UNIT 2

DIVORCE
Introduction
▪ Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is
broken. One of the ways of such dissolution is by way of divorce . Under Muslim law the divorce may take place
by the act of the parties themselves or by a decree of the court of law. However in whatever manner the divorce
is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status
of marriage.
▪ Divorce is the end of such a marital relationship, as under Muslim law there are two modes given for the
dissolution of marriage-
1. Divorce
2. Talaq
▪ In daily life, these two terms are alternatively used, but under Muslim law, if a person seeks “divorce”, he will be
governed by the provisions of Dissolution of Muslim Marriage Act, 1939. Whereas, “Talaq” proceedings are
governed by Muslim Personal Laws.

Classification of Dissolution of Marriage

Modes Of Divorce
▪ A husband may divorce his wife by repudiating the marriage without giving any reason. Pronouncement of
such words which signify his intention to disown the wife is sufficient. Generally this done by talaq. But he
may also divorce by Ila, and Zihar which differ from talaq only in form, not in substance.
▪ A wife cannot divorce her husband of her own accord. She can divorce the husband only when the husband
has delegated such a right to her or under an agreement. Under an agreement the wife may divorce her
husband by Talaqetafwiz.
▪ Before 1939, a Muslim wife had no right to seek divorce except on the ground of false charges of adultery,
insanity or impotency of the husband. But the Dissolution of Muslim Marriages Act 1939 lays down several
other grounds on the basis of which a Muslim wife may get her divorce decree passed by the order of the
court.
There are two categories of divorce under the Muslim law:
1. Extra judicial divorce, and
2. Judicial divorce
The category of extra judicial divorce can be further subdivided into three types, namely -
I. Unilateral divorce at the instance of husband - talaaq, ila, and zihar.
II. Unilateral divorce at the instance of wife -talaaq-i-tafweez
III. Divorce by Mutual Consent -khula and mubarat.
Husband
A. Talaaq –
▪ When the husband exercises his right to pronounce divorce, technically this is known as talaaq.
▪ Talaaq in its primitive sense means dismission. In its literal meaning, it means "setting free", "letting loose",
or taking off any "ties or restraint". In Muslim Law it means freedom from the bondage of marriage and not
from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words.
In other words talaaq is repudiation of marriage by the husband in accordance with the procedure laid down
by the law.
▪ The following verse is in support of the husband's authority to pronounce unilateral divorce is often cited: “
Men are maintainers of women, because Allah has made some of them to excel others and because they
spend out of their property (on their maintenance and dower)”.
When clear and unequivocal words, such as 'I have divorced thee" are uttered, the divorce is express talaq which falls
into two categories -
1. Talaq-i-sunnat,
2. Talaq-i-biddat.
1. Talaq-i-sunnat –
It is considered to be in accordance with the dictates of Prophet Mohammad. It has two forms:
i. Talaq-i-ashan (Most approved)
ii. Talaq-i-hasan (Less approved).
i. Talaq-i-ashan
▪ It consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations),
or at any time, if the wife is free from menstruation, followed by abstinence from sexual intercourse during the
period of iddat.
▪ The requirement that the pronouncement be made during a period of tuhr applies only to oral divorce and does
not apply to talaq in writing. Similarly, this requirement is not applicable when the wife has passed the age of
menstruation or the parties have been away from each other for a long time, or when the marriage has not been
consummated.
▪ The advantage of this form is that divorce can revoked at any time before the completion of the period of iddat,
thus hasty, thoughtless divorce can be prevented. The revocation may be effected expressly or impliedly.
▪ Thus, if before the completion of iddat, the husband resumes cohabitation with his wife or says I have retained
thee" the divorce is revoked. Resumption of sexual intercourse before the completion of period of iddat also
results in the revocation of divorce.
ii. Talaq-i-hasan -
▪ The husband has to pronounce talaq consecutively in three tuhrs. If menstruation of wife stopped, then three
declaration after every 30 days, 3 times. After the last pronouncement, talaq is irrevocable.
▪ It is necessary that each of the three pronouncements should be made at a time when no intercourse has taken
place during that period of tuhr.
▪ It was a pre-Ismalic practice where pronouncement of divorce in one tuhr, followed by its revocation and
again pronouncement of divorce so on like that lead to harassment and misery of wife. Prophet laid down the
divorce will become final and irrevocable at the third pronouncement, irrespective of iddat period.
▪ Further condition was imposed that parties were not free to remarry unless the wife married another man
who had actually consummated the marriage and then divorced her. On the completion of iddat, the woman
could marry her husband. This process is called Nikah Halala. This is a penal provision meant to chastise the
husband who repudiates his wife thoughtlessly.
2. Talaq-i-biddat –
▪ This is a sinful form of talaq, as it is recognized among the Hanafis. Sunni law recognizes this mode of talaq,
though recognized as sinful. Whereas Shias and Malikis do not recognize this mode.
▪ Three pronouncements made in a single tuhr either in a single sentence or in separate sentences eg. “Talaq,
talaq, talaq” or “I divorce thee, I divorce thee, I divorce thee.”
▪ Single pronouncement clearly indicates an intention to dissolve a marriage and makes it irrevocable. It is
usually pronounced as – “I divorce thee irrevocably”.
▪ Partners separated through triple talaq can’t remarry without the formality of the woman marrying another
man and getting divorced from him -> Nikah Halala.
Shayara Bano v. Union Of India and Ors.,
- SC declared that the practice of triple talaq is unconstitutional, as this form of Talaq is violative of the fundamental
right provided under Art. 14 of the Constitution of India.
Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are
called constructive divorce.
B. Ila (Vow of Continence) –
▪ The situation wherein a husband who is of sound mind and has attained the age of majority, swears in the
name of God that he will not have sexual intercourse with his wife and leaves her to observe iddat, he is said
to make Ila.
▪ Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth
month, the marriage dissolves irrevocably.
▪ But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not
dissolve.
▪ Under Ithna Asharia (Shia) School, Ila, does not operate as divorce without order of the court of law. After
the expiry of the fourth month, the wife is simply entitled for a judicial divorce. It is pertinent to note that Ila
is not practiced in India.
C. Zihar (Injurious Assimilation) –
▪ In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or
sister etc. The husband would say that from today the wife is like his mother or sister. After such a
comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the
said period Zihar is complete.
▪ After the expiry of fourth month the wife has following rights –
(i) She may go to the court to get a decree of judicial divorce
(ii) She may ask the court to grant the decree of restitution of conjugal rights.
▪ Where the husband wants to revoke Zihar by resuming cohabitation within the said period, the wife cannot
seek judicial divorce. It can be revoked if:
(i) The husband observes fast for a period of two months, or,
(ii) He provides food at least sixty poor people, or,
(iii) He frees a slave.
▪ According to Shia law, Zihar must be performed in the presence of two witnesses. Muta marriage (practised
among Shias) which admits no other sort of divorce may be dissolved by zihar.
▪ Such form of divorce is no longer in use anymore.
Wife
Divorce given by wife under the husband’s delegated power.
Talaq-e-tafweez –
▪ Muslim wife can get divorced by 2 other ways :
1. Mutual Consent – (i) Khula and (ii) Mubarat
2. Sec. 2 of Dissolution of Muslim Marriage Act, 1939
▪ Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim
husband is free to delegate his power of pronouncing divorce to his wife or any other person.
▪ He may delegate the power absolutely or conditionally, temporarily or permanently.
 ▪ A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation
must be made distinctly in favour of the person to whom the power is delegated, and the purpose of
delegation must be clearly stated.
▪ The power of talaaq may be delegated to his wife and as Faizee observes, "this form of delegated divorce is
perhaps the most potent weapon in the hands of a Muslim wife to obtain freedom without the intervention of
any court and is now beginning to be fairly common in India".
▪ Hamidoola v. Faizunnisa
▪ - Husband has delegated Talaaq-e-Tafweez to his wife for refusal to pay dower in future – wife demanded
prompt dower – he refused – she pronounced Talaq – husband challenged it – court held – it is a valid
dissolution.
▪ Sainuddin v. Latifunnissa
▪ -husband imposed a condition that if he goes for 2 nd marriage without the permission of 1 st wife, she can
pronounce Talaq – he got married again – after looking at the 2 nd wife, she pronounced Talaq – Court held
that it is a valid dissolution.
▪ Magila Bibi v. Noor Hussain
▪ -before marriage he said he is a medical graduate – ground for talaq-e-tafweez was cruelty – wife
pronounced talaq for cruelty and fraud – court held that there is a dissolution because even fraud leads to
mental cruelty.
Mutual Consent
1. Khula (at the request of wife)-
▪ The literal meaning of khula is “to lay down” before the law. The husband lays down his right over his wife.
It signifies an arrangement entered into to dissolve a concubial connection in lieu of compensation paid by
the wife to her husband out of her property, everything that can be given as dower.
▪ Khula is a divorce with mutual consent and at the instance of a wife in which she agrees to give some
consideration to her husband. It is basically a “redemption” of the contract of marriage.
▪ Essentials -
1. There must be an offer (for divorce) from the wife’s side.
2. Offer must be accepted by the husband with the consideration for it. (Wife can revoke offer before it is
accepted by the husband)
3. It should be made at the same sitting.
4. Observance of the iddat period is necessary.
▪ Consideration for Khula – most common – relinquishment of dower. There is no min./max. limit. It can be
paid immediately or later.
▪ As soon as offer is accepted, it becomes an irrevocable divorce and wife is bound to observe iddat. If in case,
wife doesn’t pay consideration, divorce doesn’t become invalid, husband has right to claim.
▪ Capacity for Khula – Husband must be :
1. Adult
2. Sound mind
 3. For Shias – free agent (guardian cannot be party to khula)
4. For Shias – have intention to divorce her.
2. Mubarat (mutual agreement) -
▪ It signifies mutual discharge from the marital tie. The most essential element is that the mutual consent of
both the partners is required in regards to the dissolution of marriage.
▪ In this mode of divorce-
1. Offer can be made from either of the sides.
2. Acceptance of offer makes divorce irrevocable.
3. Iddat is necessary.
Difference between –

