13

7 BIBLIOGRAPHY 14

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 INTRODUCTION

In this assignment that is “maintenance pre and post Shah Bano Case” is a huge topic for
discussion which highlights the history and development of maintenance law which is governed
under the personal laws of each religion in India. Here, in this assignment we are going to
discuss about the development of maintenance under Muslim personal law in India. But first of
all it is important to understand the meaning of maintenance and how it effects the society. For
that we need to briefly discuss about the laws of maintenance given in each personal law in India
that is Hindu law, Parsi laws, Christian law and maintenance under section 125 of Code of
Criminal Procedure 1973. The information taken for the structuring of this assignment is from
various books, web sites, national and international journals etc. In the beginning, brief
introduction is given to frame the conceptual meaning and later on the discussion on the period
before and after the announcement of the landmark judgment of Shah Bano Case is given. In
the end, conclusion is given to give this assignment a proper coherent structure.

A person is entitled to basic amenities like food, clothing, shelter and other necessary
requirements to live a dignified life. Under the principles of social justice, it is the natural duty of
a man to provide these amenities to his wife, parents and children in the form of maintenance.
The maintenance law in India lays down the duty of a man to provide maintenance to his parents,
wife, and children when they are unable to maintain themselves. Maintenance in law is defined
as the amount which is paid to the dependent wife, child, or parents to maintain themselves. The
amount can be paid either by doing one lump sum payment or by way of monthly instalments.
Section 125 of the Code of Criminal Procedure, 1973 lays down the concept of maintenance in
India, along with the different personal laws that extend the right of maintenance to not only the
wife but also to her parents and children as well. Personal laws relating to maintenance in India
are applicable to people belonging to those religions, whereas the maintenance claim under
Section 125 of the CrPC can be filed by anyone regardless of religion or caste. Law of
maintenance in India lays down the procedure as to how to claim maintenance for a child in
India and also for a wife. Now we will discuss each in detail.

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 Maintenance under Muslim Laws
For the claim of maintenance of Muslim wife, the obligation is casted on the husband and this
obligation arises out of marital relationship. According to the ordinary sequence of natural events
the wife comes first. The wife is entitled to maintenance from her husband although she may
have the means to maintain herself and although her husband may be without means. Muslim
wife’s claim of maintenance is divided in two different branches of law. One under Muslim
Personal Law and another under general law of maintenance as is reflected in Code of Criminal
Procedure, 1973 which is a secular remedy. The husband’s duty to maintain commences when
the wife attains puberty and not before; provided always that she is obedient and allows him free
access at all lawful times. If a wife deserts her husband she loses her right to maintenance. In
addition to the legal obligation to maintain there may be stipulations in the marriage contract
which may render the husband liable to make a special allowance to the wife. Such allowances
are called kharch-e-pandan, guzara, mewa khore, etc1. If husband refuses to pay maintenance,
the wife is entitled to sue for it. Her right may be based on the substantive law, or she may sue
under the provisions of Code of Criminal procedure which provides for general law of
maintenance under Section 125 wherein the term “wife” is widely defined and explained so as to
cover the claim of legally wedded wife as well as of divorced wife. So in short Muslim wife’s
claim of maintenance arises in following circumstances:

1) Out of the status of Husband & Wife (During the subsistence of marriage & out of the legal
obligation imposed on the husband.)

2) Out of pre-nuptial agreement and

3) Out of divorce . (After dissolution of marriage)

With respect to maintenance of divorce wife, right of maintenance commences on divorce or

when she comes to know of the divorce and ceases on the death of her husband, for her right of
inheritance supervenes. In other cases where husband is alive and has divorced the wife, she can
claim maintenance only during the Iddat period and not beyond that. The widow is therefore not
entitled to maintenance during the Iddat of death. On this point there 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/law

1
Dr. Rakesh Kumar Singh, TEXTBOOK ON MUSLIM LAW, pg 182 (Universal Law Publishing Co., 2011 Edition)

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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, 197320

3) Muslim Women (Protection of Rights on Divorce) Act, 198621

 Claim of Maintenance during subsistence of marriage

A wife‟s right to be maintained by the husband has been recognized by all personal law in
varying degrees. So far as Muslim wives are concerned, the position is same. For a Muslim wife
to claim maintenance (during subsistence of marriage) following things must have fulfilled.

1) Marriage must be valid

2) Wife has attained puberty

3) Wife must be faithful and obedient to husband

 Claim of Maintenance out of Pre-nuptial agreement.

