CHAPTER 1

INTRODUCTION

The Indian state has in fact encouraged the codification of customary laws. But there

are inherent problem with codification of costmary laws has historically evolved and are still

changing. Article 44 of The Indian Constitution provides that it is the responsibility of the

state to secure a Uniform Civil Code for all citizens of India. There is no Uniform Civil Code

(Personal Procedure Code) in India but we have a criminal code and civil procedure code

which is uniformly applicable on every individual irrespective of his/her religion.

However in the case of civil law particularly in the matter of personal laws there is no

uniformity. The law is relating to marriage, divorce, maintenance, guardianship and

succession governing the Hindus, Muslims and Christians etc., is different and varies from

one religion to other. This study is made for discussing about uniform laws for maintenance

of wife (women) with the various judgments of the Supreme Court of India on the concerned

issue. Here we will discuss those judgment of the Supreme Court in which the court had let

down some rules for the maintenance of women in the name of Uniform Civil Code which

will be uniformly irrespective of every religion

1. Statement of Problem:

a) To look into origin and concept?

b) Necessity to give uniform law for maintenance to wife?

c) What is the significance of uniform law of maintenance? Its effect?

d) Effect of breach of maintenance under uniform code?

e) What should be the quantum of maintenance to wife?

f) How Judiciary of India has responded to the uniform law for the maintenance

to wife?

1
 2. Objective of the Study:

a) The objectives of study the concern topic are:

b) To feel the need of Uniform Civil Code in present day of society.

c) To secure the interest of a married women.

d) To through light on the importance of Uniform Civil Code irrespective of any

religion.

e) To establish unity among the deferent religion.

f) To provide the judiciary a Uniform Code relating the personal dispute.

g) To understand the meaning of uniform civil code, how the definition of ‘wife’

has been given in several law and how judiciary interpreted the meaning of

maintenance to wife.

h) To understand the legal framework on various religious laws related to the

maintenance.

i) How the Indian courts have looked upon the issue of applying Uniform civil

code in the whole country related to maintenance to wife.

3. Research Methodology:

The researcher, in this work, has relied mainly on the Doctrinaire Method of research,

which involves the collection of data from primary and secondary sources. The descriptive,

comparative and Analytical style of writing has been used in this study.

In this work, secondary/ doctrinal method of research has been applied. The

researcher has mainly depended on the primary sources like Statutes, Regulations, and

2
Committee reports and secondary sources such as books, commentaries and articles found in

Journals, magazines, periodicals, newspaper reviews and websites.

4. Hypothesis:

India got her Independence 67 years before, but still, because of multi-faceted society

consisting of several religions; it has been difficult for the country to adopt a Uniform Civil

code unlike other nations in the world. As far as rights of maintenance to wife by the husband

are concerned, separate religious laws creates hurdle to the courts in India while deciding the

issues relating maintenance. So, a Uniform Code is an urgent need in the era of modern

dynamic society.

5. Research Scheme:

The present study is an attempt to discuss the uniform law for maintenance of wife

under the uniform civil code in the present day context, from national perspective. The

research topic is codifying “Uniform Law for Maintenance of Wife”, which aims to give an

analysis of the law relating to regulation of maintenance of wife in India. The discrepancies

associated with the modes of regulating it have also been discussed. Also, the impact of the

uniformity in code has been analyzed and discussed in detail. The researcher has tried to

discuss and explain these issues in different chapter headings. This paper consists of six

chapters and the brief overview of the chapters is as follows for the purpose of clarity and

convenience of the reader –

Chapter 1 deals with the “Introduction” part. In this chapter, the researcher has given

a brief overview of his complete research particularly focusing upon uniformity in law for

3
maintenance of wife. The researcher also discussed the methodology applied to do the

complete research.

Chapter 2 deals with the conceptual aspects and deep information of meaning and

definition for wife, maintenance and uniform civil code. Maintenance in various law in India

and also discussion upon nature of maintenance.

Chapter 3 of this research paper deals with the legal framework for maintenance of

wife in various laws in India.

Chapter 4 of this research paper deals with the judicial decision and judgments.

Chapter 5 of this research paper mainly discusses the special reference of Shah Bano

Begum Controversy.

Chapter 6 talks finally about the Conclusion, Recommendation and Suggestion found

suitable by the researcher after extensive research on the need for codified uniform law or

maintenance of wife in the country and further, in this last chapter of Dissertation the

researcher suggested the measures to tackle the problems or issues related to the protection

which will certainly help if included as clauses in the new codified law in the Indian Legal

regime.

4
 CHAPTER 2

CONSEPTUAL ASPECTS

1. Meaning and Definition:

(A) Wife: ‘Wife’ means only a legitimate wife1or legally wedded wife2 and therefore

a marriage proved illegal cannot give a wife any right to get maintenance 3 .

Executing a registered document and making a declaration therein that the

executant would live as husband and wife, would not confer upon them the status

of husband and wife. As factum of legal marriage is not been established by such

agreement and, therefore, the woman is not entitled to maintenance 4 . Where

marriage is denied by husband, the factum of marriage should be properly proved.

Marriage cannot be proved by few cursorily made statements the second wife is

not entitled to get maintenance5. But maintenance was granted to a second tribal

wife by the Orissa high court6. The Orissa High Court refund maintenance to the

claimed wife as her marriage could not be corroborated by any evidence.

However, her regiment child was held entitled to maintenance7. The standard of

proof that the parties to the proceedings are validly marriage is not as high as in a

prosecution under sec. 494, 495, 497, or 498 of the penal code8. Therefore, it was

held by the Bombay high Court that once the marriage was admitted by the

husband and all ceremonies of marriage were performed, The Court could not go

1
Savithramma(smt) v. Ramanarasimhaiah (1963) 1 Cr LJ 131
2
Yamunabai v. Anantrao (1988) Cr. LJ 793: AIR (1988) SC 644
3
Ishawar Singh v. Smt. Hukam Kaur AIR (1965) (All.) 464
4
Punnakkal Sreedharan v. Vellali Padmini (1992) Cr LJ 3562(Ker.)
5
Yamunabai v. Anantrao (1988) Cr. LJ 793: AIR (1988) SC 644
6
Anupama Pradhan v. Sultan Pradhan, (1991) Cr.LJ 3216(Ori.)
7
Kshitish Chandra Mishra v. Sara Sahu, (1996) Cr. LJ 2235 (Ori.)
8
Jalandhar Gorakh v. Sobha, (1972) 74 (Bom) Cr LR 755

5
 into the question legality of the marriage and the wife was guaranteed

maintenance 9 .But the burden of proof is prima facie on the applicant 10 . The

section applies only to an abandoned wife and not to abandoned mistress 11. The

wife includes a woman who obtains divorce by mutual consent12. The wife right to

maintenance is not absolute. Her separate income, if any will be taken into

consideration13. A husband cannot ask a divorced wife to come and reside with

him as a condition precedent to the payment of maintenance. The words “refusing

to live with the husband without a sufficient cause” or “living separately by

mutual consent” in sub sec. (4) and (5) of sec.125 are applicable to wife whose

marriage is subsisting and not in the case of wife as defined in Expl. (b) of sec.

125(1) 14 . A divorced wife who has not remarried, has to live separately, the

question of living separately with mutual consent does not arise. Acceptance of

any lump-sum payment by the wife in divorce proceedings does not mean

relinquishment of claim for maintenance in future. She was held entitle to

maintenance15.

Definition of ‘wife’ cannot be stretched to include the nullity the marriage as

envisaged by sec. 11 or sec. 12 of the Hindu Marriage Act. It is confined to

divorce only16.

9
Malan v. Balasaheb, (1989) Cr LJ 675 (Bom)
10
Vithabai Laxman, (1972) 75 (Bom.) Cr.LR 447
11
Madhavan v. Munir, (1955) (Mad) 457
12
Kongini Balan v. M Visalakshy, (1986) Cr LJ 697 (Ker)
13
K.M.Nagapmallappa v. B.J. Lalitha, (1985) Cr. LJ 1706 (Ker)
14
Velukutty v. Prasannakumari, (1985) Cr. LJ 1558 (Ker.)
15
Molya Bai v. Vishram Singh, (1992) Cr. LJ 69 (MP)
16
K. Shivarama v. K. Bharathi )1986) Cr. LJ 317 (AP)

6
 (B) Maintenance: “Maintenance” means appropriate food, clothing, and lodging17.

However the word not be narrowly interpreted. Where constant expenditure is

essential to be made by the wife for keeping herself in fit state of health, some

reasonable amount towards the same can be include in sum awardable under this

section18. The Rangoon High Court had held that ‘maintenance’ must include the

minimum amount for education of a child which the convention of country call

for. In a civilized state a human child cannot be maintain simply by providing it

with clothing and food. In the present state of society the mere maintenance of

body is not sufficient; provided has to be made for child’s developing mind and

conscience 19 . The former Chief Court of Sind had also taken a similar view.

Maintenance is a statutory right of the wife20. Offer of a Muslim husband, who has

taken a second wife, to maintain the first wife on condition that she live with him

cannot be considered to be bona fide offer. In such a case the husband will be

considered to neglect or refused to maintain the first wife21.

(C) Uniform Civil Code: The idea of the Uniform Civil Code (UCC), a common set

of family laws for all Indian citizens, often invokes emotional reactions in all

quarters. It is seen either as a ready-made and available solution for all of India's

ills as regarding personal laws, or as a futile enterprise. But this paper works on

the premise that there is more to the UCC, than these reactions and opinions. The

question is not of minority protection, or even of national unity, it is –simply one

of treating each human person with the dignity that he deserves; something which

17
Arunchala v. Annandayammal, (1933) 56 (Mad) 913
18
Ramanlal v. Shantaben, AIR (1968) (Guj) 171
19
Maung Shwe Ba v. Ma Thein Nya (1938) (Ran) 673
20
Ranjit Kaur v. Pavittar Singh (1992) Cr. LJ 262 (P&H)
21
Chand Begam v. Hyderbaig, (1972) Cr LJ 1270

7
 personal laws have so far failed to do. Taking a purely legal angle, the right to a

UCC is constitutionally guaranteed to every individual in India by the operation of

Art 44 of the Constitution, But which organ of the State is mandated to give effect

to this promise, has its fulfilled this mandate? It is this legal angle that this paper

takes a look at, specifically with respect to these legal aspects as expressed in the

legal developments regarding.

2. Nature of Maintenance:

The whole concept of maintenance was introduced in order to see that if there is a

spouse who is not independent financially than the other spouse should help him/her in order

to make the living of the other person possible and independent. Providing maintenance

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. Maintenance is the amount which a husband is

under an obligation to make to a wife either during the subsistence of the marriage or upon

separation or divorce, under certain circumstances. 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 live22. According to me the main

aim of providing maintenance is that the wife should not be left destitute on separation or

divorce from her husband. In a laymen’s term maintenance are those things which are

indispensable for the survival of human being.

22
Arunchala v. Annandayammal, (1933) 56 (Mad) 913

8
 The most important aspect of maintenance is that the party which relies on

maintenance has no independent source of income to support himself/herself. The main point

we have to focus on in independent income. Should the spouse who is claiming maintenance

have movable or immovable property, the spouse can still claim maintenance if the property

does not yield any income.

The quantum of maintenance and the expenses of the proceedings have not been

specified in any of the Indian Matrimonial statutes except the Divorce Act. The court can fix

the maintenance at any amount, depending on its discretion. When deciding the quantum of

maintenance to be awarded, the court takes into account the income of both parties, their

status and other circumstances. When the wife applies for maintenance, the onus is on the

husband to declare his income.

The persons who are entitled to maintenance under the Hindu Adoptions and

Maintenance Act (HAMA), 1956 are wife, widowed daughter-in-law, children, aged parents

and dependents as enumerated in Section 21 of the Act23. Whereas, under the Muslim law,

the persons entitled to maintenance are wife, young children, the necessitous parents, and

other necessitous relations within the prohibited degrees24. The Muslim Law of maintenance

is based on the Muslim personal laws and the law enactments such as the Indian Majority

Act, 1875, the Criminal Procedure code 1973, Muslim Women (Protection of Rights on

Divorce) Act, 1986.

23
Banshidhar v. Chhabi, A.I.R.(1967) Pat 277; Smt. Savitharamma v. Ramanavasimhaiah, (1963) 1 Cr. LJ 131;
K.K. Nath v. Bala Nath, (1989)Cr. LJ (NOC) 194 (Gau).
24
Md. Tajiddim v. Quamarunnisa Begum, (1989) Cr. LJ 2285 (AP).

9
3. Types of Maintenance:

There are two types of maintenances:-

1. Interim maintenance and maintenance pendente lite

2. Permanent maintenance

The interim maintenance is payable from the date of presentation of the petition till

the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to

meet the immediate needs of the petitioner. And maintenance pendente lite is for providing

the litigation expenses to the claimant. Interim maintenance is the amount that is paid by the

financially independent spouse to their counterpart during the pendency of the proceedings in

the matrimonial cause and which covers the expenses of the proceedings as well as the other

expenses of the spouse during the course of the proceedings. The basis of the claim for

interim maintenance is that the claimant has no independent income of his/her own to support

himself/herself. The provision is silent on the quantum of maintenance and it is upon the

discretion of the court to determine the quantum.

Section 24 provides of Hindu Marriage Act, 1955 (HMA) provides for maintenance.

