MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

SEMESTER – III

TOPIC – COMPARARITIVE STUDY OF PROPERTY RIGHTS UNDER

HINDU AND MUSLIM LAW

SUBMITTED BY – NISHIT GOKHRU

ENROLMENT NO. – 2020 149

SUBJECT: FAMILY LAW – 1

SUBMITTED TO: Dr. KARUNA MALVIYA MAM

RESEARCH METHODOLOGY

The work's research methodology is strictly doctrinal and analytical. Due to the use of
theological approach, the work is based on materials that are freely available on the internet. The
information will be gathered using secondary data sources. National laws, publications by
various international and national organisations, governmental publications, previous research,
mass media reports, law journals, magazines, the internet, and other similar good data sources
are all included. The findings of this study are intended to add to our understanding of women's
property rights under Hindu and Muslim personal law.

HYPOTHESIS

The following hypothesis have been formulated:

1. Property rights of Muslim women and Hindu women are unfair and unequal.

2. The Constitutional aspiration of equality strengthens the women’s property rights.

3. To realise the cherished aspiration of women, an unified civil code must be applied to all,
regardless of religion or caste.

OBJECTIVE OF THE STUDY

The study's specific objectives are

To trace the historical context of Hindu and Muslim women's property rights and their
evolution.
Examine the relevant provisions of the Indian Constitution and other laws pertaining to
women's property rights.
Examine the terms of the Hindu Succession Act, 1956, in light of the 2005 Amendment.
To comprehend why, despite laws, women continue to be economically disadvantaged in
compared to males.
To assess the judiciary's role in protecting women's right to inheritance.
To propose solutions to fill in the gaps and make it more effective in reaching the desired
outcomes.
LITERATURE REVIEW

1. The Muslim law of succession differs significantly from India's comparable indigenous laws.
The Mitakshara rule of succession is founded on the notion of 'Janmswsatvavada' (right by birth),
which is completely unknown in Muslim law. The Islamic law of inheritance is quite similar to
the old Dayabhaga law, yet it differs on several key aspects. The present Hindu law of succession
(as codified in the Hindu Succession Act of 1956) is, on the other hand, very different from both
of the classical systems; in some ways, it resembles the Muslim law of inheritance (Saxena,
Poonam Pradhan, Hindu Law).

2. In Muslim law, the distinction of heritage (Daya) into 'Sapratibandh' (obstructed) and
'Apratibandh' (unobstructed), self-acquired and ancestral-is also foreign. Whether a male or a
woman, whatever property one gets (whether from his ancestors or from others) is absolute
property in Muslim law (Shastri, Madhu, Status of Hindu Women).

3. According to Muslim law, a person is the only owner of his or her property as long as he or
she is alive; no one else (including a son) has any claim to it. The legal rights of the heirs are
only acquired when the owner dies, and never before. As a result, a so-called would-be heir is
unable to deal with his future right to inherit in any way (Mulla, D. F., Principles of Mohammedan
Law)

4. The principles of joint or undivided family, coparcenary, Karta, survivorship, and other Indian
legal concepts have no place in Islamic law. A father and his son living together do not form a
joint family; the father is the owner of his property, and his son (even if minor), if he has any, is
the owner of his son's property. Brothers or others living together are in the same situation
(Karim, S.A., Divorced Woman‘s Rights)

5. Unlike traditional Indian law, female sex does not prevent a woman from inheriting property.
No woman is barred from inheriting just because of her gender. Women, like males, have the
right to inherit property on their own, not just to receive or possess property "in lieu of
maintenance." Furthermore, every 201 woman who inherits property is its ultimate owner, just
like a man; there is no concept of Stridhan's or a woman's 'limited estate' reverting to others upon
her death (Joseph Schacht).
In the absence of a matrimonial property regime in India, payment of maintenance for wives
under various laws is the only way to keep women from becoming vagrants. The following
provisions can be used to examine a Hindu woman's right to maintenance: (CHAPTERS):

1. Maintenance under the Hindu Marriage Act, 1955.

2. Maintenance under the Hindu Adoptions and Maintenance Act, 1956.
3. Maintenance under the Code of Criminal Procedure, 1973.

