DIVORCED MUSLIM WOMEN: THE AMBIGUOUS AND

ENTANGLED CONCEPT OF MAINTENANCE UNDER

SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE
NIVEDIDHA.M. A
BA0200032
INTRODUCTION

Nikah (marriage) is expressed in the Quran as Zauj (equal partner), which translates to "being
consumed in each other as raindrops absorb in the soil." If the partnership is unbalanced and
disagreements arise, the religion permits Talaq for both sexes (divorce). However, the Quran
urges husband and wife to first try to resolve their disputes peacefully on their own, and if they
are unable to do so, the Quran provides an intricate method to find a negotiated settlement. Either
of them seems to be relieved of the tie after the divorce and therefore can liberally remarry
anyone as long as the wife waits for the iddat time to end, which is three months, if she's
pregnant, she must wait until the delivery. The customary three-month timeframe is used to
determine whether the woman is impregnated with the previous husband's kid. Because no one in
the contemporary period has disputed this rationale, the old age custom has been preserved. The
spouse is liable for all of her costs at this period. The issue that remains is what happens to the
alimony that the husband provides to his spouse after the iddat period. Unlike all other faiths,
Muslims are only obligated to provide for the wife's upkeep when she has no assets or funds to
enable herself.1

THE CODE OF CRIMINAL PROCEDURE

1
Vatuk, Sylvia. "Maintenance for Divorced Muslim Women after the Muslim Women (Protection of Rights on
Divorce) Act 1986." Asian Muslim Women: Globalization and Local Realities (2015): 103.
Muslim Personal Law2 governs all marital and family affairs for Muslims in India (MPL). MPL
is founded on Islamic Shariat law, which has been interpreted and amended by Indian case law
dating back to the late 18th century, as well as a few legislative acts, all of which were passed
when India was already under British administration. In India, the question of whether and how
long a Muslim man is liable for the maintenance of his divorced wife has been a source of
contention for decades. A magistrate could indeed order any husband who neglects or continues
to refuse to maintain his spouse to pay her a monthly allowance under Chapter 36, Section 488 3
(S488), which was incorporated to make sure that poverty-stricken persons would not become a
financial burden on the colonial government but would be cared for by their closest relatives.
Section 488 was superseded by Section 1254 in the 1973 revision of the CrPC. Except than
expanding the term "wife" to include "a woman who's been divorced by, or has received a
divorce from, her husband and has not remarried," the second section did not differ much from
the first. The Muslim clerics were outraged, claiming that the obligation to sustain a divorced
wife violated Islamic law, which states that a man's financial duty for a divorced wife ceases
when the religiously mandated three-month post-divorce waiting time (‘iddat) has passed. To
partially meet the legislators' demand that Muslim men be exempted from this requirement, they
added a clause to section 1275 that allows a maintenance order to be canceled if the woman has
already received "the sum which, under [the parties'] customary or personal law, was payable on
such divorce." the Islamic obligation that, after divorcing his wife, a man fulfills his pledge of a
gift of cash or jewels (mahr) made in the marriage contract (nikahnama) and also maintains her
till she completes her ‘iddat. Despite the inclusion of this section, many divorced Muslim women
have been able to use this provision of Section 125 to win maintenance orders against their
spouses throughout the years.6

MAINTENANCE: “NO” UNDER PERSONAL LAW BUT “YES” UNDER

SECTION 125 OF CRPC.

2
The Muslim Personal Law (Shariat) Application Act, 1937
3
section 488 of the Code of Criminal Procedure, 1973.
4
section 125 of the Code of Criminal Procedure, 1973.
5
section 127 of the Code of Criminal Procedure, 1973.
6
Kinra, Apoorva. "CRITICAL ANALYSIS OF THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON
DIVORCE) ACT, 1986 WITH SPECIAL EMPHASIS ON MAINTENANCE." SUPREMO AMICUS ISSN 2456-
9704 (2019): 36.
This is a contentious issue when it comes to Muslims. The majority opinion within Islamic
scholars is that a divorced woman is only obligated to support during the 'iddat' period and not
thereafter. The concept of divorce is limited to a short waiting time known as 'iddat.' The Islamic
law does not recognize any responsibility on the part of a man to support his divorced wife “.
The remedy had been provided to her under secular law under Section 125 of the Criminal
Procedure Code, even though it was not open to her under Muslim personal law. Even before the
regulations were enacted, orthodox Muslims opposed them because they allowed the court to
award support beyond the three-month "iddat" term. The government, too, eventually caved in
on the matter. The conversation, which had come to a halt, was revived only to appease orthodox
Muslims. The clause was ultimately amended so that if the divorced woman obtains post-divorce
personal law entitlement, this would be taken into consideration, and if maintenance had been
given previously, it may be revoked.7 The secular legislation applied to all sections of the Indian
population, including Muslims.8