It is the prominent feature of Muslim Law that, wife is entitled to recover maintenance from her
husband on the basis of an agreement made between the spouse and or their guardian.
Agreements made between the parties are valid and enforceable. AT the same time wife is also
entitled to a special allowance known as Kharchi-ipandan, or Guzara or Mewa khori, if
stipulated in an agreement between the parties to the marriage or between their guardians, in case
of minor parties.2

If the divorced Muslim woman is unable to maintain herself after the period of iddat, the
Magistrate can order her relatives who will inherit her property, to pay maintenance to her as
deemed fit. When the children or relatives of the woman cannot pay maintenance to her, the
Magistrate can order the State Wakf Board established under the Wakf Act, 1995 to pay her
maintenance. 3

Claim of Maintenance after dissolution of Muslim marriage:

The rule that, after divorce, the wife is entitle to maintenance during the period of Iddat and until
her delivery if she is pregnant, is clear and has been a debated provision since many years. Often
judiciary encountered with the difficulty surrounding this rule which provides a minimum right
of maintenance as compared to the Hindu divorced lady. This rule has been a bone of contention
and on this count there has been a debate in a society as to uniformity of the personal laws.

2
Sikandar V/s Hassan, AIR 1936 Oudh
3
Maintenance under Muslim laws, India, available at: https://www.toppr.com/guides/legal-aptitude/family-law-
i/maintenance-under-muslim-
law/#:~:text=Under%20Muslim%20law%20in%20India,can%20maintain%20herself%20or%20not.( last visited on
17 may, 2022)

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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.
Following are the laws which are related to the aspect of providing maintenance after the
dissolution of marriage:

1. Muslim Personal Law

2. Section 125 of Code of Criminal Procedure, 1973

And

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

As discussed above, a wife’s right to be maintained by the husband has been recognized by all
personal law in varying degrees. So far as Muslim wives are concerned, the position is same. But
when comes to the claim of divorced wife is concerned, law is different on this issue. A Muslim
husband’s duty to maintain his divorced wife extends up to the period of Iddat and thereafter his
liability is over. Under other personal laws a divorced wife is entitled to maintenance until she
remarriages or indulges in post-divorce adultery. But the Muslim law does not provide for any
maintenance to a divorced wife after the period of Iddat. Muslim law as well as all the other
matrimonial Laws except Special Marriage Act, 1954) apply to persons only on the ground of
professing a particular religion and if all such Laws grant to the divorced wives such larger right
to post-divorce maintenance, but the Muslim law denies such right, the Muslim wives have
obviously been discriminated against and that too because of their professing Muslim religion
and such denial may be violative of Article 15 (1) of the Constitution of India.4

The main principles of maintenance may be recounted thus:

(i) A person is entitled to maintenance if he has no property,
(ii) is related to the obligor in prohibited degrees, or is the wife or child, and
(iii) the obligor is in position to support him. Though a person is under a greater
liability to maintain his wife, minor sons, unmarried daughters, mother, father,
father's father and father's mother, this obligation is also hedged by the factor of
their economic condition.5
There is a huge history related to Shah Bano judgment and maintenance in muslim law which I
will discuss further.

4
Wadje, Ashok, Maintenance Right of Muslim Wife: Perspective, Issues & Need for Reformation , pg-9. available at
SSRN: https://ssrn.com/abstract=1266018 or http://dx.doi.org/10.2139/ssrn.1266018 ( Last visited on 18 May)
5
Syed Khalid Rashid, Muslim Law, pg-179 ( Eastern Book Company, Lucknow , 5 th edition, 2009)

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 CASE OF MOHD. AHMED KHAN VS SHAH BANO BEGUM
Long back, in 1985, came the landmark judgment of the Supreme Court in the case of Mohd.
Ahmed Khan v.Shah Bano Begum6, which gave way to controversies in the Muslim world. The
appellant, who was an advocate by profession, was married to the respondent in 1932. Three
sons and two daughters were born of that marriage. In 1975 the appellant drove the respondent
out of the matrimonial home. In April 1978, the respondent filed a petition against the appellant
under Section 125 of the Code in the court of the learned Judicial Magistrate (First Class), Indore
asking for maintenance at the rate of Rs. 500 per month. On November 6, 1978 the appellant
divorced the respondent by an irrevocable talaq. His defense to the respondent’s petition for
maintenance was that she had ceased to be his wife by reason of the divorce granted by him, to
provide that he was therefore under no obligation maintenance for her, that he had already paid
maintenance to her at the rate of Rs. 200 per month for about two years and that, he had
deposited a sum of Rs. 3000 in the court by way of dower during the period the of Iddat. In
August, 1979 the learned Magistrate directed the Appellant to pay a princely sum of Rs. 25 per
month to the respondent by way of maintenance. The respondent filed a revisional application to
the High Court on July 1980. The High court of Madhya Pradesh enhanced the amount of
maintenance to Rs. 179.20 per month. The husband applied before the SC under special leave
petition.