(I) MAINTENANCE UNDER THE HINDU MARRIAGE ACT, 1955

(a) Section 24, Maintenance Pendente Lite- The HMA has two specific provisions (Sections
24 and 25) that deal with the maintenance of spouses who are participating in a matrimonial
case. These provisions are not applicable to either spouse during the normal course of the
marriage or if either spouse refuses to support the other without resorting to litigation. In this
regard, it is important to note that maintenance can be claimed only when a matrimonial petition
is either pending in the Court awaiting disposition or has resulted in the award of a decree, and
that maintenance can be claimed by either the husband or the wife based solely on who is
indigent and who is financially secure. Section 24 of the Hindu Marriage Act of 1955 provides
for the grant of maintenance pendente lite2 and expenses of proceedings to either spouse, while
Section 25 provides for the payment of permanent alimony and maintenance to either spouse. A
petition for interim maintenance can be filed in either the trial or appellate court4, and the
petitioner or respondent can claim the maintenance3.

A claim may be filed for i) the claimant's personal maintenance and (ii) the costs of the
proceedings. The only criterion is that the claimant demonstrate that he or she has no
independent income adequate to meet his or her basic needs and that he or she does not have the
financial means to cover the costs of the procedures. The purpose of section 24 is to ensure that a
party to an action does not suffer because of his or her poverty during the course of the
proceeding.4

The party seeking such relief might be either the petitioner or the respondent, and there appears
to be no reason for Parliament to draw a distinction in this case. The Punjab & Haryana High
Court emphasised in Sohan Lal v Smt. Kamlesh6 that the purpose of including Section 24 in the
Act was to ensure that any partner to a marriage who is the subject of a matrimonial proceeding
is not treated unfairly because of his or her poverty.

The Court must issue in response to such an application so that the marriage party's claim is not
jeopardised. Even if the main petition has been decided, an order on an application under Section
24 can still be issued. As a result, regardless of the outcome of the main petition for any relief
covered by Sections 9 to 13 of the Act, the right to claim interim maintenance and expenses for
the procedures provided under this section is a particular entitlement. The only criterion for
exercising jurisdiction under this clause is if the party has no independent source of income
adequate to support him/herself and pay for the proceedings' expenditures.

(b) Section 25:

Alimony and Maintenance on a Permanent Basis Alimony is defined by the Corpus Juris as "the
allowance required by law to be made to a wife, out of her husband's estate, for her support either
during matrimonial suit or on its termination, when the fact of marriage is maintenance." 8
Maintenance and alimony are based on the premise that the husband must support his wife not
only while she is still his wife, but even after they divorce, as long as she does not remarry.
Courts have the authority under Section 25 of the Hindu Marriage Act, 1955, to order the
opposing party to pay the petitioner support at the time of the decree or later. When determining
the amount of maintenance to be paid, the Court will consider the status of the opposing party.

__________________

1 Saxena, Poonam Pradhan, Hindu Law, XLV ASIL (2009) p.483

2 Maintenance during the pendency of the proceedings is known as maintenance pendente lite, interim maintenance
or temporary maintenance

3 The Hindu Marriage Act, 1955 under Section 24 lays down : Maintenance pendente lite and expenses of
proceedings: Where in any proceeding under this Act, it appears to the Court that either the wife or the husband, as
the case may be, has no independent income sufficient for his or her support and the necessary expenses of the
proceeding, it may , on the application of the wife or the husband order the respondent to pay the petitioner the
expenses of the proceeding, and monthly during the proceeding such sum as having regard to the petitioner‘s own
income and the income of the respondent, it may seem to the Court to be reasonable.

4
Shyamali v Ashim, 1988 Cal 123; Chitra v Dhruba, 1988 Cal 98
The court has also been given the authority to revoke or modify the order at any time. Section 17
of the Marriage Laws Amendment Act of 1976 altered the section, which formerly limited the
applicant's obligation to pay maintenance to the time he or she was single. The phrase "while the
applicant is unmarried"9 was removed from the application. Several High Courts issued
contradictory judgements as a result of this.

(II) MAINTENANCE UNDER THE HINDU ADOPTIONS AND MAINTENANCE ACT,

1956

The right of maintenance is one of the necessary occurrences of a shared Hindu family. The
family's head was obligated to provide for its members, and in the case of daughters, this
obligation only lasted until their marriage. Wives were entitled to maintenance throughout their
marriage, just as mothers were entitled to support from their children. Even widows were eligible
to get support. Hindu women, on the other hand, were denied maintenance due to their chastity.
Their claim was terminated due to remarriage.10 The quantity of maintenance required was
determined by a variety of circumstances, including family status, necessary requirements,
desires, and age. "Maintenance includes:

(a) in all situations, provision for food, clothing, residence, education, and medical attention and
treatment;

(b) in the event of an unmarried daughter, reasonable costs and concomitant to her marriage,"
according to the Act.

