Maintenance under the Muslim personal

law
Under the Muslim Personal Law, the law states that the husband who has divorced his wife
has to provide maintenance for her during the period of Iddat. The Hedaya defines
maintenance as “All those things which are necessary to support life, such as food, clothes
and lodging; may confine solely to food.” The Fatwa-i-Alamgiri defines it as “Maintenance
comprehends food, raiment and lodging, though in common parlance it is limited to the
first”.

So, in common practice, the maintenance only covers the expense of providing food to the
wife. The Muslim Personal Law only mandates that the husband needs to maintain his wife,
and not a divorced wife. After divorce, he only requires to maintain her for the Iddat period.
Usually, the payment of dower is considered to be enough maintenance for the wife.

The law of maintenance in the Muslim Personal Law has evolved through various cases in
the following manner-

In the case of Bai Tahira v. Ali Hussain[14], it was held that since the dower amount comes
under the meaning of the term ‘sum payable’ as given under Section 127(3)(b) of the CrPC,
so a woman who has already received it is not entitled to further maintenance under Section
125 of the CrPC.

In the next case of Fuzlunbi v. K. Khader Vali[15], it was decided that only after judging
the sufficiency of the amount of mehr, will the husband be released from making any
further payments.

Then, in the light of the landmark case of Mohammed Ahmed Khan v. Shah Bano
Begum[16], it was finally cleared out that mehr does not come under Section 127(3)(b), as
it is an obligation on the husband and is paid as a mark of respect for the wife, and not the
amount payable to the wife on divorce.

After that, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed where
provided that reasonable and fair provision is to be made and maintenance is to be paid
within the iddat period.

The case of Danial Latifi v. Union of India[17] was then filed challenging the validity of the
above Act, where it was held that it was constitutionally valid, and though the maintenance
has to be paid within the iddat period, it must be enough to maintain her for her whole life.

Finally, in the case of Abdul Latif Mondal v. Anuwara Khatun[18], it was discussed that
since the objective of Section 125 of the CrPC was to prevent the woman from destitution,
and since it is speedier, so the Muslim women can still claim maintenance under Section
125 of the CrPC.
Comparison with CrPC
Muslim women can also claim maintenance under the CrPC. Unlike the Muslim Personal Law,
even divorced women are given the right to maintenance under the CrPC. It was a
controversy and a question of law as to whether the Muslim divorced women can claim the
right to maintenance under the CrPC, even after receiving the dower or not. This
controversy has been settled once and for all through the cases listed above.

Moreover, Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 also
provides that the parties can opt to be ruled by the secular law under Sections 125 to 128
of the CrPC, instead of the Muslim Personal Law. Thus, women can claim maintenance under
the CrPC or the Muslim Women (Protection of Rights on Divorce) Act, 1986.

The CrPC is a more appropriate recourse in this scenario as it provides for maintenance for
both married and divorced wives, unlike the personal law. Also, the quantum of
maintenance is more reasonable under the secular law, whereas just the payment of mehr
is considered to be enough under the personal law. Furthermore, in CrPC, the maintenance
is for life, whereas under the personal law, it is only till the Iddat period.

Maintenance under the CrPC

Maintenance under the CrPC is secular in nature, as any woman belonging to and practicing
any religion or faith can approach the Court under this. The law of maintenance is given
under the Sections 125-128 of the Criminal Procedure Code, and is civil in nature. Under
this Section, maintenance can be claimed by the wife, children and parents. Section 125 to
128 provide for a speedy, effective and rather inexpensive remedy against persons who
neglect or refuse to maintain their dependant wives, children and parents.[1]

In this research project, the focus is solely on the wife of the person. According to (b) part
of the Explanation to the Section 125, the term “wife” includes a woman who has been
divorced by, or has obtained a divorce from, her husband and has not remarried. So the
provision for maintenance under this section extends to a divorced wife also, and not only a
married wife.

This law, though secular, is gender specific in one aspect. Maintenance under this law can
only be claimed by the wife, and not by the husband. The interpretation of the word “wife”
also needs to be looked into. According to the Supreme Court judgment in Savitaben
Somabhai Bhatiya v. State of Gujarat[2], the term “wife” appearing in Section
125(1) means only a legally wedded wife. But, in the recent judgments of D. Velusamy v. D.
Patchaiammal[3] and Chanmuniya v. Virendra Kumar Singh Kushwaha[4] the Supreme
Court ruled that in cases where the woman who was in a marriage-like relationship, will
though not be considered to be a legally wedded wife under Section 125, can still claim
maintenance under the Protection of Women from Domestic Violence Act, 2005.
So, with such great emphasis on the wife being a legally wedded wife, what happens to the
second wife, in religions that only allow monogamous relationships? This question will be
dealt with in the next chapters of this research paper.

Maintenance means to financially support one spouse to another. But it not only limits one's spouse but also to
support his or her children or parents. In india there are various laws related to maintenance like maintenance
under Hindu marriage Act 1955, maintenance under Hindu Adoption and maintenance Act 1956, Maintenance
under Muslim personal law, maintenance under Muslim women ( protection of rights on Divorce ) Act 1986,
special marriage Act 1954, Domestic Violence Act 2005, Parsi Act, Christian Act etc. Maintenance is a most
essential requirement if the spouse or parents or children are not capable of maintaining himself or herself and
another party from whom maintenance claimed is capable to maintain them.

