(SGT-209)

SGT UNIVERSITY- INBA

ND
2 PAPERLESS NATIONAL MOOT COURT COMPETITION, 2017
Before

THE HON’BLE SUPREME COURT OF INDIA

[UNDER ART. 136 OF THE CONSTITUTION OF INDIA]

SPECIAL LEAVE PETITION
S.L.P. (CIVIL) NO. _ _ OF 2017

IN THE MATTER OF
RAFIQ AHMED...................................................................................................................................... PETITIONER

VS.

AFSANA................................................................................................................................................ RESPONDENT

IN THE MATTER CONCERNING THE JUDICIAL SCRUTINY OF THE IMPUGNED

CONSTITUTIONALITY OF TRIPLE TALAQ AND WIFE’S CLAIM OF MAINTENANCE.

ON THE SUBMISSION BEFORE THE REGISTRY OF THE COURT

ON 03/05/2017

SUBMISSION on behalf of RESPONDENT

i
 TABLE OF CONTENTS

1. INDEX OF AUTHORITIES...................................................................................................................... iii

STATUTES REFERRED............................................................................................................................ iii
CONVENTIONS REFERRED.....................................................................................................iii
BOOKS REFERRED.................................................................................................................................. iii
WEB LINKS................................................................................................................................................ iii
CASES REFERRED................................................................................................................................... iv
LIST OF ABBREVIATIONS.................................................................................................................... vii
2. STATEMENT OF JURISDICTION...................................................................................................... viii
3. STATEMENT OF FACTS........................................................................................................................ ix
4. QUESTIONS OF LAW.............................................................................................................................. xi
5. SUMMARY OF ARGUMENTS.............................................................................................................. xii
6. ARGUMENTS ADVANCED.............................................................................................................. 1- 22
I. WHETHER TRIPLE TALAQ IS UNCONSTITUTIONAL ON THE GROUND THAT IT
VIOLATES THE FUNDAMENTAL RIGHT OF WOMEN IN GENERAL AND MUSLIM
WOMEN IN PARTICULAR?....................................................................................1- 11
II. WHETHER THE MUSLIM WOMAN’S RIGHT TO CLAIM MAINTENANCE FROM HER
HUSBAND UNDER SECTION 125 CR. P.C. IS CIRCUMVENTED BY THE PROVISIONS
OF MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986, AND IF
SO, WHETHER IT VIOLATES ANY OF THE CONSTITUTIONAL
PROVISIONS?......................................................................................................11- 19
III. WHETHER A MARRIED WOMAN IN GENERAL AND A MARRIED MUSLIM WOMEN IN
PARTICULAR HAS LEGAL RIGHT TO CLAIM SEPARATE RESIDENCE IN THE
MATRIMONIAL HOME?.......................................................................................19-22
7. PRAYER.................................................................................................................................................... xiii

INDEX OF AUTHORITIES

ii
 STATUTES REFERRED

1. THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

2. THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 (26 OF 1937)
3. HINDU ADOPTION AND MAINTENANCE ACT, 1956
4. THE CODE OF CRIMINAL PROCEDURE, 1973
5. THE CONSTITUTION OF INDIA
6. SRI LANKA’S MARRIAGE AND DIVORCE (MUSLIM) ACT, 1951
7. THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
8. MUSLIM FAMILY LAW ORDINANCE, 1961
CONVENTIONS REFERRED

1. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,1956

2. INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN (CEDAW), 1979
3. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

BOOKS REFERRED

TH
1. AQIL AHMAD , MOHAMMEDAN LAW (25 ED. 2014)
RD
2. LEXIS NEXIS, FAMILY LAW I (3 ED. 2011)
3. OXFORD, CASES ON MUSLIM LAW OF INDIA, PAKISTAN AND BANGLADESH
RD
4. A.M. BHATTACHARJEE, MUSLIM LAW AND CONSTITUTION (3 EDITION 2016)
5. LEXIS NEXIS, FAMILY LAW LECTURES (2007)
TH
6. MULLA, PRINCIPLES OF MAHOMEDAN LAW (20 ED. 2013)
ST
7. TAHIR MAHMOOD, STATUTE LAW RELATING TO MUSLIMS IN INDIA( 1 ED. 1995)
ST
8. TAHIR MAHMOOD, ISLAMIC LAW IN THE INDIAN COURTS SINCE INDEPENDENCE (1
ED. 1997)
9. PANDEY, CONSTITUTIONAL LAW OF INDIA (2016)
10. D D BASU, INTRODUCTION TO INDIAN CONSTITUTION (2016)

WEB LINKS

1. www.indiankanoon.org
2. www.manupatra.com
3. www.scconline.com

iii
4. www.supremecourtofindia.nic.in
5. www.jstor.org
6. www.westlawindia.com
CASES REFERRED

1. A. Abdul Gafoor v. Abvaummal [1989 Cr LJ 1224]

2. Abdul Jalil v. State Of Uttar Pradesh [(1984) 2 SCC 138]
3. Abdulla Khan v. Chandnibi’ [AIR 1956 Bhopal 71]
4. Ali v. Sufaria [(1988)3 Crimes 147]
5. Aliyar v. Pathan [1988(2) Ker LJ 46]
6. Ameer Amanulla v. Mariam Beebi [(1985) MLJ (Cr) 164]
7. Arab Ahamedia Abdulla v. Arab Bai Mohummasaiyaddin [AIR 1988 Guj. 141]
8. Ashutosh Gupta v. State Of Rajasthan [(2002) 4 SCC 34.]
9. B.K. Mohanty v. S.K. Mohanty [(1982) Cr LJ 485 (Ori)]
10. Bai Tahira v. Ali Hussain [AIR 1979 SC 362]
11. Bannari Amman Sugars Ltd. v. Cto, [(2005) 1 SCC 625]
12. Bhagwan Dutt v. Kanta Devi [AIR 1975 SC 83]
13. Bharat Heavy Plates And Vessels Ltd., Visakhapatnam [AIR 1985 AP 207]
14. Bibi Shahnaz @ Munni v. State Of Bihar and Anr.[1998 Cri. LJ 4702]
15. Bindelal v. Kushma Devi [(1998) Cr LJ NOC 19 (All)]
16. C.K. Aboobacker v. Rahiyanath [Crl. MC. No. 2188 of 2004()]
17. Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal And Ors. [AIR 1978 SC
1807]
18. Chameli Singh v. State Of U. P [AIR 1996 SC 1051]
19. Danial latifi v. Union of India [(2001) 7 SCC 740].
20. Dasaratha Rama Rao v. State Of Andhra Pradesh [AIR 1961 SC 67]
21. Delhi Airtech Services Pvt. Ltd. v. State Of U.P [(2011) 9 SCC354]
22. E.R.J. Swami v. State Of Tamil Nadu[AIR 1972 SC 1586]
23. Ekta Arora v. Ajay Arora And Anr. [Crl.M.C.No.3497/2008]
24. Fuzlunbi v. K. Khadervali [AIR 1980 SC 1730].
25. Ghulam Hasan Ganai v. Raja Bibi [(1973) Cr LJ 1019 (J&K)]
26. H. H. Srimadperarulalaethirajaramanujajeeyar Swami v. State Of Tamil Nadu [AIR
1972 SC 1586, At 1593]
27. H. Syed Ahmad v. Nagath Parveen [AIR 1958 Mys. 128 (131)]

iv
28. Harvinder Kaur v. Harminder Singh [1984] AIR Del 66]

v
29. Hasram v. Abdul Rahim [1989 Cr LJ 1519]
30. In Re, Smt. Amina v. Unknown [AIR 1992 Bom 214]
31. Jiauddin Ahmed v. Anwara Begum [(1978) 1 GLR 375].
32. Joginder Singh v. Raj Mohinder Kaur [AIR (1960) Punj 249]
33. John Vallamattom v. Union Of India, [(2003) 6 SCC 611]
34. K.B. Pradhan v. Tikamayanewar [1987 Cr LJ 1278 (Gau)]
35. Kadar Mian v. Jahera Khatun [1999 Cri LJ 1440]
36. Kaka v. Hasan Bano & Anr. [(1998) 2 DMC 85 (P&H) (FB)]
37. Karim Ahmed v. Shehnaz [2000 Cr LJ 3536]
38. Kunhammedhazi v. Amina [II(1995) DMC 479]
39. Kunhimohommed v. Ayishakutty [RPFC. No. 53 of 2006()]
40. M. Nagaraj v. Union of India, [(2006) 8 SCC 212]
41. M.A. Hameed v. Arif Jan [1990 Cr LJ 96]
42. Mahfooz Ali Khan v. Mohammed Ashan [AIR 1980 All 5 (7)]
43. Makkurawther's Children: Assam v. Manahaparacharayil [AIR 1972 Ker 27]
44. Maneka Gandhi v. Union Of India [(1978) 1 SCC 248]
45. Mangat Mal (Dead) And Another vs Smt. Punni Devi (Dead) [AIR 1996 SC 172]
46. Manubai v. Sukhdeo [(1990) Cr LJ 646 (MP)]
47. Masroor Ahmad v. State [ILR (2007) 2 Del 1329]
48. Mir Hasan Khan and ors. v. The State [AIR (1951) Pat 60221]
49. Mithlesh Kumara v. Bindhawasani [(1990) Cr. LJ 830 (All)]
50. Mohamed Abdul Hai v. Saleha [2007 Cr LJ 1394]
51. Mohamed Reyazuddin v. Shamaashrafi [2000 Cr LJ 2490]
52. Mohamed Siddique v. Mst. Fatema [2007 Cr LJ 2363]
53. Mohd. Ahmad Khan v. Shah Bano Begum [(1985) AIR SC 985]
54. Mohd. Hanifquareshi v. State Of Bihar [AIR 1958 SC 731]
55. Motiur Rahaman v. Sabina Khatun [(1994) Cri. LJ NOC 217) (Cal)].
56. Muhamed Hafzur Rahman v. Naar Begum, Bangladesh Legal Decisions [(1995) Vol.
XVT 34].
57. Murleedharan v. Vijaylaxmi [AIR 2007 NOC 61 (Ker)].
58. Musrat Jahan v. State Of Bihar [AIR 2008 Pat 69]
59. Must. Sahida Begum v. Md. Mofizul Haque [(1986) Cri LJ 103]
60. N. Adithyan v. Travancore Devaswom Board [(2002) 8 SCC 106]
v
61. Naresh Chandra Bose v. Sachindranath Deb [AIR 1956 Cal 222 (224)]

