Maintenance of Muslim

Wives
- An understanding of the
Muslim Personal law and
secular law on the point -
STRUCTURE OF THE DISCUSSION

 Muslim Personal Law of Maintenance

 Sec. 488 CrPC, 1898 (old CrPC)
 Ss. 125-128 CrPC, 1973
 Mohd. Ahmad Khan v. Shah Bano Begum, 1985
 Muslim Women (Protection of Rights on
Divorce) Act, 1986
 Position settled in Daniel Latifi v. Union of
India, 2001
 - Background of the ‘Right’ -
• Maintenance is called ‘nafaqa’- meaning
food, clothing & shelter.
• In Islamic Law the obligation of
maintenance arises upon-
 ‘Marriage’,
 ‘Relationship’, and
 ‘Property’.
- Right of the Muslim Wife -
- Rights & Obligations to Maintain -
 - Rights & Obligations to Maintain
Such special a llowances are
ca lled kharch-e-panda n,
guza ra, meva-khori etc.
-
E.g.
a
husb
and
may
have
a
lawf
ul
agre
emen
t
with
the
first
wife
that
on
his
marr
ying
a 2nd
wife,
the
1st
wife
may
resid
e
with
her
pare
nts
and
obtai
na
regul
ar
allow
ance.
 -Where all can a Muslim wife claim
her right from? -
The Personal Law i.e. The ‘Shariat’; it also
includes:
 Dissolution of Muslim Marriages Act, 1939
 The Muslim Women (Protection of Rights on
Divorce) Act, 1986

The Secular Law i.e. CrPC- [Sections 125

and 127]
- Personal Law Obligations -
a Husband is bound to
maintain his wife so long
as she is faithful to him
and obeys his reasonable
orders.

he is not bound to
maintain a wife who
refuses herself to
him or is disobedient

unless such refusal

or disobedience is
justified.
 - Personal Law Obligations -

Sec.2 (ii), ●
A Muslim wife has a ground to seek dissolution of
marriage if the husband neglects or fails to provide
DMMA, 1939 for her maintenance for a period of 2 years.

●
A Muslim husband’s duty to maintain his
During Iddat divorced wife extends only up to the period
of Iddat, and thereafter his liability is over.

A divorced Muslim wife is entitled to her

●

Mahr unpaid dower which becomes payable

immediately upon divorce.
The Code of
Criminal
Procedure
 S.488 ●
Only a wife who continued to
be legally the wife of the
CrPC respondent had a right to be
maintained.
1868: -

S.125 ●
‘Wife’ includes ‘divorced wife’.

CrPC A radical departure.

●

●
Object: - To prevent destitution
as a consequence of divorce.
1973
 - Report of the Joint Committee of the
Parliament to the CrPC, 1973 -

Pre-1973

The W’s petition for Since div. is easy to

Maint’ce would be
obtain under Muslim
amendment in frustrated by the H by
law, it caused a lot of
divorcing her, thereby
S.125 was ‘not impelling the Mag. to hardship to many
accidental’. dismiss the petition. wives.
-S.125: The Parliamentary Sensitivity-

Fictional ●
The fictional relationship even after div. has been
created by statute in view of the social conditions
Relationshi prevalent in the country to prevent such erring
husbands to drive their ex-wives to a state of

p poverty and destitution till they re-marry.

Thus, the Under the existing law, a woman

●

continues to be the wife within the

statutory meaning of S.125 CrPC even after
position is… divorce.
 -S.125: The Parliamentary
Sensitivity-
• In Zohra Khatoon v. Mohd. Ibrahim, AIR
1982 SC 1243, the question was whether
the Muslim wife who filed a petition
against her husband under the DMMA,
1939 would be entitled to seek
maintenance under the Code. (Faskh form
of divorce).
 -Wife divorced prior to 1973 -