LANDMARK JUDGEMENT

In Bai Tahira v. Ali Hussain9, the court held that no husband can claim absolution from his
Section 125 obligation towards a divorced wife unless he can show proof of payment of a sum
prescribed by conventional or personal law whose quantum is more or less sufficient to do the
duty for maintenance allowance. In summary, the objective of Section 127(3)(b) is to prevent a
wife from receiving a double benefit, one from the customary or personal law payment and the
other from the Section 125 payment. If the former is insufficient, the court has the authority to
order support under Section 125. According to Krishna Iyer, J., regardless of the specifics of a
particular case, the Code tasks the court with the humanitarian responsibility of imposing
maintenance or its just equivalent to ill-used spouses and shipwrecked ex-wives by enacting
Sections 125 to 127. Only if the woman has received willingly an amount adequate to keep her
going according to the parties' circumstances at the time of divorce is the husband relieved of this
responsibility. Neither personal law nor other salvational pleas will hold against the policy law
that pervades Section 127(3)(b) as much as it does in Section 125, according to the learned

7
section 127 (3) (b) of the Code of Criminal Procedure, 1973.
8
Sankar, D., and G. Sadasivan Nair. Right to Maintenance Under Criminal Law-A Critical Study. Diss. Cochin
University of Science and Technology, 1999.
9
Bai Tahira v. Ali Hussain, (1979) Cr LJ 154.
judge. So, a farthing isn't a replacement for wealth, and naïve agreement isn't the same as
educated acceptance.10

Sections 125-127 were continuing to be interpreted progressively. It reached its pinnacle in the
Shah Banoo case, which ignored and overturned the Bai Tahira case's subsequent formulation.
The case of Mohd. Ahmed Khan v. Shah Bano Begum 11 aroused the male counterpart's ego, and
society realized that Muslim divorcees deserved their rights. The decision was not the first to
give maintenance to a divorced Muslim woman under the Code of Criminal Procedure, 1973, but
it was the first in which the Hon'ble Supreme Court detailed the Muslim law. Shah Bano, a 62-
year-old Muslim lady from Indore, Madhya Pradesh, and mother of five, was separated from her
husband (petitioner) in 1978. When her husband divorced her for dowry, her life took an
unpleasant turn. Shah Bano was returned to her parent's house, where she was unable to maintain
herself and her children due to a lack of resources. She went to court to get maintenance from her
ex-husband since she couldn't sustain herself and her five children. She filed a petition for
maintenance under Section 125 of the CRPC, which requires the divorced woman's former
husband to support her if she is poor and has no other means of support, and he must do so until
she remarries or dies. Shah Bano's husband, on the other hand, refused to give her support
beyond the iddah or iddat period. According to Chandrachud, C.J., a divorced wife who is unable
to support herself is entitled to maintenance under Muslim Personal Law. However, his Lordship
stated that if the divorced woman is competent to support herself, the husband's obligation to
give maintenance for her ended when the iddat period expired. The learned court stated that it is
self-evident that the Koran obligates a Muslim to pay for or maintain his or her divorced wife. As
a result, it was determined that, while Muslim Law restricts the husband's obligation to provide
for the divorced wife's maintenance to the period of iddat, it does not anticipate or sanction the
circumstance described in Section 125 of the Code of Criminal Procedure, 1973. The Court
determined that if the divorced wife is unable to support herself, the husband's obligation ends
after the time of iddat expires; but, if she is unable to support herself after the period of iddat, she
is entitled to use section 125 of the Code of Criminal Procedure, 1973. The wife is entitled to the
benefit of the broad jurisdiction provided by Section 125 of the Code of Criminal Procedure,
1973, regardless of whether the divorce occurred before or after the Code's implementation. The

10
Paras Diwan, Muslim Law in Modern India, (1991) 135.
11
Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945.
words "whole of the sum which under the customary or personal law applicable to the parties,
was payable on such divorce" in clause (b) of Section 127(3) were thought to indicate dower or
mahr under Muslim law until the Shah Banoo decision, and some thought that once a Muslim
husband divorced his wife and paid her dower, no maintenance order could be issued against him
under Section 127(3). 12

Shah Banoo sparked conservative Muslim activism, which resulted in the passage of the Muslim
Women (Protection of Rights on Divorce) Act, 1986.