vi
62. Naseem v. State Of U.P. [1999 Cr LJ 301]
63. Natural Resources Allocations, In Re Special Reference No. 1 Of 2012 [(2012) 10
SCC 1]
64. Navneet Arora v. Surinder Kaur & Others [213 (2014) DLT 611 (Db)]
65. Noor Saba Khatoon v. Mohamed Quasim [AIR 1997 SC 3280]
66. Olga Tellis & Ors. v. Bombay Municipal Corporation &Ors. [1986 AIR 180]
67. P.G. Gupta v. State Of Gujarat [(1995) SCC, Supl. (2) 182 Jt 1995 (2) 373]
68. Prabhakar Nair v. State Of T.N.[(1987) AIR 2117]
69. Preeti Satija v. Raj Kumari & Another[207 (2014) DLT 78 (Db)]
70. Rahmatullah v. State Of U. P. [II (1994) DMC 64]
71. Rasiya v. State Of Kerala [2002 (2) Klt 825].
72. Rukia Khatun v. Abdul Khalique Laskar [1988(1) GLR 375 (Db)].
73. Rupsen Begum v. Abdul Sattar [1990 Cr. L.R. 2391]
74. S.R. Batra And Another v. Smt. Taruna Batra, [2006 (13) Scale 652]
75. Sairo Bano v. Mohd. Aslam Ghulam Mustafa Khan[I (2001) DMC 457]
76. Saleem Basha v. Mumtaz Begum [II (1999) DMC 206]
77. Sarla Mudgal v. Union Of India [AIR 1995 SC 1531]
78. Saroj Rani v. Sudarshan Kumar [(1984) AIR SC 1562]
79. Saumya Ann Thomas v. Union Of India [Wp(C).No. 20076 Of 2009(R)]
80. Savitaben Somabhai Bhatiya v. State Of Gujarat And Ors [Appeal (crl.) 399 of 2005]
81. Seenath v. Iqbal [AIR (2010) Noc 636 (Ker)]
82. Shabana Bano v. Imran Khan [AIR (2010) SC 305]
83. Shaikh Mobin v. State Of Maharashtra [(1996) Mah LJ 810]
84. Shamim Ara v. State Of U.P [(2002) 7 SCC 518]
85. Shravan Kumar v. Usha Devi [(1984) Cri LJ (Noc) 184 (All)]
86. Shumita Didi Sandhu v. Sanjay Singh Sandhu &Ors [174 (2010) DLT 79 (Db)]
87. Siraj Sahebji v. V. Roshansiraj [AIR 1990 Bom 344]
88. Smt. Wafatan v. Jamil Ahmed I [(1999) DMC 327]
89. Srinivasaaiyar v. Saraswathiammal [AIR 1952 Mad. 193]
90. State Of Bombay v. Bombay Education Society [AIR 1954 SC 561 (567, 568)]
91. State Of Rajasthan v. Sajjanlal [(1974) 1 SCC 500]
92. Sudha v. Sankarappa [AIR 1963 Mys. 245]
93. Suryakant @ Suresh Laxmishankar v. Indu [(1973) Guj L.R. 169]
vi
94. V.Malaviswanathan v. P.B Viswanathanii [(2003) DMC 809]

vi
i
95. Zeenatfatema Rashid v. Md. Iqbal Anwar [II(1993) DMC 49]
96. Zulekha Begum @ Rahmathunnisa Begum v. Abdul Raheem [II (2000) DMC 99]
97. Zumaiteen v. Ameena Begum [1997(2) LW 31]

LIST OF ABBREVIATIONS

1. ¶...................................................................................................................PARAGRAPH
2. MPL.........................................................................................MUSLIM PERSONAL LAW
3. MWA...................MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986
4. COI...................................................................................THE CONSTITUTION OF INDIA
5. CR. P.C....................................................................CRIMINAL PROCEDURE CODE, 1973
6. SEC................................................................................................................................................... SECTION
7. SC.........................................................................................................SUPREME COURT
8. HC...............................................................................................................HIGH COURT
9. SCC...........................................................................................SUPREME COURT CASES
10. AIR................................................................................................ALL INDIA REPORTER
11. HON’BLE............................................................................................................................. HONOURABLE
12. S.L.P........................................................................................SPECIAL LEAVE PETITION
13. I.E...................................................................................................................................................... THAT IS

14. ORS.................................................................................................................................................... OTHERS

15. CRL............................................................................................................................................... CRIMINAL
16. ART................................................................................................................................................. ARTICLE
17. &..............................................................................................................................AND
18. U/A.....................................................................................................UNDER ARTICLE
19. U/S..................................................................................................UNDER SECTION
20. W.R.T.................................................................................................WITH RESPECT TO
21. DPSP................................................................DIRECTIVE PRINCIPLE OF STATE POLICY
22. UDHR..................................THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948
23. ICCPR.................NTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966
24. PWDVA....................PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
25. CEDAW.........CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION
AGAINST WOMEN, 1979

vii
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the jurisdiction to try, entertain and dispose of the
present case by virtue of Article 136(1) of the Constitution of India. It sets forth the facts
and laws on which the claims are based.

vii
i
 STATEMENT OF FACTS

I.
Rafiq Ahmed, aged 25, a banker at Gurugram, fell in love with a 22-year old Hindu
girl, Aishwarya whereby they both decided to get married. Rafiq’s parents assent to
marriage depended on her converting to a Muslim. Aishwaraya, being in deep love
converted herself and accepted Islam and changed her name to ‘Afsana’ and furthermore,
got married to Rafiq on 02.01.2010 under Muslim Personal Law.

II.
Few months post the marriage, Rafiq and his Parents started pressurizing and
maltreating Afsana physically and mentally to fulfil their dowry demands. The torture
continued despite her continuous pleas expressing her helplessness regarding the poor
financial conditions of her parents. On 15.12.2010, Rafiq left Afsana at her parental home
when she was already in advanced stage of pregnancy and didn’t agree to take her back to the
matrimonial home despite her repeated pleas. He clearly told her to fulfil the demands of his
parents if she ever wanted to come back to the matrimonial home. On 15.02.2011, Afsana
gave birth to a female child at her parental home and requested Rafiq, several times, to take
her and the newly born child back to the matrimonial home but all went in vain.

III.
On 26.12.2011, Afsana filed a petition under section 125 Cr. P.C. in the Family Court,
Gurugram claiming maintenance of Rs. 20,000/- per month from her husband’s salary of Rs.
55,000/- with 2 separate rooms exclusively for herself and her child in the matrimonial home.
The petition mentions the cruelty she was subjected to, in her matrimonial home.

IV.
Rafiq denied all the allegations put forth on him and his parents by Afsana and stated
that Afsana left the house on her own will and had deserted him since 01.12.2012.
Henceforth, praying in front of the Family Court, Gurugram, that Afsana was not entitled to
any maintenance or a separate residence in the matrimonial home which was his ancestral
property.

V.
On 02.03.2012, Rafiq pronounced an irrevocable Triple talaq to dissolve his
marriage with Afsana and sent her a cheque of Rs. 25000/-, the amount of ‘Mehar’,

ix
 when the matter was pending in the court. He further forwarded the plea that he not
liable to pay any maintenance post Talaq to Afsana and the child as has already paid the
requisite customary allowance, as per the provision under the Muslim Women
(Protection of Right on Divorce) Act 1986.

VI.
The Family Court directed Rafiq to pay Rs. 12000/- per month as maintenance to
Afsana and her daughter from the date of presentation of petition till the completion of
‘Iddat’ period. Afsana, aggrieved by this decision appealed to the Hon’ble High Court of
Punjab & Haryana at Chandigarh, claiming an enhanced maintenance of Rs 20000/- per
month beyond “Iddat” period. The High Court declared ‘Triple talaq’ unconstitutional and
henceforth, thedivorce to be invalid, whereby, entitling Afsana to enhanced maintenance of
Rs. 20000/- per month and a residence comprising of 2 rooms exclusively for herself and
her daughter in the matrimonial home.

VII.
Aggrieved by the judgment of the High Court, Rafiq Ahmed filed a Special Leave
Petition (SLP) in the Hon’ble Supreme Court of India challenging the impugned judgment
and the matter is pending for the final hearing on March 3, 2017.

x
 QUESTION OF LAW

1. WHETHER ‘TRIPLE TALAQ’ IS UNCONSTITUTIONAL ON THE GROUNDS THAT IT

VIOLATES THE FUNDAMENTAL RIGHTS OF WOMEN IN GENERAL AND MUSLIM
WOMEN IN PARTICULAR?

2. WHETHER THE MUSLIM WOMAN’S RIGHT TO CLAIM MAINTENANCE FROM HER

HUSBAND UNDER SECTION 125 CR. P.C. IS CIRCUMVENTED BY THE PROVISIONS OF
MUSLIM WOMEN (PROTECTION OF RIGHT ON DIVORCE) ACT, 1986 AND IF SO,
WHETHER IT VIOLATES ANY OF THE CONSTITUTIONAL PROVISIONS?