Under the Hindu Adoptions and Maintenance Act of 1956, the following people are entitled to
maintenance:

i) Wife

_______________________

5 Diwan, Paras, Modern Hindu Law, Allahabad Law Agency, 2001, p. 173

6 Section 25, The Hindu Marriage Act, 1955

7 Rao, Mamta, Law Relating to Women and Children, Eastern Book Company, 2008, p.274-275
ii) Widowed daughter-in-law

iii) Children and aged parents

iv) Dependants as enumerated in Section 21 of the Act.

Section 18 of the Hindu Adoptions and Maintenance Act, 1956- In addition to the right to
maintenance under the Hindu Marriage Act of 1955, a Hindu wife has a statutory right to claim
maintenance under Section 18 of the Hindu Adoptions and Maintenance Act of 1956 in ordinary
circumstances (living with the husband) or in exceptional circumstances (living separately from
the husband). This right, however, is not absolute, and the wife could lose it in certain
circumstances. While Section 18 of the Hindu Marriage Act entitles a 'Hindu wife' to
maintenance from her husband even if she lives away from him, which should be justified, it is
critical that the marriage be legally recognised. There have been terrible examples in which
wives who married men who had a valid marriage were denied maintenance because the
marriage was illegal.

In classical legislation on maintenance, a woman has a particular status, and refusing to keep her
attracts harsher punishment than refusing to maintain other family members. Shastri's
explanation of the idea is very instructive and pertinent to our situation:

"The establishment of such a relation, ipso facto, provides a right to the wife to receive
maintenance from her husband, a right to the daughter-in-law to receive maintenance from her
father-in-law in the event that the husband is unable to provide for her, and a right to the widow
to receive maintenance from her husband's property or from those persons managing the affairs
of her husband's property."

Section 19 of the Act establishes a father-in-obligation law's to support his bereaved daughter-in-
law. The Hindu Adoptions and Support Act, 1956, has been amended by the Law Commission to
preserve the right of a Hindu woman whose husband is unable to pay her with maintenance. It
was suggested that sub-section 4 be added to Section 18 as follows:

Section 18 (4) - Where a husband is unable to provide for his wife due to physical disability,
mental illness, disappearance, renunciation of the world by joining a religious order, or other
similar reasons, the Hindu wife is entitled to maintenance from members of the husband's joint
Hindu family during her lifetime, except where the husband has received his share of the joint
family property. Explanation: For the purposes of this Section, the phrase "mental condition" has
the same meaning as it does in the Hindu Marriage Act's Explanation to Section 13(1) (iii).

(III) MAINTENANCE UNDER THE CODE OF CRIMINAL PROCEDURE, 1973

A thorough framework for the maintenance of wife, children, and elderly parents is provided
under the Statute of Criminal Procedure, 1973, a secular code. The proceedings under this clause
are civil rather than penal. The remedy given by the sections is of the civil rights variety. The
purpose of Chapter IX of the CrPC is to provide a quick remedy through a summary procedure to
enforce liability and prevent vagrancy. In Mani v Jay Kumari, the court stated that the
requirements of Chapter IX should be liberally construed because the major goal is to provide
social justice to women and children and to avoid destitution and vagrancy by requiring those
who can help those who cannot help themselves to do so. This clause gives effect to a man's
inherent and fundamental duty to support his wife, children, and parents while they are unable to
support themselves. Its terms apply and are enforceable regardless of the personal law that
governs the individuals affected.

This clause is a social justice policy that falls under the constitutional swath of Article 15(3),
which is supplemented by Article 39 in Indian constitution..

When the following circumstances are met, an order under this section can be issued: a) the
person has sufficient' means; b) he has ignored or refused to support his wife, children, or
parents; c) the wife, children, or parents are unable to support themselves. The term 'wife' now
includes a wife who has been divorced by or obtained a divorce from her husband and has not
remarried since the new code went into effect. “A woman, who has been divorced by her

_________________

Section 125-128, The Code of Criminal Procedure, 1973

Zahid Ali v Fahmida Begum, 1988(3) Crimes 373(Bom)

Madhavi v Thupran, (1987) 3 Crimes 183(Ker) 20 1998 CrLJ 3708 (Mad)

Nanak Chand v Chandra Kishore, (1969) 3 SCC 802:1970 SCC (Cri)127

Captain Ramesh Chander v Veena Kaushal, 1979 CrLJ 3

husband on the basis of a decree passed by a family court under the Hindu Marriage Act,
continues to enjoy the status of a wife for the restricted purpose of claiming maintenance
allowance from her ex-husband,” the Supreme Court said in Rohtash Singh v Ramendri23. A
woman has two unique maintenance rights. She is entitled to maintenance as a wife unless she
has one of the limitations listed in Section 125. (4). She has the right to demand maintenance
from the person she was once married to in a different role, namely as a divorced woman. After a
divorce, a woman is left penniless. If she is unable to support herself or remains unmarried, the
person who was formerly her husband is still obligated to provide her with support under the
law.

