CHAPTER-I

INTRODUCTION

A. S t a t e m e n t of the Research Problem

Maintenance is to e n s u r e t h a t parties to a marriage are financially

secure during and after the marriage. The concept of maintenance
originates from the tenets of social ethics a n d personal relations. In
ancient India, the chief duty of a h o u s e holder, u n d e r the law declared
by Samrities was to provide maintenance to dependent members of
family. Women's right to maintenance arises u p o n marriage and that
the wife is first in order of priority to this entitlement.

The question of maintenance of woman during the subsistence of

marriage, and after the dissolution of marriage either by divorce or
death is presently engaging the attention of all concerned. According to
Hindu sages, maintenance of the aged p a r e n t s , infant children and wife
is considered to be the greatest duty of a person. The obligation of the
h u s b a n d to maintain his wife begins with marriage a n d e n d s with the
death of either party a s the divorce was not prevalent among the
Hindus. Under the 'Modem Hindu Law' a wife is entitled to
m a i n t e n a n c e even after the dissolution of marriage, i Hindu wife may
claim maintenance even u n d e r the Hindu marriage Act, 1955, the
Hindu Adoption and Maintenance Act, 1956 and Code of criminal
Procedure, 1973. It is true that Muslim Law of maintenance differs from
the law of maintenance in most of the other system of law. In Muslim
Law wife's right to receive maintenance from her h u s b a n d during the

1 Satayjeet, A. Desai, Mulla's Principles of Hindu Law, V. II (1998, 17th ed,)

subsistence of marriage is absolute. As regards maintenance after
dissolution of marriage, the Muslim Personal Law provided for the
husband's obligation to maintain her in a limited way. It is provided
that the wife is entitled to maintenance only during the continuance of
marriage and not after it. A Muslim husband is obliged to maintain his
divorced wife only up to the period of iddat and thereafter his liability is
over. 2

Personal laws of different religions recognizes statutory liability to

maintain certain relations. In addition to this, the Code of Criminal
Procedure, 1973 contains certain statutory provisions regarding
maintenance of wife if her husband has neglected or refused to
maintain her. There have been a lot of provisions of the maintenance, as
found in the old Criminal Procedure (1898) and the present Criminal
Procedure Code (1974). Under Section 488 of the repealed old code of
1898, the wife's right to claim maintenance was dependent on the
continuance of her marital status. The impact of this provision was that
husband could easily evade the liability to pay maintenance by
unilaterally and instantly divorcing his wife. In order to remove the
anomalous situation the women organization as well as Muslim women
organized themselves to put the pressure on the Parliament about the
necessary of changing the maintenance provision. The women
organization brought the attention of Parliament about the weak
position of women after the divorce and convinced the Joint
Parliamentary Committee to extend the maintenance provision to
divorced women.

Accordingly, Section 125 was enacted which provided for the

maintenance of divorced women so long as she remains unmarried and
is unable to maintain herself. Section 125-128 which constitute a piece

2 F. B. Tyabji, Muslim Law, 258 (1968, 4th ed.); See also Syed, Ameer All,
Mohammadan Law, V.II, 419 (1985, 5th ed.).
of legislation aims to help deserted wife and other relations and requires
the husband to pay a monthly sum to enable them to live in the society.
In the Indian legal system there are many judgments of the Supreme
Court regarding maintenance of divorced Muslim women. In some
judgments, in early eighties, the situation was diluted. The application
of Section 125 to divorced Muslim women was challenged in Khurshid
Khan V. Husnabanu 3 . Mr. Hussain, the learned counsel for the
petitioner, urged that, a divorced wife under the Muslim Law is entitled
to maintenance only during the period of iddat. Contrary to the
contention of petitioner, Bombay High Court held that Section 125 of
the Code of Criminal Procedure, 1973 is applicable to all divorced wives
irrespective of their religion or cast.