It talks about how either the wife or the husband can claim for interim maintenance. The

interim maintenance is payable from the date of presentation of the petition till the date of

dismissal of the suit or passing of the decree. Interim maintenance is supposed to meet the

immediate needs of the petitioner. And maintenance pendente lite is for providing the

litigation expenses to the claimant.

Interim maintenance can be claimed either by the husband or the wife, under the

Hindu Marriage Act and the Parsi Marriage and Divorce Act and is called “Alimony

Pendente Lite.” Under all other statutes, the wife is the only spouse who can claim

10
it25. Section 36 of the Divorce Act of 1869 says that the wife may file a petition for interim

maintenance, regardless of who instituted the suit and whether the wife obtained an order for

protection. It also says that the petition for the expenses of the proceedings and alimony

pending the suit should be disposed of within sixty days of the service of the petition on the

husband.

Permanent maintenance, on the other hand, is the maintenance that is paid by one

spouse to the other after the judicial proceedings have resulted in either the dissolution of the

marriage or a judicial separation. Section 25 of the act talks about permanent maintenance. It

states that how the court can order the respondent to pay the applicant for her or his

maintenance a gross sum or a monthly or periodical sum for a term not exceeding the life of

the applicant unless there are changes in circumstances under which the court can change its

order.

25
Shail Kumari Devi and anothers v. Krishna Bhagwan Pathak, (2008) 4 Cr. LJ 3881 (SC).

11
 CHAPTER 3

LEGAL FRAMEWORK

1. Article 44 of the Constitution of India:

The constitution recognizes the continued existence of Personal Law, which is why

Article 44 expects that India at some later date will have a uniform civil code. Article 44

expressly mandates the government to introduce a uniform civil code, which would include

such items as marriage, inheritance and divorce. Which were the main protections granted to

Muslims in their personal law? The continuing controversy of Article 44 of the Indian

constitution and its calls for a Uniform Civil Code have not receded over time, nor has there

been any attempt to amend the constitution1. The basic question has been whether Article 25

of the same constitution which guarantees "right to freedom of conscience and free

professions, practice and propagation of religion.” The ‘father of the Indian constitution’, Dr.

Ambedkar, speaking about Article 44 and its calls for a uniform code, observed “It is

perfectly possible that the future Parliament may make a provision by way of making a

beginning that the Code shall apply only to those who make a declaration that they are

prepared to be bound by it, so that in the initial stage the application of the Code may be

purely voluntary.” Dr. Ambedkar was clear in his feeling that the state had the power to

legislate over the Personal Law but he also cautioned “No government can exercise its power

in such a manner as to provoke the Muslim community to rise in rebellion.” There is an

inherent contradiction in India, a problem that has not been solved. Among all the problems

of the vast diverse, overcrowded country lies the inherent problem any country deals with

1
Jain, M.P. Outlines of Indian Legal History. London, 1966.

12
when it has a significant Muslim minority, namely calls by that community for special rights.

In India, the experiment of personal laws for various groups has been a failure in achieving

equal treatment for all citizens. The country legislated away all of the personal laws, with the

exception of laws applying to one of its minority groups. Other minorities were brought into

line along Western standards of secular and equal rights. However, out of fears of creating

widespread rioting and rebellion, the government shelved any reforms for the Muslim

community, leaving it in a state of coagulation dating from the 1930s. The British had done

the opposite. In implementing the Mohammedan law, the British were actually raising the

standards of many of the customary laws of Indian Muslims. The Indian post-colonial

government has done the opposite. It has refused to find a legal route that would enforce

equal rights for 50 million of its Muslim female citizens2.

2. Section 125-128 of Criminal Procedure Code:

S.125 Order for maintenance of wives, children and parents.-

(1) If any person having sufficient means neglects or refuses to maintain-

(a) His wife, unable to maintain herself, or

(b) His legitimate or illegitimate minor child, whether married or not, unable to

maintain itself, or

(c) His legitimate or illegitimate child (not being a married daughter) who has

attained majority, where such child is by reason of any physical or mental abnormality or

injury unable to maintain itself, or

2
Kazi, Seema. Muslim Women in India. London, 1999.

13
 (d) His father or mother, unable to maintain himself or herself,

It should be kept in view that the provision relating to maintenance under any

personal law is distinct and separate. There is no conflict between the two provisions. A

person may sue for maintenance under s.125 of Cr.P.C. If a person has already obtained

maintenance order under his or her personal law, the magistrate while fixing the amount of

maintenance may take that into consideration while fixing the quantum of maintenance under

the Code. But he cannot be ousted of his jurisdiction. The basis of the relief, under the

concerned section is the refusal or neglect to maintain his wife, children, father or mother by

a person who has sufficient means to maintain them. The burden of proof is on him to show

that he has no sufficient means to maintain and to provide maintenance3.

Section 125 gives a statutory recognition to the moral, legal and fundamental duty of

a man to maintain his wife, children and aged parents. Although this section also benefits a

distressed father, the main thrust of this section to assist women and children. Article 15(3) of

the Indian constitution envisaged that the state can make special provision for woman and

children. Section 125 is also along the lines of Art.39 of the Indian Constitution that states

that the State shall direct its policy towards ensuring that all citizens both men and women

have equal access to means of livelihood and children and youths are given facilities

opportunities in conditions of freedom and dignity4.

At the time of enactment of this code section 125 is intended to be applicable to all

irr5espective3 of their personal Laws although maintenance is a Civil remedy yet it has been

made a part of this Code to have a quick remedy and proceedings and S.125 is not a trail as

non-payment of maintenance is not a criminal offence.

3
Rai Bari Behera v. Mangaraj Behera, (1983) Cr. LJ 185 (Orissa).
4
Ramesh Chandra Kausal v. Mrs. Veena Kausal, (1979) Cr.L.J. 3 (SC)

14
 The word ‘any person’ u/s. 125 includes a person belongs to the undivided family

although the proceedings strictly against the individual concern and not the undivided family.

However, the Magistrate may take into consideration the joint family property is determining

the amount of maintenance that should be payable by such person..; it also includes a person,

a father, an adult son and a married daughter. But not include a mother or a wife or an

unmarried daughter5.

In this section what I find is different according to my knowledge is that the

magistrate has the power to give the maintenance from the date of the order and if gives the

allowance from the date of filling the application than in that case he has to give reasons as to

why he/she is giving the maintenance from the date of the application.

“Also one more interesting and a vague thing which I found during the research on

my research paper is that a division of the Bombay High Court which said in its judgment

that no maintenance will be granted to the second wife of a Hindu.” According to me this is

one of the vaguest judgments I have read during the one and half years of my law school. I

would like to critise this judgment on the basis that this judgment is in a way differentiating

amongst women and also there is an angle of gender bias to this judgment. I am saying this

on the fact that if the women are the second wife of a Hindu than it is not her fault and in case

she is completely financially dependent on the husband than what does she have to do to

survive. I think this judgment will is not good socially for the benefit of the society as a

whole.

5
Rajkumari v. Yashodha Devi, (1978) Cr. L.J. 600 (Guj.); See also T.P.S.H. Selva Saroja v. T.P.S.H.
Sasinathana, (1989) Cr.L.J 2032 (Mad.)

15
Maintenance of Muslim Women under Section 125 of the CrPC, 1973:

Section 125 of the CrPC is basically secular in nature. Due to the secular nature of

this act this does not affect the various personal laws and also the personal laws do not affect

this section. If any Muslim women seek compensation under the section 125 and she will be

awarded maintenance by the respected court only if she is not remarried. “If the wife

exercises her right under the Muhammadan Law and refuses to live with her husband on the

ground of non-payment of dower, cannot enforce her right to maintenance under this

act.” The Muslim women in case if she is granted maintenance will be in the form of the

monthly allowances.

In the Mohd Ahmed Khan v. Shah Bano Begum6, there was a Muslim women who

was divorced by her husband when she was 68 years old and was the mother of five children.

She filled a case in the court for granting of maintenance by the court. She was given

maintenance by the Supreme Court under section 125 of the CrPC even after the iddat period

was over. Under the Muslim personal law a divorced women could be awarded maintenance

only during the iddat period and not latter. In case if she wants maintenance than she will

have to be given maintenance by the other relatives according to the Muslim personal law.

This judgment of awarding maintenance to Muslim women under section 125 of the CrPC

which is a secular section of the law was widely critised by the Muslim community

throughout the country. The Supreme Court had its following judgment in the case:

“The Supreme Court of India mitigated the effect of Muslim laws that limited the

maintenance payable to a divorcée. It held that, regardless of any previous payment of

maintenance by a divorced man to his former wife during her iddat period and payment of her

6
(1985) A.I.R 2 (S.C.C) 556

16
mahr, a former wife could still seek additional maintenance from her ex-husband under

Section 125 of the CrPC, which permits courts to order maintenance payments for financially

destitute women. In its decision, the Court quoted certain passages from the Qur’an in

support of the position that a divorced man has an obligation to materially support his former

wife. This decision triggered massive protests amongst conservative Muslim Indians, who

viewed the decision as a deliberate attempt to undermine “their” personal laws and were

outraged that a secular court tried to support its decision with references to the Qur’an.

Fundamentalist Muslim leaders even pressured Shah Bano, to withdraw her support for the

Court’s decision in her favor. Despite acclaim for the decision from women’s rights

advocates, including from some Muslim women’s groups, many Muslim leaders lobbied for

legislation to overturn the Court’s decision. As a result, without any consultation with either

women’s groups or moderate Muslim leaders, the national government hastily passed the

Muslim Women Act of 1986, which limited a Muslim man’s duty to pay maintenance to his

former wife to her iddat period. In Shah Bano v. Imran Khan7, The Supreme Court held that

divorced Muslim woman would be entitle to claim maintenance from her divorced husband,

even after the expiry of period of iddat as long as she does not remarry.

3. Personal Law:

(A) Hindu Law: The right of maintenance under Hindu law is very old and it was

one of the basic necessities of the joint family system. According to my

understanding the maintenance of the women in the joint family system was

an important system and this was followed as a tradition which governed the

families. It was the obligation of the head of the family (karta) to look after the

women of the family i.e. their wives and their daughters until they were
7
(2010) Cr. L.J. 521 (SC).

17
married. Latter when the women grew older it was the duty of their children to

mother and other old women of the family. The unchastely on part of the

women disentitled them to maintenance. Their remarriage ended the claim and

the amount of maintenance depended upon various factors like the status of

the family, necessary requirements, wants, age, etc. Section 24 provides of

Hindu Marriage Act, (HMA) 1955 provides for maintenance.

Under this Act also, only a wife has a right to claim maintenance. The Hindu

husband has a legal obligation to maintain his wife during his lifetime.

However, if a wife ceases to be Hindu or lives separately under no legal

grounds she loses the right to claim maintenance too. Also, a Hindu wife

under this act shall not be entitled to separate residence and maintenance from

her husband if she is unchaste or converts to another religion. Wife can claim

separate residence only if husband remarries and the other wife stays in the

same house.

Under this act (Section 19), a (Hindu) wife after the death of her husband is

entitled to be maintained by her Father in-law, provided she has no means of

her own earnings. However, the right cannot be enforced if her Father in-law

does not have means to do so and if the wife remarries.

The liabilities of a Hindu to maintain others are personal liability and liability

dependent on possession of property where the former arises from mere

relationship between the parties and the latter arises due to possession of

property.

18
 The relief of maintenance is considered an ancillary relief and is available

only upon filing for the main relief like divorce, restitution of conjugal rights

or judicial separation etc. Further, under matrimonial laws if the husband is

ready to cohabit with the wife, generally, the claim of wife is defeated.

However, the right of a married woman to reside separately and claim

maintenance, even if she is not seeking divorce or any other major

matrimonial relief has been recognised in Hindu law alone. A Hindu wife is

entitled to reside separately from her husband without forfeiting her right of

maintenance under the Hindu Adoptions and Maintenance Act, 1956. The Act

envisages certain situations in which it may become impossible for a wife to

continue to reside and cohabit with the husband but she may not want to break

the matrimonial tie for various reasons ranging from growing children to

social stigma.

Maintenance of Wife under Section 18, the Hindu Adoptions and Maintenance Act,

1956: Under the section 18(1) of the HAMA, 1956 wife is entitled to maintenance by

her husband for lifetime i.e. she will be given maintenance until she dies or her

husband dies. Under section 18 of this Act a Hindu wife is entitled to live separately

from her husband without cancelling her right to claim maintenance. The grounds

under which she can live separately are:-

(1) Husband is guilty of desertion

(2) The Husband has treated her with cruelty

(3) The husband is suffering from a virulent form of leprosy

(4) The husband has any other wife living.

19
 (5) The husband keeps a concubine elsewhere

(6) The Husband has ceased to be a Hindu by conversion to another

religion and

(7) if there is any other cause justifying living separately

But there are two bars which will prevent a wife from claiming

maintenance from her husband i.e. (i) if she is unchaste or (ii) if she

ceases to be a Hindu by conversion to another religion.

The wife is entitled to live separately without forfeiting her right to

maintenance, if her husband is guilty of desertion, if he subjects the

women to cruelty, if he is suffering from a leprosy, if he has any

other wife living, keeps a concubine in the house where his wife

resides, if he has ceased to be a Hindu, or if there is any other cause

justifying her to live separately under Section 18(2) of the HAMA.