3. WHETHER A MARRIED WOMAN IN GENERAL AND A MUSLIM WOMAN IN

PARTICULAR HAS LEGAL RIGHT TO CLAIM SEPARATE RESIDENCE IN THE
MATRIMONIAL HOME?

xi
 SUMMARY OF ARGUMENTS

I. WHETHER ‘TRIPLE TALAQ’ IS UNCONSTITUTIONAL ON THE GROUNDS THAT IT

VIOLATES THE FUNDAMENTAL RIGHTS OF WOMEN IN GENERAL AND MUSLIM
WOMEN IN PARTICULAR?

The practice of triple talaq must be declared unconstitutional as it is violative of Part III
of the COI. Further, owing to its history of blatant misuse, such a draconian practice must
be struck down when the eminent scholars of varied schools of Islam derecognise it. The
international community, especially the Muslim centric nations also disapprove of the said
practice and it is against the interest of society at large.

II. WHETHER THE MUSLIM WOMAN’S RIGHT TO CLAIM MAINTENANCE FROM HER
HUSBAND UNDER SECTION 125 CR. P.C. IS CIRCUMVENTED BY THE PROVISIONS
OF MUSLIM WOMEN (PROTECTION OF RIGHT ON DIVORCE) ACT, 1986 AND IF
SO, WHETHER IT VIOLATES ANY OF THE CONSTITUTIONAL PROVISIONS?

A Muslim woman’s claim for maintenance u/s 125 of Cr.P.C. is maintainable as the
provision is a secular provision which applies to all the people irrespective of their religion.
The Sec. 125 Cr.P.C. is not circumvented by the provisions of Muslim Women (Protection of
rights on Divorce) Act, 1986 and MWA is violative of Art. 14, 15 and 21of the Constitution
of India.

III. WHETHER A MARRIED WOMAN IN GENERAL AND A MUSLIM WOMAN IN

PARTICULAR HAS LEGAL RIGHT TO CLAIM SEPARATE RESIDENCE IN THE
MATRIMONIAL HOME?

A married woman has a right to live a dignified life on her own. Right to life and
shelter is a fundamental right as enshrined under Art. 21. This right of separate residence is
customary to the concept of Nafqa as provided under Muslim personal laws. Henceforth, the
legal right of a married woman to claim separate residence in matrimonial home is
sustainable.

xii
 ARGUMENTS ADVANCED

I. WHETHER ‘TRIPLE TALAQ’ IS UNCONSTITUTIONAL ON THE GROUNDS THAT IT

VIOLATES THE FUNDAMENTAL RIGHTS OF WOMEN IN GENERAL AND MUSLIM
WOMEN IN PARTICULAR?
Muslim Personal Law and practices has been a subject of scrutiny and controversy over
a prolonged period. The patriarchal nature of these personal laws makes it all the more a
subject of criticism.
Muslim law, as applied in India, has taken a course contrary to the spirit of what
Prophet or the Holy Quran says. There is no Quranic basis to establish that three divorces on
a single occasion will amount to an irrevocable divorce; in fact the Prophet (PBUH) despised
divorce1 and described marriage2 as his Sunnat. The Quran lays down only two kinds of
divorces i.e. Talaq-Ahsan and Talaq-Hasan the same being in conformity with the dictates of
Prophet (PBUH). The third form i.e. Talaq-ul-Bidat, is considered as the most sinful,
innovated form of divorce for being against the letter and spirit of Quran and was disallowed
by the Prophet (PBUH) himself.
According to the Quran, a Muslim husband is not supposed to divorce his wife when
she is menstruating.3 When a Muslim divorces his wife, he has to divorce them for the period
of their iddah4 and wait for three courses (menstruation).5 The prescribed time period of
iddah is about three months and in case of pregnant women, the iddah period extends till
delivery.6 During this period, the husband can take them back if they wish for
(reconciliation).7 Divorce given the instant divorce (Triple talaq) though has been deprecated
and not followed by all sects of Muslim community in the country, however, is a cruel and
the most demeaning form of divorce practised by the Muslim community at large.

A. PERSONAL LAWS ARE LAWS U/A 13 OF THE COI.

Personal laws have been a peculiar component of Indian legal system. Since the British
reign, these personal laws have been outside the purview of judicial scrutiny and tried their

1
[Abu Dawud 9: 2173] - Narrated by Abdullah ibn Umar “Allah’s Messenger (PBUH) said: Divorce is most
detestable in the sight of God; abstain from it”.
2
Tahir Mahmood, Muslim Law of India (LexisNexis-Butterworths, New Delhi, 3rd ed., 2002) at p. 48.
3
[Surah al-Baqarah 2:222]; See also [Sahih-Bukhari 68:1].
4
[Surah at-Talaq 65:1] .
5
[Surah al-Baqarah 2:228].
6
[Surah at-Talaq 65:4].
7
[Surah al-Baqarah 2:228].

1
best to enjoy their immunity as far as possible. These laws were not contemplated upon by
the lawmakers, terming them as a ‘sensitive matter’ to be pressed upon.
The doctrine of ‘Judicial review’ is reflected in Art. 13 8 of the COI explicitly. Any laws
passed by the State which is inconsistent with the provisions of Part III of the COI would be
declared as unconstitutional and ultra vires the Constitution by the SC of India. The terms of
Art. 13 are very clear and wider and have broadened the definition of “Law” inclusive of all
forms of regulations from the side of ‘State.’
In a plethora of cases the Indian judiciary has, time and again, reiterated the fact that
personal laws are in consonance with the definition of law as laid under Art. 13, thereby
making them law in force and a subject of judicial scrutiny.9
In a judgment of 198310, the Andhra Pradesh HC declared Sec. 9 of HMA ultra vires of
Art. 14 and 21 whereas in a Delhi HC’s judgment 11 the validity of the said sections was
upheld. Similarly, in Saroj Rani v. Sudarshan Kumar12, the SC reiterated the same decision.
In other words, far from holding that part III does not touch upon personal laws, the SC has
impliedly tested personal laws on the touchstone of part III itself. Not only this, this interplay
between fundamental rights and personal laws is established inter alia Art 372 of COI.13 A
five judge constitution bench of SC unanimously observed in a case that, however
“laudable” “the objective or motive” of the impugned law may be, its validity has to be
judged by the methods of its operation and its effects on the fundamental rights guaranteed.14
The SC in Sarla Mudgal v. Union of India15 has also taken the view that the personal
law owes its existence as law not to any religion; but to legislation and the willingness of the
courts and the sovereign to enforce such personal law.
The Hon’ble court has observed in various cases, that Personal law is law by virtue of
the sanction of the sovereign behind it. Not Manu nor Muhammed but the monarch for the

8
Art..13 Laws inconsistent with or in derogation of the fundamental rights:
(1) All laws in force.....be void.
(2) The State shall not.....be void.
(3) In this Art.......in particular areas.
(4) Nothing in this Art. shall apply to any amendment of this Constitution made under Art. 368.
9
Naresh Chandra Bose v. Sachindranath Deb [AIR 1956 Cal 222 (224)]; Srinivasa Aiyar v. Saraswathi Ammal
[AIR 1952 Mad. 193]; Abdulla Khan v. ChandniBi’[AIR 1956 Bhopal 71]; Sudha v. Sankarappa [AIR 1963
Mys. 245]; Dasaratha Rama Rao v. State of Andhra Pradesh [AIR 1961 SC 67], In Re, Smt. Amina vs Unknown
[AIR 1992 Bom 214].
10
AIR 1984 S.C. 1562.
11
Harvinder Kaur v. Harminder Singh [(1984) AIR Del 66].
12
[1984] AIR SC 1562.
13
H. Syed Ahmad v. NagathParveen [AIR 1958 Mys 128 (131)]; Mahfooz Ali Khan v. Mohammed Ashan [AIR
1980 All 5 (7)].
14
State of Bombay v. Bombay Education Society [AIR 1954 SC 561 (567, 568)].
15
(AIR 1995 SC 1531).

2
time makes 'personal law' enforceable.16A full bench of the Kerala HC has held that even if
personal laws do not come within the purview of Art. 13, if an infringed provision is part of
that Act, it must test of constitutionality even if the provision is based on religious
principles.17
Hence, personal laws fall under the ambit of Art 13 and Art 372 of COI thereby making
the matter of constitutionality of triple talaq a concern of judicial scrutiny in the Hon’ble
court of law justifiable.

B. TRIPLE TALAQ IS VIOLATIVE OF PART III OF THE CONSTITUTION OF INDIA

Among the different modes of talaq, Talaq-ul-Biddat(Triple talaq) is the most

disapproved detestable and draconian forms of divorce. This form of talaqis invalid and
unconstitutional as it is repugnant to natural justice and various fundamental rights enshrined
under Part III of the COI.

a. VIOLATIVE OF ART 14

Equality as enshrined in Art. 14 is the essence of democracy and a basic feature of the
Constitution and it has been expanded to include concepts of non-arbitrariness and principle
of natural justice.18
The husband in a case of giving triple talaq has unequivocal right to divorce the wife
while the wife cannot do the same. The wife can divorce only if such a right has been
delegated to her by the husband himself. Giving of triple talaq is manifestly arbitrary as it
does not recognize equality of status of Muslim women with that of men. Moreover it is
unreasonable as triple talaq is not preceded by any forms of reconciliation before effecting
divorce.The wife is not given a chance to represent her case before the arbiters during
reconciliation as there is none. This is also an unjust violation of principle of natural justice.
A provision not unconstitutional at the commencement of the Constitution can be rendered
unconstitutional by later developments and thinking, such as gender equality. 19 Thus triple
talaq which is promotes gender inequality is liable to be struck down as unconstitutional.