• Even a W who has been

divorced prior to the coming
into force of this provision is
entitled to avail of this clause.
 Mushtaque v. Jyosun Bibi
The ●
The wife was divorced by the husband
before the Act of 1973 came into force.
background

Husband’s ●
Since no relationship of ‘H & W’ existed
between the parties on the date of the new code,
contention the wife was not entitled to claim u/s. 125

●
In order to avail of this definition of ‘wife’ as given
The Court in S.125(1), it is not necessary that the divorce must
have taken place after the new code came into force.
- Husband’s polygamous marriage: wife entitled
to separate maintenance -

●
Entitles a ‘wife’ whose
Explanatio husband has contracted a
2nd marriage or keeps a
n to S. mistress, to live separately
125(3) and claim maintenance from
her husband.
- Husband’s polygamous marriage: wife entitled
to separate maintenance -
 Saira Banu v. Abdul Ghaffar
AIR 1987 SC 1103

• The issue was settled in this case wherein the

court held that:
The defense of personal law
permitting a 2nd marriage to a
husband was not available and the
provision was uniformly applicable to
all husbands and wives.
 - Amounts payable under customary
or personal law -
• S.127 (3) Where any order has been made under
section 125 in favour of a woman who has been
divorced by, or has obtained a divorce from, her
husband, the Magistrate shall, if he is satisfied
that…
(a)….
(b) the woman has been divorced by her husband and
that she has received….the whole of the sum which
under any customary or personal law applicable to
the parties, was payable to the parties on such
divorce, cancel such order….
 - Amounts payable under customary
or personal law -
• The reason behind this as stated in Lok
Sabha Debates dated 11.12.1973, is:
In certain cases, under customary or personal law,
certain sums are payable to a divorced woman and in
case they are paid, the magistrate’s order giving
maintenance would be cancelled. Now, whether the
maintenance should be reasonable or unreasonable is
not the point.
 Questions raised under Sec. 127(3)

• This section raised 2 issues:

 1stly, whether the ‘sum’ received by the
divorced woman under the personal law
included dower or mahr….? and
 2ndly, whether the wife was debarred from
claiming further maintenance, even if the
aforementioned amount was just nominal….?.
 Division of opinions
[Rukhsana Parvin v. [Kunhi Moyin v.
Mohd. Hussain, Hamid Pathummai, Mohd. V.
Khan v. Jammi Bai, Sainabai]
Qayyum Khan v.  LIBERAL
Noorunnisa] INTERPRETATION
 LITERAL On the other hand the
INTERPRETATION other High courts gave a
The various high courts in liberal interpretation in the
the afore stated cases above cases wherein it was
construed the provision held that a narrow
literally as including dower interpretation might
or mahr, thereby denying defeat the provisions
maintenance to the contained in S. 125 of the
claimant wives. CrPC
 The Apex Court on the point

• This controversy was resolved by the apex

court in:

Bai Tahira v. Ali Hussain

AIR 1979 SC 362
- The Apex Court on the point -
Justice Krishna Iyer:
The payment of illusory amounts by way of customary or
personal law requirement will be considered in the
reduction of maintenance rate but cannot annihilate that
rate unless it is a reasonable substitute. The legal
sanctity of the payment is certified by the fulfillment of
the social obligation, not by a ritual exercise rooted in
custom.
 The Apex Court in Bai Tahira
• Further, the court stated:
The scheme of the complex of provisions in Chapter IX has a
social purpose. Ill used wives and desperate divorcees shall
not be driven to material and moral dereliction to seek
sanctuary in the streets….
Where the husband by customary payment at the time of
divorce has adequately provided for divorce, a subsequent
series or recurrence is contra-indicated and husband
liberated….The key note though is adequacy of payment
which will take reasonable care of her maintenance.
 -Response to Bai Tahira -
• This enlightened approach received a mixed
response.
• In fact, it was sought to be nullified by a MP by
introducing a Bill in 1980, which sought to
supersede Bai Tahira by providing that any
sum payable on divorce to a woman, under the
personal law, would disentitle her from
claiming maintenance under S. 125 of the
Code.
 -Fuzlun Bi v. K. Khader Vali-
• This case reaffirmed with greater force the
Bai Tahira ruling.
• Reiterating, Bai Tahira, the Supreme Court
held:
S. 127(3)(b) has a setting, scheme and a
purpose.
The payment of an amount, customary or other
contemplated by the measure must inset the
intent of preventing destitution.
 - Fuzlun Bi v. K. Khader Vali-
The scheme of Ss.125-127 charges the court
with the humane obligation of enforcing
maintenance. The key is ‘sufficiency’.