JUDICIAL DIVORCE – DMMA, 1939

Lian -
▪ Lian can simply be described as the wrong charge of adultery on wife by her husband.
▪ Whenever a husband imposes false adultery charges on his wife, then a wife can sue him and can also obtain
a divorce on the same ground under the Act, by filing a regular suit for dissolution of marriage.
Zafar Husain v. Ummat – ur – Rahman
Allahabad High Court held that a wife under Muslim law is entitled to file a suit against her husband for dissolution
of marriage and can obtain decree on the ground that she was falsely charged with adultery by him.
▪ It is only a voluntary and aggressive charge of adultery made by the husband which, if false, would entitle
the wife to get the decree of divorce on the ground of Lian.
Nurjahan v. Kazim Al
Calcutta High Court held that, where a wife hurts the feelings of her husband with her behaviour and the husband
hits back an allegation of infidelity against her, then what the husband says in response to the bad behaviour of the
wife, cannot be used by the wife as a false charge of adultery and no divorce is to be granted under Lian.
▪ Essentials -
1. A husband must be adult and sane.
2. He charges his wife of adultery.
3. Such a charge must be false.
 4. False charges do not ipso facto (by that fact itself) dissolve the marriage, it just provides a ground to the wife
to move to the court to dissolve the marriage.
5. Marriage will continue until the decree for dissolution of marriage is passed by the court.
6. Judicial separation via mode of lian is irrevocable.
7. This mode is applicable only to valid marriages not on irregular ones.
▪ Husband has to prove the charge, if he fails, wife gets divorce OR
▪ Retraction can be made by the husband before the end of the trial, admitting that he made the charge of
adultery against his wife and such charge was false – in which case she can sue for defamation.
Faskh -
▪ Quran says that husband and wife are duty bound to respect each other and treat each other respectfully and
obey all lawful orders of each other.
▪ If both of them find that they can’t live as husband and wife further, they can approach khazi who after
careful examination may terminate their marriage. Currently, the court dissolves the marriage.
▪ Faskh is recognized in Quran – Sura IV Ayat 35.
Characteristic Features of DMMA, 1939 –
1. It has 6 sections – Sec 2 : grounds for divorce for Muslim wife (9 grounds).
2. The Act and grounds are applicable only to Muslim wife.
3. Muslim Wife can get divorce at the age of 15. But she cannot approach court at the age of 15, hence, she
must go with a guardian under Order 32 Rule 1 of CPC.
4. It is applicable to a non-muslim wife, if her marriage is contracted as per muslim law (i.e, she was a non-
muslim at the time of marriage or the muslim wife converts after marriage) – Nikah must exist.
5. Applicable to all schools of Muslims.
Sec. 2 - Grounds for judicial divorce by Wife:
i. Absence of Husband– whereabouts of the husband are not known from the past four years. Dissolution of
marriage decree on this ground will take effect after six months from the date of such decree is passed.
During that period if the husband appears in person or through an authorized agent, Court if satisfied from
same may set aside the said decree.
ii. Failure to maintain- If a husband fails to provide maintenance to his wife for two years. There is no defense
available before husband on the ground of poverty, failing health or unemployment – he has to provide for
his wife, her absolute right.
iii. Imprisonment of a husband- If the husband is imprisoned for seven years or more.
iv. Failure to perform marital duties- If, without any reasonable cause, the husband is unable to perform his
marital obligations for three years. Marital obligation is not defined and it can be interpreted by the Court,
based on circumstances and facts of the case. It can include – non maintenance of children; non performance
of cohabitation; refusal to pro-create children.
v. Impotency of husband- husband was impotent at the time of marriage and continues to be so. Before passing
a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve
 his potency provided he makes an application for it. If the husband does not give such application, the court
shall pass the decree without delay.