Questions before the Supreme Court:

1. Does S. 125 of CrPC apply to Muslim women?

2. Does the Muslim Personal Law impose an obligation upon the husband to provide for the
maintenance of his divorced wife beyond the period of Iddat?

3. Is there any provision in the Muslim Personal Law under which a sum is payable to the wife
‘on divorce’ so as to bar payment of maintenance as per S. 127(3)(b) of CrPC?

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AIR 1985 SC 945

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 Reasoning

 Either Section 125 of the Code applies to Muslims and does the “WIFE” definition
includes a divorced Muslim woman or not?
The SC after referring to Section 125 of CrPC said that “The religion professed by a spouse or
by the spouses has no place within the scheme of these provisions. It would be irrelevant within
the application of these provisions if the spouses are Hindus, Muslims, Christians, Parsis,
pagans, or heathens. The rationale for this can be self-evident, in the sense that Section 125 is a
part of the CrPC, not of the Civil Laws which define and govern the rights and commitments of
the parties belonging to specific, religions, similar to the Hindu Adoptions and Maintenance Act,
the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted to provide a fast and
summary remedy to a category of persons who are unable to maintain themselves…” (Para 7)

“Clause (b) which is the Explanation to section 125(1), which defines ‘WIFE’ as including a
divorced wife, contains no words of limitation to justify the exclusion of Muslim women from its
scope. Section 125 is truly secular in character.” (Para 7)

Hence, the code applies to any or all religions including Muslims.

Para 9 of the judgment asserts that “’Wife’ means a wife as defined, irrespective of the religion
professed by her or by her husband. Therefore, a divorced Muslim woman, unless remarried, is a
‘wife’ under section 125 of the code. The statutory right available to her under it is unaffected by
the provisions of the personal law applicable to her.”

This clears the very fact that “Wife” includes divorced women too.

 Either Section 125 of CrPC overrides personal law or not?

The Court in replying to the present question gave the illustration of the Islamic Law concerning
polygamy: It is too well-known that “A Mahomedan may have as many as four wives at the same
time but not more. If he marries a fifth wife when he has already four, the marriage isn’t void,
but is irregular”. Subsequently, the court stated “The explanation confers upon the wife the right
to refuse to live together with her husband if he contracts another marriage, leave alone three or
four other marriages. It shows, indubitably, that section 125 overrides the personal law if is any
there conflict between the two.”

 Is there’s any disagreement between the provisions of Section 125 and those of the
Muslim Personal Law on the liability of the Muslim husband to provide for the
maintenance of his divorced wife?
Answering this proposition court stated- “The argument of the appellant that, according to the
Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is
prescribed only to the period of iddat, even if she is unable to maintain herself, has, therefore, to
be rejected. The true position is that, if the divorced wife can maintain herself, the husband’s
liability to provide maintenance for her ceases with the expiration of the period of iddat. If she is

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unable to maintain herself, she is entitled to take recourse to section 125 of the CrPC. The result
of this discourse is that there’s no strife between the provisions of section 125 and those of the
Muslim Personal Law on the question of the Muslim husband’s commitment to providing
maintenance for a divorced spouse who is unable to maintain herself.”

 Is
the payment of Mehar by the husband on divorce is adequate enough to exculpate
him of any obligation to pay maintenance to the wife?
Quoting the ruling given in Bai Tahira where Justice Krishna Iyer held that “…The payment of
illusory amounts (referring to ‘Mehar’) by way of customary or personal law requirement is to
be considered within the reduction of maintenance rate but cannot annihilate that rate unless it’s
a reasonable substitute.” (p.82, Bai Tahira), the SC in this case held “…there is no escape from
the conclusion that a divorced Muslim wife is entitled to apply for maintenance under section
125 and that, Mehar isn’t a sum which, under the Muslim Personal Law, is payable on divorce.”