Neither personal law nor other salvationary

plea will hold against the policy of public
law pervading S.127 (3)(b) as much as it
does Sec 125…
The Historic Shah Bano Case
 In the words of Justice
Chandrachud…
• The liability imposed by Section 125 to maintain
close relatives who are indigent is founded upon
the individual’s obligation to society to prevent
vagrancy and destitution. That is the moral edict
of the law and morality cannot be dubbed with
religion.
- SOME IMAGES OF THE TIMES-
Shah Bano- A Legacy…
 - The urgency in the Parliament -

• The Shah Bano judgment evoked

unprecedented controversy on the Muslim
Women’s right to claim maintenance after
divorce.
• It led to the enactment of the Muslim
Women (Protection of Rights on Divorce)
Act, 1986.
 Muslim Women (Protection of
Rights on Divorce) Act 1986
• Act applicable only to divorced wife
• Act applicable even to Pre-Act Divorced
wife

• The Preamble: -
An Act to protect the rights of Muslim women who
have been divorced by or have obtained divorce from
their husbands and to provide with matters connected
therewith and incidental thereto.
 Muslim Women (Protection of Rights on
Divorce) Act 1986
• Sec.3 ….a divorced woman shall be 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 or after her
marriage by her relatives or friends or the husband or any relatives of
the husband or his friends.
 - The Crux of Sec. 3 -
• Therefore this provision states the
payment of the following amounts: -
1.) Reasonable & fair provision for
maintenance during Iddat
2.) Reasonable & fair provision for children
up to two years from their date of birth.
3.) Mehr or Dower amount
4.) Properties or gift given to her (before, at
or after her marriage)
 - Interpretation of Sec.3 -
Literal Interpretation
• Usman Khan Bahamani v.
Fathimunnisa Begum:
It was stated that in view
of Sec.3, the husband’s
liability to maintain is
restricted to the period of
Iddat.
Liberal Interpretation
• K. Kunhammed Haj v. K.
Amina:
The court held that she
was entitled to a fair and
reasonable provision for
her livelihood after the
period of Iddat. (Upheld
the Apex Court’s ruling in
Shah Bano Begum)
 - Relationship between S.125 & S.3 -

The various High Courts interpreted the relationship

between CrPC- Ch-IX and MWPDA and they opined:
“….there is nothing in the 1986 Act which states that
the provisions of S.125 are not available to such a
woman as soon as the Act was brought into force. It
cannot be inferred from the provisions of MWPDA
that it was intended to deny the benefit to claim
maintenance under section 125 to a divorced Muslim
women…The provisions of MWPDA do not come in
her way to claim maintenance against the former….
 …continued