The wife's entitlement to maintenance is also recognised by the Criminal Procedure Code. As a
result, if a person with sufficient resources refuses to pay maintenance, the wife can file a
complaint under Section 125 of the Criminal Procedure Code. The payment of maintenance by a
husband to a wife is covered by the Code of Criminal Procedure. The following conditions must
be met in order for a claim for maintenance to be successful:

a) the person seeking maintenance must have sufficient financial resources;

b) the person seeking maintenance must have neglected or refused to pay maintenance; and

c) The person seeking maintenance must be unable to support himself. If the claimant is a
woman, the following additional requirements must be met: she must not be living in adultery,
she must not have refused to live with her spouse without good reason, and she must not be
living separately by mutual consent.

A maintenance order issued under Cr.P.C has two advantages. To begin with, the summary
approach for deciding maintenance claims is not formal or detailed. There's also no requirement
for a formal charge. As a result, the odds of receiving prompt relief are better than in a civil court
case. The Act also provides for strict enforcement measures, which is a second benefit. If you

____________________

(2000) 3 SCC 180; 2000 SCC (Cri) 597

Section 125(1), The Code of Criminal Procedure 1973

Supra note 24, Section 125-127

don't pay your maintenance, a warrant will be issued for you to pay it in the same way you pay
your fines. If the debt is still unpaid, a warrant for arrest may be issued.

MAINTENANCE RIGHTS OF MUSLIM WOMEN

(i) Women's Maintenance Rights in Classical Law Maintenance is referred to as nafaqa, and it
includes food, clothing, and lodging, though it is usually limited to the first. Because Muslim law
does not have the same catholic spirit as Hindu law, there are minimal provisions for the
maintenance of relatives. Marriage, relationship, and property are the three reasons why one
person is obligated to maintain another.

(a) According to Muslim Law, the husband's primary responsibility is to provide for his wife and
children. The husband's commitment to support and maintain his wife begins when she reaches
puberty, not before, as long as she is submissive and allows him unrestricted access at all
reasonable times. The wife's claim to maintenance ends when her husband dies, because her right
to inheritance takes precedence. However, if the husband has failed or neglected to furnish
maintenance for a period of two years, the wife is entitled to dissolution.

(b) A father has a legal obligation to support his sons until they reach puberty and his daughters
until they marry. He is also accountable for his divorced or widowed daughter's upkeep.

(c) A bereaved daughter-in-father-in-law law's is under no responsibility to support her.

(d) A father is not obligated to support an illegitimate child, but the mother is under Hanafi law
to support her natural son or daughter.

A person in good financial standing is obligated to support his poor parents and grandparents,
both paternal and maternal. Fatwa-Alamgir lays out the overall idea for maintaining other
relationships. The distinctive concept of Muslim Law, according to Paras Diwan, is that the
requirement of maintenance is divided into three categories:

__________________

Ahmad, Aqil, Mohammedan Law, Central Law Agency, Allahabad, p. 232

Section 2(ii), The Dissolution of Muslim Marriage Act

Md. Abdul v Khairunnisa,1953 Bom 245

(c) A bereaved daughter-in-father-in-law law's is under no responsibility to support her.

(d) A father is not obligated to support an illegitimate child, but the mother is under Hanafi law
to support her natural son or daughter.

A person in good financial standing is obligated to support his poor parents and grandparents,
both paternal and maternal. Fatwa-Alamgir lays out the overall idea for maintaining other
relationships. The distinctive concept of Muslim Law, according to Paras Diwan, is that the
requirement of maintenance is divided into three categories:

(a) A Muslim has a personal and absolute obligation to support and sustain his wife, regardless
of whether she is in difficult circumstances or not. No one shares the responsibility of a husband
to support his wife.