16
Saumya Ann Thomas v. Union of India [WP(C).No. 20076 of 2009(R)];MakkuRawther'S Children: Assam ...
vs
17 ManahaparaCharayil [AIR 1972 Ker 27].
Amini EJ v. Union of India, [AIR 1995 Ker 252].
18
M. Nagaraj v. Union of India, [(2006) 8 SCC 212].
19
John Vallamattom v. Union of India, [(2003) 6 SCC 611].

3
 The principle of equality as enshrined under Art 14 is based on the doctrine of
arbitrariness. Bhagwati J., speaking for the majority in a five-judge bench decision 20,
discarded a ‘narrow, pedantic or lexicographical’ interpretation to the concept of ‘equality’
embedded in Art. 14 of the COI and held that-‘Equality is a dynamic concept with many
aspects and dimensions and it cannot be “cribbed cabined and confined” within traditional
and doctrinaire limits. From a positivistic point of view, equality is antithetic to
arbitrariness.’
This ‘all-embracing scope’ and ‘activist magnitude’ of Art. 14 was reaffirmed in the
celebrated Maneka Gandhi case21 where Bhagwati J., concurring with the majority in a 6:1
decision observed: “Art. 14 strikes, at arbitrariness in State action and ensures fairness and
equality of treatment.” In this sense, ‘arbitrariness’ was not a new test at all but in fact the
principle underlying the evolution of doctrinal tools and judicial standards for determination
of the negation of the right to equality guaranteed under Art. 14 of the COI.22

b. VIOLATIVE OF ART. 21

Art. 21 lays down that “no person shall be deprived of his right to life and personal
liberty except according to the procedure established by law.”23 This personal liberty of a
person cannot be taken away by a law which is arbitrary, unfair or unreasonable. There must
be some semblance of reasonableness when a law is trying to restrict someone’s right to
personal liberty.24 It is oppressive in nature as it tries to limit the rights of Muslim women
subject to such discrimination. The aggrieved women in such a case do not have recourse to
any judicial proceedings. As the practice is not preceded by any forms of reconciliation, the
women also do not get any chance of a fair hearing before the Qazis or the arbiters.

c. VIOLATIVE OF ART. 25 & 26

The COI under Art. 25 confers Right to freedom of conscience and free profession,
practice and propagation of religion. The protection under Art. 25 and 26 extend guarantee to
rituals, observances, ceremonies, modes of worship etc. which are integral to the religion. 25
But for such practices to be considered as a part of the religion, it is necessary that such

20
21
E.P. Royappa v. State of Tamil Nadu [(1974) 4 SCC 3].
Maneka Gandhi v. Union of India [1978) 1 SCC 248].
22
Ajay Hasia v. Khalid MujibSehravardi, [(1981) 1 SCC 722].
23
Art. 21 of the Constitution of India.
24
Maneka Gandhi v. Union of India, [(1978) 1 SCC 248].
25
N. Adithyan v. Travancore Devaswom Board, [(2002) 8 SCC 106].

4
practices be regarded by the said religion as an essential and integral part. The Court has the
power to decide as to what practices constitute an essential and integral part of a religion.26
SC in several other cases has delved into the scriptures of various religions to ascertain the
status of a practice as to whether it is essential and integral part.27Triple talaq has no validity
either under the Holy Quran or the Hadiths. Moreover a Muslim man is neither professing
(practicing Islam) nor propagating his religion by giving triple talaq (which has no religious
motivation).
Therefore, triple talaq can be classified as a non-essential and non-integral part of
Islam. Art. 25(2) further empowers the State to regulate secular affairs surrounding religion
and to legislate and enact measures pertaining to social welfare and reform. Any such reform
brought in the form of a uniform civil code would fall under Art. 25(2) and would not violate
religious freedom guaranteed under Art. 25.28The State can regulate or restrict a practice if it
is of the view that in the interest of social welfare and reform, it is necessary to do so.29
Ipso facto, the husband resorted instant triple talaq which is arbitrary, i.e. violative of
Art 14 and against the principles of Islam. Further, it violates wife’s right to dignified life as
provided under Art. 21 and any effort against its condemnation is violative of Art. 25 & 26.
The holy Quran provides for amicable settlement in the form of talaq ahsan and talaq hasan
providing for period of reconciliation. However, the petitioner resorted to the most draconian
form of talaq which has been condemned by various Islamic scholars and jurists.

C. ABSENCE OF REASONABILITY AND UN-ISLAMIC

The power of instant divorce is not only frivolous but also lacks any sense of
reasonability or logic. It is mere caprice of the husband which leads him to act in such a
despotic manner. In order to curb this arbitrary power exploited by husband, the Indian
judiciary time and again, through a number of judgments highlighted the aspect of
reasonability and its relevance in ending the sacrosanct relation of marriage. In the case of
Shamim Ara v. State of U.P.30, the SC stated the following principles in relation to unilateral,
oral talaq by the Muslim husband:

26
H. H. Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami v. State of Tamil Nadu, [AIR 1972 SC 1586, at
1593].
27
State of Rajasthan v. Sajjanlal, [(1974) 1 SCC 500]; [E.R.J. Swami v. State of Tamil Nadu, AIR 1972 SC
1586]; Mohd. HanifQuareshi v. State of Bihar, [AIR 1958 SC 731].
28
VII Constituent Assembly Debates, 547 (1948).
29
Srinivasa Aiyar v. Saraswathi Ammal, [AIR 1952 Mad. 193 at 196].
30
(2002) 7 SCC 518.

5
  An oral talaq, to be effective, has to be pronounced / uttered; if the wife contests
the divorce in court subsequently, the fact that it was pronounced will have to be
proved.
 A written statement / affidavit by the husband filed in court in response to the
wife’s petition for any legal remedies against her husband, saying that he
pronounced triple talaq sometime in the past cannot, by itself, constitute a
pronouncement of talaq.
 A mere statement in writing or in oral disposition before the court regarding the
talaq having been effected in the past is not sufficient to prove the fact of divorce.
Such a form of divorce is not recognized in ancient holy books or scriptures of
Muslims.
 Talaq, to be legally valid, must be for a reasonable cause
 Talaq must be preceded by attempts at reconciliation between the husband and
the wife by two arbiters - one from the wife’s family and the other from the
husband’s; if the attempts fail, talaq may be affected.

The above decision clearly paved way for a rational and realistic approach towards
divorce and its practice in present day scenario and set as an epitome for many cases to
follow who took reasonability of divorce a ground before pronouncing the judgment.31
In the instant case, the petitioner arbitrarily pronounced triple talaq during the
pendency of the suit of maintenance against him which clearly shows this sacrilege of a
practice followed by Muslim men despite of it being un- Islamic. No attempts were made by
the Petitioner in the past for reconciliation. On the contrary, as per the facts, the petitioner did
not provide any reasonable cause to the respondent before or on effectuating such an act.
Chapter IV verse 35 of Quran reads, "Any if you fear a breach between the two, appoint
an arbiter from his people and an arbiter from her people. If they desire agreement, God will
effect harmony between them."The capricious and irregular exercise of the power of divorce
which was initially vested with the husbands was also strongly disapproved of by the Prophet
and was considered as ‘the most detestable before God of all permitted things. Allah did not
make anything lawful more abominable to Him than divorce.’ 32Henceforth, the act of the
petitioner is against the essence of Islam, thereby invalidating his pronouncement.
In the instant case, the petitioner husband pronounced triple talaq in the absence of his
wife and just informed her about the same without giving any due reason for the same. This
makes his act more perverse and outrageous and against the letter and spirit of Quran.

31
32
MasroorAhmad v. state[ILR (2007) 2Del 1329] ruled Jiauddin Ahmed v Anwara Begum [(1978) 1 GLR 375].
'Sunan Abu-Dawud Book 12, No.2172.

6
 D. TRIPLE-TALAQ IS NOT RECOGNIZED BY EMINENT SCHOLARS OF ISLAM

Ibn Abbas has stated in Sahih-Muslim that “three divorces were treated as one during
the lifetime of Prophet Muhammad (PBUH), Caliph Abu Bakr and Caliph Umar’s reign.”33
Imam Abu Hanifa, Imam Malik and Imam Hanbal considered three divorces in a single
sitting to be bidat (innovated or sinful) and not permissible. It is very pertinent to note that
three persons belonging to the most important Islamic schools of jurisprudence have
themselves considered that triple talaq is not permissible. The same has been dealt in with
extensively by Ibn Taymiyyah, a great proponent of the Hanbali School and Sunni Islam. 34
The Ijma or the concurrence of opinion of the companions of Mohammed (PBUH) and his
disciples is that triple talaq issued at a single sitting will be considered as Talaq-i-
raj’i(revocable divorce). Companions of the Prophet (PBUH) like Abdullah bin Mas’ud,
Abdal-RahmanbinAwf and Zubayr bin al-Awam have the same view.35
Muhammad ibn Maqatil, who is a prominent Hanafi jurist of the third generation, also
maintains that it would amount to raj’i.36Ahl-e-Hadith and Hanafi jurists like Hajjaj bin Artat
and Muhammad Ibn Muqatil also consider that no divorce will be effected by pronouncing
talaq thrice in a sitting. Hafiz ibn Hajar in his Fath al-Bari, Sheikh Shaltut (Sheikh al-Azhar)
in his Fatwa and Alim Allama Rashid Rida in his Tafsiral-Manar have considered that triple
talaq has no validity and are of the view that three pronouncements of talaq will in fact mean
only one.37 According to the great jurist Maulana Umar Ahmad Usmani concludes that a
person can only give one talaq at a time, as per the teachings of Quran and the Sunnah.38

E. HISTORY OF BLATANT MISUSE OF TRIPLE TALAQ

Over a long period of time, the practice of instant triple talaq has been blatantly misused.
Various cases show how the husbands have subjected their wives to their caprice and
proclaimed supremacy. The practice has not only resulted in atrocity on Muslim women but
has also inflicted a great blow to the fundamental rights, which form the basic structure of the
COI. This form of talaq is infested with the malady of inequality which goes against equality
which is enshrined in Art. 14 of the COI.In majority of the cases of unilateral divorce, the
facts clearly reflect that the husband misused his power and subjected his wife to inhumane

33
34
[Sahih-Muslim 9: 3492].
Fatwa Ibn Taymiyyah (Cairo, n.d.), Vol. 3, p. 22.
35
Al-Shaukani, Nayl al-Awtar (Egypt, n.d.), Vol. 6, pp. 25-57.
36
Ighathat al-Lahfan (Egypt, 1961), Vol. 1, p. 308.
37
Ibid.
38
Maulana Umar Ahmad Usmani, Fiqh al-Quran, op. cit., Vol. 2, p. 209.

