Maintenance is the provision of financial support for a person’s living expenses, or the support so provided to ensure a reasonable standard of living. The object of maintenance provisions in the personal law as well as under the Criminal Procedure Code is to prevent destitution and save indigent wives or divorced women who have no means of sustenance from seeking sanctuary in the streets.
Muslim Law viciously considers male to be superior to the woman, dependent on her husband for her support and maintenance. Hence, in Muslim law, the wife has been conferred with an absolute right to be maintained and the husband is under an obligation to maintain her regardless of the fact whether she’s able or not. Wife’s right to maintenance is considered as a debt against the husband. However, the woman’s right to claim maintenance and husband’s obligation to maintain her wife exists only if the wife remains faithful to her husband and obeys all his reasonable orders.
Now, with the changing dynamics of the society and enhanced participation of women in all spheres of life, various provisions have been bestowed to a Muslim woman, empowering her to claim maintenance even beyond the Iddat period breaking free the age-old rigidities that existed in the personal laws.
Maintenance during Subsistence of Marriage
Under Muslim law, a husband is obliged to maintain his wife and family, and the term maintenance signifies the amount he is liable to pay for the same. The term used for maintenance
under Muslim Law is is called nafaqa and it comprehends food, raiment and lodging, The wife is entitled to maintenance from husband, despite the fact that she has means to maintain herself. In addition to this, the marriage contract may stipulate payment of special allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc. This can be claimed as a right.
The Three sources from which these rights emanate are:
1. Muslim Personal Law.
2. Section 125, CrPC.
3. The Muslim Women (Protection of Rights on Divorce) Act, 1986.
Obligation arising out of the status of marriage
It is settled position under the Muslim Law, that the husband is bound to maintain his wife. It is a mandatory provision of the Quran that a husband is bound to maintain his wife, irrespective of her being a Muslim or non-Muslim, young or old, enjoyed or unenjoyed, rich or poor. A Muslim husband is bound to maintain his wife of a valid marriage, and not the wife of a void or irregular marriage.
Pertinently, the husband’s obligation to maintain his wife exists so long as the wife remains faithful to him and obeys all his reasonable orders. However, a wife can claim maintenance even if she disobeys her husband, if:
(i) The husband keeps a concubine,
(ii) The husband is guilty of committing cruelty towards his wife
(iii) The marriage cannot be consummated owing to his illness, malformation, his absence from her without her prior permission or the husband has still not attained the age of puberty.
Maintenance under the Criminal Procedure Code, 1973
Section 125 of the code is a measure of social justice and enacted especially to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 393. Section 125 of Crpc is available to all neglected wives, or discarded or divorced wives, belonging to any religion, community or nationality or having any domicile, against her husband. Under Muslim Law, a woman is entitled to maintenance only during her iddat. However, under Section 125 of the CrPC, a woman including a Muslim woman can claim maintenance even after the expiry of iddat period.
Expression ‘iddat period’ has been defined in Section 2 (b) of the Muslim Women (Protection of Rights on Divorce) Act 1986 as, in the case of a divorced woman –
(i) Three menstrual courses after the date of divorce, if she is subject to menstruation (ii) (ii) Three lunar months after her divorce, if she is not subject to menstruation; and (iii) If she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy, whichever is earlier.
The Apex Court in Bai Tahira v. Ali Hussain Fissali Chotia1, asserted the position that a Muslim woman who is married under Muslim personal laws is entitled to claim maintenance from her husband after the expiry of iddat period even after receiving the dower money.
11979 AIR 362
Shah Bano Begum Vs Mohammad Ahmed Khan2 In this revolutionary judgement, the Supreme Court observed in the matter relating to the
Muslim husband’s liability to maintain his wife beyond “iddat period”, who is not able to maintain herself that the said provision is secular in character and is applicable to all religions. Clause (b) of Section 125(1) contains no words of limitation so as to justify the exclusion of Muslim women from its ambit.
However, this revolutionary judgement of the Apex Court created a lot of hue and cry amongst the Muslim fundamentalists which were truly intended to protect the interests of Muslim women from oppression, and compelled the Central government to enact a legislation nullifying the said judgement.
Maintenance under Muslim Women (Protection of Rights on Divorce) Act 1986 To water down the stringent principles enunciated by the Apex court in Shah Bano judgment, passed against the Muslim husband in contravention to the established Personal laws with regard to maintenance of a divorced wife, the legislators enacted a new law to govern Muslim divorce provisions i.e. Muslim Women (Protection of Rights on Divorce) Act 1986. This act was enacted in the backdrop of the Shah Bano case and attempted to restrict the application of Section 125 of Crpc regarding the maintenance of divorced Muslim wife. Protection to the divorced wife
Sub-section (1) of Section 3 of the said Act lays down that a divorced Muslim woman is entitled to:
(a) A reasonable and fair provision and maintenance to be made and paid to her within the iddat
2 1985 AIR 945
period by her former husband;
(b) Where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
(c) An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim law; and
(d) All the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends. In case on divorce, the husband has failed to secure any of the above, the wife or her authorized agent may sue the husband by making an application before the Magistrate for necessary orders.6 In case the Magistrate is satisfied that compliance with the aforesaid have not been made by the husband, he will make an order, within one month of the date of filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of his life enjoyed by her during her marriage and the means of her former husband, or as the case may be.
Maintenance to Muslim divorced woman until her remarriage
The Apex court in Danial Latifi v. Union of India3, has held that in terms of Section (3) (a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which also includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period 3 ((2001) 7 SCC 740 : 2001 CriLJ 4660) must be made by the husband within the iddat period in terms of Section 3 (1) (a) of the Act. The court further held that the liability of Muslim husband to his divorced wife arising under Section 3 (1) (a) of the Act to pay maintenance is not confined only to the iddat period. A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period is entitled to claim maintenance under Section 4 of this act from her relatives who are entitled to her property after her death. If her relatives are not able to maintain her then, in that case, the Magistrate may direct the State Wakf board established under the Act to pay maintenance.
Further, Section 5 of the Act provides an option to a divorced woman and her former husband to prefer and chose whether they want to be governed by the provisions of Section 125 to 128 of the CrPc and not by the provision of the said Act by submitting an affidavit or a declaration in writing in this behalf to the Magistrate.
Conclusions and Suggestions
Thus, to ensure protection to Muslim women from being strangled within the rigidities of personal laws, it has time and again been reiterated by the Supreme Court that Muslim woman is entitled in law to lead a life in the same manner as she would have lived in the house of her husband at par with a Hindu woman under Section 125 of the Code of Criminal Procedure, 1973 which imposes legal obligation on all the husbands to maintain his wife throughout her lifetime and this provision is secular in character and applicable to all religions.
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