According to me the exception given in this section according to

which a wife cannot claim maintenance if she is converted from

some other religion into a Hindu is not right. Now as the wife is

related to a Hindu family and if she has married according to the

Hindu religion and she is governed by Hindu law than she should not

be separated from the rights which other women get as a Hindu lady.

Award of maintenance to wife under Section 23(2): Section 23 of the HAMA, 1956

clarifies or defines the people who get maintenance and how much of maintenance i.e.

the amount they can get keeping in mind the various things. The court in the case of

awarding maintenance has the authority to give the maintenance after analyzing

20
 various factors. The factors which are considered by the court according to section

23(2) and section 23(3) are:

(2) (a) The position and status of the parties.

(b) The reasonable wants of the claimant;

(c) If the claimant is living separately, whether the Claimant is justified in doing

so;

(d) The value of the claimant’s property and any income derived from such

property or from the claimants;

(e) The number of persons entitled to maintenance, if any, to be awarded to a

dependent under this Act, regard shall be had to –

(3) In determining the amount of maintenance, if any, to be awarded to a dependent

under this Act, regard shall be had to -

(a) The net value of the estate of the deceased after providing for the

payment of his debts.

(b) The provisions, if any, made under a will of the deceased in respect of

the dependent.

(c) The degree of relationship between the two.

(d) The reasonable wants of the dependents.

(e) The past relations between the dependent and the deceased.

(f) The value of the property of the dependent and any income derived

from such property, or from his or her earnings or from any other

source.

(g) The number of dependents entitled to maintenance under this Act.

The court awards maintenance to the wife considering various factors into

consideration like status and position of the parties, wife’s wants, the value of wife’s property

21
and income if any, derived from that property and the number of persons entitled to

maintenance. The section says that the maintenance is given on the basis of the decree of

relation between the two partners. I don’t understand how the court can determine the decree

of the relation between a husband and wife, I think the husband and the wife can only

determine the decree of the relationship between and the court has no idea and no statue can

define a relation. Also say in case if there is some misunderstanding between the husband and

the wife and the wife deserts the husband. The husband still loves the wife and if the wife

does not come back than what is the decree of the relation between the two according to the

court?

The means and capacity of a person against whom the award has to be made should

be taken into consideration for determining the quantum of maintenance. In fact, in case of

the husband, it is not only the actual earning, but also his potential earning capacity, which

must be considered i.e. there is a presumption that every able-bodied person has a capacity to

earn and maintain his wife. The income of the husband is a significant factor to be considered

by the court in fixing the quantum of maintenance. It is disposable income and not the gross

income, which is to be considered. Section 23(2) of HAM ACT states the factors to be

considered in determining the amount of maintenance payable to the wife, children and aged

parents, and they are as follows – the position of and status of the parties, the reasonable

wants of the claimant, the claimant if living separately is justified or not, the income of the

claimant and the value of the claimant’s property and the number of persons entitled to

maintenance under the Act.

Order for Interim Maintenance: Under S.24 of Hindu Marriage Act, 1955 (herein

after mentioned as HM Act), either the wife or husband can apply for interim

maintenance. The basis of the claim for interim maintenance is that the claimant has

22
 no independent income of his/her own to support himself/herself. The provision is

silent on the quantum of maintenance and it is upon the discretion of the court to

determine the quantum. Similarly, maintenance pendente lite is to be provided to the

claimant who does not have an independent income and the financial need of

litigation expenses has to be provided by the other spouse.8

The interim maintenance is payable from the date of presentation of the petition till

the date of dismissal of the suit or passing of the decree. Interim maintenance is supposed to

meet the immediate needs of the petitioner. And maintenance pendente lite is for providing

the litigation expenses to the claimant.

S. 3(b)(i) of Hindu Adoption and Maintenance Act, 1956(herein after mentioned as

HAM ACT Act) defines maintenance as “provision for food, clothing, residence, education,

and medical attendance and treatment.” In the case of unmarried daughter, it also includes her

marriage expenses. The provisions for permanent maintenance are present in all the personal

laws and are substantively similar. However there are some differences between the personal

laws.

8
Shail Kumari Devi and anothers v. Krishna Bhagwan Pathak, (2008) 4 Cr. LJ 3881 (SC)

23
 (B) Muslim Law: “All those things which are necessary to support of life, such as

food, clothes and lodging; many confine too solely to food.”9 “Nafaqa literally

means which a man spends over his children; in law it means feeding, clothing

and lodging; in common use it signifies food”10. “Maintenance comprehends

food, raiment, lodging, though in common parlance it is limited to first11.”

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 obligor in

prohibited degrees, or is the wife or child, and (iii) the obligor is in position to

support him. The obligation of maintenance is also hedged by the factor of

their economic condition.

It would be helpful first to gain a basic understanding of the Muslim

personal law on the maintenance of wives, before we venture into an analysis

of the UCC vis-à-vis Muslim Law on Maintenance.

It is mandatory provision of the Quran that a husband is bound to maintain

his wife irrespective of her being a Muslim, poor or rich, young or old if not

too young for sexual intercourse. A wife whose marriage was performed

according to Muslim law and who has attained an age at which she can render

conjugal have rights to her husband is entitled to receive maintenance. A

husband is not bound to maintain his wife who refuses herself to him or is

disobedient unless the refusal or disobedience is justified by non-payment of

dower. The wife is not entitled to maintenance if she is too young for sexual

intercourse or if she refuses to live with her husband without reasonable

9
Charles Hamilton, “The Hedaya, or Guide: A Comentary on the Muslim Law”, 2nd Edition (London 1870),at
p.140

10
Syed Khalid Rashid’s Muslim Law, 5th edition, at p. 181
11
Baillie’s Digest, Calcutta ,1805 , at p. 437

24
 excuses. Under Muslim law maintenance is known as ‘Nafkah’ it includes in

simple words food, clothing and lodging. Maintenance is due to a woman only

during the period of her Iddat. The wife can receive maintenance from her

husband as per her social position, determined mostly by her monetary

standings.

Maintenance of Wife: It is incumbent on a husband to maintain his wife, whether she

is Muslim or Kitabiyyah, poor or rich, enjoyed or non-enjoyed, young or old.

However the wife is too young for matrimonial intercourse she has no right to

maintenance from her husband, whether she is living in his house or with her

parents12.

The husband is bound to maintain his wife so long as she is faithful to him and

obeys his reasonable orders 13. It is decided in an interesting case14 by Strachy and

Badruddin Tyabji, JJ., that disobedient wife need not to be maintained. Strachy, J .,

observed:

“…the husband’s duty to maintain his wife is conditional on her obedience and he is

not bound to maintain her if she is disobeys him by refusing to live with him or

otherwise15. Only paid occasional visits to husband house, staying for a night or so

returning on occasion to mother’s house… I am clearly of the opinion that in such

circumstances the Muhammadan husband is not bound to give his wife separate

maintenance…”

12
Supra Note 34
13
Syed Khalid Rashid’s Muslim Law, 5th edition, at p. 182
14
A v. B, ( ILR (1896) 21 Bom. 77

15
Charles Hamilton, “The Hedaya, or Guide: A Comentary on the Muslim Law”, 2nd Edition(London 1870),at
p.182

25
 To some effect the observations of Tyabji, J ,. :“…it is impossible to hold that

a Mussulman wife defying her husband, refusing to live with him, and bringing

scandalous charges against him, can yet claim to be maintained separately at the

expenses of her husband16.”

Where the marriage is valid and the wife is capable to render marital intercourse

it’s the husband’s duty to maintain his wife even though she may have means to

maintain herself17. But if she unjustifiably refuses to cohabit with her husband then

she loses her right for maintenance18. The right of maintenance would also be lost if

the wife refuses to obey the reasonable commands of the Husband 19 but not so if

disobedience is justified by circumstances 20 or if she is forced to leave husband’s

house on account of cruelty21, so that of the husband refuses to maintain his wife

without any lawful reasons/causes the wife may sue him for maintenance. She is not

however entitled to past maintenance. Maintenance is payable from the date of the

decree unless the claim is based on specific agreement22.

Where a wife is turned out or ill-treated so as to make her impossible to stay or live

together with her husband, or where the breach between the wife and husband is

irremediable she is entitled to maintenance by living separate from him whether the

question arises u/s. 125 of the Code of Criminal Procedure 1973 (corresponding

section. 488 of the Code of Criminal Procedure 1998)23 or in a suit for restitution of

16
“Polygamy, Unilateral Divorce and Mehr in Muslim Law as interpreted in India”, in Tahir
Mahmood(ED.),Islamic Law in modern India, ILI, 1972 at p. 142
17
Said Ahmed v. Sultan Bibi (AIR 1943 Pesh. 73 )
18
Ali Akbar v. Fatima Begum ( AIR 1929 Lah. 660) ; Mst. Ismabai v. Umar Mahomed Sidik( AIR 1930 sind.
11 ) ; Mahomed Ali v. Mt. Ghulam Fatima ( AIR 1935 Lah. 902 )
19
Mt. Khatijan v. Abdullah ( AIR 1943 Sind. 65 )
20
Khurshid Begum v. Abdul Rashid ( AIR 1927 Nag. 139 )
21
Amir Mohd. v. Mt. Bushra ( AIR 1956 Raj. 102 )
22
Abdool Fateh v. Zabunnessa ( 6 Cal. 631) ; Supra note 20 ; Mandy Mather v. Bijan Bai ( AIR 1930 Mad. 234
)
23
Shamshuddin v. Zamina Bibi ( (1962) 2 Cr. Lj. 124 )

26
 conjugal life24. To summarise, the wife loose the right to maintenance in the following

circumstances:-

i. She is minor, incapable of consummation.

ii. Refuse free access to the husband at all reasonable times.

iii. Is disobedient.

iv. Never visited his house.

v. Refuses to cohabit with him without reasonable excuse.

vi. Abandon conjugal home without reasonable reasons.

vii. Deserts him.

viii. Elopes with another person.

The husband and wife or their guardian may enter into agreement whereby the wife is

entitled to recover maintenance from her husband, on the happening of some special event

such as ill-treatment, disagreement, husband’s second marriage etc. but the agreement in the

marriage contract that the wife would not be entitled to maintenance is void 25 . The key

consideration is that the agreement should not be opposed to the public policy and Muslim

Law.

An agreement between a Muslim and his first wife, made after his marriage with a

second wife, providing for certain maintenance for her if she could not in future get on with

the second wife, was held not void on the ground of the public policy26.

Followings are the valid conditions for an agreement:

1. If the husband treats the wife with cruelty then the wife has a right to separate

residence and maintained to meet it.

24
Chandbi v. Badesha ( AIR 1961 Bom. 121 )
25
Syed Khalid Rashid’s Muslim Law, 5th edition, at p. 184
26
Mansur v. Azizul ( AIR 1928 Oudh. 303 )

27
 2. If he brings subsequent wife and the previous wife is unable to with her, she

will get maintenance allowance to live separately or even at her father’s

house27.

3. If he brings his other wife to the matrimonial home, she will reside at her

father’s home and he will give her maintenance28. This view was reiterated by

the Karnataka High Court29.

4. In case of disagreement with each other, he will give her maintenance for her

separate residence.

After divorce the Mahomedan wife is entitled to maintenance during the time period

of Iddat30 and also for the time, if any, that elapsed after the expiry of the period of Iddat and

her receiving notice of Talak31. After expiry of the period Iddat the enforceability of the order

of maintenance ceases32.

The wife is entitled to sue for maintenance at her normal place of residence at the time

of divorce and the place where she receives the notice thereof. Suit by divorced for Hiba-

jewels lies where the wife resides.33 A widow is not entitled to maintenance out of the estate

of her late husband in addition to what she is entitled to by inheritance or under his will34.

27
Sakina v. Shamshad Khan ( (1936) Pesh 195 )
28
Shamshuddin v. Zamina Bibi ( (1962) 2 Cr. Lj. 124 )
29
Ashabi v. Bashasab Takke ( (2003) 2 Kant LJ 429 )
30
Munnisa Begum v. Nur Mohd. ( AIR 1975 AP 231 )
31
Rashid v. Anisha Khatoon ( (1932) 59 I.A. 21 ) ; Ahmed Kasin v. Khatun Bibi ( AIR 1933 Cal. 27 )
32
Khurshid Begum v. Abdul Rashid ( AIR 1927 Nag. 139 )
33
Mohd. Ibrahim v. Jaithoon Bibi (AIR 1951 Mad. 831)
34
Sakina v. Shamshad Khan ( (1936) Pesh 195 )

28
4. The Muslim Women (Protection of Rights on Divorce) Act, 1986:

After the historic judgment of the Shah Bano case35, what followed the judgment were

the critics of the outcome of the judgment of the impact of the judgment on the Muslim

personal law. According to the Muslim community if this judgment was accepted than in that

case there personal law was suppressed and was superseded by the Hindu law which allowed

the women’s right to maintenance life long as there was no iddat period in the Hindus.