7
and barbaric trauma. The most sought after case of Shah Bano Begum 39 is an epitome of
misuse of such a detrimental practice whereby Shah Bano’s husband unreasonably
pronounced triple talaq and abandoned her.Another landmark case showed misuse of this
power whereby the husband converted to Islam just to commit bigamy lawfully. 40 Such is the
status and image of the pious religion of Islam wherein people are allured to embrace Islam
not because of its faith and principles, but because of ill practices followed by certain sections
of Muslims in the name of religion.
In the case of Shabana Bano, the husband pronounced triple talaq and freed himself from
his responsibility of his wife. In Rukia Khatun v. Abdul Khalique Laskar41, the husband
abandoned and neglected his wife and on being prosecuted for the same, he waded off his
responsibility by pleading of execution of talaqnama. In the case of Zeenat fatema
Rashid42and Motiur Rahaman v. Sabina Khatun43, the wife wasill-treated by her husband and
her in-law and was defied by her husband on the grounds of pronouncement of triple talaq.
In the above cases, misuse of this power of unilateral divorce can easily be traced, thereby
making it all the more socially and ethically important to do away with such a diabolic and
ruthless practice of triple talaq. Cases in abundance with similar instances have been filled in
the history of Indian judiciary whereby directly or indirectly the husband tried to escape from
his onerous duty and obligation towards his wife.44

F. INTERNATIONALLY DE RECOGNISED FORM OF TALAQ

Under International law, a state that ratifies an international instrument becomes legally
bound to implement its provisions. Accordingly India having ratified the ICCPR 1966, and
CEDAW 1979, is bound to enforce the relevant provisions and ensure gender equality under
its national laws. However, women in India under varied personal laws continue to suffer
discrimination and inequalities in the matter of marriage, succession, divorce and inheritance.
Not only this, the sinful practice of triple talaq has been abolished around the world by a lot
of Muslim majority nations. These changes were brought in as a consequence of
consideration of teachings of various Islamic scholars and jurists over a very long period of

39
40
Mohd. Ahmed Khan v. Shah Bano Begum, [(1985) 2 SCC 556].
SarlaMudgal v. Union of India, [(1995) 3 SCC 635].
41
1988(1) GLR 375 (DB).
42
ZeenatFatema Rashid v. Md. Iqbal Anwar [ II (1993) DMC 49].
43
(1994) Cri LJ NOC 217(Cal).
44
Rahmat Ullah v. State of U. P. [II (1994) DMC 64]; Shaikh Mobin v. State of Maharashtra [(1996) Mah LJ
810]; Saleem Basha v. Mumtaz Begum [II (1999) DMC 206], Kadar Mian v. Jahera Khatun [1999 CriLJ 1440].
Sairo Bano v. Mohd. Aslam Ghulam Mustafa Khan [I (2001) DMC 457]; Zulekha Begum alias Rahmathunnisa
Begum v. Abdul Raheem [II (2000) DMC 99].

8
time.45 Most of these countries were highly influenced by the position of Ibn Taymiyyah46
like Egypt47, Sudan48, Syria49, and Tunisia50.
Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951, as amended up to 2006, doesn’t
recognise instant divorce. In Sri Lanka, a husband intending to divorce his wife must give
notice of the same to the Qazi. Upon such notice he shall attempt at reconciling the parties
along with the family members, elders and other influential people of the area. If nothing
seems to be fruitful even after 30 days, then the husband can pronounce talaq and divorce the
wife in the presence of the Qazi and two eligible witnesses. This consensus was broken by
the Hanbali scholar, Ibn Taimiyah (1268-1328), who argued that three talaqs in one sitting
counts as one. The three-in-one position was considered a minority view, but over the last
century more than 20 countries have adopted it. The first country to deviate from the majority
opinion of Muslim jurists was Egypt, which through Law No 25 of 1929 declared that a talaq,
regardless of whether accompanied by a number, will be counted as one and will be
considered as a revocable divorce. The only exception to this law is when three talaqs are
given in three successive tuhrs. Sudan followed suit in 1935 with some additional provisions.
The 1961 MFLO of Pakistan51 makes divorce given a third time irrevocable. Other countries
to follow suit are Morocco52, Iraq53, Jordan54, Afghanistan55, Libya56, Kuwait57, Yemen58,
United Arab Emirates59, Qatar60 and Bahrain61. All these Muslim majority countries by
reforming divorce laws have not eroded or encroached upon the religious and cultural rights
of Muslims. When Bangladesh was born in 1971, the new country inherited the MFLO
regulating marriage and divorce laws. Consequently, triple talaq remains abolished in

45
Muhammad Munir, Triple Talaq in One Session: An Analysis of the Opinions of Classical, Medieval, and
Modern
46
Muslim Jurists, under Islamic law 27 Arab L. Q. 29–49 (2013).
Munir M., Reforms: Triple Talaq in the personal laws of Muslim states and the Pakistani legal system:
Continuity versus change, International Review of Law 2013:2, at p. 2.
47
Art. 3 of Law No. 25 of 1929, as amended by Law No. 100 of 1985 Concerning Certain Provisions on
Personal Status in Egypt.
48
Art. 3, Shariah Circular No. 41/1935 of Sudan.
49
Art. 92 of Law No. 34 of the Law of Personal Status of Syria of 1953.
50
Art. 30 of the Tunisian Code of Peronal Status of 1956.
51
Section 7 of the Muslim Family Law Ordinance of 1961.
52
Art. 51 Book Two of the Mudawwana of 1957 and 1958 of Morocco.
53
Art. 37(2) of Law No. 188 of 1959: The Law of Personal Status of Iraq.
54
Art. 90 of Law No. 61 of 1976: The Law of Personal Status of Jordan.
55
Sections 145 and 146 of the Civil Law of 4 January 1977 of Afghanistan.
56
Section 33(d) of Law No. 10 of 1984, Concerning the Specific Provisions on Marriage and Divorce and their
Consequences.
57
Section 109 of Law no. 51 of 1984 regarding “al-Ahwal al-Shakhsiyah”.
58
Art. 64 of the Republican Decree Law No. 20 of 1992: Concerning Personal Status of Yemen.
59
Section 103(1) of Qanun al-Ahwal al-Shakhsiya (Personal Law) of UAE No. 28 of 2005.
60
Section 108 of the Qanun al-Usrah (Family Law) of Qatar, No. 22 of 2006.
61
Section 88(C) of Law No. 19 of 2009 regarding QanunAhkam al-Usrah.

9
Bangladesh as well. Judicial verdicts on cases involving the MFLO pertains to – as it does in
Pakistan too – whether or not the failure to give notice to the chairman of Union Council
leads to automatic revocation of divorce. Similar provisions exist in Malaysian state of
Sarawak62., which do not recognise a divorce pronounced outside a court of law; and Iran,
where triple talaq doesn’t have validity under its Shia law.
Thus, it can be deduced from the above instances that reformation of Muslim personal
laws in India would not be violative of religious freedom guaranteed to the Muslims.

G. AGAINST THE INTEREST OF WOMEN AND SOCIETY AT LARGE

Triple talaq as an issue is not only a misery for Muslim women, but also for the society
and demeans the interest of women in general. The very fact that such a practice oppresses
one section of the society is sufficient to hamper the whole women community. Such an
arbitrary and preposterous practice acts as a support system to the already established
patriarchal set up. In the name of religion, Muslim men misuse this unreasonable power of
their and leave their wives at the edge of fear of being rendered helpless who are subjected to
the whims and fancies of their ruthless husbands.
It is contended that the practice of triple talaq is inherently violative of fundamental
rights of not only Muslim women, but each and every woman because such inhumane
practices, time and again, submits to the tyranny of the husbands. It is against the spirit of
human rights. This is because it provides a Muslim husband with unlimited discretion to
divorce his wife instantly, as he pleases, without giving any ground while the Muslim wife is
deemed to have no such right. The practice of instantaneous triple talaq is seen as an
embodiment of all that is bad in patriarchal Muslim societies and traditional legal systems
that tend to treat women as chattels. Muslim man’s unilateral right to divorce gives man, a
power over wife and children. Such discretion maybe, and in present day scenario, is, abused
by a number of men, thereby creating a definite gender imbalance in the society.
Considering the fact as triple talaq is un-Islamic, negated by highly regarded Islamic
scholars, that such a practice has been invalidated in many Muslim-majority nations and that
it blatantly violates provisions of Constitution of India, the practice of triple talaq must be
pronounced as unconstitutional.