Maintenance Under Code Of Criminal Procedure

We see in above that there are numbers of personal law under which Maintenance can be claimed, but by that
person who belongs that on whose these personal law applicable like for example : under Hindu law only Hindu
can claim for maintenance and under Muslim personal law only Muslim can claim for maintenance and under
special marriage Act, only that person who have done inter-religion marriages etc. Like this. And a Hindu can
not claim maintenance under Muslim nor Muslim can claim in Hindu personal law.

So finally we come to the CrPC ( code of criminal procedure 1973 ). Under Code Of Criminal Procedure
1973 there are also provisions related Maintenance From Section 125 to 128. Maintenance under CRPC is
secular in nature and it is applicable to all irrespective of their religions. So under Section 125 of CRPC any
person belongings from any religion like Hindu, Muslim, Parsi, Jew, Christian etc can claim for maintenance
under this Section.

Who Can Claim For Maintenance Under Section 125 Of Crpc?

 Under Section 125 of CRPC following persons are entitled to claim maintenance.
 Wife who is unable to maintain herself.
 Legitimate or Illegitimate child unable to maintain itself.
 Father or mother unable to maintain himself or herself.

Maintenance Of Wife Under Crpc

Under crpc a wife can claim for maintenance and she can from any religion because CRPC is applicable to all
religions. But under CRPC a husband can not claim for maintenance under this Act.

The word wife under this Section includes a divorced woman and legally wedded wife. The woman must be
legally wedded by her own personal law or divorced. Second wife or wife from void marriages is not entitled to
get maintenance under this Section but there are a few circumstances where she is entitled to get
maintenance.
The second wife is entitled to get maintenance under section 125 of crpc when the man conceals from her, his
first marriage and she was unaware at the time of marriage that he has a living spouse. The second wife is
entitled to get maintenance under these circumstances.

The wife must be incapable to maintain herself if she is financially independent or she is earning much then she
can not claim for maintenance from her husband but if she is unable to maintain herself and neglected by her
husband to maintain then she can claim for maintenance.

When Wife Can Not Claim For Maintenance?

Section 125 ( 4 ) of CRPC says that No wife shall be entitled to get maintenance, if she is living in adultery, or
she refuses to live with her husband or they are living separately by mutual consent or do remarriage. But this
must be proved by the husband to whom the maintenance is claimed.

Amount Of Maintenance?
Section 126 ( 3 ) of CRPC says that The court in dealing with application under Section 125 shall have power
to make such order as to costs as may be just.

Important Guidelines Related To Maintenance

There is a leading case which is Rajneesh V. Neha, In this case the Supreme Court laid down some guidelines
for determining maintenance in matrimonial disputes. The Two judges Bench Justice Indu Malhotra and Justice
Subbha Rao gave some guidelines.

Before determining the amount of maintenance the court should consider the financial status of the both
Parties.
The court should check the educational background of the parties.
The court should order to the both parties for filing an affidavit in which they will give their details about their
assets and liabilities.

The court should also check the physical and mental health of the parties.
The court also determines whether the parties have sufficient means to maintain her or not.

Maintenance Of Children Under Crpc?

Under CRPC a legitimate or Illegitimate minor child or a child who is major but unable to maintain itself by any
physical or mental disability or a divorced daughter can claim for maintenance from his or her father under this
section.

Here the word minor means, a person has not attained the age of 18 year's and the word illegitimate child
means that he or she is born out from live-in relationship or concubine.

Maintenance Of Parents Under Crpc

So here in CRPC, parents also claim for maintenance if they are unable to maintain himself or herself. Parents
can claim for maintenance from his or her daughter or son. Daughter is also liable to maintain her parents.
Here in parents words also includes stepfather or stepmother or adoptive father or adoptive mother. If
stepmother is childless then she claim for maintenance from her step son or step daughter but if she has own
daughter or son then step-son or step daughter will not liable to maintain her.

Who Will Entertain Maintenance Petition Under Crpc?

A maintenance petition under crpc will be entrained by a magistrate of first class, and if this petition is entrained
by a judicial magistrate who is below this rank or not empowered by law then that will be considered as
irregularities under Section 461 ( g ) of CRPC.

Comparison Of Maintenance Of Crpc With Muslim Personal Law

A Muslim women can claim for maintenance in these law.
Muslim personal law
Muslim women protection of rights on Divorce Act 1986

Under CRPC
Under crpc a Muslim women can claim for maintenance if she is incapable to maintain herself after the iddat
period. There is a leading case which is Mohd. Ahmad Khan V. Shah Bano Begum, in this case there was
issue whether a Muslim women claim for maintenance under Section 125 of crpc or not?

Then five judges Bench decided this case and C.J. Y.C chandrachud said that a Muslim women is entitled to
claim maintenance under Section 125 of crpc because of this section is in secular character and it applicable to
all religions. If whenever there is any conflict between Muslim Personal law and CRPC then in that time CRPc
section 125 will prevail over the personal law.

Conclusion
There are many provisions or laws related Maintenance but that's all. Crpc is more effective and speedy. And it
is secular in nature so anyone who have doubts regarding approach in their personal law and don't know in
which personal law they have to approach then for them CRPC is a best option.