The Indian government which was the congress party at that time was under pressure

from the Muslim community to bring a law which would overrule this judgment. So the

government under the pressure and in order to save its Muslim vote bank brought the law The

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

According to this act a Muslim women is to be awarded maintenance by her husband

only during the iddat period and not after that. But in case if she is financially not

independent and needs maintenance than in that case her relatives who would get the share of

her property will award her with maintenance. In the scenario where she does not have any

such relatives than the State Waqf Board has to pay her the maintenance. So in a way the

personal law of the Muslims was saved and the new law prevented any conflict between the

two major communities of the country. The divorced wife is also entitled to unpaid dower

and all such properties which were given to her during her marriage by her husband, his

relatives, friends or her relatives. She also has an option to use the Sections 125-128 of the

CrPC, 1973. Finally the cases pending under the provisions Sec. 125-127 shall be disposed

by the Magistrate.

35
(1985) A.I.R 2 (S.C.C) 556

29
 CHAPTER 4

JUDICIAL PRONOUNCEMENTS

1. Danial Latif v. Union of India1:

In this case the Supreme Court Constitution Bench held that, “where the constitutional

validity of the Act of 1986 was challenged, and upheld that 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 even beyond the Iddat period must be made within the iddat

period under section 3(1) (a) of the Act. It was therefore categorically held that the liability of

a Muslim husband to his divorced wife arising under section 3(1) (a) of the Act to pay

maintenance is not confined to the Iddat period.

2. Mohd. Ahmed Khan v. Shah Bano Begum2:

In this case commonly referred to as the Shah Bano case, was a controversial

maintenance lawsuit in India, in which Shah Bano, a 62-year-old Muslim, daughter of a

police constable 3 and mother of five from Indore, Madhya Pradesh, was divorced by her

husband in 1978 but even after winning the case at the Supreme court of India was

subsequently denied alimony because the Indian Parliament reversed the judgement under

pressure of Islamic orthodoxy4. The judgment in favor of the woman in this case evoked

1
(2001) 7 SCC 740.
2
(1985 SCR (3) 844),
3
Lawrence, edited by Bruce B.; Karim, Aisha (2007). On violence: a reader. Durham [NC]: Duke University
Press.
4
Jindal, T.P. (1995). Ayodhya imbroglio. New Delhi: Ashish Pub. House

30
criticisms5 among Muslims some of whom cited Qur'an to show that the judgment was in

conflict with Islamic law6. It triggered controversy about the extent of having different civil

codes for different religions, especially for Muslims in India7. This case caused the congress

government, with its absolute majority, to pass the Muslim Women (Protection of Rights on

Divorce) Act, 1986 which diluted the judgment of the Supreme Court and, in reality

(reference missing), denied even utterly destitute Muslim divorcées the right to alimony from

their former husbands8.

3. Divyananda v. Jayarai9:

In this case two Roman Catholic entered into Suyamaryadhai form of marriage and

lived together as husband and wife for period of 5 months in the course of which the wife

conceived a child. The Court rejected the petition of the woman as she was not a legally

wedded wife. The Court held that being Christian, their marriage in accordance to Hindu

customs without any conversion was void ab-initio and hence the woman was not a wife in

the eye of law. As such the woman could not claim maintenance U/S. 125 of, although her

children illegitimate would be entitled to maintenance U/S. 125.

5
Samaddar, ed. by Ranabir (2005). The politics of autonomy : Indian experiences (1. publ. ed.). New Delhi:
Sage
6
Aftab, Tahera (2008). Inscribing South Asian Muslim women : an annotated bibliography & research guide
([Online-Ausg.] ed.). Leiden
7
"Flashback to Shah Bano case as Muslim woman wins alimony battle". Indian Express. 2009-09-23. Retrieved
2013-05-07
8
"The Shah Bano legacy". The Hindu. 2003-08-10. Retrieved 2013-05-07.
9
(1984) Cr LJ NOC 10 (Mad )

31
4. K. Sivarama v. K. Bharathi10:

In this case the court held that any marriage in contravention of Section 5 & 11 of the

Hindu Marriage Act, cannot be considered to be the valid marriage. Such a woman cannot

recourse maintenance U/S. 25 of the Hindu Marriage Act for claiming maintenance.

5. Ambaram v. Reshambai11:

In this case the court held that although the lot of women who entered into marriage

without knowing about the subsistence of another marriage of her husband, although deserve

a sympathetic treatment yet awarding of maintenance U/S. 25 & if any appeal is to be made,

it should be made to the legislature.

6. Abdul Salim v. Nagima Begam12:

In this case the Court held that the phrase ‘unable to maintain herself ’ should not be

interpreted to mean that a wife in order to claim maintenance should be an absolute destitute

or should be in tattered clothes, or should be the first one out of the street to beg. The very

fact is that she has no other means of her own other than that of her husband to maintain her

adequately to entitle her to the right of maintenance.

10
(1986) Cr LJ 317 (AP).
11
AIR (1976) SC 2196.
12
(1980) Cr LJ 232.

32
 CHAPTER 5

SHAH BANO CONTROVERCY

Mohd. Ahmed Khan v. Shah Bano Begumcommonly referred to as the Shah Bano

case, was a controversial maintenance lawsuit in India, in which Shah Bano, a 62-year-old

Muslim, daughter of a police constable and mother of five from Indore, Madhya Pradesh, was

divorced by her husband in 1978 but even after winning the case at the Supreme court of

India was subsequently denied alimony because the Indian Parliament reversed the

judgement under pressure of Islamic orthodoxy. The judgment in favor of the woman in this

case evoked criticisms among Muslims some of whom cited Qur’an to show that the

judgment was in conflict with Islamic law. It triggered controversy about the extent of having

different civil codes for different religions, especially for Muslims in India. This case caused

the congress government, with its absolute majority, to pass the Muslim Women (Protection

of Rights on Divorce) Act, 1986 which diluted the judgment of the Supreme Court and, in

reality (reference missing), denied even utterly destitute Muslim divorcées the right to

alimony from their former husbands.

Mohd. Ahmed Khan v. Shah Bano Begum, commonly referred to as the Shah Bano

case, was a controversial maintenance lawsuit in India, in which Shah Bano, a 62-year-old

Muslim, daughter of a police constable and mother of five from Indore, Madhya Pradesh, was

divorced by her husband in 1978 but even after winning the case at the Supreme court of

India was subsequently denied alimony because the Indian Parliament reversed the

judgement under pressure of Islamic orthodoxy. The judgment in favor of the woman in this

case evoked criticisms among Muslims some of whom cited Qur’an to show that the

judgment was in conflict with Islamic law. It triggered controversy about the extent of having

33
different civil codes for different religions, especially for Muslims in India. This case caused

the congress government, with its absolute majority, to pass the Muslim Women (Protection

of Rights on Divorce) Act, 1986 which diluted the judgment of the Supreme Court and, in

reality (reference missing), denied even utterly destitute Muslim divorcées the right to

alimony from their former husbands.

1. Facts:

Shah Bano, a 62 year old Muslim woman and mother of five from Indore, Madhya

Pradesh, was driven out of her “matrimonial home” by her husband in 1975. In April 1978

she filed a case against her husband, Mohammed Ahmad Khan, asking him for a maintenance

amount of 500. On November 1978 her husband gave an irrevocable talaq (divorce) to her

which is his prerogative under Islamic Law. Mr. Khan then filed a case against Shah Bano in

the Supreme Court claiming that Shah Bano is not his responsibility anymore because Mr.

Khan had a second marriage which is also permitted under Islamic Law.

Shah Bano, because she had no means to support herself and her children, approached the

courts for securing maintenance from her husband. When the case reached the Supreme Court

of India, seven years had elapsed. The Supreme Court invoked Section 125 of Code of

Criminal Procedure, which applies to everyone regardless of caste, creed, or religion. It ruled

that Shah Bano be given maintenance money, similar to alimony.

Some Muslims felt threatened by what they perceived as an encroachment of the Muslim

Personal Law, and protested loudly at the judgment. Their spokesmen were Obaidullah Khan

Azmi and Syed kazi. They had formed an organization in 1973 known as the All India

Muslim Personal Law Board devoted to upholding what they saw as Muslim Personal Law.

34
2. The Indian government’s reaction:

In 1986, the Congress (I) party, which had an absolute majority in Parliament at the time,

passed an act The Muslim Women (Protection of Rights on Divorce) Act 1986 that nullified

the Supreme Court’s judgment in the Shah Bano case. This act upheld the Muslim Personal

Law and writ as excerpted below:

Every application by a divorced woman under section 125… of the Code of Criminal

Procedure, 1973, pending before a magistrate on the commencement of this Act shall,

notwithstanding anything contained in that code… be disposed of by such magistrate in

accordance with the provisions of this Act.

The Statement of Objects and Reasons of this Act (the objective of the Act) needs a mention.

According to the stated objects of the Act, when a Muslim divorced woman is unable to

support herself after the period that she must observe after the death of her spouse or after a

divorce, during which she may not marry another man, the magistrate is empowered to make

an order for the payment of maintenance by her relatives who would be entitled to inherit her

property on her death according to Muslim Law. But when a divorced woman has no such

relatives, and does not have enough means to pay the maintenance, the magistrate would

order the State Waqf Board to pay the maintenance. The ‘liability’ of husband to pay the

maintenance was thus restricted to the period of the iddat only.

3. Consequences:

The Shah Bano case generated debate in India. The case has led to Muslim

women receiving a large, one-time payment from their husbands during the period of iddat,

instead of a maximum monthly payment of 500 - an upper limit which has since been

35
removed. Cases of women getting lump sum payments for lifetime maintenance are

becoming common.

Critics of the Shah Bano case point out that while divorce is within the purview of

personal laws, maintenance is not, and thus it is discriminatory to exclude Muslim women

from a civil law. Exclusion of non-Muslim men from a law that appears inherently beneficial

to men is also pointed out by them. Hindu nationalists have repeatedly contended that a

separate Muslim code is tantamount to preferential treatment and demanded a uniform civil

code.

The Shah Bano case once again spurred the debate on the Uniform Civil Code in India.

Ironically, the Hindu Right led by parties like the Jan Sangh which had strongly opposed

reform of Hindu law in the 50’s, in its metamorphosis as the Bharatiya Janata Party became

an advocate for secular laws across the board. However, their opposition to the reforms was

based on the argument that no similar provisions would be applied for the Muslims on the

claim that they weren’t sufficiently advanced. The pressure exerted by orthodox Muslims

caused women’s organizations and secularists to cave in.

Makarand Paranjape sees the overruling of Supreme Court verdict in Shah Bano case

which happened when the Congress party was in power, as one of the examples of the party’s

pseudo-secular tactics which allowed “cynical manipulation” of religion for political ends.

High Courts have interpreted “just and fair provision” that a woman is entitled to

during her iddat period very broadly to include amounts worth lakhs (hundreds of thousands)

of rupees. More recently the Supreme Court in Danial Latifi v. Union of India read the Act

with Art 14 and 15 of the constitution which prevent discrimination on the basis of sex and

held that the intention of the framers could not have been to deprive Muslim women of their

rights. Further the Supreme Court construed the statutory provision in such a manner that it

36
does not fall foul of Articles 14 and 15. The provision in question is Section 3(1)(a) of the

Muslim Women (Protection of Rights on Divorce) Act, 1986 which states that “a reasonable

and fair provision and maintenance to be made and paid to her within the iddat period by her

former husband.” The Court held this provision means that reasonable and fair provision and

maintenance is not limited for the iddat period (as evidenced by the use of word “within” and

not “for”). It extends for the entire life of the divorced wife until she remarries.

The judgment of Shah Bano defined a watershed in Personal law issues in India. It has

alternately been described as a “reformist Juggernaut” and “a bull in a china Shops”, the

judgment sparked off the biggest Personal law controversy that India had seen till then. It

involved a pronouncement by the Supreme Court on the Muslim personal law of

maintenance, and the question of maintenance to an ex-wife. It involved the interpretation of

sec 125 of the Code of Criminal Procedure, and the question whether the provision overrides

the personal law of the community. It was a decision based on a number of solid precedents

on the topic as detailed above. But the decision became the hotbed of debate due to some

parts of it being read to be against the Islamic religion as such. The comments of Chief

Justice Chandrachud regarding the “pious obligation of the Muslim husband” were taken as

the fodder for allegations of “the destruction of Muslim culture and identity”. As a response

to the demands made by a number of orthodox associations within the Muslim community,

the Parliament passed the Muslim Women’s (Protection of Rights on Divorce) Act, 1986.

This law is widely regarded as being in the nature of an ‘Invalidating Law’, aimed at

nullifying a decision of the Judiciary.

The Legislation met with widespread criticism and condemnation from all quarters, a

representative opinion is one expressed by Justice Krishna Iyer: “The bill is a dangerous

mistake ..... Public power gone awry. It is against justice, which is a facet of the suprema lex,

37
and based on purely political conaiderations.” The Situation After the passing of the 1986

Act.

It would be prudent now to examine the judicial decisions that have followed the

enactment of the 1986 Act, as these represent a fine example of progressive Judicial Activism

by the Courts. In a number of decisions, we can observe the Courts efforts to give effect to

the Constitutional mandates of Gender Equality and fair and human personal laws.

In Kasam vs Janabhaj, it was held that the Act did not operate retrospectively as any

such repealing clause was absent. A reconciliation between the CrPC and the new Act was

attempted in the case of A.A Abdullah v. A.B.M. Sayeidbhaf, where it was specifically held

that: “The 1986 act does not degrade the Muslim women’s right to take recourse to the CrPC,

as the Act is a Personal Law subordinate to the CrPC”.