62
Sections 43 and 45(1–4) of Ordinan 43 Tahun 2001, Ordinan Undang-Undang Keluarga Islam, 2001, Negeri,
Sarawak.

10
 II. WHETHER THE MUSLIM WOMAN’S RIGHT TO CLAIM MAINTENANCE FROM HER
HUSBAND UNDER SECTION 125 CR. P.C. IS CIRCUMVENTED BY THE PROVISIONS
OF MUSLIM WOMEN (PROTECTION OF RIGHT ON DIVORCE) ACT, 1986 AND IF SO,
WHETHER IT VIOLATES ANY OF THE CONSTITUTIONAL PROVISIONS?

A wife’s right to be maintained by husband has been recognised by all the communities
in varying degrees. In matters concerning Muslim wives, a husband is under the obligation to
maintain her under personal laws (Shariat), the Cr.P.C. and the MWA.

A. MUSLIM WOMEN IS ENTITLED TO CLAIM MAINTENANCE UNDER SECTION 125,

CR.P.C.

Sec. 125 Cr.P.C. is a measure of social justice and the enactment is especially for the
protection of women and children, whereby, it is meant to achieve a social purpose and the
object is to prevent vagrancy and destitution. It gives effect to fundamental rights and natural
duties of a man to maintain his wife, children and parents when they are unable to maintain
themselves63.
Sec. 125 is in the domain or zone of secular universal law which applies to all in India
irrespective of the religions that the parties may profess. Inability to maintain oneself is the
‘manthra’ that unlocks the lock of the secular Sec. 125. 64 Sec. 125 Cr.P.C. is a secular
provision which extends to the women and children irrespective of their religion. The object
of the maintenance proceedings is not to punish a person for his past neglect, but to prevent
vagrancy by compelling those who can provide support to those who are unable to support
themselves and who have a moral claim to support65.
Where a woman is unable to maintain herself, she can rightfully claim maintenance
from her husband post divorce. As per Sec. 125, when the marriage is still subsisting the
husband is bound to maintain his legally wedded wife. The SC in the case of Bhagwan Dutt
v. Kanta Devi66 clarified that only a wife unable to maintain herself is entitled to seek
maintenance under this section. Wife’s individual capacity to earn is a factor to be considered
for determining the quantum of maintenance but this in general doesn’t waive off wife’s
claim to maintenance.67 Furthermore, the educational qualification of wife is not sufficient to

63
64
SavitabenSomabhai Bhatiya v. State of Gujarat and Ors [Appeal (crl.) 399 of 2005].
Kunhimohommed v. Ayishakutty [RPFC. No. 53 of 2006()].
65
Captain Ramesh ChanderKaushal v. Mrs. Veena Kaushal and Ors. . [AIR 1978 SC 1807].
66
AIR 1975 SC 83.
67
Shravan Kumar v. Usha Devi [(1984) Cri LJ (NOC) 184 (All)].

11
conclude that she is in a position to maintain herself and irrespective of her qualification, she
would be entitled to maintenance.68When an order has been forwarded under Sec. 125 and
that wife makes an application for enhancement, it was held that the court cannot restrict the
enhancement up to the period of iddat only.69 An order granting maintenance to a divorced
Muslim woman before the coming into force of MWA was held to be enforceable even after
the coming of the Act. There is no provision in the MWA to the effect that the section 125-
128 of Cr.P.C. shall stand repealed insofar as maintenance of Muslim women is concerned.
There is no provision in the MWA w.r.t. enforcement of order of maintenance, which has
already become final under the Cr.P.C. which shows that final order holds good even after
MWA came into force.70
In the present case, the HC declared the practice of Triple talaq to be unconstitutional
and invalid whereby, the respondent is still the legally wedded wife of the petitioner, which
clearly invokes the maintenance of wife as a duty & obligation on shoulders of the husband.
Furthermore, the respondent has no means to maintain herself and her child which further
emphasises husband’s responsibility towards maintaining her. The phrase "unable to maintain
herself" implies that the means available to the deserted wife while she was living with her
husband and would not take within itself the efforts made by the wife after desertion to
survive somehow71. The husband has to provide sufficient maintenance to the wife which
enables her to live a life equivalent in standards to the life she was living with her husband. A
divorced Muslim wife unable to maintain herself must survive to claim other rights under the
personal law but Sec.125 provides relief to her only if she is unable to maintain herself.72
Through the landmark judgments in the cases of Shah Bano Begum73and Daniel
Latifi74the Hon’ble SCheld that protection under Sec.125 Cr.P.C. shall continue to apply to
divorced Muslim women. However, where the matters of substantive legal protection are
concerned, it is paramount that such protection are legislatively defined and effectively
carried out.For a wife who has been living apart from her husband on reasonable grounds
doesn’t lose her right to claim maintenance under this section. Ill-treatment and threats by the
husband due to dowry demand is cruelty and therefore, a reasonable ground for a wife to stay
apart and get

68
69
Murleedharan v. Vijaylaxmi [AIR 2007 NOC 61 (Ker)].
Hamidan v. Mohd Rajia [1994 Cr LJ 348].
70
Shamshad Begum v. Md Noor Ahmed [ 2001 Cr LJ 2396 (Ori)].
71
Supra note 64.
72
Supra note 65.
73
Mohd. Ahmad Khan v. Shah Bano Begum [(1985) AIR SC 985].
12
74
Danial Latifi v. Union of India [(2001) 7 SCC 740].

13
maintenance.75 In the present situation, there have been instances of husband inflicting cruelty
on wife for non-fulfilment of dowry demands and has left her at the parental home without
providing her any means to survive post her requests too. This can be considered as “a
reasonable ground” and further, it strengthens the wife’s claim of maintenance for herself and
her child.
In various judgments the Muslim women’s right to claim maintenance under Sec.125
Cr.P.C. has been allowed and it’s held that a Muslim women is entitled to maintenance under
the above section until she remarries76 and the amount of maintenance that should be awarded
under Sec. 125 Cr.P.C. cannot be restricted for the iddat period only77. Therefore, a Muslim
wife can rightfully claim maintenance from her husband under Sec. 125 of Cr.P.C. and in the
present situation, respondent’s claim under Sec.125 is valid.

B. MUSLIM HUSBAND IS OBLIGED TO PAY MAINTENANCE TO HIS WIFE

A Muslim wife’s right to maintenance has been recognised and a Muslim husband is
obliged to maintain his wife under personal laws as well as the Cr.P.C. A wife, including a
Muslim wife, who is unable to maintain herself can claim maintenance under Sec. 125,
Cr.P.C. which states:
“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......................................
Magistrate shall cancel the order.”

A Divorced wife can seek maintenance from her ex-husband, until she remarries or
indulges in any adulterous relationship, wherefore, a wife who is not seeking divorce or is not
divorced is a liability on husband to maintain as well as in Muslim laws, wife’s right to
maintenance is debt against the husband.78
The holy Quran clearly states through the verses which reads the liability of a Muslim
husband to maintain his divorced wife. If a divorced woman is a liability on ex husband to be

75
Mithlesh kumara v. Bindhawasani [(1990) CrLJ 830 (All)]; Bindelal v. Kushma Devi [(1998) Cr LJ NOC 19
(All)].
76
Rasiya v. State of Kerala [2002 (2) KLT 825].
77
Shabana Bano v. Imran Khan; Danial Latifi v. Union of India [(2001) 7 SCC 740]; Musrat Jahan v State of
Bihar [AIR 2008 Pat 69]; Mohamed Siddique v. Mst. Fatema [2007 Cr LJ 2363].
78
Bai Tahira v. Ali Hussain [AIR 1979 SC 362]; Fuzlunbi v. K. KhaderVali [AIR 1980 SC 1730].

13
maintained and taken care of until she is remarrying then, a wife still in wedlock with her
husband stands to be a greater responsibility on the shoulders of her husband and must be
taken care of until she has been indulged in wrongful acts such as adultery or has deserted her
husband out of her own will. The verse 2:241 of the holy Quran reads:
“For divorced women is a suitable gift. This is a duty on the righteous.”
Explanation:- A fair and reasonable interpretation of the above verse would mean that
divorcing husband should make a reasonable provision for the subsistence of his divorced
wife without any period of limitations, which means for life or till she remarries. Through the
above verse it’s clearly reflected that when Holy Quran is extremely sympathetic towards
women and orphans, it cannot be presumed that the divorced wife was intended to be left in
the lurch after the iddat period. When the consideration was given to the divorced wife, the
wife still in the strings of matrimony has a stronger right and claim towards the demand of
maintenance and the Holy Quran while considering the rights of divorcing women cannot
omit the liability of Muslim Husband towards maintaining his own wife.
Even if under the personal law there is no mention of maintenance, in that case too, a
Muslim husband is obliged to pay maintenance to his wife. The same was held in the case of
Kariyadan Pokkar v. Kayat Beeran.79
The SC in the well known case of Shah Bano80 declared on the reference to the relevant
Aiyats of Quran and has pointed out that Aiyats are beyond the scope of doubt and the Quran
imposes a clear obligation on Muslim husbands to make provision for or to provide
maintenance to the wives even after divorce and such obligation is not confined to the iddat
period.
A significant consideration for the liability of Muslim husband to pay maintenance is
his capacity to pay maintenance. An able bodied young man, however, is presumed to be
capable of earning so as to be able to maintain his wife. 81 Under Sec. 125 Cr.P.C income of
wife is of no value in deciding the liability of husband towards maintenance. The very status
of being a wife entitles her to the maintenance from her husband.82 Once it’s established that
husband has sufficient means including the capacity to earn, has neglected or refused to
maintain his wife, uninhibited or uninfluenced by any extraneous consideration maintenance
under Sec.125

79
80
ILR 199 Mad. 461.
Supra note 75.
81
K.B. Pradhan v. Tikamaya Newar [1987 Cr LJ 1278 (Gau)]; B.K. Mohanty v. S.K. Mohanty [(1982) Cr LJ
485 (Ori)]; Ghulam Hasan Ganai v. Raja Bibi [(1973) Cr LJ 1019 (J&K)].
82
Suryakant alias Suresh Laxmishankar v. Indu [(1973) Guj LR 169]; Joginder Singh v. Raj Mohinder Kaur
14
[AIR (1960) Punj 249].