GLITCHES OF MUSLIM WOMEN (PROTECTION OF RIGHTS UNDER

DIVORCE) ACT

An Act to safeguard the rights of Muslim women who have been divorced by or sought divorce
from their husbands, as well as to provide for things related to or incidental to such divorces. 13
According to the Act's stated objectives, if a Muslim divorced woman is unable to sustain herself
after the term of Iddat, the Magistrate has the authority to compel the payment of maintenance by
her relatives who would be entitled to inherit her property under Muslim Law if she died.
However, if a divorced woman has no such relations and does not have the financial means to
pay the support, the court may order the State Waqf Board to do so. Initially, the husband was
required to support the woman until the iddat period ended. Second, once the iddat time has
expired, a divorced woman's initial claim for maintenance is against her own family;
nevertheless, if the family members are unable to support the divorced woman, the divorced
woman's final claim for maintenance is against the State Wakf Board. Finally, it is claimed that
there have been differing views on the husband's culpability under the Act. The Act guarantees a
reasonable and equitable supply of maintenance by her former spouse throughout the iddat
period, and if she maintains the

12
Kinra, Apoorva. "CRITICAL ANALYSIS OF THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON
DIVORCE) ACT, 1986 WITH SPECIAL EMPHASIS ON MAINTENANCE." SUPREMO AMICUS ISSN 2456-
9704 (2019): 36.

13
The Muslim Women (Protection of Rights on Divorce) Act, 1986
children born to her before or after the divorce, the term will be extended to two years from the
date of the children's birth. She will also be entitled to mahr and all of the possessions that her
relatives, friends, spouse, and husband's relatives have given her. If she does not get all of these
advantages at the time of the divorce, she may petition the magistrate for an order requiring her
former spouse to give such support, pay mahr, or hand over the assets. The Act has been
criticized on at least five grounds: it fails to accurately embody Muslim law; it fails to provide a
logical and reasonable possible approach to the legitimate problems experienced by divorced
Muslim women; it is insensitively and incompetently drafted; it opens Pandora's box by setting a
risky and wrongheaded precedent, and it is prima facie unlawful. Concerning the Act's
contentious nature, a writ petition under Article 32 of the Indian Constitution was filed in the
case of Daniel Latifi V/s Union of India14, challenging the Act's constitutional validity, with
Section 3 of the Act serving as the pivotal point because it was interpreted restrictively. By
examining the Act's Preamble, Statement of Objects and Reasons, and the Supreme Court's
decision in Mohammad Ahmed Khan V/s Shaha Bano Begum, the Court has argued for the Act's
legality and reached the following conclusion: A Muslim husband is responsible for making
reasonable and equitable provisions for his divorced wife's future, which includes her
maintenance. Following Section 3(1)(a) of the Act, the husband must provide such a reasonable
and fair provision extending beyond the iddat period within the iddat period. The obligation of a
Muslim husband to provide maintenance to his divorced wife under Section 3(1)(a) of the Act is
not limited to the iddat period. A divorced Muslim woman who has never even remarried and is
unable to support herself after the iddat period can file a lawsuit under Section 4 of the Act
14
Daniel Latifi V/s Union of India, AIR 2001 SC 3958.
against her relatives, which include her children and parents, who are liable to support her in
amount to the properties that they inherit on her death under Muslim law. The Courts found that
the provisions of section seemed to violate Article 14 of the Constitution, which guarantees
equality and equal treatment under the law to all people, as well as Article 15 of the Constitution,
which forbids discrimination based on religion.15

CONCLUSION

When a poor Muslim (divorced) wife approaches and applies to Section 125 of the Cr. P.C., the
husband's common defense is that he has already divorced his wife and so is not liable to pay
maintenance. The Muslim Women (Protection of Rights on Divorce) Act of 1986 strengthened
this viewpoint. The Shah Bano case, in which the Supreme Court declared that a Muslim woman
was entitled to support the following divorce, was decided 31 years ago. Even now, the judgment
offers hope and a solution to many Muslim women. Though that legal stance continues to stand,
the concern is that it is still subject to interpretation, which is why women like Shah Bano still
have to battle for their rights 31 years after the groundbreaking ruling. Section 125 of the
Criminal Procedure Code was created to safeguard women and children regardless of their caste,
creed, gender, or religion. Women's rights have been restored as a result of judicial decisions and
other actions, but they will only be productive if underpinning beliefs are changed. Women
should protect themselves educationally, economically, and socially for their quality of life, and
only then will they be capable of comprehending their rights and value, and only then will the
socio-economic betterment of the entire group be achievable. 'Don't lose heart,' I just want to tell
the other women out there. Simply find the strength inside yourself to continue fighting for your
rights

15
Wadje, Ashok. "Maintenance Right of Muslim Wife: Perspective, Issues & Need for Reformation." Issues & Need
for Reformation (January 7, 2013) (2013).