Abdul Azim v. Fahimunnisa

- Husband was impotent – wife filed for divorce – husband made an application and got one year time – he
underwent treatment – doctor said he is potent, but the wife failed to co-operate i.e, have intercourse in order to
prove he is potent – court held that it cannot force the wife to co-operate and accepted the medical certificate.
1. Insanity, leprosy or venereal disease - If the husband is insane from a period of two years or suffering
from leprosy (curable or incurable), or any venereal disease (incurable), judicial divorce by wife can be
claimed on the same ground.
2. Repudiation of marriage by wife (Option of puberty)- If a girl is married before the age of 15 years by
her father or guardian, then under Muslim law she has been provided with a right to repudiate such
marriage after attaining the age of 18 years provided that marriage is not consummated. She is entitled to
a decree of divorce for same.
3. Cruelty by husband- if the husband treats his wife with cruelty, then she can approach the Court and
claim for a decree of judicial separation on the same ground.
Some of the ways through which grounds for cruelty could be claimed as follows –
a) Habitual assault on the wife making her life miserable by cruelty of conduct - Physical cruelty : assault,
hitting etc.; mental cruelty : making defamatory statements affecting her reputation, insults etc.
b) Association of the husband with a woman of ill repute or lady who leads an immoral life – habitual
association is a ground for divorce.
c) Forces her to lead an immoral life – anything against Islam – drinking or prostitution.
d) Husband disposes off wife’s property or prevents her from exercising her legal right over her property, for
selfish ends.
e) Obstructing her from practicing her religion.
Aboobacker v. Mamu Koya
- husband and wife were going to a movie – he told her to come in a saree and not wear a burkha – wife filed for
divorce. Kerala HC held that the conduct of the husband cannot be regarded as cruelty because departure from
standards of suffocating orthodoxy does not constitute un-islmaic behavior.
f) Husband having more than one wife and does not treat them equally.
Asma Bi v. Umar
- husband had 2 wives – after his 2 nd wife came, he ignored his 1 st wife – she left to her parents house as she was
unhappy – he did not try to bring her back – this shows unequal treatment – divorce granted.
ix. Grounds of dissolution recognised by Mohammedan Law- Wife is also entitled to obtain a divorce on the
ground recognised valid under the law. Eg – Lian.
Muhammad Usman v. Sainab Umma
- Husband was a drunkard – wife claimed for divorce under Sec. 2 (ix) – "Sec. 2 (ix) of the Act is really in the
form of a residuary ground where the courts have an area of discretion and freedom.” - court was convinced,
there is irretrievable breakdown of marriage, due to his habitual drinking, wife was suffering from physical
 and mental cruelty – the case of cruelty has not been sustained on proof, the wife has said in unequivocal
terms that she is unwilling to continue as the wife - divorce granted.
Sec. 3 - Notice to be served on heirs of the husband when the husband’s whereabouts are not known. [Sec. 2 (i)]
Sec. 4 - Effect of conversion to another faith :
The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by
itself operate to dissolve her marriage.
If converted Muslim wife renounces, Islam – This Act does not apply (marriage comes to an end).
Sec. 5 - Rights to dower not to be affected.
LEGAL EFFECTS OF DIVORCE
1. Mutual rights of inheritance ceases.
Exception – Marz-ul-Maut : divorce by husband (pronounces talaq) during his death illness.
Sunni law – if husband dies during Iddat, wife can inherit property. But if wife dies during iddat, husband cannot
inherit her property. Provided she has not requested for divorce, only then wife can inherit his property.
Shia law – if husband dies within 1 year of divorce, wife can inherit the property. If wife dies within 1 year of
divorce, husband cannot inherit the property.
Sunni and Shia law – applicable only if the wife remains unmarried.
2. Cohabitation becomes illegal, and children born after such intercourse will be illegitimate.
3. Wife has to observe Iddat.
4. Wife is entitled to maintenance during the iddat period.
5. Dower becomes immediately payable.
6. Parties can contract another marriage. (husband – immediately; wife – after Iddat)
7. Remarriage between divorced couple – Nikah Halala.

GUARDIANSHIP

▪ Wilayat – means guardian – of a minor – who protects person and property of minor.
▪ A minor is one who has not accomplished the majority age.
▪ Under Muslim law - Majority and puberty are indeed the very same. Puberty is attained at the age of 15
years – for issues related to : (i) marriage, (ii) dower, and (iii) divorce.
▪ In any case, presently the Muslims are controlled by the Indian Majority Act, 1875 -recommends 18 years as
majority age - in instances of wills, waqfs, and so on, the minority will end on the consummation of 18
years.
▪ If a Guardian is appointed by court for minor person or of property or both under the Guardians and Wards
Act, 1890 in which case the period of minority is drawn out until the minor has finished the age of 21 years.
▪ Under Muslim law, Father is the natural guardian (Mother is not a natural guardian).
 ▪ Legal guardians – control, supervise, maintain minor children.
▪ Testamentary guardians are those appointed under a will. Only 2 can appoint testamentary guardians – Father
and Paternal Grandfather.
▪ Mother can be appointed as guardian under a will, otherwise mother is not a guardian.
▪ Testamentary guardian can be non-muslim, except under Shia law.
▪ Only in the absence of natural and testamentary guardian, court can appoint a guardian for person and
property (not for marriage – cannot encourage for minor marriage in India viz. prohibited).
▪ An application for appointment of Statutory guardian can be made in the District Court, where minor resides,
by –
1. Any desirous person (can be a stranger)
2. Relative or friend
3. District collector (where minor resides)
▪ Court will consider age, sex, religion of the minor etc.
▪ De facto guardian is neither natural, testamentary nor statutory guardian. One who acts as a guardian (de
facto means as a matter of fact).
▪ De facto guardian can enjoy guardianship for only a certain period – they have to make an application to
court to become statutory guardianship – as a desirous person.