Later in the same year, the same issue was raised in U.H. Khan
V. Mahaboobunisa. * Shri B.G. Sridharan, the learned advocate
appearing on behalf of the petitioner, argued that under Mohammedan
Law, a wife is entitled to be maintained by her husband even after
divorce only up to the expiry of the period of iddat and thereafter she
has no right to claim maintenance from her husband. He argued that
the period of iddat has expired before the date of application; such a
claim cannot be agitated under Section 125 of the new Code. M.S
Nesargi, J. asserted that the Criminal Procedure Code was a Law of
land and not of any community. In case of conflict between law made by
the legislature and the personal law, the former was to prevail. Section
125, Criminal Procedure Code provides a summary remedy and is
applicable to all persons belonging to all religions and has no
relationship with the personal law of the parties..

In the context of section 125 a question arises whether the

payment of mahr would absolve the liability of husband under Section

3 1976 Cr. L.J. 1584.

4 1976 Cr. L.J. 394.
125. In Rukhsana Parveen v. Shaikh Mohd. Hussain^ the Bombay
High Court held that where a Mohammedan husband had paid to his
wife the mahr and maintenance for the period of iddat, an application
by the divorced wife under section 125 was not maintainable. In other
words the payment of mahr and maintenance for iddat period would
absolve the husband from the liability to maintain his wife. Similar
views were expressed by the Andhra Pradesh High Court in Ouyyum
Khan V. Nuurunisa^.

On the other hand in Kunhi Moyin V. Pathumma,'' Khalid J.,

while excluded mahr and amount payable during iddat from the scope
of the terms 'sum payable under customary law' and expressed an
apprehension that this section may be pressed into service by some
ingenious husband to defeat the provisions contained in section 125 of
the Code. A similar interpretation was given by Kerala High Court in
Muhammed V. Sainabi^, in which it was held that the amount payable
in lieu of mahr and other household articles belonging to her would not
absolve the husband of any liability to maintain his divorce wife. This
controversy was resolved by the court in Bai Tahira V. Ali Hussain
Fissali Chotia.^ In the instant case the husband divorced his wife in
July 1962. A compromise was made in respect of a flat in Bombay and
amount payable to her by way of mahr money (Rupees 5000 and iddat
money Rs. 180). However, few years later, the wife finding herself in
financial straits and unable to maintain herself filed an application
before Magistrate for maintenance under Section 125 Cr. P.C. The
Magistrate awarded a monthly allowance of Rs. 400 for her. On appeal
this order was set aside by Bombay High Court. On appeal to the

5 1977 Cr. L.J. 1040..

6 1978 Cr .J. 1476..
7 1976 K.L.T.87.
8 1976K. L.T.711.
9 AIR 1979 SC 362. The Bench consisted of V.R. Krishna Iyer, V.D. Tulzapurkar and
R. S. Pathak, J.J. and the judgment was delivered by Krishna Iyer, J.
Supreme Court by the aggrieved wife, Krishna Iyer, J., while allowing
the wife's appeal observed:

The payment of illusory amounts by the way of customary or

personal law requirement will be considered in the reduction of
maintenance rate but cannot annihilate that rate unless it is a
reasonable substitute. The legal sanctity of the payment is
certified by the fulfillment of the social obligation, not by a ritual
exercise rooted in customi°.

The court held that although husband had discharged his

obligation in respect of the mahr amount of Rs. 5,000/- and iddat
allowance of Rs. 180, he could not be absolved in his obligation under
Section 125 of the Code. Another controversy whether Section 125 of
the Code of Criminal Procedure, applies to Muslims or not came before
the Supreme Court in Fuzlunbi V.K. Khader Valiii. Holding that
divorced Muslim wife is entitled to apply for maintenance under Section
125, the court observed that Section 125 to 128 are part of a secular
code deliberately designed to protect destitute women, who are victims
of neglect during marriage and after divorce. In that case the Supreme
Court has also discussed in detail whether mahr is a Sum payable on
divorce or not. the Court observed that mahr as understood in
Mohammedan Law cannot, under any circumstances be considered as
consideration for divorce or a payment made in lieu of loss of connubial
relationship. The cases of Bai Thaira v. Ali Hussain Fidaalli Chotia
and Fuzlunbi v. K. Kahader Vali^^ opened up the issue of post iddat
maintenance to Muslim women.