15
Cr.P.C. has to be granted.83 Thus, the onus and responsibility to pay maintenance in case of
divorced wife and un-divorced wife lies on the husband.
Therefore, in the present situation where husband has sufficient means to maintain his
wife and the wife ipso facto is unable to maintain herself, brings the claim of maintenance in
the domain whereby her entitlement to maintenance is the responsibility of her husband.
Husband is obliged to pay maintenance to the wife, if he has the requisite economic capacity
to do so.

C. THE AMOUNT CLAIMED AS MAINTENANCE IS FAIR AND REASONABLE

The phrase “reasonable and fair maintenance to be made and paid” was intended to see
that the divorced woman gets sufficient means of livelihood after divorce and that she does
not become a destitute or thrown out on the street without a roof over her head and without
any means of subsistence for herself.84 A divorced Muslim woman is not only entitled to
maintenance during the iddat period but also to a ‘reasonable and fair provision’ for her future
i.e beyond iddat period.85 Whereby, the courts have taken in consideration the rights and
necessities of a divorced woman and liabilities of her maintenance on husband, considering
triple talaq to be invalid, the wife’s claim for maintenance for herself and her child is fair and
reasonable. The court in the case of C.K. Aboobacker v. Rahiyanath86 directed husband to pay
Rs. 2,70,000/- as maintenance and considered it as ‘fair and reasonable’. The phrase is
extremely subjective and situation based as ‘fair and reasonable’ depends of the financial
position of the husband and the lifestyle wife was used to live in.
Furthermore, Muslim father having sufficient means to maintain his minor children has
absolute obligation to maintain them until they attain majority 87 and in case of a female child
till she gets married.88 The protection and maintenance to minor children under personal laws
is a right of divorced woman and is incidental to divorce which in no way affect the operation
of Sec.125, Cr.P.C providing maintenance for minor children.89

83
84
Supra note 79.
Arab Ahamedia Abdulla v. Arab Bai Mohumma Saiyaddin [AIR 1988 Guj 141]; Hasram v Abdul Rahim
[1989 Cr LJ 1519]; Zumaiteen v. Ameena Begum [1997(2) LW 31]; Karim Ahmed v. Shehnaz [2000 Cr LJ
3536].
85
Supra note 72; Ali v. Sufaria [(1988)3 Crimes 147]; Aliyar v. Pathan [1988(2) Ker LJ 46]; Kunhammed Hazi
v. Amina [II(1995) DMC 479].
86
C.K. Aboobacker v. Rahiyanath [Crl.MC.No. 2188 of 2004].
87
Naseem v. State of U.P. [1999 Cr LJ 301]; Mohamed Reyazuddin v. Shama Ashrafi [2000 Cr LJ 2490];
Mohamed Abdul Hai v. Saleha [2007 Cr LJ 1394].
88
Noor SabaKhatoon v. Mohamed Quasim [AIR 1997 SC 3280].
89
SirajSahebji v. V. RoshanSiraj [AIR 1990 Bom 344]; Rupsen Begum v. Abdul Sattar [1990 Cr LR 2391];
M.A. Hameed v. Arif Jan [1990 Cr LJ 96]; A. Abdul Gafoor v. Abva Ummal [1989 Cr LJ 1224].

15
 Therefore, considering talaq to be invalid, the wife can rightfully ask for increased
maintenance, which is fair and reasonable considering the maintenance of her daughter, who
is husband’s responsibility and ipso facto the husband’s monthly salary is Rs. 55,000/- out of
which a maintenance claim of Rs. 20,000/- monthly, for both wife and daughter, is reasonable
and fair.

D. PAYMENT OF MAHR/ CUSTOMARY ALLOWANCE DOESN’T FULFIL THE OBLIGATION

OF MAINTENANCE.
Section 127 (3) (b) provides that 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 is applicable to the parties, was payable on such divorce. The mahr
or the dower is an amount which wife is entitled to receive from the husband in consideration
of the marriage as a mark of respect. Mahr is payable on or because of the marriage and as a
consideration for the marriage and therefore it cannot be branded as an amount to be payable
on the divorce which is the death of marriage. Divorce dissolves the marriage and thus, no
amount which is payable in consideration of marriage can possibly be described as an amount
which is payable in consideration of divorce and thus, “on divorce” within the meaning of
Sec. 127(3)(b).90
If a wife upon divorce received customary dues i.e. dower or mahr and the ornaments
given to her by her parents and relatives at the time of the marriage, she is still entitled to get
fair and reasonable maintenance as provided. There is no escape route for the former husband
to extricate himself out of statutory liability by taking recourse to a specious plea that he had
paid customary dues to his former wife. Moreover, the court must find out whether the wife
has received reasonable and fair maintenance apart from the other dues. Payment made should
be such that it takes care of her future needs in the socio-economic scenario as well.91
In the instant case, considering the status of talaq to be unconstitutional as held by the
high court, the mere payment of the dower doesn’t waive off husband’s liability and wife’s
entitlement to maintenance and thus, husband is still bound to pay reasonable and fair
maintenance.

90
91
Supranote 71.
Seenath v. Iqbal [AIR (2010) NOC 636 (Ker)].

16
 E. MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 DOES NOT
CIRCUMVENT SEC.125, CR.P.C.

The provision in the Cr.P.C. for the maintenance of wife and children gives expression
to the fundamental and natural duty of a man to maintain his wife and children who are unable
to maintain themselves. This statutory obligation imposed upon a man and the statutory right
conferred upon the wife and children transcends the personal laws and operated irrespective
of caste, creed or religion. Sec.125 of the code extends the benefit of maintenance to the
divorced wife until they remarry, is a bold and right step towards the landmark in social
legislation. The derelict Muslim husband cannot take umbrage under his personal law in order
to defeat his statutory obligation under Cr.P.C.92
Relying on the Quranic injunctions, the liability of the Muslim husband to maintain his
divorced wife didn’t cease at the end of the iddat and he was bound to maintain her for an
indefinite period i.e till she loses her status for a divorcee by marrying another person 93 and
through this decision Bangladesh High Court broke the shackles of judicial blindness and
deafness attributed to the High Courts of this country.
By now it is well settled that the amendment of the Cr.P.C. 1973 had to some extent
overruled the personal law so far as proceedings for maintenance under Sec. 125 are
concerned. The Sec.125 does not make any distinction between the persons belonging to
different religions or castes, and it is applicable to all persons belonging to all religions and
has no relationship with the personal law of the parties.94
Personal law cannot take away the statutory right and it must tilt in favour of the
statutory rights when the situation so demands. On the principle that special excludes general
it is not possible to lightly to assume that the rights of the Muslim women under Sec.125 have
been taken away. The MWA is a piece of personal law whereas the Cr.P.C. is a piece of
secular law.95Propriety of legislative discipline and catena of judgments of the highest Court
of the land have consistently settled the proposition that statutory laws take precedence over
personal laws and statutory law has to be subject to the constitutional mandate.96
The interpretation of Sec. 3 of the MWA, through various judgments a Muslim wife is
entitled to maintenance within iddat period. Sec. 125 Cr.P.C., being a secular provision
doesn’t

92
93
Ameer Amanulla v. Mariam Beebi [(1985) MLJ (Cr) 164].
Muhamed Hafzur Rahman v. Naar Begum, Bangladesh Legal Decisions [1995, vol. XVT 34].
94
Must. Sahida Begum v. Md. Mofizul Haque [(1986) CriLJ 103].
95
Supra note 85.
17
96
Kaka v. Hasan Bano &Anr. [(1998) 2 DMC 85 (P&H) (FB)].

18
bring any clause as “iddat” period. In the recent case of Shabana Bano v. Imran Khan97, the
SC clarified that a petition by divorced Muslim women under Sec. 125 Cr.P.C. is
maintainable as long as wife does not remarry. Sec. 125 is meant to achieve a social purpose
whereby, its object is to prevent vagrancy and destitution. It provides a speedy remedy for the
supply of food, clothing and shelter to the deserted wife and gives effect to fundamental rights
and natural duties of a man to maintain his wife, children and parents when they are unable to
maintain themselves98 without any time stipulation as given under MPL, hence, circumvents
the MWA.

F. VIOLATES THE CONSTITUTIONAL PROVISIONS

There are various matrimonial laws operating in India and under all those acts a
divorced wife is entitled to lifetime maintenance or until she remarries or indulges in post-
divorce adultery but the Muslim law doesn’t provide maintenance post iddat period. The
MWA provides for a fair and reasonable maintenance provision to be made and paid to the
divorced wife within the iddat period by the former husband.
All the matrimonial laws, except the Special Marriage Act, apply to persons only on
the ground of professing a particular religion and if all the other laws are granting a larger
right to post-divorce maintenance, then, Muslim law on denying such right has discriminated
Muslim wives in comparison to the wives under other religions just on the grounds of
professing Islam as religion and such denial equally violates Art. 1599. Muslim divorced
woman, has been unreasonably discriminated and driven out from the provision of the
general law enacted in Cr.P.C. which are available to Hindu, Buddhist, Jain, Parsee or
Christian woman or a woman belonging to her any other community.
The provisions are patently violative of the Art. 14 of the COI and similarly
circumstanced. Art. 15100 of the Constitution which forbids any discrimination on the grounds
of religion whereas, MWA would obviously apply to Muslim divorced women only and
solely on the ground of their religion. The right to life and personal liberty guaranteed under
Art. 21 COI includes right to livelihood. Before the enactment of the MWA, a Muslim
woman divorced by her husband was granted right to livelihood from her quondam husband
in shape

97
98
AIR (2010) SC 305.
Supra note 63.
99
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (1) The State
shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of
them.
18
100
Supra note 97.