Types Of Guardianship
Muslim Law recognizes three kinds of guardianship. They are:
1. Guardianship in Marriage (Jabar)
2. Guardian of the Body of Minor (Hizanat)
3. Guardianship of Minor’s Property (Wilayat-e-mal) – It is classified into three parts:
a. Legal Guardian (De jure)
b. Guardian Appointed by the Court (Certificated)
c. De-facto Guardian
Guardianship in Marriage (Jabar)
▪ It is one of the essentials of a valid marriage that the parties are competent to enter into a marriage, which
means they must have attained the age of puberty.
▪ This general rule admits one exception - where the marriage is solemnized on behalf of the minor by the
guardian.
▪ Under Muslim law, the father has the power to give his children of both sexes in marriage without their
consent to enter into marriage, but it is before the Shariri stage. (Shariri or sariri stage means between 7 to 15
years of age, the father can give consent of marriage.)
▪ Testamentary Guardian for Marriage - Under Muslim law, testamentary guardian for marriage is not
recognized. A father has no power to appoint any person as guardian for marriage by his will.
List of guardians [in order of priority]-
For Sunni: For Shia
1. Father 1. Father
2. Paternal grandfather, how high so ever [any generation].
2. Paternal grandfather
3. Brother / male members of the father’s family
3. Khazi
4. Mother
5. Maternal uncle / aunt / other maternal relations
6. Khazi [religious head]
Guardian of the Body of Minor (Hizanat)
▪ Guardianship of person is called Wilaya-e-nafs, one who has custody is called Hiazanat. The guardian need
not have custody of the child. Father is the natural guardian, but mother will get custody -
 Sunnis - the custody of her male child until he has completed the age of seven years and of her female child
until she has attained puberty.
 Shias - the custody of her male child till the age of two years and the custody of her female child till the age
of seven years.
▪ The right continues though she is divorced by the father of the child unless she marries a second husband, in
which case the custody belongs to the father.
▪ Nothing changes the right of the mother to custody –
Rehan Fathima v. Syad Perviz
-husband pronounced Talaq – age of the child was 3 ½ years – Court held that though there is a divorce, mother gets
custody of the child.
Zaynab v. Md. Ghouse
-Muslim mother during the existence of marriage converted to Christianity – Court held that she will get custody of
the child.
▪ Even if the mother is poor, she gets custody – she gets maintenance from the father.
When Mother Loses Her Right of Custody -
1. If she leads an immoral life.
2. If she neglects to take proper care of the child.
3. If she remarries.
4. If, during the marriage, she goes and resides at a distance from the husband’s place.
Sunni Law - Female Relations in Default of Mother:
On the failing of the mother, the custody of the boy under the age of 7 years and of a girl who has not attained
puberty goes to these female relatives in the following order:-
(i) Mother’s mother how highsoever;
(ii) Father’s mother how highsoever;
(iii) Full sister ;
 (iv) Uterine sister;
(v) Consanguine sister;
(vi) Full sister’s daughter;
(vii) Uterine sister’s daughter;
(viii) Consanguine sister’s daughter;
(ix) Maternal aunt in like order as sisters;
(x) Paternal aunt in like order as sisters
Sunni Law - Other Male Relations -
In default of the mother and other female relations, the right of custody belongs to the following persons:-
(i) Father;
(ii) Paternal grandfather (nearest )
(iii) Full brother;
(iv) Consanguine brother;
(v) Full brother’s son
(vi) Consanguine brother’s son;
(vii) Full brother of the father;
(viii) Consanguine brother of the father;
(ix) Son of father’s full brother;
(x) Son of father’s consanguine brother
Shia law - The custody goes to the mother, failing her to the father and failing him to the father’s father.
▪ Father is entitled to custody –
 Sunni law - boy over 7 years and an unmarried girl who has attained puberty.
 Shia law – boy over 2 years and unmarried girl of 7 years.
▪ When Court Will Interfere With Father’s Guardianship -
The following are the grounds where a court will interfere with the father’s guardianship of his children -
1. If he is unfit in character and conduct.
2. If he is unfit as regards to external circumstances.
3. If he waives his right.
4. If he enters into an agreement to the contrary.
5. If he is out of justification of court and intents to go abroad.
▪ The custody of an illegitimate child goes to the mother.
▪ The custody of minor wife – below 15 years goes to the mother. However, husband is the guardian of minor
wife.
Guardianship of Minor’s Property (Wilayat-e-mal)
▪ If a minor owns movable or immovable property, a guardian is necessary to manage it. The guardianship of
the property of minor may be classified as follows :
1. Legal Guardian
2. Guardian Appointed by the Court
3. De-facto Guardian
1. Legal Guardian (De jure)
▪ The person entitled in the following order as a guardian of minor’s property:-
1. Father
2. Executor appointed by the father’s will.
3. Father’s father.
4. Executor by the will of the father’s father.
▪ The mother, brother, uncle, etc. are not entitled to be the legal guardian of the property of the minor.
Ghulam Hussaini Qutubdin Maner v. Abdul Rashid Abdul Razzaq Maner
SC held that the mother of the minor cannot be appointed as his guardian to accept gift on his behalf during the
lifetime of the minor’s father.
2. Guardian Appointed by the Court (Certificated)
▪ In the absence of a legal guardian, the duty of appointing a guardian for the protection and preservation of
minor’s property fall in the Court. While appointing a guardian, the court takes into consideration the welfare
of the minor.
▪ Eg. - Court may appoint a mother instead of a paternal uncle as the guardian of the property of the minor.
▪ Without the previous permission of the court, the guardian appointed by the court cannot:-
1. Charge the immovable property of the minor.
2. Mortgage
3. Transfer by sale
4. Exchange
5. Lease any part of the immovable property for a term exceeding five years or for any term extending not more
than one year beyond the date when the ward will cease to be a minor.
3. De-facto Guardian
▪ A person who is neither a legal guardian nor a guardian appointed by the court but has voluntarily placed
himself in charge of the body and property of the minor.
▪ The position of the de-facto guardian is quite different from the legal guardian and the guardian appointed by
the court. He has no power or authority to alienate the minor’s property – if he does, its void.
 MAINTENANCE
Introduction
▪ Maintenance under Muslim Law is also known as ‘Nafaqa’ which means what a man spends on his family. It
covers in its ambit food, clothing, and shelter.
▪ People entitled to Maintenance under Muslim law are:-
1. Wife
2. Children
3. Parents and Grandparents
4. Other relations
▪ But under Muslim Law, maintenance is provided to wife even if she is capable of maintaining herself which
differs it from other laws. But in case of Maintenance to Children, Parents and other relations, it is given
only when they are not able to maintain themselves.
Maintenance of wife
▪ A Muslim wife is entitled to recover maintenance from her husband in the following ways:
A. Under the Personal Law
B. Under an Agreement
C. Under the Code of Criminal Procedure.
▪ The husband’s obligation to maintain his wife is a personal liability, thus after his death, the wife is not
entitled to be maintained by his relatives nor out of his property.
▪ Women's right to maintenance arises upon marriage and the wife is first in order of priority to this
entitlement, even before the children.
▪ The wife’s right to maintenance arises in the following circumstances - i) during marriage ; ii) divorce ; iii)
pre-nuptial agreement.
Under Muslim Law
▪ The husband is required to maintain his wife irrespective of his financial position.
▪ The wife is entitled to maintenance from her husband though she may have the means to maintain herself.
▪ For better understanding maintenance rights of Muslim women under the personal law may be studied under
the following headings:
(a) During the Continuance of the Marriage –
▪ The obligation arises from the marriage validly contracted. If the marriage is void or irregular, the husband
has no obligation to maintain his wife. However, where the marriage is irregular merely because of the
absence of witnesses, she is entitled to maintenance.
 ▪ It is not necessary that the wife must be Muslim. She may belong to any religion.
▪ The husband's duty to maintain commences only from the date when the wife attains puberty and not before
it. Where a wife is too young for sexual intercourse and lives with her parents, she has no right to claim
maintenance.
▪ Although a Muslim wife's right to be maintained by her husband is an absolute right, but she must be faithful
and obedient to him in respect of matrimonial affairs.
▪ If she refuses to obey the reasonable orders of the husband or lives separately without any reasonable
justification, she forfeits her right of maintenance against her husband. A Muslim wife cannot claim
maintenance from the husband if her own conduct is violative of her matrimonial obligation.
▪ A wife does not lose her right to maintenance in the following cases:
(i) Where she refuses access to her husband on some lawful ground
(ii) Where the marriage cannot be consummated owing to –
a) the husband's minority; or
b) due to her absence from him with his permission; or
c) because of her illness, or
d) due to malformation.

 In the following cases wife was held to be justified in refusing access to her husband: A wife, whose marriage
has not been consummated, may lawfully leave the husband's house or may refuse cohabitation with him if her
prompt dower is not paid by the husband on demand as nonpayment of the prompt dower is a lawful ground to
live separate from the society of the husband and in such situations her right of maintenance is not lost and the
husband is bound to maintain her.

 One of the basic obligations of a wife is to allow the husband to cohabit with her. Her refusal without any
reasonable justification deprives her of right of maintenance.