A similar reasoning was applied to uphold the Muslim women’s rights in the cases of

Shahnaz Bano v. Baboo Khan, Ali v. Sufaria and Bashir Khan v. Jamilla Bi. A different

reasoning has been followed by a few High Courts when dealing with the matters of

maintenance. S.3 of the Act, which provided for “fair and reasonable provision as

maintenance”, has been interpreted to mean provision of maintenance even beyond the Iddat

period. The leading decision in this case has been the Andhra Pradesh High Courts

pronouncement in Mohammad Tajuddin v. Qamarunnissa Begum.

The decision of the Calcutta High Court of May 2000 in Sakila parvin v. Haider Ali, is

a recent example of decision of this sort. In a 2000 decision of the Bombay High Court, the

same reasoning was upheld, with additional observations on the mode of the payment of this

sum. This 2000 decision makes it clear that the judicial trend has been outlined in this section

shows no signs of abating. An Unfinished Job: The Need for Legislative Action.

38
 It is submitted that as a result of various recent judicial decisions with regard of s.3 of

the 1986 Act where there has been a progressive interpretation of Muslim Personal law, the

practical effect has been the reform of the Muslim Personal law benefiting women.

The argument against reform of these laws because they are sacrosanct and of their

being the accepted practice of Islam, is negetived to a large extent by reforms carried out in a

large number of orthodox Islamic nations. In Pakistan as early in 1967 in Khurshid Bibi's

Case heralded an era of liberal interpretation of Muslim law by holding that reasoning will

take precedence over traditional Islamic teachings. Further, the 1961 Family Act in the same

country has reformed laws to the degree of making monogamy the rule. In 1995 the

Bangladesh Supreme Court followed suit, expressly overruling the Privy Council’s

pronouncement in Aga Mohammed’s case rejecting the contention that the Quran has to be

interpreted solely on the basis of traditional authorities. The same positive response has been

seen by reforms in countries such as Jordan, Egypt and Tunisia. It is indeed ironic and

puzzling that such progressive development in law has not taken place in India with its strong

democratic institutions and express. Constitutional mandates in this regard. For such a

comprehensive and meaningful reform In Personal Law to be effected, legislative action is

inevitable. Lessons from the developments in Muslim Personal Law: The Need for a Uniform

Civil Code. From the arguments and opinions that have been highlighted throughout this

paper, the judiciary’s vital and significant role in attempting reforms and reiterating the need

for a UCC is amply clear. The courts have distinguished themselves in giving effect to both

the Constitutional mandate of equality between the sexes and Art. 44.

A question that frequently raises its head is that of the form that a UCC would take.

Though Art 44 of the Constitution provides a rough framework, it does not specify the exact

from that a UCC should take. A concern that has been raised is that the UCC would end up

compromising the plurality of the India State. It has been observed, “A genuine democracy

39
must have safeguards against majoritarian authoritarianism ... the majority community should

not be allowed to run rough-shod over the sentiments of the minorities.”

Though this paper would avoid going into this controversy, it can be adequately

addressed by following a careful line in framing a Uniform Civil Code. The concerns and

fears of all sections of citizenry, and above all the criteria of Justice, should be kept in mind

while formulating the Code. The new civil code formulated should be step forward in

converting the goals of our constitution into reality and also forwarding the directive

principles of state policy. S Krishna Iyer has aptly put it: It will be Indian, not Hindu. Nor

will any Islamic group be allowed to be a law unto itself. Some of the finest principles of

Islamic jurisprudence may find their way into the Uniform Civil Code even as some of the

noblest conceptions of the Hindu in the area of Family Law will become the common estate

for all Indians.

4. Complete case detail:

Mohd. Ahmed Khan vs Shah Bano Begum And Orson 23 April, 1985

Equivalent citations: 1985 AIR 945, 1985 SCR (3)

Bench: Chandrachud, Y.V.

PETITIONER:

MOHD. AHMED KHAN

Vs.

RESPONDENT:

SHAH BANO BEGUM AND ORS.

DATE OF JUDGMENT23/04/1985

BENCH:

40
CHANDRACHUD, Y.V. ((CJ)

BENCH:

CHANDRACHUD, Y.V. ((CJ)

MISRA RANGNATH

DESAI, D.A.

REDDY, O. CHINNAPPA (J)

VENKATARAMIAH, E.S. (J)

CITATION:

1985 AIR 945 1985 SCR (3)

1985 SCC (2) 556 1985 SCALE (1)767

CITATOR INFO :

F 1986 SC 587 (4)

RF 1987 SC1103 (10)

D 1988 SC 644 (5,6)

Act:

Muslim Personal Law-Concept of divorce-Whether, on the pronounccments of “talaq”

and on the expiry of the period of iddat a divorced wife ceases to be a wife. Code of Criminal

Procedure Code, 1973 (Act II of 1974) Sections 125(1) (a) and Explanation (b) thereunder,

Section 125 (3) and the Explanation, under the proviso thereto and section 127 (3) (b), scope

and interpretation of-Correctness of three Judges’ Bench decision reported in (1979) 2 SCR

75 and (1980) 3 SCR 1127 to the effect that section 125 of the code applies to Muslims and

divorced Muslim wife is entitled to maintenance-Whether there is any conflict between the

provisions of section 125 and that of the Muslim Personal Law on the liability of the Muslim

husband to provide for the maintenance of his divorced wife.

41
 Code of Criminal Procedure, 1973, section 127 (3) (b) read with section 2 of the

Shariat Act XXVI of 1937-Whether section 127 (3) (b) debars payment of maintenance to a

divorced wife, once the Mahar or dower is paid-Whether the liability of the husband to

maintain a divorced wife is limited to the period of “iddat”.

Nature of Mahr or dower-Whether Mehr is maintenance.

Headnote:

Under section 125 (1) (a), if any person, having sufficient means neglects or refuses to

maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof

of such neglect or refusal order such person to make a monthly allowance for the

maintenance of his wife at such monthly rate not exceeding five hundred rupees in the whole.

Under Explanation (b) there under “wife” includes a woman who has been divorced by, or

has obtained a divorce from her husband and has not remarried. Under the explanation below

sub section 3 of section 125, if a husband has contracted marriage with another woman or

keeps a mistress it shall be considered to be a just ground for his wife’s refusal to live with

him. Keeping this in view, if in the trial arising out of an application made under section 125,

and if the husband offers to maintain his wife on condition of living with him, the Magistrate

may consider any of the grounds of the wife’s refusal to live with her husband before

ordering the maintenance. Under section 127 (3) (b), the Magistrate shall cancel the order

passed by him under section 125, in favour of a woman who has been divorced by, or has

obtained a divorce from her husband if the woman who has been divorced by her husband has

received, whether before or after the date of the said order, the whole of the sum, which,

under any customary or personal law applicable to the parties was payable on such divorce.

The appellant who is 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

42
against the appellant under section 125 of the Code of Criminal Procedure, in the Court of the

Judicial Magistrate (First class) Indore, asking for maintenance at the rate of Rs. 500 per

month, in view of the professional income of the appellant which was about Rs. 60,000 per

annum. On November 6, 1978, the appellant divorced the respondent by an irrevocable

“talaq” and took up the defence that she had ceased to be his wife by reason of the divorce

granted by him; that he was, therefore, under no obligation to provide maintenance for her;

that he had already paid maintenance for her at the rate of Rs. 200 per month for about two

years, and that, he had deposited a sum of Rs. 3,000 in the court by way of “dower or Mahr”

during the period of “iddat”. In August 1979, the Magistrate directed the appellant to pay a

princely sum of Rs. 25 per month to the respondent by way of maintenance. In a revisional

application Sled by the respondent the High Court of Madhya Pradesh enhanced the amount

of maintenance to Rs. 179.20 per month. Hence the appeal by special leave by the husband.

The view taken in the earlier two three Judges’ Benches of the Supreme Court presided over

by Krishna Iyer, J. and reported in [1979] 2 SCR 75, and [1980] 3 SCR 1127, to the effect

that section 125 of the Code applies to Muslims also and that therefore, the divorced Muslim

wife is entitled to apply for maintenance was doubted, by the Bench consisting of Fazal Ali

and Varadarajan, JJ., since in their opinion the said decisions required reconsideration by a

larger Bench consisting of more than three judges as the decisions are not only in direct

contravention of the plain and unambiguous language of section 127 (3) (b) of the Code

which far from overriding the Muslim law on the subject protects and applies the same in

case where a wife has been divorced by the husband and the dower specified has been paid

and the period of iddat has been observed but also militates against the fundamental concept

of divorce by the husband and its consequences under the Muslim law which has been

expressly protected by section 2 of the Muslim Personal Law (Shariat) Application Act,

1937-an Act which was not noticed in the said two decisions.

43
 Dismissing the appeals, the Court

Held: (Per Chandrachud, C. J.)

1. The Judgments of the Supreme Court in Bai Tahira (Krishna lyer, J., Tulzapurkar,

J. and Pathak, J.) and Fazlunbi (Krishna pyer, J, Chinnappa Reddy, J. and A.P. Sen, J.) are

correct, except to the extent that the statement at page 80 of the report in Bal Tahira made in

the context of section 127 (3) (b) namely, “payment of Mahr money, as a customary

discharge is within the cognizance of that provision”. Justice Krishna Lyre who spoke for the

Court in both these cases, relied greatly on the teleological and schematic method of

interpretation 90 as to advance the purpose of the law. These constructional techniques have

their own importance in the interpretation of statutes meant to ameliorate the conditions of

suffering sections of the society. A divorced Muslim wife is, therefore, entitled to apply for

maintenance under section 125 of the Code. [865H, 866A-C]

2.1 Clause (b) of the Explanation to section 125 (1) of the Code, which defines “wife”

as including a divorced wife, contains no words of limitation to justify the exclusion of

Muslim women from its scope. Wife, means a wife as defined, irrespective of the religion

professed by her or by her husband. Therefore, a divorced Muslim woman so long as she has

not married, is a wife for the purpose of section 125. [855A-B: 854B]

2.2 Under section 488 of the Code of 1898, the wife’s right to maintenance depended

upon the continuance of her married status. Therefore, that right could be defeated by the

husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a

decree of divorce against her under the other systems of law. It was in order to remove this

hardship that the Joint Committee recommended that the benefit of the provisions regarding

maintenance should be extended to a divorced woman, so long as she has not re married after

the divorce. That is the genesis of clause (b) of the Explanation to section 125 (I). Section

44
125 of the Code is truly secular in character. Section 125 was enacted in order to provide a

quick and summary remedy to a class of persons who are unable to maintain themselves.

Whether the spouses are Hindus or Muslims, Christians or Parsis, Pagans or Heathens, is

wholly irrelevant in the application of these-provisions. The reason for this is axiomatic, in

the sense that section 125 is a part of the Code of Criminal Procedure not of the Civil Laws

which define and govern the rights and obligations of the parties belonging to particular

relations, like the Hindu Adoptions and Maintenance Act, The Shariat, or the Parsi

Matrimonial Act. It would make no difference as to what ii the religion professed by the

neglected wife, child or parent. [834D-E: 855E-G]

2.3 Neglect by a person of sufficient means to maintain these and the inability of these

persons to maintain themselves are the objective criteria which determine the applicability of

section 125. Such provisions, which are essentially of a prophylactic nature, cut across the

barriers of religion. True that they do not supplant the personal law of the parties but, equally,

the religion professed by the parties or the state of the personal law by which they are

governed, cannot have any repercussion on the applicability of such laws unless, within the

framework of the Constitution, their application is restricted to a defined category of religious

groups or classes The liability imposed by section 125 to maintain close relatives who are

indigent is founded upon the individuals' obligation to the society to a prevent vagrancy and

destitution. That is the moral edict of the law and morality cannot be clubbed With relation.

[834G-Hl

That the right conferred by section 125 can be exercised irrespective of the personal

law of the parties, is fortified, especially in regard to Muslims, by the provision contained in

the Explanation to the second proviso to section 125 (3) of the Code. The explanation confers

upon the wife the right to refuse to live with her husband if he contracts another marriage

leave alone, three or four other marriages, which a Mohammedan may have under the Islamic

45
law. Further it shows unmistakably, that section 125 overrides the personal law, if there is

any conflict between the two [836B-C,F-G] Jagir Kaur v. Jaswant Singh, [1964] 2 SCR

73,84, Nanak Chand v. Shri Chandra Kishore Agarwala, 11970] I SCR 56C applied.

3.1 The contention that, according to Muslim Personal Law the husband’s liability to

provide for the maintenance of his divorced wife is limited to the period of iddat. despite the

fact that she is unable to maintain herself cannot be accepted, since that law does not

contemplate or countenance the situation envisaged by section 125 of the Code. Whether a

husband is liable to maintain his wife, which includes a divorced wife, in all circumstances,

and at all events is not the subject matter of section 125. Section 125 deals with cases in

which a person who is possessed of sufficient means neglects or refuses to maintain amongst

others, his wife who is unable to maintain herself. [838H, 851A-B]

3.2 One must have regard to the entire conspectus of the Muslim Personal Law in

order to determine the extent, both in quantum and in duration, of the husband's liability to

provide for the maintenance of an indigent wife who has been divorced by him. Under that

law, the husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he

may settle any amount he likes by way of dower upon his wife, which cannot be less than 10

Dirhams which is equivalent to three or four rupees. But one must have regard to the realities

of life. Mahr is a mark of respect to the wife. The sum settled by way of Mahr is generally

expected to take care of the ordinary requirements of the wife, during the marriage and after.