19
of maintenance under the Sec. 125 Cr.P.C. until she remarries.101 Furthermore, in case of
Olga Telis102 and Maneka Gandhi103, it was held by the Hon’ble SC that, no one including a
Muslim divorced women, can be deprived of the right to life or livelihood except by the
procedure established by the law, which must be ‘reasonable’ and ‘right, just and fair’.
Therefore, MWA does violate Art. 14, Art. 15 & Art. 21 of the COI.

III. WHETHER A MARRIED WOMAN IN GENERAL AND A MUSLIM WOMAN IN

PARTICULAR HAS LEGAL RIGHT TO CLAIM SEPARATE RESIDENCE IN THE
MATRIMONIAL HOME?

Assuming triple talaq to be unconstitutional, it is humbly submitted,

As has been stated earlier, the provision of sustenance of the wife is the responsibility
of her husband (4:34). Therefore as long as she remains in his wedlock, he shall be
responsible. This includes the place of residence as well.

A. RIGHT TO LIVE A DIGNIFIED LIFE

To live with human dignity free from exploitation is the fundamental right of everyone
in this country. The right to life includes the right to live with human dignity and it must
include the right to the basic necessities of life and also the right to carry on such functions
and activities as constitute the bare minimum expression of the human self. This right to live
with human dignity enshrined in Art. 21 derives its life breath from the DPSP. “No State ...
has the right to take any action which will deprive a person of the enjoyment of these basic
essentials” held the SC of India. The Constitution of US states that “Life is more than mere
animal existence”.
Art 1 of The UDHR 1948 provides the preliminary work out for protecting and
development of right to life with human dignity in the various constitutional laws of various
countries in the world. Every person has inalienable right to live with dignified life without
discrimination. They are entitled to claim equal respect from the state as well as from other
persons. It is one of primary duties of each state to protect fundamental rights to the human
dignity and implement welfare schemes in order to improve the dignified life of the citizens.

101
Olga Tellis &Ors. v. Bombay Municipal Corporation &ors. [1986 AIR 180]; Maneka Gandhi v. Union Of
India
102 [1978 AIR 597].
Supra note 99.
103
Supra note 99.

19
 Right to shelter is a fundamental right under Art. 21 of COI. 104 In case of Chameli
Singh v. State of U. P105 SC held that, shelter for human being is not mere protection of his
life and limb. It is home where he has opportunities to grow physically, mentally and
spiritually. Right to shelter therefore includes adequate living space, safe and decent
structure, clean and decent surrounding, sufficient light, pure air and water, sanitation and
other civil amenities like roads so as easy to access to daily avocation. The right to shelter,
therefore, does not mean a mere right to a roof over one’s head, but it includes the right to the
entire infrastructure necessary to enable to live and develop as a human being. Right to
shelter when used as an essential requisite to the right to live, should be deemed to have been
guaranteed as a fundamental right.

B. RIGHT OF RESIDENCE

According to Hedaya, it is incumbent upon the husband to provide a separate apartment

for his wife’s habitation to be solely and exclusively appropriated to her use 106It is now well
settled since the celebrated decision of the Supreme Court in Olga Tellis 107, that right to life
and personal liberty guaranteed under art 21 of COI includes the right to livelihood.
Suresh Kait, J., noted in a case that a woman’s right to reside with her husband did not
depend on the fact whether the latter stayed in an ancestral or an owned house or a property
hired on rent. “The petitioner (woman), being legally wedded wife, has a right to live with the
husband whether he lives in an ancestral house or self-acquired house or rented house.
Therefore, if the respondent (husband) does not allow the aggrieved person then by taking
shelter of the court, the magistrate may pass the order so that she may enter the house or she
would not be thrown out from the house of her husband without due process of law,” the
108
court ruled .It is well settled since the decisions of Maneka Gandhi109 and Olga Tellis110
that, no one, obviously including muslim women can be deprived of the right to life or
livelihood except by procedure established by law, which must be ‘reasonable’ and ‘right,
just and fair’.

104
P.G. Gupta v. State of Gujarat[1995 SCC, Supl. (2) 182 JT 1995 (2) 373], Prabhakar Nair v. State of T.N.
[1987
105
AIR 2117, 1988 SCR (1) 1].
AIR 1996 SC 1051.
106
Tyabji, Muslim Law, 4th Ed., p.266.
107
Supra note 101.
108
Ekta Arora v. Ajay Arora and Anr. CRL.M.C.No.3497/2008.
109
Supra note 101.
110
Supra Note 101.

20
 The PWDVA, passed by Parliament in 2005, gives all Indian women the right to reside
in the matrimonial home. In a plethora of cases, the Hon’ble Court have validated the
provisos related to separate residence in favour of women irrespective of their religion since
the said law is secular in nature.111
In a significant judgment the court while establishing the concept of “shared
household” observed that the place of residence of the couple becomes their matrimonial
home. A woman, therefore, would have the right to remain in that matrimonial home as long
as she is married and if she is "obliged" to leave that matrimonial home, she would be entitled
to obtain an injunction from an appropriate Court protecting her right and preventing her
from being thrown out.112A Division Bench of the Calcutta HC reported & unequivocally
observed that “Once a person becomes part of a house by reason of marriage, her right to
reside in her matrimonial house cannot be denied...” 113The Andhra Pradesh HC in its
decision reported as Bharat Heavy Plates and Vessels Ltd., Visakhapatnam114, had
categorically recognised such obligation cast upon the husband and extensively discussed the
equitable considerations accruing there from in favour of the wife to reside in her
‘matrimonial home'.
The said legislations115 also recognize the rights of married women to occupy the
‘shared residence household' belonging to ‘joint family' notwithstanding the fact that they
themselves or their husband may have no right, title of interest in the same. Where provision
is made in this manner, by giving a life interest in property for the purposes of residence, that
provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires
far more than the vestige of title which is deemed sufficient to attract Section 14(1).116
Henceforth, it can be well established that the legal position which emerges is that the
husband has legal and moral obligation to provide residence to his wife. Therefore, wife can
claim right of residence against her husband.117

111
Preeti Satija v.. Raj Kumari & Another [207 (2014) DLT 78 (DB)]; Navneet Arora v. Surinder Kaur &
Others,
112
[213 (2014) DLT 611 (DB)].
S.R. Batra and Another v. Smt. TarunaBatra, [2006 (13) SCALE 652].
113
V.MalaViswanathan v. P.B Viswanathan II [(2003) DMC 809].
114
AIR 1985 AP 207.
115
Protection of Women from Domestic Violence Act, 2005; Bangladesh Domestic Violence (Prevention
and Protection) Act, 2010; Pakistan Domestic Violence (Prevention and Protection) Act, 2012.
116
Mangat Mal (Dead) And Another v. Smt. Punni Devi (Dead) [AIR 1996 SC 172].
117
Shumita Didi Sandhu v. Sanjay Singh Sandhu & Ors. [174 (2010) DLT 79 (DB)].

21
 C. CONCEPT OF NAFQA

According to Hedaya, Nafqa signifies all those things which are necessary to the
support of wife, such as food, clothes and lodging” and all other things necessary for physical
and mental well being.Though the concept of Nafqa is an important one, however, the courts
have not appreciated it to much of an extent. Further, only a few judges over a prolonged
period have pointed out to the relevance of the said concept and favoured wives in the same
regard. In the case of Bibi Shahnaz @ Munni v. State of Bihar & Anr.118 the Patna HC
observed:
“when a woman surrenders herself into custody of her husband, it is incumbent
upon him henceforth to supply her with food, clothing and lodging, i.e. a separate
house or at least a separate room which can be locked, for the well-to-do also, a
servant; she is not obliged to bear any part of the expenses of the matrimonial
establishment.”

As per the concept of nafqa the liability of a man increases if he has a daughter. By
Muslim Law, maintenance (nafqa) is a birth right of children & an absolute liability of the
father. Daughters are entitled to maintenance till they get married if they are bakira (maiden).
Providing maintenance to daughters is a great religious virtue. The Prophet had said :
'Whoever has daughters and spends all that he has on their upbringing will, on the Day of
Judgment, be as close to me as two fingers of a hand'.119
In the present case, the petitioner not only has a duty & obligation to provide for
nafqa to his wife but also to the daughter which he tried to waive off.Thus, it can be
concluded that a married woman in general and Muslim woman in particular is entitled to
separate residence in her matrimonial home irrespective of the fact that such a house belongs
to her husband or not. This has been mandated to ensure that a married woman, post her
marriage lives a life of respect and dignity the way she had been living before her marriage.
Her right to separate residence is not relinquished.
Thereby, the respondent has all the rights to claim separate residence in her
matrimonial house from her husband.

118
119
1998
(3) BLJR 2230, 1998 CriLJ 4702.
Smt. Wafatan v. Jamil Ahmed I (1999) DMC 327.

22
 PRAYER

Wherefore, in the light of the facts and circumstances narrated, issues raised,
authorities cited and arguments advanced, the Hon'ble Supreme Court may graciously be
pleased to adjudge and hold:

1. That the practice of instant triple talaq be declared unconstitutional.

2. That the claim of maintenance u/s 125 Cr.P.C. is not barred by the provisions of
Muslim Women (Protection of Rights on Divorce) Act, 1986.

3. That the married woman’s legal right to claim separate residence in the matrimonial
home be held maintainable.

And pass any order that this Hon’ble Court may deem fit in the interest of equity, justice
and good conscience.

And for this act of kindness, the counsel for the petitioner shall duty bound forever pray.

Sd/-

(Counsels for Respondent)

xiii