 A wife can claim maintenance only during the subsistence of marriage. Muslim law does not recognize any
obligation on the part of a man to maintain a wife when marriage had dissolved either by death or divorce.
(b) After the Dissolution of the Marriage
▪ The wife is entitled to maintenance only during the continuance of marriage and not beyond it. A marriage,
in Muslim law may be dissolved either by death or by divorce.
(i) Dissolution of Marriage by Death
▪ Where the marriage is terminated by the death of the husband, both under the Hanafi Law and the Shia law
in the Imamia, the widow has no right to maintenance, even if pregnant at the time of the death of her
husband.
▪ After the husband's death the widow is not entitled to maintenance even during her period of Iddat.
Husband's liability to maintain his wife is his personal liability which comes to an end upon his death.
▪ Section 125 of CrPC, does not include widow in terms wife therefore, a widow has no right to claim
maintenance under the CrPC, 1973. The present position of the personal law does not follow Quran which
requires that a widow is to be maintained for one year.
(ii) Dissolution of Marriage by Divorce
 ▪ Wife's right to receive maintenance from her husband during subsistence of marriage is absolute. Therefore,
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.
▪ According to Hanafi School of Muslim law, a wife who has been divorced, whether by a revocable talaq or
by an irrevocable talaq, is entitled to maintenance only during the period of Iddat.
▪ According to the Shafei school of Muslim law, a wife who has been irrevocably divorced has no right of
maintenance.
▪ In case wife is pregnant, the period would extend up to the time of delivery or abortion even if it extends
beyond the period of Iddat, i.e. three months. If, however, the wife delivers before that period, Iddat will
terminate with that event. Once Iddat period is over, the wife cannot claim maintenance under any
circumstances.
Under Pre-Nuptial Agreements
▪ A wife is also entitled to recover maintenance from her husband under an agreement signed between the
spouses or their guardians. Accordingly, a stipulation by the husband to pay separate maintenance to his wife
in case of disagreement, dissension, ill-feeling or separation between the spouses is not against public policy
and is enforceable in law.
▪ In this agreement, the wife can stipulate some conditions for husband and in case of breach of such
conditions, she has a right to live separately and is entitled to maintenance. Such conditions are as follows:
1. If the husband ill-treats her;
2. Takes a second wife or concubine;
▪ The contract may stipulate payment of special allowances by the husband, and in presence of these, it
becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan,
guzara, mewa khori, etc. According to Mulla 'Kharach-iPandan' literally means betel-box expenses, is a
personal allowance to the wife customary among Muslim families of rank.
Mohammad Moinnuddin v. Jamal Fatima
- Mehndi Hassan had married thrice before he and his father had entered into an pre- nuptial agreement with Jamal
Fatima (the prospective bride) providing that in case of disunion or dissension between the couple, Mehndi Hasan
would be bound to pay to the women an allowance of Rs. 15/- per month for her life and certain properties
hypothecated to ensured payment of such allowance - there were dissensions between the couple and the husband
divorced the wife - wife filed a suit for claiming the allowance - Court held that the contract was valid and the
divorced wife was entitled to receive the allowances as provided in the contract. - "The marital rights ended with the
divorce, but the contract subsists till the plaintiff dies or breaks it, so long as the right to maintenance lasts, it cannot
be treated as devoid of consideration or opposed to public policy."
▪ This shows that an agreement for maintenance stands on a more solid footing then the wife's bare claim for
maintenance under the personal law.
Nawab Khwaja Muhammad Khan v. Nawab Hussaini Begum
- the marriage was held during the infancy of the children - it was agreed by the parents of the spouses that the father
of the son will pay Rs. 500/- per month in perpetuity to his son's wife - payment was known as "Kharach-i-Pandan'
and no conditions were laid down for its payment - differences arose between husband and wife - wife left
matrimonial home - she filed a suit for the realization of her Kharach-iPandan – Held that she was entitled to recover
the whole amount notwithstanding the fact that she was not a party to the agreement. She was clearly entitled to
proceed in equity to enforce her claim. The judicial committee of the Privy Council further held that it was not
necessary for her to live with her husband.
Ali Akbar v. Mst. Fatima
- an allowance of Rs. 25.00 per month was fixed for Kharach-i-Pandan in addition to maintenance to which she
would be entitled - it was held that the wife was entitled even though she may be refusing to return to her husband -
Kharach-i-Pandan is a personal allowance and it cannot be transferred even though payment secured on immovable
property.
Under CrPC
▪ Sec. 125 empowered the Magistrates to order the husband to provide maintenance to the wives. The
provision was extended to 'divorced wives' also.
▪ Under Sec. 125, a divorced Muslim wife, who has not remarried can make an application to the Magistrate
for seeking a maintenance order against the husband provided she is unable to maintain herself and her
former husband despite having sufficient means neglects or refuses to maintain her.
▪ On her application, the Magistrate can order the former husband to pay her a monthly allowance. If the order
is not complied with, the Magistrate can issue warrants in the manner provided for levying fines. Further non
compliance results in imprisonment up to one month or till due payment, if made earlier.
▪ But, under Sec. 127 (3) (b), such an order has to be cancelled or modified on the proof that she has received
in full from her former husband the sum which under the Personal Law is payable on such divorce.
Section 125 - Order for maintenance of wives, children and parents
▪ (1) If any person having sufficient means neglects or refuses to maintain -
▪ (a) his wife, unable to maintain herself, or
▪ (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
▪ (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such
child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
▪ (d) his father or mother, unable to maintain himself or herself,
▪ A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as
such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such
allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female
child, if married, is not possessed of sufficient means:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance
for the maintenance under this sub-section, order such person to make a monthly allowance for the interim
maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the
Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time
direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of
proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of
the service of notice of the application to such person.]
Explanation.--For the purposes of this Chapter,
 (a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed
not to have attained his majority;
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not
remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable
from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance
and expenses of proceeding, as the case may be.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for
every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and
may sentence such person, for the whole or any part of each months allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be
made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to
live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this
section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.--If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to
be just ground for his wife’s refusal to live with him.
(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any
sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that
without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent,
the Magistrate shall cancel the order.

 The provision of Sec.125 of the Criminal Procedure Code provides a simple speedy but limited relief and seeks
to ensure that the neglected wife, children and parents are not left beggared and as destitutes.
 The term 'wife' appearing in sec. 125 (1) means only a legally wedded wife. Therefore, legally wedded wife,
unable to maintain herself is entitled to claim maintenance under this section. On the other hand, it is also
necessary that the person from whom maintenance is claimed have sufficient means to maintain the wife
claiming maintenance.
 The term 'means' in sec. 125 (1) is not confined only to visible such as lands and other property or employment.
Where a person is healthy and able-bodied he must be held to have means to support his wife and other relations.
Some courts have gone to the extent of laying down that the husband may be insolvent or professing beggar or a
minor or a monk, but he must support his wife so long as he is able-bodied and eke out his livelihood.
 The explanation (b) of sec. 125 (1) provides that for the purpose of Ss. 125-128, 'wife' includes a woman who
has been divorced by, or has obtained a divorce from, her husband and not remarried. Under the extended
definition of 'wife' the right to claim maintenance is also made available to a divorced wife.

 The provisions under Ss. 125-128 are applicable to all persons belonging to all religions and have no relationship
with the personal laws of the parties.