The Court concluded that a divorced Muslim wife is entitled to apply for maintenance under
Section 125 and that, Mahr is not a sum which, under the Muslim Personal Law, is payable on
divorce. Also, the Court deliberated on the issues of Art. 44 of the Constitution which provide
for a uniform civil code, and regretted that it had remained in ‘dead letter’ and suggested that
efforts should be made to achieve the same.7

BEFORE SHAH BANO JUDGEMENT

As per theories of Muslim Law, they consider the man to be superior to the woman. They truly
believed that the woman is not at all capable to maintain themselves as they are directly
dependant on their husbands. In Muslim Law, the relation of husband and wife is considered as
the most important one. That relation exists only if the wife is faithful and obey her orders. In
Muslim law, the married women have the right to get maintenance from her husband even if she
refuses to access to her husband and cannot be consummated, but if she is too young and lives
with her mother and father she is not entitled to get maintenance.

Muslim law provides the right to wife to get maintenance if she lives separately due to the cruel
nature of her husband and non-payment of dower. But she cannot claim maintenance during the
widowhood or iddat. Prior the divorced women do not have the right to claim maintenance after
the period of iddat and gets the amount of mehr only. But the judgement given in the Shah Bano
case enables divorced women to get maintenance from her husband on reasonable ground and
from the family of the husband after his death.

7
Dr. Tahir Mahmood, ‘Muslim Personal Law’ , PG 200-202 (1977 Edition)

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Under Muslim law, Prior the divorced women do not have the right to claim maintenance after
the period of iddat and gets the amount of mehr only.8

AFTER SHAH BANO JUDGEMENT

The Judgment of the Shah Bano case begins with the words “This appeal does not involve any
question of constitutional importance”. Little did the Supreme Court perhaps realize at that time
that the judgment would spark a major controversy in the Constitutional history. After this
decision, nationwide discussions, meetings, and agitation were held. The then Rajiv Gandhi led
Government overturned the Shah Bano case decision by way of Muslim Women (Right to
Protection on Divorce) Act, 1986 which curtailed the right of a Muslim woman for maintenance
under Section 125 of the Code of Criminal Procedure. The explanation given for implementing
this Act was that the Supreme Court had merely made an observation for enacting the Uniform
Civil Code; not binding on the government or the Parliament and that there should be no
interference with the personal laws unless the demand comes from within.9

After the case of Shah Bano, came the landmark judgment of Danial Latifi and Anr. v. Union of
India10which challenged the constitutionality of the Muslim Women (Right to Protection on
Divorce) Act, 1986.The Solicitor general supported the Act by saying that personal law was a
legitimate basis for discrimination, and that therefore does not offend article 14 of the
Constitution. The All India Muslim Personal Law Board, as an intervener, defended the1986 Act
and stated that Section 4 of the said Act was good enough to take care of avoiding vagrancy of a
divorced Muslim woman, and that she need be dependent on her husband( As she can claim
maintenance from family, relatives& State Wakf Boards). The National commission for Woman
submitted that the court should adopt a broad interpretation of ‘reasonable and fair maintenance’,
failing which Constitutional guarantees maybe violated The Petitioners contended that Muslim
marriage is a contract and an element of consideration is necessary by way of Mahr or dower and
absence of consideration will discharge the marriage. On the other hand, Section 125 CrPC has
been enacted as a matter of public policy. Section 125 CrPC is part of the Procedural law and not
a civil law, which defines and governs rights and obligations of the parties belonging to a

8
Maintenance before Shah Bano Case, India, available at: https://www.legalserviceindia.com/legal/article-2026-
maintenance-changes-after-the-case-of-shah-bano.html ( last visited on 17 May, 2022)
9
Gauri Kulkarni, Uniform Civil Code, available at: http://www.legalserviceindia.com/articles/ucc.html (last visited
on May 18, 2022)
10
AIR 2001 SC 3948.

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particular religion. Thus there is a violation of not only equality before law but also equal
protection of laws and inherent infringement of Article 21 as well as basic human values.11 If the
object of Section 125 CrPC is to avoid vagrancy, the remedy there under cannot be denied to
Muslim women. The Act is un-Islamic, unconstitutional and it has the potential of suffocating
the Muslim women and it undermines the secular character, which is the basic feature of the
Constitution; that excluding the application of Section 125 CrPC is violative of Articles 14 and
21 of the Constitution. The Court upheld the constitutional validity of the Act and observed that
it does not violate the constitutional values since 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. The Shah Bano case was heavily criticized by the minorities. But on the whole the
judgment stands out as a landmark one and has been cited and analyzed by eminent jurists and
critics and is still being acknowledged by the same.