But these provisions of the Muslim Personal Law do not countenance cases in which the wife

is unable to maintain herself after the divorce. The application of those statements of law to

the contrary in text-books on Muslim Law must be restricted to that class of cases, in which

there is no possibility of vagrancy or destitution arising out of the indigence of the divorced

wife. [858D-G]

46
 3.3 The true position is that, if the divorced wife is able to maintain herself, the

husband's liability to provide maintenance for her ceases with the expiration of the period of

iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the

Code. Thus there is no conflict between the provisions of section 125 and those of the

Muslim Personal Law on the question of the Muslim husband's obligation to provide

maintenance for a divorced wife who is unable to maintain herself. Aiyat No. 241 and 242 of

'the Holy Koran' fortify that the Holy Koran imposed an obligation on the Muslim husband to

make provision for or to provide maintenance to the divorced wife. The contrary argument

does less than justice to the teachings of Koran. [859C-D; 862C-D]

3.4 Mahr is not the amount payable by the husband to the wife on divorce and

therefore, does not fall within the meaning of section 127 (3) (b) of the Code and the facile

answer of the All India Muslim Law Board that the Personal Law has devised the system of

Mahr to meet the requirements of women and if a woman is indigent, she must look to her

relations, including nephews and cousins, to support her is a most unreasonable view of law

as well as of life. [863E-F, 866E-F]

3.5 It is true under the Muslim Personal Law, the amount of Mahr is usually split into

two parts, one of which is called 'prompt" which is payable on demand, and the other is called

“deferred”, which is payable on the dissolution of the marriage by death or by divorce. But,

the fact that deferred Mahr is payable at the time of the dissolution of marriage, cannot justify

that it is payable 'on divorce'. even assuming that, in a given case, the entire amount of Mahr

is of the deferred variety payable on the dissolution of marriage by divorce, it cannot be said

that it is an amount which is payable on divorce.[863B-D]

3.6 Divorce may be a convenient or identifiable point of time at which the deferred

amount has to be paid by the husband to the wife. But, the payment of the amount is not

occasioned by the divorce, which is what is meant by the expression “on divorce”, which

47
occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to

receive from the husband in consideration of the marriage, that is the very opposite of the

amount being payable in consideration of divorce. Divorce dissolves the marriage. Therefore

no amount which is payable in consideration of the marriage can possibly be described as an

amount payable in consideration of divorce. The alternative premise that Mahr is an

obligation imposed upon the husband as a mark of respect for the wife is wholly detrimental

to the stance that it is an amount payable to the wife on divorce. A man may marry a woman

for love, looks, learning or nothing at all. And, he may settle a sum upon her as a mark of

respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to

the wife out of respect cannot be a sum payable on divorce. Thus, the payment of Mahr may

be deferred to a future date as, for example, death or divorce. But, that does not mean that the

payment of the deferred dower is occasioned by these events. [863D-G]

Similarly, the provision contained in section 127 (3) (b) may have been introduced

because of the misconception that dower is an amount payable ‘on divorce’. But, that again

cannot convert an amount payable as a mark of respect for the wife into an amount payable

on divorce. [863H] Hamira Bibi v. Zubaida Bibi, 43 Indian Appeal 294; Syed Sabir Hussain

v. Farzand Hasan, 65 Indian Appeal 119 and 127 referred to.

Observation:

Article 44 of our Constitution has remained a dead letter. There is no evidence of any

official activity for framing a common civil code for the country. A common Civil Code will

help the cause of national integration by removing disparate loyalties to laws which have

conflicting ideologies. It is the State which in charged with the duty of securing a uniform

civil code for the citizens of the country and, unquestionably, it has the legislative

competence to do so. A beginning has to be made if the Constitution is to have any meaning.

48
Inevitably, the role of the reformer has to be assumed by the courts because it is beyond the

endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But

piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of

a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than

justice from case to case.

Judgment:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 103 of 1981. From

the Judgment and Order dated 1. 7. 1980 of the Madhya Pradesh High Court in Crl. Revision

No. 320 of 1979. P. Govindan Nair, Ashok Mahajan, Mrs. Kriplani, Ms. Sangeeta and S.K

Gambhir for the Appellant. Danial Latifi Nafess Ahmad Siddiqui, S.N. Singh and T.N.Singh

for the Respondents. Mohd. Yunus Salim and Shakeel Ahmed for Muslim Personal Law

Board. S.T. Desai and S.A. Syed for the Intervener Jamat- UlemaHind.

The Judgment of the Court was delivered by CHANDRACHUD,C.J. This appeal does

not involve any question of constitutional importance but, that is not to say that it does not

involve any question of importance. Some questions which arise under the ordinary civil and

criminal law are of a far-reaching significance to large segments of society which have been

traditionally subjected to unjust treatment. Women are one such segment. “Na stree

swatantram arhati” said Manu, the Law giver: The woman does not deserve independence.

And, it is alleged that the fatal point in Islam is the ‘degradation of woman’ (l). To the

Prophet is ascribed the statement, hopefully wrongly, that 'Woman was made from a crooked

rib, and if you try to bend it straight, it will break; therefore treat your wives kindly.

This appeal, arising out of an appellation filed by a divorced Muslim woman for

maintenance under section 125 of the Code of Criminal Procedure, raises a straightforward

issue which is of common interest not only to Muslim women, not only to women generally

49
but, to all those who, aspiring to create an equal society of men and women, lure themselves

into the belief that mankind has achieved a remarkable degree of progress in that direction.

The appellant, who is 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 defence 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 appellant to pay a

princely sum of Rs. 25 per month to the respondent by way of maintenance. It may be

mentioned that the respondent had alleged that the appellant earns a professional income of

about Rs. 60,000 per year. In July, 1980, in a revisional application filed by the respondent,

the High Court of Madhya Pradesh enhanced the amount of maintenance to Rs. 179.20 per

month. The husband is before us by special leave.

Does the Muslim Personal Law impose no obligation upon the husband to provide for

the maintenance of his divorced wife? Undoubtedly, the Muslim husband enjoys the privilege

of being:

(1) ‘Selections from Kuran’-Edward William Lane 1843, Reprint 1982, page xc

(Introduction) able to discard his wife whenever he chooses to do so, for reasons good, bad or

indifferent. Indeed, for no reason at all. But, is the only price of that privilege the dole of a

pittance during the period of iddat? And, is the law so ruthless in its inequality that, no matter

50
how much the husband pays for the maintenance of his divorced wife during the period of

iddat, the mere fact that he has paid something, no matter how little, absolves him forever

from the duty of paying adequately so as to enable her to keep her body and soul together?

Then again, is there any provision in the Muslim Personal Law under which a sum is payable

to the wife ‘on divorce’? These are some of the important, though agonising, questions which

arise for our decision.

The question as to whether section 125 of the Code applies to Muslims also is

concluded by two decisions of this Court which are reported in Bai Tahira v. Ali Hussain

Fidalli Chothia(1) and Fazlunbi v. K. Khader Vali.(2) These decisions took the view that the

divorced Muslim wife is entitled to apply for maintenance under section 125. But, a Bench

consisting of our learned Brethren, Murtaza Fazal Ali and A. Varadarajan, JJ. were inclined

to the view that those cases are not correctly decided. Therefore, they referred this appeal to a

larger Bench by an order dated February 3, 1981, which reads thus:

“As this case involves substantial questions of law of far-reaching consequences, we

feel that the decisions of this Court in Bai Tahira v. Ali Hussain Fidaalli Chothia & Anr and

Fuzlunbi v. K. Khader Vnli & Anr. require reconsideration because, in our opinion, they are

not only in direct contravention of the plain and an unambiguous language of s. 127(3)(b) of

the Code of Criminal Procedure, 1973 which far from overriding the Muslim Law on the

subject protects and applies the same in case where a wife has been divorced by the husband

and the dower specified has been paid and the period of iddat has been observed. The

decision also appear to us to be against the fundamental concept of divorce by the husband

and its consequences under the Muslim law which has been expressly protected by s. 2 of the

Muslim Personal Law (Shariat) Application Act, 1937-an Act which was not noticed by the

aforesaid decisions. We, therefore, direct that the matter may be placed before the Honorable

Chief Justice for being heard by a larger Bench consisting of more than three Judges.”

51
 Section 125 of the Code of Criminal Procedure which deals with the right of

maintenance reads thus: "Order for maintenance of wives, children and parents.

125. (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, (b)...

(c)...

(d)...

A Magistrate of the first class may, upon proof of such neglecter refusal, order such

person to make a monthly allowance for the maintenance of his wife .. at such monthly rate

not exceeding five hundred rupees in the whole as such Magistrate think fit.

Explanation-For the purposes of this Chapter,-

(a)......

(b) “Wife” includes a woman who has been divorced by, or has obtained a divorce

from, her husband has not remarried.

(2)..... .

(3) If any person so ordered fails without sufficient cause to comply with the order,

any such Magistrate may, for every breach of the order, issued a warrant for levying the

amount due in the manner provided for levying fines, and may sentence such person, for the

whole or any part of each month's allowance remaining unpaid after the execution of the

warrant, to imprisonment for a term which may extend to one month or until payment if

sooner made:

Provided......

Provided further that if such person offers to maintain his wife on condition of her

living with him. and she refuses to live with him, such Magistrate may consider any grounds

of refusal stated by her, and may make an order under this section notwithstanding such offer,

if he is satisfied that there is just ground for so doing.

52
 Explanation-If a husband has contracted marriage with another woman or keeps a

mistress, it shall be considered to be just ground for his wife's refusal to live with him.

Section 127(3)(b), on which the appellant has built up the edifice of his defence reads

thus: Alteration in allowance

127. (1).....

(2)......

(3) Where any order has been made under section 125 in favour of a woman who has

been divorced by, or has obtained a divorce from her husband, the Magistrate shall, if he is

satisfied that-

(a).....

(b) the woman has been divorced by her husband and that she has received, whether

before or after the date of the said order, the whole of the Sum which, under any customary or

personal law applicable to the parties, was payable on such divorce, cancel such order,-

(i) in the case where such sum was paid before such order, from the date on which

such order was made.

(ii) in any other case, from the date of expiry of the period, if any, for Which

maintenance has been actually paid by the husband to the woman. Under section 125(1)(a), a

person who, having sufficient means, neglects or refuses to maintain his wife who is unable

to maintain herself, can be asked by the court to pay a monthly maintenance to her at a rate

not exceeding Five Hundred rupees. By clause (b) of the Explanation to section 125(1),

‘wife’ includes a divorced woman who has not remarried. These provisions are too clear and

precise to admit of any doubt or refinement. The religion professed by a spouse or by the

spouses has no place in the scheme of these provisions. Whether the spouses are Hindus or

Muslims, Christians or Parsis, pagans or heathens, is wholly irrelevant in the application of

these provisions. The reason for this is axiomatic, in the sense that section 125 is a part of the

53
Code of Criminal Procedure, not of the Civil Laws which define and govern The rights and

obligations of the parties belonging to particular, religions, like the Hindu Adoptions and

Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 was enacted in order

to provide a quick and summary remedy to a class of persons who are unable to maintain

themselves. What difference would it then make as to what is the religion professed by the

neglected wife, child or parent? Neglect by a person of sufficient means to maintain these and

the inability of these persons to maintain themselves are the objective criteria which

determine the applicability of section 125. Such provisions, which are essentially of a

prophylactic nature, cut across the barriers of religion. True, that they do not supplant the

personal law of the parties but, equally the religion professed by the parties or the state of the

personal law by which they are governed, cannot have any repercussion on the applicability

of such laws unless, within the framework of the Constitution, their application is restricted to

a defined category of religious groups or classes. The liability imposed by section 125 to

maintain close relatives who are indigent is founded upon the individual's obligation to the

society to prevent vagrancy and destitution. That is the moral edict of the law and morality

cannot be clubbed with religion. Clause (b) of 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. Sir

James Fitz James Stephen who piloted the Code of Criminal Procedure, 1872 as a Legal

Member of the Viceroy’s Council, described the precursor of Chapter IX of the Code in

which section 125 occurs, as a mode of preventing vagrancy or at least of preventing its

consequences. In Jagir kaur v. Jaswont Singh,(1) Subba Rao, J. speaking for the Court said

that Chapter XXXVI of the Code of 1898 which contained section 488, corresponding to

section 125, “intends to serve a social purpose”. In Nanak Chand v. Shri Chandra Kishore

Agarwala.(2) Sikri, J., while pointing out that the scope of the Hindu Adoptions and

54
Maintenance Act, 1956 and that of section 488 was different, said that section 488 was

“applicable to all persons belonging to all religions and has no relationship with the personal

law of the parties”.