husband….It must, therefore, be held that

the provisions of MWPDA are available to
a divorced Muslim woman from claiming
maintenance from her former husband in
addition to the provisions of chapter IX of
the CrPC and they are not in exclusion of
each other.”
 Muslim Women (Protection of Rights on
Divorce) Act 1986
Sec 4. Order for payment of maintenance.-(1) …where a
Magistrate is satisfied that a divorced woman has not re-married
and is not able to maintain herself after the iddat period, he may
make an order directing such of her
(i) 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 ….
(ii) Children; in case of their inability her
(iii) Parents; in case of their inability
(iv) Such 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.
 Muslim Women (Protection of
Rights on Divorce) Act 1986
(2) In the absence of any of the above stated
relative- Magistrate shall order the state
Wakf Board to maintain.
 - Liability to Maintain -
• Sec.4 brought with it the liability of the wakf board to
maintain the divorced wife. This issue was raised and
contested in a number of judgments.
• Secretary, Tamil Nadu Wakf Board v. Syed Fatima
Nochi- main contention was that Wakf Board does not
have adequate funds.
• Other questions that are raised relating to wakfs
 INQUIRY ABOUT THE RELATIVES
 NO SEPARATE PROVISION FOR FINANCIAL
ASSISTANCE IN THE WAKF BOARDS
 - Vires of MWPDA, 1986 -
• The MWPDA had become so confusing
and controversial that there were a
number of conflicting judgments which in
turn caused hardship to divorced Muslim
wives.
• Hence the validity of the Act was
challenged by way of a writ petition before
the Supreme Court.
Daniel Latifi & Anr. v. Union of
India
2001 (6) SCALE 537
 Main grounds in a nutshell
S.125 is a provision for women belonging to all
religions, and exclusion of Muslim Women from
the same would be discrimination against them.

If the object of S.125 is to avoid vagrancy, then

the remedy cannot be denied for Muslim Women.

Apart from aspects of gender justice, this

discrimination leads to a monstrous proposition
of nullifying a law declared by this Court in Shah
Bano case.
 Main grounds in a nutshell
 Thus, it would lead to violation of not only equality before
law, but also equal protection of laws & infringement of
Art.21 as well as basic human values.

 The MWPD Act is un-Islamic, un-constitutional and it has

the potential of suffocating the Muslim women, and it
undermines the secular character which is the basic
feature of the Constitution.

In sum, it was contended that there is no rhyme or

reason to deprive the Muslim women from the
applicability of the provisions of S.125.
Analysis of Shah Bano & MWPDA
• On the face of it MWPDA is violative of
Arts.14 & 15.
• It however, observed that validity of a
statute would depend upon the
interpretation of the same.
• Hence, it decided to interpret it in a way so
as to uphold the validity of the Act on the
ground that the legislature does not intend
to enact unconstitutional laws.
 Reading of Sec.3 by the Court
• Court stated that Sec. 3 lays down two distinct
obligations on the part of the husband:
(i) to make a reasonable and fair provision for his
divorced wife; and
(ii) provide maintenance for her.
The emphasis is not on the nature of duration
of any such provision or maintenance but on
the time by which such arrangement should be
made, namely ‘within the iddat period’.
 Reading of Sec.3 by the Court
• This would, in effect, exclude the husband
from his liability in the post-iddat period, once
he already discharges his obligations of
‘reasonable and fair provision’ and
‘maintenance’, by paying these amounts in a
lump sum to his wife, (in addition to her Mehr
and other amounts, of course).
• The Court held that ‘the Act actually and in
reality codifies what was stated in Shah Bano.’
 The act was held to be valid
(i) A Muslim husband is liable to make reasonable
and fair provision for the future of the divorced
wife, which obviously includes her maintenance as
well. Such a reasonable and fair provision
extending beyond the iddat period must be made
by the husband within the iddat period in terms of
S.3(1)(a) of the Act.

(ii) The liability of Muslim husband to his divorced

wife arising under s.3(1)(a) of the Act to pay
maintenance is not confined to iddat period.
 The act was held to be valid
(iii) A divorced Muslim woman who has not remarried, and
who is unable to maintain herself after iddat period, can
proceed against her relatives (as u/s.4). If any of the
relatives is unable to pay maintenance, the magistrate may
direct the State Wakf Board to pay such maintenance.

(iv) The provision of the Act do not offend arts 14, 15 and 21
of the Constitution of India.

Thus, without striking down the Act as ultra vires, the court
has given it a construction, which will remove
discrimination and hardship caused to divorced Muslim
wives.
***