(b) A Muslim has a personal responsibility to support his children, but it is not a legal
requirement. If they are unable to care for themselves, he is responsible for their upkeep;
similarly, if elderly parents are unable to care for themselves, the son is responsible for their
upkeep.

(c) Muslim law recognises an obligation to preserve other relationships, but only if they are in
difficult or impoverished conditions. These are relatives who are linked to him within the
prohibited degrees of relationship, and only in proportion to the share that the maintainer would
inherit from them.

According to Muslim law, a woman has no obligation to support her husband, no matter how
poor he may be. Kharch-e-pandan is not to be confused with maintenance. There may be clauses
in the marriage contract that make the husband accountable to make a specific allowance to the
wife in addition to the legal obligation to maintain. Kharch-e-pandan, guzara, and mewa khori
are examples of such allowances.

OBLIGATION TO MAINTAIN

Regardless matter whether he is a poor guy or his wife is a wealthy woman, a Muslim has an
absolute personal obligation to support his wife. The justification for a husband's need to support
his wife can be found in several Koranic texts.
“Men are the managers of the affairs of women for that God has preferred in bounty one of
them another, and for that they have expended their property”

“Let the men of means spend according to his means, and man whose resources are restricted,
let him spend according to what God hath given him”

These passages recognise that the amount of maintenance is totally determined by the husband's
abilities, i.e. his quality of living. This is because the Quran also states that God places no load
on anybody other than what He has given him. In addition, the wife's claim to maintenance
would be terminated in the following situations:

(a) When intimacy with her is not possible on account of her tender age or illness

(b) When the wife apostasies, if she has been sent to jail.

(c) When the wife is refractory or unsubmissive, and

(d) When the wife becomes a widow. Under Muslim Law, obligation to maintain his wife arises
in the following two cases:

i) On the basis of the wife's marital status emerging from a pre-nuptial agreement entered into
between the parties to the marriage or between the parents in the case of both parties or one of
them being a minor.

(ii) The term "maintenance" has a broad meaning in Muslim law when used to a woman. It
includes food, clothing, accommodation (i.e., a separate house or at least a separate room that
can be shut) and, for the well-to-do, a servant, according to Schacht. She is not obligated to cover
any of the marital establishment costs.

____________________

Supra note 33, p. 157

Fyzee,Outlines of Mohammedan Law, 3rd Ed., 1964 p. 212

Ali Akbar v Fatima , (1929)11 Lah 85

Koran LXV: 7

Ahmed, K.N., The Muslim Law of Divorce, The Islamic Research Institute, Islamabad, 1972, p.720
A Muslim husband is obligated to support his wife even if she is wealthy, i.e. has her own
resources, and even if the husband is poor. Regardless of whether his wife is affluent or poor,
young or elderly, enjoyed or unenjoyed, the Muslim husband has an obligation to keep her in a
lawful marriage.

The maintenance of the woman takes precedence over the maintenance of the children. The bride
is Asl (root), and the children are Far, according to Durrul-Mukhtar (branch) Only if the
marriage is valid does the husband have an obligation to support his wife (sahih). If the marriage
is void (batil) or irregular (farid), there is no obligation. In the event that she is denied
maintenance, the wife has the ability to pledge the husband's credit. The main principles of
maintenance may be recounted thus:

i) If a person does not own any property, he is entitled to maintenance.

ii) Is related to the obligor within the prohibited degrees of relationship, or is the wife or child
and

iii) The obligor is willing to assist him. Though a person's obligation to support his wife, minor
boys, unmarried daughters, mother, father, father's father, and father's mother is larger, this
commitment is also mitigated by their financial situation. The Koran declares unequivocally,
"For divorced women, maintenance (shall be supplied) on a reasonable basis" (scale). The
righteous have a responsibility to do so.

There is no mention in the Koran of upkeep being paid just during the 'iddat' time (approximately
three months after the divorce and the period during with the woman is prohibited from
remarrying) Of course, most Muslim theologians agree that maintenance is only required during
'iddat,' and that most Muslim countries limit an ex-claims wife's against her husband in this way
(in the absence of a provision to the contrary in the marriage contract). Nonetheless, a
compelling argument may be made that the iddat is the shortest term during which maintenance
is required, that there is no maximum period, and that any order for financial assistance beyond
the iddat period is contingent on the facts of each instance. Islam claims, with at least some
theoretical basis, to have been in the forefront of recognising women's rights several centuries
ago. Unfortunately, conflicting customary observances and legal interpretations have denied
women the privileges that the Prophet of Allah ostensibly offered them. As one eminent
academic and lawyer recently put it:

"The Koran accorded women unique status; nevertheless, in a conventional portrayal of Islam,
this aspect is disregarded and, in some cases, explained away. For example, the Koran stipulates
that provision be made for the support of divorced women in addition to that provided for during
the 'iddat' period. However, the legal consensus is that this provision merely necessitates a
change of clothes and food for one to three days."