 Sec. 126 provides procedure for exhausting the remedy provided under Sec. 125. Sec. (1) provides that
proceedings under Sec. 125 may be taken against any person in any district (a) where he is, or (b) where he or his
wife resides, or (c) where he last resided with his wife.
 Sec. 127 empowers the Magistrate to alter or modify the order of the maintenance on of (i) a change in the
circumstances of the party paying or receiving the maintenance, or (ii) any decision of competent civil court. The
party entitled to alteration of the order, can always move to the Magistrate whenever there is a change of
circumstances. "Change of circumstances" covers change in primary circumstances as well as changes in other
circumstances. The change may be in the circumstances of the paying party or of receiving party. Under this
section, the wife can apply for increase of her maintenance. The opposite party can also apply for reduction or
for cancellation of order on account of a civil court decree, i.e. for restitution for conjugal rights, invalidity of
marriage, divorce, etc. Moreover an order of maintenance can be cancelled on the application of both parties that
they have compromised.
▪ Section 127 (3) exempts a husband from paying maintenance in three circumstances:
(a) The woman has remarried, after the divorce,
(b) The woman had received a customary sum payable on divorce.
(c) The women has (after obtaining divorce) voluntarily surrendered her right of maintenance.
Once a maintenance order is passed by a competent court it can be enforced under section 125 (3) and remains in
force until there has been cancellation under section 125 (5) or modification under section 127 or cessation of
conjugal relationship.
Section 128 is merely supplementary to section 125 (3) which provides for enforcement of order. The condition for
the enforcement of an order is the identity of the parties. Application for recovery of maintenance may be made
either to the Magistrate who passed the original order or his successor or to a Magistrate having jurisdiction over the
place where the person resides.
Conflict between Muslim law & CrPC
▪ Under Muslim Personal Law, a woman is entitled to maintenance only till the end of the Iddat period. CrPC
does not recognize iddat period and maintenance goes beyond the same. Hence, we can see a direct conflict
▪ Secondly, in Muslim Law, polygamy is permitted, and under section 125, marriage to another woman
becomes aground for claiming maintenance.
▪ In Mohammed Haneefa v. Mariam Bi, the Court stated that in case of a clash between personal law and
CrPC, the former shall prevail. This position was seconded by the Supreme Court in Saira Bano v A.M
Abdul Gafoor.
▪ This caused a lot of dilemma in the legislature. To resolve this dilemma, Section 127(3) was added under
which that if a divorced woman receives an amount due to customary or personal laws of the community, the
magistrate can cancel any order for maintenance in her favour.
▪ However, since the judiciary favored the right of women to claim maintenance, the conflict continued.
▪ In Bai Tahira v. Ali Hussain Fissalli Chothia it was held that payment of "illusory sums" focused around
the Muslim personal laws ought to be considered to diminish the measure of maintenance payable by the
spouse, however that does not acquit the spouse from the commitment in light of the fact that each lady
independent of her religion is entitled to maintenance. The divorced wife has this right except from when the
aggregate payment stipulated by custom is pretty much sufficient to substitute the maintenance .Thus the
spirit behind Section 127(3)(b) is that a wife can't profit from both , unless the whole sum paid under the
customary law is deficient.
▪ It was in this context of growing conflict and dissatisfaction that the famous Shah Bano Case surfaced and
went onto become the most landmark judgment in this subject matter.
Bai Tahira v Ali Hussain AIR 1979 Sc 362
- parties married in the year 1956 & were blessed with a son. But in 1962 the marriage broke down and husband
pronounced Talak. Dispute started on a flat in which husband kept his wife resulted in a comprise - Rs.5000/- as
mehar and in return wife renounced her right over the property of husband. After some years wife faced financial
crises, hence filed petition U/ sec. 125 for her and minor son. Wife succeeded in JMFC, but husband took matter
to High Court and won there- matter came to S.C.
- Two main contentions - i) since parties living separately by mutual consent U/Sec. 125 (4)- wife not entitled for
maintenance. ii) under compromise of 1962, Mehar money paid to wife and all claims adjusted, hence can’t
claim maintenance U/Sec. 127(3).
- J. Krishna Iyer said provisions of law be interpreted as per values of society and legal system and Art. 15(3)
also provides for special law to women, hence for her survival maintenance is necessary. Rs.5000/- Mehar
amount can’t satisfy one day need also.
The Supreme Court held that irrespective of the amount settled as Mahr, a reasonable amount is always due to a
Muslim wife for her maintenance. The court observed that payment of Mahr money, as a customary discharge, is
within cognizance of Section 127(3) (b) but until this (reasonable amount) is discharged the divorced woman
continues to be entitled to maintenance under Section 125 of the Criminal Procedure Code, 1973.
The Court further observed that wife’s surrender of her right to dower does not in any way defeat her right under
Section 125 of the Criminal Procedure Code, 1973 if she be entitled to it otherwise and has not remarried. The
appeal was accordingly allowed and the Apex Court held that Bai Tahira was entitled to the maintenance
allowance granted by the Magistrate.
- This decision was protested by Muslims.
Mohd. Ahmad Khan v. Shah Bano Begum
Mohd. Ahmad Khan married Shah Bano in 1932. Two sons and three daughters were born to them. In 1975
Mohd. Ahmad drove away his wife Shah Bano out of the matrimonial home. Thereupon she filed a petition
under Section 125 of CrPC in the court of Judicial Magistrate, Indore asking for maintenance at the rate of Rs.
500 per month.
In November 1978, Mohd. Ahmad Khan divorced his wife Shah Bano pronouncing irrevocable Talaq. After her
divorce, Shah Bano did not remarry. In defence to Shah Bano’s petition for her maintenance, Mohd. Ahmed
Khan took the plea that since she ceased to be his wife after Talaq; he has no obligation to maintain her.
As regards the maintenance during Iddat (as required under Muslim personal law) and the payment of dower, his
contention was that he had already paid the required maintenance to her at the rate of Rs. 200 per month for
about two years -and that he had deposited Rs. 3,000 in the court by way of dower. However, the Magistrate
directed him to pay a nominal amount of Rs. 25 per month to his divorced wife. Against this order of the
Magistrate, Shah Bano filed a revision application in the Madhya Pradesh HC praying for the enhancement of
maintenance allowance.
The HC enhanced the maintenance rate to Rs. 179.20 per month. Mohd. Ahmad Khan preferred an appeal to the
SC. The SC dismissed the appeal and confirmed the judgement of the High Court.
The Supreme Court held that clause (b) of Expl to Section 125(1) of the Criminal Procedure Code which defines
‘wife’ as including a divorced wife contains no words of limitation to justify the exclusion of Muslim women
from its scope. The court observed that the right available under Section 125 is a statutory right and remains
unaffected and also overrides the provisions of personal law if there be any conflict between the two.
However, the court observed that there is no conflict between Section 125 and rules of Muslim law as regards the
husband’s liability to maintain his divorced wife. Section 125 deals with cases in which a person who is
possessed of sufficient means neglects or refuses his wife (including divorced wife who had not married) who is
unable to maintain herself.
 The Muslim personal law, which limits the husband’s liability to provide for the maintenance of divorced wife
upto the period of Iddat, does not contemplate the situation envisaged by Section 125, i.e. whether or not the
divorced wife is capable of maintaining herself.
The true position is therefore, that ‘if the divorced wife is able to maintain herself, the husband’s liability to
provide maintenance for her ceases with the expiration of the period of Iddat. If she is unable to maintain herself
she is entitled to take recourse to Section 125 of the Code.’ The court concluded that because of these reasons
there is no conflict between the provisions of Section 125 and the rules of Muslim law.
As regards Section 127(3)(b) under which the divorced wife cannot claim maintenance if she had received the
whole sum due to her under her personal law ‘on divorce’, the court held that Mahr is not the amount payable by
husband to wife ‘on divorce’.
Mahr is given by husband to wife as a mark of respect towards her, therefore, it cannot be said that it is that
amount which is payable on divorce. One may settle a sum upon his wife as a mark of respect for her but he
cannot divorce her as a mark of respect.
Accordingly, the court held that Mahr does not fall within the meaning of Section 127(3)(b) and a divorced wife
is entitled to claim maintenance even though she had already received the whole amount due to her by way of
Mahr.
Rejecting the plea taken by husband that provisions of the Criminal Procedure Code in respect of maintenance to
divorced wife beyond the period of Iddat was un- Islamic, the Supreme Court held that these provisions are not
un-Islamic.
Quoting Ayats 241 and 242 of Sura II of the Holy Quran, the Supreme Court observed that these Ayats leave no
doubt that the Quran imposes an obligation on a Muslim husband to make provisions for the divorced wife.
Accordingly, the court held that Section 125 Criminal Procedure Code is not un-Islamic.
▪ It is significant to note that the Supreme Court’s judgment in the Shah Bano’s case had become a much
debated verdict in the recent time. A section of the Muslim community in India opposed this verdict as being
against the Shariat and alleged that maintenance to a divorced wife beyond the period of Iddat is un-Islamic.
▪ To water down the stringent principles enunciated by the Apex court in Shah Bano judgment, passed against
the Muslim husband in contravention to the established Personal laws with regard to maintenance of a
divorced wife, the legislators enacted a new law to govern Muslim divorce provisions i.e. Muslim Women
(Protection of Rights on Divorce) Act 1986.

