Criminal Procedure Code, 1973

Muslim wife and Maintenance

Introduction

India is a secular country, but the Indian understanding of the concept of secularism is
different from the worldwide notion of the term. In India, secularism does not just simply
mean that the government does not acknowledge any religion. Rather, it means that the state
acknowledges and respects all religions, and allows everyone to follow their own personal
laws.

The legal definition of maintenance is the financial support that is paid by one ex-spouse to
another pursuant to a legal separation or divorce. This financial support is for the wife’s or
the divorced wife’s livelihood, for her children, for the maintenance of the property, and in
certain cases, even to enable her to be adequately represented in the lawsuit.

The provisions regarding maintenance are different in different laws. But, there is also a
secular law of maintenance that is given in Section 125 of the Code of Criminal Procedure,
1973. For Hindus their laws of maintenance are provided in their personal laws; for Muslims,
it is given in the Muslim Personal Law; and for the Christians and Parsis, in their respective
personal laws. At the same time, the law of maintenance under CrPC is also given, which is
secular in nature, so can be evoked by any person, irrespective of their religion. This is a
unique feature in the CrPC as compared to the other personal laws.

Maintenance under the CrPC

Maintenance under the CrPC is secular in nature, as any woman belonging to and practicing
any religion or faith can approach the Court under this. The law of maintenance is given
under the Sections 125-128 of the Criminal Procedure Code, and is civil in nature. Under this
Section, maintenance can be claimed by the wife, children and parents. Section 125 to
128 provide for a speedy, effective and rather inexpensive remedy against persons who
neglect or refuse to maintain their dependant wives, children and parents1.

In this research project, the focus is solely on the wife of the person. According to (b) part of
the Explanation to the Section 125, the term “wife” includes a woman who has been divorced
by, or has obtained a divorce from, her husband and has not remarried. So the provision for
maintenance under this section extends to a divorced wife also, and not only a married wife.

This law, though secular, is gender specific in one aspect. Maintenance under this law can
only be claimed by the wife, and not by the husband. The interpretation of the word “wife”
also needs to be looked into. According to the Supreme Court judgment in Savitaben
Somabhai Bhatiya v. State of Gujarat2, the term “wife” appearing in Section 125(1) means
only a legally wedded wife. But, in the recent judgments of  Chanmuniya v. Virendra
Kumar Singh Kushwaha3 the Supreme Court ruled that in cases where the woman who was
in a marriage-like relationship, will though not be considered to be a legally wedded wife
under Section 125, can still claim maintenance under the Protection of Women from
Domestic Violence Act, 2005.

Maintenance under the Muslim personal law

Under the Muslim Personal Law, the law states that the husband who has divorced his wife
has to provide maintenance for her during the period of Iddat. The Hedaya defines
maintenance as “All those things which are necessary to support life, such as food, clothes
and lodging; may confine solely to food.” The Fatwa-i-Alamgiri defines it as “Maintenance
comprehends food, raiment and lodging, though in common parlance it is limited to the first”.

So, in common practice, the maintenance only covers the expense of providing food to the
wife. The Muslim Personal Law only mandates that the husband needs to maintain his wife,
and not a divorced wife. After divorce, he only requires to maintain her for the Iddat period.
Usually, the payment of dower is considered to be enough maintenance for the wife.

1
R. V. Kelkar, Criminal Procedure 833 (K. N. Chandrasekharan Pillai ed., 6th ed. 2014).
2
(2005) 3 SCC 636.
3
(2011) 1 SCC 141.
The law of maintenance in the Muslim Personal Law has evolved through various cases in
the following manner-

In the case of Bai Tahira v. Ali Hussain4, it was held that since the dower amount comes
under the meaning of the term ‘sum payable’ as given under Section 127(3)(b) of the CrPC,
so a woman who has already received it is not entitled to further maintenance under Section
125 of the CrPC.

In the next case of Fuzlunbi v. K. Khader Vali5, it was decided that only after judging the
sufficiency of the amount of mehr, will the husband be released from making any further
payments.

Then, in the light of the landmark case of Mohammed Ahmed Khan v. Shah Bano Begum6,
it was finally cleared out that mehr does not come under Section 127(3)(b), as it is an
obligation on the husband and is paid as a mark of respect for the wife, and not the amount
payable to the wife on divorce.

After that, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was passed
where provided that reasonable and fair provision is to be made and maintenance is to be paid
within the iddat period.

The case of Danial Latifi v. Union of India7 was then filed challenging the validity of the
above Act, where it was held that it was constitutionally valid, and though the maintenance
has to be paid within the iddat period, it must be enough to maintain her for her whole life.

Finally, in the case of Abdul Latif Mondal v. Anuwara Khatun8, it was discussed that since
the objective of Section 125 of the CrPC was to prevent the woman from destitution, and
since it is speedier, so the Muslim women can still claim maintenance under Section 125 of
the CrPC.

Comparison with CrPC

4
AIR 1979 SC 362.
5
AIR 1980 SC 1730.
6
AIR 1985 SC 945.
7
AIR 2001 SC 3958.
8
(2002) 1 CLJ 186.
Muslim women can also claim maintenance under the CrPC. Unlike the Muslim Personal
Law, even divorced women are given the right to maintenance under the CrPC. It was a
controversy and a question of law as to whether the Muslim divorced women can claim the
right to maintenance under the CrPC, even after receiving the dower or not. This controversy
has been settled once and for all through the cases listed above.

Moreover, Section 5 of the Muslim Women (Protection of Rights on Divorce) Act,

1986 also provides that the parties can opt to be ruled by the secular law under Sections 125
to 128 of the CrPC, instead of the Muslim Personal Law. Thus, women can claim
maintenance under the CrPC or the Muslim Women (Protection of Rights on Divorce) Act,
1986.

The CrPC is a more appropriate recourse in this scenario as it provides for maintenance for
both married and divorced wives, unlike the personal law. Also, the quantum of maintenance
is more reasonable under the secular law, whereas just the payment of mehr is considered to
be enough under the personal law. Furthermore, in CrPC, the maintenance is for life, whereas
under the personal law, it is only till the Iddat period.

Conclusion

There are various differences in the laws of maintenance as given under the various personal
laws as well as in the secular law of CrPC.

Under the Hindu Laws, the male counterparts are also eligible to receive maintenance. But in
cases of second marriage, the second wives can only get respite under the secular law of
maintenance under Section 125 of the CrPC. So, the CrPC is a better recourse to get
maintenance compared to the Hindu Personal Law.

In case of Muslim women, it is definitely more beneficial for them to approach the Court
under the CrPC for claiming maintenance, rather than under their personal law.
The CrPC provides a reasonable quantum of maintenance. Also, it also applies on divorced
women, unlike the Muslim Personal Law. It also provides for a lifetime maintenance, unlike
the Muslim Law that only provides for maintenance till the Iddat period.
Thus, through the whole discussion and comparison, it would be expedient to conclude that
the CrPC, being a secular, just, effective, inexpensive and speedy method, is the most
favourable path to be opted by the divorced women to choose to receive maintenance.