(ii) DIVORCED WIFE’S RIGHT TO MAINTENANCE AND DOWER UNDER

SECTION 125 OF CODE OF CRIMINAL PROCEDURE

When a marriage is dissolved by death or divorce, Muslim law prescribes various procedures for
the wife's claim to maintenance. Even during the term of iddat, the wife is not entitled to
maintenance if the marriage is dissolved by death. When a relationship ends in divorce, the wife
is entitled to financial assistance for the iddat period. Though divorce is not revealed to the wife
until after the iddat time has passed, she is entitled to assistance until the divorce is finalised. If
the marriage is irrevocably dissolved, the wife is not entitled to maintenance even throughout the
term of iddat, according to the Shias and Shafis. They do concede, however, that if the
irrevocable divorce occurs during the pregnancy, the wife is entitled to support until the baby is
born. The wife is not allowed to support throughout the iddat time if the marriage is dissolved
owing to the woman's apostasy or for any other criminal cause, according to Muslim authorities.
The wife is not entitled to any support after the iddat period has expired under any
circumstances.

After a wife is ordered to be maintained under Section 488 of cpc and the woman is later
divorced, the order becomes null and void when the iddat time expires. As a result, a

______________________
Khalid M. Ishaque, Foreword to Sabeeha Hafeez, Metropolitan Women In Pakistan, Karachi:Royal Book
Co.,1981,pxi

Badruddin v Aisha, (1957) All L.J. 300

Marian v Kadir AIR 1929 Oudh 527; Asmtulla v Khatunnisa, AIR 1937 All 592; Ahmed v Khaun, ILR (1939) 59
Cal 833; Munnisa v Noor Md, AIR 1965 AP 231
Mahomedan can escape a Section 488 order against him by divorcing his wife immediately, it is
granted. In that instance, his obligation to support his wife will end once her iddat is completed.

In response to this viewpoint, the Criminal Procedure (Amendment) Act of 1973 rewrote Section
488 and added a new clause (now Section 125) and Explanation(b) to clause (1) of Section 125
In light of this ruling, a "wife" is defined as a woman who's been separated by, or obtained a
divorce from, her spouse and has not remarried. As a result, an abused wife's maintenance action
cannot be thwarted by her partner leaving her. It is a precautionary measure designed to reduce
vagrancy and poverty. Section 125 has the characteristics of a Uniform Civil Code in that it
applies to all localities. The goal of Section 125 is to help neglected wives and divorcees get
back on their feet financially. The extension of protection to divorcees was one victory toward
this welfare goal, and the judiciary took a second big step by bringing mahr to the doorsteps of
maintenance54. As a representative of the customary or personal law sum indicated in Section
127(3), Mahr has taken on the negative role (b). The inconsiderate husband skilfully used the
provision under the new Section 127(3) (b) as an escape lane, just as the premeditated divorce
deprived the wife of support there under old Section 488.

The Supreme Court in Shah Bano drew the watershed line with authority. "We have decided that
the absence of mahr on divorce does not fit within the scope of that article," said by the court,
reversing the decision that payment of mahr money as a customary discharge is covered by that
clause. The Court expelled mahr from the precincts of Section 127(3) (b) by holding:

" If mahr is the amount owed to the woman by the husband in exchange for her marriage, the
sum due in contemplation of divorce, on the other hand, is the contrary. Divorce is the end of a
relationship. So, no money paid in account of the marriage may be considered a payment made
in anticipation of divorce.

Another issue considered by the Supreme Court was whether the Muslim Personal Law limited
the payment of support to iddat solely. In other words, does Muslim Personal Law forbid

__________________________

Supra note 46, para 304

Rashid, Syed, Khalid, Muslim Law, Eastern Book Company, p.163

AIR 1979 SC 362

payment after the iddat time has expired? Chandrachud C. J. turned to the stated absoluteness of
the limit-line and held: Citing passages from Mulla, Tyabji, and Paras Diwan's writings to the
impression that iddat was the maintenance line, when it came to the purported absoluteness of
the limit-line, Chandrachud C. J. held:

These textbook assertions are weak to prove that a Muslim spouse is not required to provide for
his divorced wife who's had to sustain herself. These Muslim Personal Law rules do not apply to
divorced spouses who are unable to maintain themselves after the separation. We feel that the
applicability of such declarations of law should be confined to instances in which the divorced
wife's indigence does not pose a risk of vagrancy or poverty. Section 125 addresses instances in
which a person with sufficient resources ignores or refuses to do something for his wife who is
unable to care for herself.