UNDER MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT 1986

▪ This act was enacted in the backdrop of the Shah Bano case and attempted to restrict the application of
Section 125 of Crpc regarding the maintenance of divorced Muslim wife.
Protection to the divorced wife -
Sec 3 (1) of the said Act lays down that a divorced Muslim woman is entitled to:
(a) A reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her
former husband;
(b) Where she herself maintains the children born to her before or after her divorce, a reasonable and fair
provision and maintenance to be made and paid by her former husband for a period of two years from the
respective dates of birth of such children;
 (c) An amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any
time thereafter according to Muslim law; and
(d) All the properties given to her before or at the time of marriage or after her marriage by her relatives or
friends or the husband or any relatives of the husband or his friends.

 In case on divorce, the husband has failed to secure any of the above, the wife or her authorized agent may
sue the husband by making an application before the Magistrate for necessary orders. In case the Magistrate
is satisfied that compliance with the aforesaid have not been made by the husband, he will make an order,
within one month of the date of filing of the application, directing her former husband to pay such reasonable
and fair provision and maintenance to the divorced woman as he may determine as fit and proper having
regard to the needs of his life enjoyed by her during her marriage and the means of her former husband, or as
the case may be.
Maintenance to Muslim divorced woman until her remarriage –
Daniel Latifi v. Union of India
The SC held that in terms of Section (3) (a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a
Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which also
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) (a) of the Act.
The court further held that the liability of Muslim husband to his divorced wife arising under Section 3 (1) (a) of the
Act to pay maintenance is not confined only to the iddat period.
A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period is
entitled to claim maintenance under Section 4 of this act from her relatives who are entitled to her property after her
death.
Sec. 4 - Order for payment of maintenance :
(1) Notwithstanding anything contained in the foregoing provisions of this Act or in any other law for the time
being in force, where the Magistrate is satisfied that a divorced woman has not remarried and is not able to
maintain herself after the iddat period, he may make an order directing such of her relatives as would be
entitled to inherit her property on her death according to Muslim law to pay such reasonable and fair
maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman,
the standard of life enjoyed by her during her marriage and the means of such relatives and such
maintenance shall be payable by such relatives in the proportions in which they would inherit her property
and at such periods as he may specify in his order:
Provided that where such divorced woman has children, the Magistrate shall order only such children to pay
maintenance to her, and in the event of any such children being unable to pay such maintenance, the Magistrate shall
order the parents of such divorced woman to pay maintenance to her:
Provided further that if any of the parents is unable to pay his or her share of the maintenance ordered by the
Magistrate on the ground of his or her not having the means to pay the same, the Magistrate may, on proof of such
inability being furnished to him, order that the share of such relatives in the maintenance ordered by him be paid by
such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions
as the Magistrate may think fit to order.
(2) Where a divorced woman is unable to maintain herself and she has no relative as mentioned in sub-section
(1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the
Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have
been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1),
the Magistrate may, by order direct the State Wakf Board established under section 9 of the Wakf Act, 1954
 (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which
the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may
be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his
order.

 If her relatives are not able to maintain her then, in that case, the Magistrate may direct the State Wakf board
established under the Act to pay maintenance.

 Further, Section 5 of the Act provides an option to a divorced woman and her former husband to prefer and
chose whether they want to be governed by the provisions of Section 125 to 128 of the CrPc and not by the
provision of the said Act by submitting an affidavit or a declaration in writing in this behalf to the
Magistrate.

 Daniel Latifi judgment basically revived the principles settled in Shah Bano case that, the husband’s liability
to maintain his wife doesn’t end with the iddat period. However, it explained this principle, not as
contravening the Act which was enacted as a result of the Shah Bano case, but as a commentary on that Act.
Also, the Act is consistent with Sec. 125 of the CrPC and hence, there is no scope for conflict. Hence, the
position of law is that, the provisions of the Act basically emanate from principles set forth in the Shah Bano
case. The same has not been changed till now, and continues to govern matters related to maintenance of
Muslim women after dissolution of marriage.

 The principle has been seconded by the Supreme Court once again in Iqbal Bano v. State of U.P. In this
case the court reiterated the position that divorced women are entitled for maintenance beyond the Iddat
period and stated that provisions of the Act do not contravene Article 14, 15 & 21 of the Indian Constitution.

 The court further observed that “right under Section 125 of CrPC extinguishes only when she receives “fair
or reasonable” settlement u/Sec. 3 of the Muslim Women Act. The wife will be entitled to receive
maintenance u/s.125 of Cr.P.C. until the husband fulfills his obligation u/s. 3 of Muslim Women (Protection
of Rights on Divorce) Act,1986.

 Hence, the position as laid down in the Daniel Latifi case is the settled position and has not undergone any
change.