Under section 488 of the Code of 1898, the wife's right to maintenance depended

upon the continuance of her married status. Therefore, that right could be defeated by the

husband by divorcing her unilaterally as under the Muslim Personal Law, or by obtaining a

decree of divorce against her under the other systems of law. It was in order to remove this

hardship that the Joint Committee recommended that the benefit of the provisions regarding

maintenance should be, extended to a divorced woman, so long as she has not remarried after

the divorce. That is the genesis of clause (b) of the Explanation to section 125(1), which

provides that ‘wife’ includes a woman who has been divorced by, or has obtained a divorce

from her husband and has not remarried. Even in the absence of this provision, the courts had

held under the Code of 1&98 that the provisions regarding maintenance were independent of

the personal law governing the parties. The induction of the definition of wife, so as to

include a divorced woman lends even greater weight to that conclusion. ‘Wife’ means a wife

as defined, irrespective of the religion professed by her or by her husband. Therefore, a

divorced Muslim woman, so long as she has not remarried, is a 'wife' for the purpose of

section 125. The statutory right available to her under that section is unaffected by the

provisions of the personal law applicable to her. The conclusion that the right conferred by

section 125 can be exercised irrespective of the personal law of the parties is fortified,

especially in regard to Muslims, by the provision contained in the Explanation to the second

proviso to section 125(3) of the Code. That proviso says that if the husband offers to maintain

his wife on condition that she should live with him, and she refuses to live with him, the

Magistrate may consider any grounds of refusal stated by her, and may make an order of

maintenance notwithstanding the offer of the husband, if he is satisfied that there is a just

55
ground for passing such an order. According to the Explanation to the proviso: “If a husband

has contracted marriage with another woman or keeps a mistress, it shall be considered to be

just ground for his wife's refusal to live with him.” 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 is not void, but merely irregular”. (See Mulla’s

Mahomedan Law,18th Edition, paragraph 25S, page 285, quoting Baillie’s Digest of

Moohummudan Law; and Ameer Ali’s Mahomedan Law, 5th Edition, Vol. II, page 280). The

explanation confers upon the wife the right to refuse to live with her husband if he contracts

another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section 125

overrides the personal law, if is any there conflict between the two.

The whole of this discussion as to whether the right conferred by section 125 prevails

over the personal law of the parties, has proceeded on the assumption that there is a conflict

between the provisions of that section and those of the Muslim Personal Law. The argument

that by reason of section 2 of the Shariat Act, XXVI of 1937, the rule of decision in matters

relating, inter alia, to maintenance "shall be the Muslim Personal Law" also proceeds upon a

similar assumption. We embarked upon the decision of the question of priority between the

Code and the Muslim Personal Law on the assumption that there was a conflict between the

two because, in so far as it lies in our power, we wanted to set at rest, once for all, the

question whether section 125 would prevail over the personal law of the parties, in cases

where they are in conflict.

The next logical step to take is to examine the question, on which considerable

argument has been advanced before us, whether there is any conflict 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.

56
 The contention of the husband and of the interveners who support him is that, under

the Muslim Personal Law, the liability of the husband to maintain a divorced wife is limited

to the period of iddat. In support of this proposition, they rely upon the statement of law on

the point contained in certain text books. In Mulla’s Mahomedan Law (18th Edition, para

279, page 301), there is a statement to the effect that, “After divorce, the wife is entitled to

maintenance during the period of iddat”. At page 302, the learned author says: -

“Where an order is made for the maintenance of a wife under section 488 of the

Criminal Procedure Code and the wife is afterwards divorced, the order ceases to operate on

the expiration of the period of iddat. The result is that a Mahomedan may defeat an order

made against him under section 488 by divorcing his wife immediately after the order is

made. His obligation to maintain his wife will cease in that case on the completion of her

iddat,”

Tyabji’s Muslim law (4th Edition, para 304, pages 268- 269). contains the statement

that: On the expiration of the iddat after talaq, the wife's right to maintenance ceases, whether

based on the Muslim Law, or on an order under the Criminal Procedure Code- According to

Dr Paras Diwan:

“When a marriage is dissolved by divorce the wife is entitled to maintenance during

the period of iddat.... On the expiration of the period of iddat, the wife is not entitled to any

maintenance under any circumstances. Muslim Law does not recognise any obligation on the

part of a man to maintain a wife whom he had divorced.”

(Muslim Law in Modern India, 1982 Edition, page 130) These statements in the text

book are inadequate to establish the proposition that the Muslim husband is not under an

obligation to provide for the maintenance of his divorced wife, who is unable to maintain

herself. One must have regard to the entire conspectus of the Muslim Personal Law in order

to determine the extent both, in quantum and induration, of the husband's liability to provide

57
for the maintenance of an indigent wife who has been divorced by him. Under that law, the

husband is bound to pay Mahr to the wife as a mark of respect to her. True, that he may settle

any amount he likes by way of dower upon his wife, which cannot be less than 10 Dirhams,

which is equivalent to three or four rupees (Mulla’s Mahomedan Law, 18th Edition, para 286,

page 308). But, one must have regard to the realities of life Mahr is a mark of respect to the

wife. The sum settled by way of Mahr is generally expected to take care of the ordinary

requirements of the wife, during the marriage and after. But these provisions of the Muslim

Personal Law do not countenance cases in which the wife is unable to maintain herself after

the divorce. We consider it not only incorrect but unjust, to extend the scope of the statements

extracted above to cases in which a divorced wife is unable to maintain herself. We are of the

opinion that the application of those statements of law must be restricted to that class of

cases, in which there is no possibility of vagrancy or destitution arising out of the indigence

of the divorced wife. We are not concerned here with the broad and general question whether

a husband is liable to maintain his wife, which includes a divorced wife, in all circumstances

and at all events. That is not the subject matter of section 125. That section deals with cases

in which, a person who is possessed of sufficient means neglects or refuses to maintain,

amongst others, his wife who is unable to maintain herself. Since the Muslim Personal Law,

which limits the husband's liability to provide for the maintenance of the divorced wife to the

period of iddat, does not contemplate or countenance the situation envisaged by section 125,

it would be wrong to hold that the Muslim husband, according to his personal law, is not

under all obligation to provide maintenance, beyond the period of iddat, to his divorced wife

who is unable to maintain herself. The argument of the appellant that, according to the

Muslim Personal Law, his liability to provide for the maintenance of his divorced wife is

limited to the period of iddat, despite the fact she is unable to maintain herself, has therefore

to be rejected. The true position is that, if the divorced wife is able to maintain herself, the

58
husband’s liability to provide maintenance for her ceases with the expiration of the period of

iddat. If she is unable to maintain herself, she is entitled to take recourse to section 125 of the

Code. The outcome of this discussion is that there is no conflict between the provisions of

section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s

obligation to provide maintenance for a divorced wife who is unable to maintain herself.

There can be no greater authority on this question than the Holy Quran, “The Quran,

the Sacred Book of Islam, comprises in its 114 Suras or chapters, the total of revelations

believed to have been communicated to Prophet Muhammed, as a final expression of God’s

will”. (The Quran- Interpreted by Arthur J. Arberry). Verses (Aiyats) 241 and 242 of the

Quran show that according to the Prophet, there is an obligation on Muslim husbands to

provide for their divorced wives.

The correctness of the translation of these Aiyats is not in dispute except that, the

contention of the appellant is that the word ‘Mata’ in Aiyat No. 241 means 'provision' and not

'maintenance'. That is a distinction without a difference. Nor are we impressed by the

shuffling plea of the All India Muslim Personal Law Board that, in Aiyat 241, the exhortation

is to the ‘Mutta Queena’, that is, to the more pious and the more God-fearing, not to the

general run of the Muslims, the ‘Muslminin’. In Aiyat 242, the Quran says: “It is expected

that you will use your commonsense”. The English version of the two Aiyats in Muhammad

Zafrullah Khan’s ‘The Quran’ (page 38) reads thus: "For divorced women also there shall be

provision according to what is fair. This is an obligation binding on the righteous. Thus does

Allah make His commandments clear to you that you may understand. The translation of

Aiyats 240 to 242 in The Meaning of the Quran (Vol. I, published by the Board of Islamic

Publications, Delhi) reads thus.

Those of you, who shall die and leave wives behind them, should make a will to the

effect that they should be provided with a year's maintenance and should not be turned out of

59
their homes. But if they leave their homes of their own accord, you shall not be answerable

for whatever they choose for themselves in a fair way; Allah is All Powerful, All-wise.

Likewise, the divorced women should also be given something in accordance with the known

fair standard. This is an obligation upon the God-fearing people.

Thus Allah makes clear His commandments for you: It is expected that you will use

your commonsense.” In “The Running Commentary of The Holy Quran” (1964 Edition) by

Dr. Allamah Khadim Rahmani Nuri, Aiyat No. 241 is translated thus:

And for the divorced woman (also) a provision (should be made) with fairness (in

addition to her dower); (This is) a duty (incumbent) on the reverent.” In “The Meaning of the

Glorious Quran, Text and Explanatory Translation”, by Marmaduke Pickthall, (Taj Company

Ltd.,karachi), Aiyat 241 is translated thus: -

For divorced women a provision in kindness: A duty for those who ward off (evil).

Finally, in “The Quran Interpreted” by Arthur J. Arberry. Aiyat 241 is translated thus:

There shall be for divorced women provision honourable-an obligation on the god

fearing.” So God makes clear His signs for you: Happily you will understand.”

Dr. K.R. Nuri in his book quoted above: The Running Commentary of the Holy

Quran, says in the preface: “Belief in Islam does not mean mere confession of the existence

of something. It really means the translation of the faith into action. Words without deeds

carry no meaning in Islam. Therefore the term “believe and do good” has been used like a

phrase all over the Quran. Belief in something means that man should inculcate the qualities

or carry out the promptings or guidance of that thing in his action. Belief in Allah means that

besides acknowledging the existence of the Author of the Universe, we are to show

obedience to His commandments...”

These Aiyats leave no doubt that the Quran imposes an obligation on the Muslim

husband to make provision for or to provide maintenance to the divorced wife. The contrary

60
argument does less than justice to the teaching of the Quran. As observed by Mr. M.

Hidayatullah in his introduction to Mulla’s Mahomedan Law, the Quran is Al- furqan’ that is

one showing truth from falsehood and right from wrong.

The second plank of the appellant’s argument is that the respondent’s application

under section 125 is liable to be dismissed because of the provision contained in section 127

(3) (b). That section provides, to the extent material, that the Magistrate shall cancel the order

of maintenance, if the wife is divorced by the husband and, she has received “the whole of

the sum which, under any customary or personal law applicable to the parties, was payable on

such divorce”. That raises the question as to whether, under the Muslim Personal law, any

sum is payable to the wife 'on divorce'. We do not have to grope in the dark and speculate as

to which kind of a sum this can be because, the only argument advanced before us on behalf

of the appellant and by the interveners supporting him, is that Mahr is the amount payable by

the husband to the wife on divorce. We find it impossible to accept this argument.

In Mulla’s principles of Mahomedan Law (18th Edition, page 308), Mahr or Dower is

defined in paragraph 285 as “a sum of money or other property which the wife is entitled to

receive from the husband in consideration of the marriage.” Dr. Paras Diwan in his book,

“Muslim Law in Modern India” (1982 Edition, page 60), criticises this definition on the

ground that Mahr is not payable “in consideration of marriage” but is an obligation imposed

by law on the husband as a mark of respect for the wife, as is evident from the 863

fact that non-specification of Mahr at the time of marriage does not affect the validity

of the marriage. We need not enter into this controversy and indeed, Mulla’s book itself

contains the further statement at page 308 that the word ‘consideration’ is not used in the

sense in which it is used in the Contract Act and that under the Mohammedan Law, Dower is

an obligation imposed upon the husband as a mark of respect for the wife. We are concerned

to find is whether Mahr is an amount payable by the husband to the wife on divorce. Some

61
confusion is caused by the fact that, under the Muslim Personal Law, the amount of Mahr is

usually split into two parts, one of which is called “prompt”, which is payable on demand,

and the other is called “deferred “, which is payable on the dissolution of the marriage by

death or by divorce. But, the tact that deferred Mahr is payable at the time of the dissolution

of marriage, cannot justify the conclusion that it is payable ‘on divorce’. Even assuming that,

in a given case, the entire amount of Mahr is of the deferred variety payable on the

dissolution of marriage by divorce, it cannot be said that it is an amount which is payable on

divorce. Divorce may be a convenient or identifiable point of time at which the deferred

amount has to be paid by the husband to the wife. But, the payment of the amount is not

occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which

occurs in section 127 (3) (b) of the Code. If Mahr is an amount which the wife is entitled to

receive from the husband hl consideration of the marriage, that is the very opposite of the

amount being payable in consideration of divorce. Divorce dissolves the Marriage. Therefore

no amount which is payable in consideration of the marriage can possibly be described as an

amount payable in consideration of divorce. The alternative premise that Mahr is an

obligation imposed upon the husband as a mark of respect for the wife is wholly detrimental

to the stance that it is an amount payable to the wife on divorce. A man may marry a woman

for love, looks, learning or nothing at all. And. he may settle a sum upon her as a mark of

respect for her. But he does not divorce her as a mark of respect. Therefore, a sum payable to

the wife out of respect cannot be a sum payable ‘on divorce’.