Because the Muslim Personal Law, which restricts a husband's obligation to support for his
separated wife's maintenance to the term of iddat, Because the Muslim husband's obligation to
provide maintenance to his divorced wife who is unable to support herself beyond the period of
iddat is not contemplated or sanctioned by Section 125, it would be incorrect to hold that the
Muslim husband is not obligated to provide maintenance to his divorced wife who is unable to
support herself beyond the period of iddat. The truth is that if the divorced woman is competent
to support herself, the husband's obligation to give maintenance for her ends after the iddat term
expires. She has the right to use Section 125 of the Code if she is unable to support herself."

Is secular legislation that requires payment beyond iddat in violation of Muslim Personal Law, or
does Muslim Personal Law sanction such secular law?

The conclusion of this discussion is that the rules of Section 125 and the Muslim Personal Law
do not contradict when it comes to the responsibility of a Muslim husband to help a divorced
wife who is unable to sustain herself. The Court was contributing to the formation of Muslim
Personal Law by investigating this topic.

________________________

Mohd. Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945

Mohd Ahmad Khan v Shah Bano Begum, (1985) 2 SCC 556

The Shah Bano ruling caused a great deal of consternation among Muslim purists. If the Court
made a mistake, It was only out of a desire to extend the scope of Muslim Islamic concern for
divorced spouses that it did so. There was no breach of Muslim teachings, no imposition of
obligations outside the Muslim fold, and no universal responsibility due to non-Muslims beyond
that. The only individual who would benefit was a Muslim. However, the government has been
under a lot of pressure to change the consequences of the law agency's ruling. The Muslim
Women (Protection of Rights on Divorce) Act was enacted as a result in 1986.

(iii) RIGHTS UNDER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON

DIVORCE) ACT, 1986

The Act does not say that mahr is a factor for divorce or that it is the sum referred to in Section
127(3)(b) CrPC; it only offers relief to the divorced woman.; It does not indicate that the
divorcee would not be paid support or that she will be abandoned for the rest of her life
following iddat.; It does not make secular law inapplicable to Muslims, such as the CrPC, and it
does not overturn the The Act's Preamble declares that it is "an Act to safeguard the rights of
divorced Muslim women and to provide for matters related and incidental." The Supreme Court
ruled in Shah Bano that woman can invoke Section 125 of the CrPC if she is unable to sustain
herself beyond the term of iddat. The requirement of the Muslim husband to pay maintenance to
the divorced wife has sparked some debate as a result of this ruling. As a response, the occasion
has been used to define and defend the rights of a divorced Muslim woman at the time of
divorce. As a result, the Act demands an interpretation that fulfils rather than hinders its purpose.

A divorced woman is entitled to the following benefits under Section 3 of the Act:

i) a provision that is reasonable and equitable

ii her maintenance,

iii her children's supply and maintenance for two years,

iv mahr sum and

all of the property that was granted to her before, during, and after her marriage Her ex husband
is responsible for making and paying her provision and upkeep during the iddat time. According
to Muslim scholars, the Act complies with Shariat. The section's wording is singular, and it
appears to be a one-time act. To put it another way, it is the rarest of rare cases. However, the
reality is rather different. A Muslim woman's right cannot be confined to a one-time occurrence
in her life. When a woman is divorced, she has the right to use the Act's provisions.

(iv) MUSLIM WOMEN’S RIGHT TO MAHR

Mahmood, J., gives the best exposition of the nature of dower in Abdul Kadir v Salima. He
emphasises:

According to the Muhammadan Law, "dower" is "a sum of money or other property promised by
the husband to be paid or delivered to the wife in consideration of the marriage, and even where
no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of
dower upon the wife as a necessary effect of marriage. To use the Hedaya's terminology, the
payment of dower is viewed by the law as just a show of respect for its aim, and therefore its
mention is not required for the legitimacy of a marriage; similarly, a marriage is valid even if the
man enters into the contract knowing that no dower will be given.

___________________________________

Mohd Ahmad Khan v Shah Bano Begum, (1985) 2 SCC 556

Karim, S.A., Divorced Muslim Woman‘s Rights, 2002(1) K.L.T.