11
Kahkashan Y. Danyal, Muslim Law of Marriage, Dower, Divorce and Maintenance, pg-104(Regal Publications,
st
New Delhi, 1 edition, 2015)

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 CONCLUSION
From the above discussion about the laws of maintenance and judgment of Shah Bano Case we
can see how the change in laws help in the entire development of society. There will always be
difference of views and opinion whenever we will talk about the empowerment of women in the
society but these views should not become an impediment on the way of development as when
we empower women we empower the whole society. All these development in laws paves te way
for the idea of egalitarian society . This judgment has marked the significance of maintenance
which ought to be given to the divorced Muslim women who are not in the condition to earn and
maintain themselves. The judgment acknowledged the pitiable condition of woman who due to
the societal conditions never got the opportunity to be employed and maintain themselves. This
judgment of Shah Bano case strengthened the obligation of the constitution of idea which
guarantees right to life and dignity which is enshrined in Article 21 to each citizen of idea. This
dynamic society should always be ready to accept the change which is required for the
development of its citizen. The Shah Bano judgment pulled in a lot of opposition with
authoritative bodies being against the decision for the reason of it being against the provisions of
Islamic law, but SC passed the impartial judgment and at last, it had maintained the trust and
faith of citizens in the judiciary. Moreover , state must try to initiate developmental schemes and
awareness programs so that the women of this country can get accustomed to the laws which are
present for their betterment of their livelihood. State must try to incorporate the necessary
provisions of uniform civil code which is mentioned in article 44 which do not get in contrast
with the personal laws in order to remove ambiguity leading the society to better future. Hence,
from the entire discussion we can come to a conclusion that the judgment of Mohd. Ahmed Khan
vs Shah Bano Begum is one of the most important judgments in the history of India which lead
to the development and new provisions for the maintenance laws for muslim women. This
judgment was the first step which paved the way for other judgments like the case of Danial
Latifi case settles the law in favour of the divorced Muslim wife and vests her with a

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“constitutional right” to livelihood through maintenance. Therefore, we should always welcome
and must strive for new statutory provisions and judgments which will empower the women.

BIBLIOGRAPHY
BOOKS REFERED-

1) Paras Diwan, Family law,pg8( Allahabad law Agency, 6th edn. 2022)

2) Dr. Tahir Mahmood, ‘Muslim Personal Law’ , PG 200-202 (1977 Edition)

3) Khalid Rashid, Muslim Law, pg-179 ( Eastern Book Company, Lucknow , 5th
edition, 2009)

4) Kahkashan Y. Danyal, Muslim Law of Marriage, Dower, Divorce and

Maintenance, pg-104(Regal Publications, New Delhi, 1st edition, 2015)

5) Dr. Rakesh Kumar Singh, TEXTBOOK ON MUSLIM LAW, pg 182 (Universal Law
Publishing Co., 2011 Edition)

WEBSITES REFERED-

1) Laws relating to maintenance, India, available at:

https://www.myadvo.in/blog/laws-relating-to-maintenance-in-india ( last visited
on May 17, 2022)
2) Maintenance under Muslim laws, India, available at:
https://www.toppr.com/guides/legal-aptitude/family-law-i/maintenance-under-
muslim-
law/#:~:text=Under%20Muslim%20law%20in%20India,can%20maintain%20he
rself%20or%20not.( last visited on 17 may, 2022)
3) Maintenance before Shah Bano Case, India, available at:
https://www.legalserviceindia.com/legal/article-2026-maintenance-changes-
after-the-case-of-shah-bano.html ( last visited on 17 May, 2022)

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 4) Gauri Kulkarni, Uniform Civil Code, available at:
http://www.legalserviceindia.com/articles/ucc.html (last visited on May 18, 2022)

CASE LAWS REFERED-

1) AIR 1985 SC 945

2) AIR 2001 SC 3948
3) Sikandar V/s Hassan, AIR 1936 Oudh

JOURNAL REFERED-

1) Wadje, Ashok, Maintenance Right of Muslim Wife: Perspective, Issues &

Need for Reformation , pg-9. available at
SSRN: https://ssrn.com/abstract=1266018 or http://dx.doi.org/10.2139/ssr
n.1266018 ( Last visited on 18 May)

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