PARENTAGE, LEGITIMACY AND ACKNOWLEDGEMENT

Parentage – Maternity & Paternity
▪ Maternity – legal relation between mother and child, which determines the succession or inheritance from
mother’s side.
▪ Paternity – legal relation between father and child, which determines the succession or inheritance from
father’s side.
Maternity – how is it established?
▪ Sunni law – woman who gives birth, irrespective of whether it was result of wedlock/adultery.
▪ Shia law – mere birth is not sufficient, birth must result from lawful marriage.
▪ A child born out of marriage is legitimate, otherwise illegitimate. Legitimate children enjoys status of
inheritance from father and mother.
▪ Illegitimate children (adultery/incest), under Sunni law – has maternity from the woman who gave birth,
entitled to inherit from mother alone. Shia law – can inherit from neither mother nor father.
Paternity – how is it established?
▪ Established only by marriage between the parents. Marriage maybe valid or irregular, but not void.
▪ Sunni law – illegitimate child has only maternity, no paternity.
▪ Shia law – void marriage has neither paternity nor maternity.
Legitimacy
▪ Legitimacy is a name of relationship with child, which emerges in result of legal contract of marriage
between the adult male and female.
▪ The question of legitimacy is directly connected with paternity, because, the maternity of a child is always
established in the mother, irrespective of the fact whether the child is legitimate or illegitimate. But the
paternity of a child can only be established by marriage between the parents of the child. The marriage must
not be void, it may be regular or irregular. When paternity is established, legitimacy is also established. The
main point in the case of legitimacy of a child is marriage between its parents.
Habibur Rahman Choudhary v. Altaf Ali Choudhary
"By the Muhammadan Law, a son to be legitimate must be the offspring of a man and his wife or of a man and his
slave; any other offspring is the offspring of zina, that is illicit connection, and cannot be legitimate... Direct proof
(of marriage) may be available, but if there be no such proof, indirect proof may suffice. Now one of the ways of
indirect proof is by an acknowledgement of legitimacy in favour of a son."
▪ There are two methods through which legitimacy (and parentage) is established:
1. by birth during a regular (also irregular but not void according to Hanafis) marriage, or
2. an acknowledgment.
Presumptions of legitimacy
The circumstances in which legitimacy (or illegitimacy) is presumed are numerous and conflicting. Stating briefly, it
will be presumed that:
1. A child born within 6 months of the marriage is illegitimate, unless the father acknowledges it.
2. A child born after 6 months of the marriage is legitimate, unless the father disclaims it.
3. A child born after the termination of marriage is legitimate, if born within 10 lunar months (Shia Law);
within 2 lunar years (Hanafi Law); and within 4 lunar years (Shafii and Maliki Law).
4. According to Section 112, Indian Evidence Act, a child born during the continuance of a valid marriage, or
within 280 days after its dissolution (during which period the widow remains unmarried), is legitimate,
unless it is proved that the husband and wife had no access to each other at any time when the child could
have been begotten.
The Evidence Act supersedes the rule of Muslim law - The question arises whether the provision of the Indian
Evidence Act supersedes the provisions of Muslim law. Opinions are divided, but the balance of authority remains in
favour of the Indian Evidence Act.
Acknowledgment
▪ Muslim law does not recognize the institute of adoption.
 ▪ Muslim law recognizes ikrar-e-nasab (acknowledgement) where the paternity of a child, which means his
legitimate decent from his father, cannot be proved by establishing a marriage between his parents at the
time of conception of birth.
▪ Muslim law recognizes acknowledgement as a method whereby such marriage and legitimate decent can be
established as a matter of substantive law for the purpose of inheritance.
Mohammed Allahdad Khan vs. Mohammed Ismail Khan
Justice Mehmood held that where marriage cannot be proved by direct evidence and no legitimacy be established,
Muslim law prescribes a means whereby the marriage and legitimacy may be established as a matter of substantive
law, and that is acknowledgement of paternity.
▪ Acknowledgement under Muslim law is a rule of Substantive Law and not a rule of evidence. It means it is
not a presumption under the Evidence Act.
▪ It confers the status of son ship and rights to succeed. A child whose illegitimacy is proved by reason of the
union between the parents not being lawful; such a child cannot be proved by acknowledgement.
Necessity of Acknowledgement of Legitimacy
▪ When there is direct proof of marriage and a child born out from such marriage, the question of
acknowledgement does not arise because, in such cases, the legitimacy is ipso facto established.
▪ If there is no such direct proof of legitimacy, then legitimacy may be proved by indirect proof, which is
called acknowledgement.
▪ Note: Acknowledgement is made by the father only, not mother. In other words, the doctrine applies only to
cases of uncertainty about legitimacy. Acknowledgement is made on the assumption of a lawful union of the
parents and the acknowledged child.
Conditions Of a Valid Acknowledgement
1. Express or implied acknowledgement
It is not necessary that an acknowledgement should be express. It may also be implied. The acknowledgement may
be of a son or daughter, but it must be made by the father only. The acknowledgement of the child must not be
casual.
Muhammad Ali Khan v. Muhammad Ibrahim Khan
The father made the acknowledgement of the child in a casual manner. He never intended that his acknowledgement
should have serious effects. It was held by the Privy Council that the act of the father is not sufficient to confer the
status of legitimacy.
2. Competency of the Acknowledger
The acknowledger must be competent to make a contract, which means he must be major and of sound mind.
3. Age of the Acknowledger
The age of the parties must be such that it is possible that they may be father and son. According to Bailie, the
acknowledger must be at least 12.5 years older than the person acknowledged.
4. The child of others
The child who is acknowledged must not be known as a child of another.
5. Offspring of Zina
An offspring of Zina is one who is born either (i)without marriage or (ii) a mother who was the married wife of
another or (iii) of void marriage.
When the man has committed Zina with a woman, and she has delivered a son, such a son cannot be acknowledged.
So the acknowledgement must be of the child who is offspring of a (possible) legal marriage.
It is necessary that marriage between the parents of the acknowledged child must neither be proved nor disproved; it
must be in a state of not proved, ie. capable of being proved or disproved.
6. Legal marriage possible between parents of the child acknowledged
The parents of the acknowledged child must not be in the prohibited degree of relationships. Such absolute
prohibitions are on the points of (a) Consanguinity, (b) Affinity, (c) Fosterage, and (d) Polyandry.
If the parents are within the relative degrees of prohibitions so as to make the marriage between them as irregular but
not void, valid acknowledgment can be made of an issue of such a marriage.
Rashid Ahmad v Anisa Khatun
The acknowledgment' in question was of a child born to the parents who were 'remarried' after triple divorce. The
wife was given triple divorce and without undergoing a second marriage with another person, the spouses remarried
with each other. Since this marriage was void, valid acknowledgment could not be given to the child
7. Person acknowledged should confirm acknowledgement
The child, if adult, must confirm the acknowledgement.
8. Once acknowledgment is made, it cannot be revoked.
Effects Of Acknowledgement
▪ Acknowledgement produces all the legal effect of a natural paternity and vests in the child the right of
inheriting from the acknowledger.
▪ It raises presumption of marriage.
▪ In the case of wife, which means the mother of an acknowledged son, it has the effect of giving her the status
of legal wife and hence the right of maintenance and inheritance.
Adoption
Though adoption is not recognized under Muslim Law -
Mst. Bibi v. Said Ali
This High Court considered the subject in detail and propounded the following findings:
(i) As a rule, adoption among Muslims is not an unknown fact
(ii) If (among that class) this custom has been practiced, the system of adoption can be prevalent.
(iii) The Muslim person who claims that the custom of adoption applies to him, will have to prove his claim.
Thus, many cases substantiate the point that Muslim Law accords sanction to the practice of adoption on the basis of
custom.