Thus the correct position of law during pre-Shah Bano was that
Section 125 was applicable to divorce Muslim women and the mahr was
not the sum which was payable on divorce and therefore could not

10 Id. at 365.
11. AIR 1980 SC 1730.
12 . AIR 1979 SC 362.
indemnify the liability of husband to pay maintenance even beyond the
period of iddat. On the other hand bad practices adopted by Muslims
created confusion and misconception about divorced wife's right to
maintenance. Although under Sharia Law divorced wife was entitled to
maintenance during iddat period and Mata for the whole life. But the
Muslim community confused it with mahr and adopted a practice to
give nothing beyond the period of iddat.

In 1985 came the judgment of Supreme Court in the case of

Mahd. Ahmed Khan v. Shah Bano Begum ^3 which gave way to
controversies in the Muslim society. In protest to this decision some
religious leaders maintained that the Supreme Court has no right to
interpret the Holy Quran and also argued that Shariat was divine and
could not be interfered with. The correctness of the translation of these
Aiyats is not in dispute except that, the word 'Mata" in Aiyat no. 241
means "Provision' and not maintenance. The main controversy in the
famous Shah Bano case was the meaning and interpretation of the
word 'Mata' in Surah II, Aiyat 241 of the Quran. Danial Latifi, counsel
for Shah Bano strongly pleaded that the word 'Mata' in Aiyat 241 has
the same meaning as in Aiyat 241 i.e. mata means maintenance. On the
other side, Mohammed Ahmed Khan, lawyer Mr. Yunis Saleem for
Musim Personal Law Board, Mr. S.A.H. Rizvi, editor, Rediance Weekly
Mr, Shahbuddin as an intervener strongly asserted that 'Mata' did not
mean maintenance because the 'Mata' in Arabic involves just a single or
one time transaction. So the word 'Mata' includes food, raiment and
such other things given to women on divorce, and its nearest English
equivalent is the word 'provision'. Lastly the Supreme Court settled the
controversy (whether mata means provision or maintenance) by saying
that this is a distinction without difference. These Quranic Aiyats leaves

13 AIR 1985 SC 9 4 5 .
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 Judgment in this case received a great resentment from the

orthodox Muslim society, Muslim community described the court's
ruling as "dangerous and a wrong interpretation of the Quran" and
demanded that Section 125 of the Cr.P.C. be amended not only to
exclude the Muslim from its purview but also to exempt the Muslim
Personal Law from Directive Principles under Article 44 of the
Constitution. The judgment is a fine example of what can be achieved
be a creative judicial interpretation, but Parliament nullify the decision
given in Shah Banc's case and enacted Muslim Women (Protection of
Rights on Divorce) Act, 1986 with the intention of making the decision
in Shah Banc's Case ineffective. The Act has snatched what the Shah
Banc and Bai Tahira had given to Indian Divorced Muslim women. The
Act of 1986 controls a divorced women's right to maintenance.
Unfortunately, there remain some fallacies both in the statue and its
interpretation which have gone unnoticed and need to be looked into.
Under the Act, it would be three fold remedy. Firstly till the expiration of
the iddat period, the husband has been obliged to maintain the wife.
Secondly after the expiration of the iddat period, the divorced woman
has her first claim of maintenance against her own family, but if the
Family members are unable to maintain the divorced woman, then the
ultimate claim for maintenance lies against the State Wakf Board.

The True object of the study is to find out whether the present law
improved the position of divorced Muslim Women. Has it really
safeguarded the interests of divorced Muslim women? The provisions of
the Act makes the Muslim women's relatives, parents. Children and
even State Wakf board responsible to maintain her, but not the
husband. The person who ought to be primarily responsible to pay
maintenance is let off the hook. In case, there is no one in the family
she can depend upon, it becomes the responsibility of the Muslim
community to maintain her. If the community does not support her,
where she is to go, it is a shadow of remedy, it is not a solution at all. If
a divorced Muslim woman has property, would she go to her relatives
for support? And what about the Muslim woman ( Protection of
Rights is divorce) Act, 1986 where a divorced woman is precluded
from having direct recourse to the provision of Section 125 of the code
unless her ex- husband assent to it? Is there an intelligible
differentia for discriminating amongst two classes of citizens, which
forced the central Government to enact the remedial Act of 1986,
Therefore, this remedy is not remedy at all . The Supreme Court does
not directly address this issue, but over comes this problem by blandly
observing.

