Name – Mirza Shaquib

Section – A
Roll – 058

FAMILY LAW 3rd Internal Paper ( Answer sheet)

1. Write a brief of the status of maintenance in India after Shahbano Case?

A. As per of Muslim Law, they consider the man to be superior to the woman. They trully
believed that the woman is not capable to maintain themselves as they clearly dependant on
husband. In Muslim law, the married women have the right to get maintenance from her husband
even if she refuses to access to her husband and cannot be consummated, but if she is too young
and lives with her mother and father then she is not entitled to maintenance. Muslim law
provides the wife to get maintenance if she lives sepratley due to clash with her husband or non-
payment of Dower. But she cannot claim the maintenance if she is in widowhood or Iddat and
gets the amount of Mehr only.
But the judgement given in Shah Bano case enables divorced woman to get maintenance from
her husband on reasonable ground or from the family of the husband after his death.
Protection of Rights on Divorce, 1986 ( After Shah Bano Case ) :-
After the Shah Bano case this act came with some up new changes such as in this case court held
that it does not say Mehr is a consideration for divorce, or is the sum referred to in the section
127(3)(b) CrPC; it does not lay down that no maintenance is to be paid to the divorcee after the
Iddat period or that she is to be abondoned for the life after the iddat; it does not make the secular
law inacplicable to muslim, but does not overrule the Shah bano case.

Supreme Court in Shah Bano case held that if she is unable to maintain herself after the period of
Iddat, she entitled to have resources to sec 127 of CrPC. This decision has led to some
controversy as regards the obligation of the Muslim husband to pay maimtenance to the divorced
wife. In a progressive trend setting judgement, the Kerala High court has recently held that
section 3 of the act does not require divorced wife must be maintain herself before she can claim
amount under section 3 of 127 CrPc act. The act entitled woman divorced to get:
 Reasonable and fair provision
 Maintenance to her
 Provision and maintenance to her children for two years
 Mehr amount
 All the properties given to her before, and at the time and after marriage.

In Mohd. Ahmed Khan v. Shah Bano Begum, the husband gives divorce to his wife, she was 68
year old and has five children. Under Muslim law, divorced woman do not have the right to
claim maintenance after the period of Iddat and gets amount of Mehr only. The Shah bano
begum files a case and claim maintenance under section 125 of CrPC where she gets successful
and get the maintenance from her husband on reasonable ground and from his family after his
death.

2. (ii) Concept of Guardianship Under Islamic law?

A. As we know that somenoe who lives in India and is below the age of eighteen years, is a
minor according to Indiam Minority Act, 1875. A minor is assumed to have no capacity to
protect his or her own interest. Thus, law requires that some adult person must safeguard the
minor’s person property and do everything on his/her behalf and that adult person is called a
Guardian. Under Muslim law, guardians are needed for the aim of a wedding, for protecing the
minor’s person and for protecting the minor’s property.
Under Muslim law, the guardianship of a child means that overall oversight of the kid throughout
its minority. Father or his executor or in his absence, the pateranl grandfather, being the natural
guardian, is in charge of the minor person.

Muslim law recognizes the following kind of guardianship:

1. A natural or legal guardian – Natural gaurdian is additionally known as a legal guardian.
But within the absence of the father, the father’s executor might also act as a legal
guardian. The executor could be one who is appointed by the father or grandfather to act
as the guardian of his minor kid on his behalf. A natural guardian is additionally known
as a legal guardian. But within the absence of the father, the father’s executor might also
act as a legal guardian.
Under Shia Law the absence of father only paternal grandfather could act as a legal
guardian.
2. Testamentary Guardians - A testamentary guardian may be a one that is appointed as
guardian of a minor beneath a will. Only father or, in his absence, paternal grandfather
has the right to appoint a testamentary guardian. A non-Muslim and a feminine might
also be appointed as a testamentary guardian.
Under Shia law a non- Muslim cannot be chosen as a testamentary guardian.
3. Guardians appointed by Court- In case of the absence of the natural and legal document
gurdians, the court is authorized to appoint a guardian for the aim of the minor’s person
or property or for both. The appointment of a guardian by the court is ruled by the
Guardianship and Ward Act, 1890 which is applicable to all the Indians irrespective of
their religion.
4. De-facto Guardians – A de facto guardain is a person who is neither a legal guardian nor
a testamentery guardian or statutory, but has himself assumed the custody and care of a
child.