Grady, Hamilton’s Hedaya, at p. 44

Syed Sabir Husain v Farzand Hasan, 1937, 65 IA 119

CONCLUSION:
In the lack of an uniform code governing Indian women's property rights, such rights are decided
by their religion and religious beliefs, whether they are married or unmarried, where they are
from in India, whether they are tribal or non-tribal, and so on. Ironically, what unites Indian
women is the fact that their property rights are unprotected by the Constitution across all of these
divides; the different property rights may be discriminatory and arbitrary, as they are in many
ways, despite the Constitutional guarantee of equality for everyone. Apart from the above stated
issues of religion and geographical location, Hindu women's property rights are greatly divided.
Hindu women's property rights differ based on their familial position and marital status: whether
the lady is a daughter, married or unmarried or deserted, wife or widow, or mother. It also
depends on whether the property is hereditary/ancestral or self-acquired, whether it is land, a
dwelling place, or marital property.

REFERENCES
1 Saxena, Poonam Pradhan, Hindu Law, XLV ASIL (2009) p.483

2 Maintenance during the pendency of the proceedings is known as maintenance pendente lite,
interim maintenance or temporary maintenance

3 The Hindu Marriage Act, 1955 under Section 24 lays down : Maintenance pendente lite and
expenses of proceedings: Where in any proceeding under this Act, it appears to the Court that
either the wife or the husband, as the case may be, has no independent income sufficient for his
or her support and the necessary expenses of the proceeding, it may , on the application of the
wife or the husband order the respondent to pay the petitioner the expenses of the proceeding,
and monthly during the proceeding such sum as having regard to the petitioner‘s own income
and the income of the respondent, it may seem to the Court to be reasonable.

4 Shyamali v Ashim, 1988 Cal 123; Chitra v Dhruba, 1988 Cal 98

5 Diwan, Paras, Modern Hindu Law, Allahabad Law Agency, 2001, p. 173
6 Section 25, The Hindu Marriage Act, 1955
7 Rao, Mamta, Law Relating to Women and Children, Eastern Book Company, 2008, p.274-275
8 Section 125-128, The Code of Criminal Procedure, 1973
9 Zahid Ali v Fahmida Begum, 1988(3) Crimes 373(Bom)
10. Madhavi v Thupran, (1987) 3 Crimes 183(Ker) 20 1998 CrLJ 3708 (Mad)

11. Nanak Chand v Chandra Kishore, (1969) 3 SCC 802:1970 SCC (Cri)127
12. Captain Ramesh Chander v Veena Kaushal, 1979 CrLJ 3
13. (2000) 3 SCC 180; 2000 SCC (Cri) 597
14. Section 125(1), The Code of Criminal Procedure 1973
15. Supra note 24, Section 125-127
16. Ahmad, Aqil, Mohammedan Law, Central Law Agency, Allahabad, p. 232
17. Section 2(ii), The Dissolution of Muslim Marriage Act
18. Md. Abdul v Khairunnisa,1953 Bom 245
19. Supra note 33, p. 157
20. Fyzee,Outlines of Mohammedan Law, 3rd Ed., 1964 p. 212

21. Ali Akbar v Fatima , (1929)11 Lah 85

22. Koran LXV: 7
23. Ahmed, K.N., The Muslim Law of Divorce, The Islamic Research Institute, Islamabad, 1972,
p.720
24. Khalid M. Ishaque, Foreword to Sabeeha Hafeez, Metropolitan Women In Pakistan,
Karachi:Royal Book Co.,1981,pxi
25. Badruddin v Aisha, (1957) All L.J. 300
26. Marian v Kadir AIR 1929 Oudh 527; Asmtulla v Khatunnisa, AIR 1937 All 592; Ahmed v
Khaun, ILR (1939) 59 Cal 833; Munnisa v Noor Md, AIR 1965 AP 231
27. Mohd. Ahmed Khan v Shah Bano Begum, AIR 1985 SC 945

28. Mohd Ahmad Khan v Shah Bano Begum, (1985) 2 SCC 556

29. Mohd Ahmad Khan v Shah Bano Begum, (1985) 2 SCC 556
30. Karim, S.A., Divorced Muslim Woman‘s Rights, 2002(1) K.L.T.
31. Grady, Hamilton’s Hedaya, at p. 44
32. Syed Sabir Husain v Farzand Hasan, 1937, 65 IA 119