In an appeal from a Full Bench decision of the Allahabad High Court, the Privy

Council in Hamira Bibi v. Zubaide Bibi(1) summed up the nature and character of Mahr in

these words: “Dower is an essential incident under the Muslim Law to the status of marriage;

to such an extent that is so that when it is unspecified at the time the marriage is contracted,

the law declares that it must be adjudged on definite principles. Regarded as a consideration

62
for the marriage, it is, in theory, payable before consummation; but the law allows its division

into two parts, one of which is called “prompt” payable before the wife can be called upon to

enter the conjugal domicil; the other “deferred”, payable on the dissolution of the contract by

the death of either of the parties or by divorce.” (p. 300-301) This statement of law was

adopted in another decision of the Privy Council in Syed Sabir Husain v. Farzand Hasan.(1)

It is not quite appropriate and seems invidious to describe any particular Bench of a court as

“strong” but, we cannot resist the temptation of mentioning that Mr. Syed Ameer Ali was a

party to the decision in Hamira Bibi while Sir Shadi Lal was a party to the decision in Syed

Sabir Husain. These decisions show that the payment of dower may be deferred to a future

date as, for example, death or divorce. But, that does not mean that the payment of the

deferred dower is occasioned by these events. It is contended on behalf of the appellant that

the proceedings of the Rajya Sabha dated December 18, 1973 (volume 86, column 186),

when the bill which led to the Code of 1973 was on the anvil, would show that the intention

of the Parliament was to leave the provisions of the Muslim Personal Law untouched. In this

behalf, reliance is placed on the following statement made by Shri Ram Niwas Mirdha, the

then Minister of State, Home Affairs: Dr. Vyas very learnedly made certain observations that

a divorced wife under the Muslim law deserves to be treated justly and she should get what is

her equitable or legal due. Well, I will not go into this, but say that we would not like to

interfere with the customary law of the Muslims through the Criminal Procedure Code. If

there is a demand for change in the Muslim Personal Law, it should actually come from the

Muslim Community itself and we should wait for the Muslim public opinion on these matters

to crystalise before we try to change this customary right or make changes in their personal

law. Above all, this is hardly, the place where we could do so. But as I tried to explain, the

provision in the Bill is an advance over the previous situation. Divorced women have been

included and brought within the admit of clause 125, but a limitation is being imposed by this

63
amendment to clause 127, namely, that the maintenance orders would ceases to operate after

the amounts due to her under the personal law are paid to her. This is a healthy compromise

between what has been termed a conservative interpretation of law or a concession to

conservative public opinion and liberal approach to the problem. We have made an advance

and not tried to transgress what are the personal rights of Muslim women. So this, I think,

should satisfy Hon. Members that whatever advance we have made is in the right direction

and it should be welcomed.” It does appear from this speech that the Government did not

desire to interfere with the personal law of the Muslim through the Criminal Procedure Code.

It wanted the Muslim community to take the lead and the Muslim public opinion to crystalise

on the reforms in their personal law. However, we do not concerned with the question

whether the Government did not desire to bring about changes in the Muslim Personal Law

by enacting sections 125 and 127 of the Code. As we have said earlier and, as admitted by the

Minister, the Government did introduce such a change by defining the expression 'wife' to

include a divorced wife. It also introduced another significant change by providing that the

fact that the husband has contracted marriage with another woman is a just ground for the

wife's refusal to live with him. The provision contained in section 127 (3) (b) may have been

introduces because of the misconception that dower is an amount payable "on divorce". But,

that cannot convert an amount payable as a mark of respect for the wife into an amount

payable on divorce.

It must follow from this discussion, unavoidably a little too long, that the judgments

of this Court in Bai Tahira (Krishna Iyer J., Tulzapurkar J. and Pathak J.) and Fazlunbi

(Krishna Iyer, J.,) one of us, Chinnappa Reddy J. and A. P. Sen J.) are correct. Justice

Krishna Iyer who spoke for the Court in both these cases, relied greatly on the teleological

and schematic method of interpretation so as to advance the purpose of the law. These

constructional techniques have their own importance in the interpretation of statutes meant to

64
ameliorate the conditions of suffering sections of the society. We have attempted to show that

taking the language of the statute as one finds it, there is no escape from the conclusion 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.

Though Bai Tahira was correctly decided, we would like, respectfully, to draw

attention to an error which has crept in the judgement There is a statement at page 80 of the

report, in the context of section 127 (3) (b), that “payment of Mahr money, as a customary

discharge, is within the cognizance of that provision”. We have taken the view that Mahr, not

being payable on divorce, does not fall within the meaning of that provision.

It is a matter of deep regret that some of the interveners who supported the appellant,

took up an extreme position by displaying an unwarranted zeal to defeat the right to

maintenance of women who are unable to maintain themselves. The written submissions of

the All India Muslim Personal Law Board have gone to the length of asserting that it is

irrelevant to inquire as to how a Muslim divorce should maintain herself. The facile answer

of the Board is (that the Personal Law has devised the system of Mahr to meet the

requirements of women and if a woman is indigent, she must look to her relations, including

nephew and cousins, to support her. This is a most unreasonable view of law as well as life.

We appreciate that Begum Temur Jehan, a social worker who has been working in

association with the Delhi City Women's Association for the uplift of Muslim women,

intervened to support Mr. Daniel Latifi who appeared on behalf of the wife

It is also a matter of regret that Article 44 of our Constitution has remained a dead

letter. It provides that "The State shall endeavour to secure for the citizens a uniform civil

code throughout the territory of India". There is no evidence of any official activity for

867framing a common civil code for the country. A belief seems to have gained ground that

it is for the Muslim community to take a lead in the matter of reforms of their personal law. A

65
common Civil Code will help the cause of national integration by removing disparate

loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by

making gratuitous concessions on this issue. It is the State which is charged with the duty of

securing a uniform civil code for the citizens of the country and, unquestionably, it has the

legislative competence to do so. A counsel in the case whispered, somewhat audibly, that

legislative competence is one thing, the political courage to use that competence is quite

another. We understand the difficulties involved in bringing persons of different faiths and

persuasions on a common platform But a beginning has to be made if the Constitution is to

have any meaning. Inevitably, the role of the reformer has to be assumed by the courts

because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it

is so palpable. But piecemeal attempts of courts to bridge the gap between personal Laws

cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of

dispensing justice than justice from case to case. Dr. Tahir Mahmood in his book 'Muslim

Personal Law (1977 Edition, pages 200-202), has made a powerful plea for framing a

uniform Civil Code for all citizens of India. He says: “In pursuance of the goal of secularism,

the State must stop administering religion based personal laws”. He wants the lead to come

from the majority community but, we should have thought that, lead or no lead, the State

must act. It would be useful to quote the appeal made by the author to the Muslim

community:

“Instead of wasting their energies in exerting theological and political pressure in

order to secure an “immunity” for their traditional personal law from the state legislative

jurisdiction, the Muslim will do well to begin exploring and demonstrating how the true

Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the

common civil code of India.”

66
 At a Seminar held on October 18, 1980 under the auspices of the Department of

Islamic and Comparative Law, Indian Institute of Islamic Studies New Delhi? He also made

an appeal to the Muslim community to display by their conduct a correct understanding of

Islamic concepts on marriage and divorce (See Islam and Comparative Law Quarterly, April-

June, 1981, page 146).

Before we conclude, we would like to draw attention to the Report of the Commission

on marriage and Family Laws, which was appointed by the Government of Pakistan by a

Resolution dated August 4, 1955. The answer of the Commission to Question No.5 (page

1215 of the Report) is that “a large number of middle-aged women who are being divorced

without rhyme or reason should not be thrown on the streets without a roof over their heads

and without any means of sustaining themselves and their children.”

The Report concludes thus: In the words of Allama Iqbal, “the question which is

likely to confront Muslim countries in the near future, is whether the law of Islam is capable

of evolution-a question which will require great intellectual effort, and is sure to he answered

in the affirmative”.

For these reasons, we dismiss the appeal and confirm the judgment of the High Court.

The appellant will pay the costs of the appeal to respondent 1, which we quantify at rupees

ten thousand. It is needless to add that it would be open to the respondent to make an

application under section 127 (1) of the Code for increasing the allowance of maintenance

granted to her on proof of a change in the circumstances as envisaged by that section. S.R.

Appeal dismissed….

67
 CHAPTER 6

CONCLUSION

The Muslim community opposes the whole idea of Uniform Law because they believe

that if the Uniform Law are made then the Muslims laws and traditions will not be considered

and the Hindu laws and tradition would take over their personal laws. Also one more

argument which comes in forward whenever there is talk of the Uniform Law is that the

Muslim laws are not so much moderate as compared to the Hindu laws so in a way in order to

modernize the whole state and the society of the India by bringing the Uniform Law to

provide equality the Hindu law being considered modern will supersede the Muslim personal

law. In my view bringing the Uniform Law for maintenance in action will be a good thing.

But the Uniform Law should be flexible in nature i.e. it should not overtake the personal laws

of any religion. The Indian constitution provides an article for the Uniform Civil Code. The

founding fathers of the constitution made the constitution in such a way keeping in mind the

diversity of the country and the need for a Uniform Civil Code. But the Uniform Civil Code

has not yet been adopted due to the opposition from a major section of the minorities in the

country mainly the Muslim community.

After reading and going through various sources of the personal laws, I feel that the

Hindu law is much more clearly defined and gives much more rights to women in

comparison to the Muslim law. Providing maintenance 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. Maintenance is the amount which a husband is under an obligation to make to

68
a wife either during the subsistence of the marriage or upon separation or divorce, under

certain circumstances.

If we read the Shah Bano case we could see that the Muslim and the Hindu women

were on the same side. But latter when the government passed The Muslim Women

(Protection of Rights on Divorce) Act, 1986 the Muslim women were again seen to be more

unprivileged than the Hindu women. But latter the court in the Daniel Latify judgment said

that the Muslim women can also be awarded the same maintenance as Hindu women for life

time. Therefore according to my understanding or according to my knowledge I would say

that both the Hindu and the Muslim women are in the same place in case of awarding the

maintenance. Law of maintenance is personal as well as legal in character and arises from the

very existence of relationship between the parties.

From the above discussion, it can be concluded that Law of maintenance with no

doubts is inclined towards the females in both the structures whether it be Hindu Law or

Muslim Law. Women have been bestowed with many more privileges in comparison to men

and husbands have been granted a lot more of responsibilities and obligations. Although the

given laws may sound unjust to a few but pragmatically they seem to be correct as in our

country even till date women do not have the social status equal to that of men. Hence, it

won’t be incorrect to extrapolate that Law makers while formulating these provisions must

have kept in mind the situation of the women in the patriarchal society of India. The women

of both the communities are suffering due to being poor, being women and then being a part

of the patriarchy society.

69
 BIBLIOGRAPHY

 Ratan Lal & Dhiraj Lal, “The Code of Criminal Procedure”, 17th Edition,

Reprinted 2009, page no. 150-151.

 Dr. Paras Diwan, “Modern Hindu Law”, 20th edition( Allahabad Law

Agency)

 Charles Hamilton, “The Hedaya, or Guide: A Comentary on the Muslim

Law”, 2nd Edition (London 1870)

 Syed Khalid Rashid’s Muslim Law, 5th edition

 Baillie’s Digest, Calcutta ,1805

 “Polygamy, Unilateral Divorce and Mehr in Muslim Law as interpreted in

India”, in Tahir Mahmood(ED.), Islamic Law in modern India, ILI, 1972

 A.A.A. Fyzee, “Outlines of Mohammedan Law”, (3rd edition, 1964)

 D.F. Mulla, “Principles vof Mohammedan Law”, 18th edition(Mumbai,

1977)

 http://legal-dictionary.thefreedictionary.com/maintenance ,visited on 11-

12-2013

 Dr. Paras Diwan, “Modern Hindu Law”, 20th edition( Allahabad Law

Agency) , at p.448

 http://www.brentonpriestley.com/writing/alimony.html , visited on 12-12-

2013

 http://www.familylawireland.ie/maintenance/maintenance/ visited on 12-

12-2013

 Charles Hamilton, “The Hedaya, or Guide: A Comentary on the Muslim

Law”, 2nd Edition (London 1870),

70
 at p. 140

 Syed Khalid Rashid’s Muslim Law, 5th edition, at p. 181

 D.F. Mulla, “Principles vof Mohammedan Law”, 18th edition(Mumbai,

1977), at p. 383

 Haq, Mushir ul. Islam in Secular India. Simla 1972

 Jackson, Paul(ed). The Muslims of India. The Development of Islamic

Law by Terence Farias. New Delhi 1988.

 Lateef, Shahida. Muslim Women in India: Political and Private realities.

New Delhi, 1990.

 Latif, Syed Abdul. The Muslim Problem in India. Bombay, 1939.

 Mahmood, Tahir. Muslim Personal Law: Role of the State in the

Subcontinent. New Delhi, 1977.

 Manchanda, S. C. The Law and Practice of Divorce. Allahabad, 1973.

 Moinuddin, S.A.H. Divorce and Muslim Women. Jaipur, 2000.

 Raju, M.P. Uniform Civil Code: A Miraj? Delhi, 2003.

 Shakir, Moin. The Secularization of Muslim Behavior. Calcutta, 1973.

 Tyabji, Faiz B. Muhammadan Law. Bombay, 1940.

 Verma, B.R. Commentaries on Mohammedan Law. Allahabad, 2002.

 Institute of Islamic Studies and Centre for Study of Society and

Secularism. Muslim Women's Maintenance some new Judgments. 16–31

July 2000. Retrieved 27 March 2005.

 The Times of India. End Polygamy, Muslim Woman pleads with SC. 12

May 2001. Retrieved 14 March 2005.

 Indian Public Law Initiative. Retrieved 26 March 2005

71