These are various loopholes in the statue, which need to be

considered and corrected. The newly enacted law needs further
amendments.

The Constitutional validity of the Muslim Women( Protection of

rights on Divorced) Act, 1986 was challenged in Danial Latifi v. Union
of India ^* after analyzing Shah Banc's case as well as various
decisions of High Courts, the Apex Court while upholding the validity
of the Act held 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. Such a reasonable and fair
provision extending, beyond the iddat period must be made by the
husband within the iddat period in terms of section 3(1) of the Act.
Liability of Muslim husband to his divorced wife arising under
Section 3 (1) of the Act to pay maintenance is not confined to iddat
period. A divorced Muslim women who has not remarried and who

14 AIR 2001 S C 3 9 5 8
is not able to maintain herself after iddat period can proceed as
provided under section 4 of the Act against her relatives who are
liable to maintain her in proportion to properties which they inherited
on her death according to Muslim law from such divorced woman
including her children and parents. If any of the relatives being
unable to pay maintenance, the Magistrate may direct the State Wakf
Board established under of the Act to pay such maintenance. It was
also held that decisions of the High Court are which are contrary to the
present judgment stands overruled.

The important fact to be examined here is that how to

visualize the future needs of divorced Muslim wife, which would
be depending upon several factors like her remarriage, change of
circumstances etc. How an assessment can be made that a provision
is reasonable and fair provision payable within the period of iddat
forecasting the future needs that may arise. Therefore, it is practically
not possible to foresee and calculate the needs that may arise in future.
Another question is how to recover the same in case of her
remarriage or death after few years and what will happen to the
reasonable and fair provision made and paid by the husband
during the period of iddat. Courts have to find out the answer when
such questions will arise in the future.

The position of Indian divorced Muslim women comparatively

with other Muslim countries, specifically in getting maintenance from
their husbands is pathetic. In European Country common civil code,
regulates the matters of family law and such countries do not face the
controversy as occurred in Shah Banc's case. The Act of 1986, instead
of safeguarding the rights of Muslim woman has pushed back into the
pre-Islamic era at a time, when nation is looking for the equal
treatment of men and women. It is quite clear that the existing
 10

Muslim Law cries for more reforms particularly on those topics on

which it is most oppressive to women.

B. Objectives of the Present Study

On the basis of the statement of research problem the objectives

of present study are:

(a) To study the true position of a Muslim wife regarding her right to
claim maintenance from her under the Muslim Personal law.
(b) To find out the impact of divorce on the wife's right to
maintenance.
(c) To analysis in detail whether the Muslim Personal Law imposes
an obligation upon the husband to maintain his divorced wife.
(d) To study the legislative and judicial approach on Muslim wife's
right to maintenance.
(e) To study whether Supreme Court has deviated from the Shariat
in the various judicial pronouncements.
(f) To compare the provisions of the Criminal Procedure code and
those of Muslim women's ( Protection of rights on Divorce ) Act,
1986 regarding their application to the maintenance of the
Muslim wives.
(g) To study the provisions of MW Act, 1986 and to find out
whether the MW Act 1986 was really enacted to protect the
rights of Muslim divorced wife .
(h) To Compare the Indian position with some other countries on
divorced Muslim Wife's right to claim maintenance .
(i) To suggest how the Muslim Personal Law and Criminal Law
prevailing in the other countries can be used to improve the
status of Muslim women in India.
(j) To suggest some specific ways and measures to improve the
status of Muslim women.
 11

C. Hypothesis

On the basis of the statement and objectives of the study, the

work will proceed on the assumption that the condition of the Muslim
wives after divorce is still pathetic in the society even after the
implementation of Muslim women (Protection of Rights on Divorce)
Act, 1986 and there is a need for reform in the law relating to
maintenance of divorce Muslim women in India.