INTRODUCTION–
The concept of Maintenance get introduced in Muslim as well as other secular law to provide divorced women a right to live their lives with dignity; it empowers the financially weaker women who do not have any financial support with them to get their livelihood from their former husbands with the help of this law at the place.
PROVISIONS USED– Section 125 in the Code of Criminal Procedure, 1973-
Order for maintenance of wives-
(1) If any person having sufficient means neglects or refuses to maintain-
(a) His wife, unable to maintain herself,
(b) ” Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.[1]
Section 3 in The Muslim Women (Protection of Rights on Divorce) Act, 1986
Mahr or other properties of Muslim woman to be given to her at the time of divorce.—
(1) Notwithstanding anything contained in any other law for the time being in force, 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.
Section 4 in The Muslim Women (Protection of Rights on Divorce) Act, 1986 which orders for the payment of maintenance. [2]
MAINTENANCE MEANING IN MUSLIM LAW-
The term maintenance is known as ‘nafaqa’ under Muslim law in which the husband is obliged to pay for his wife’s housing, food, and clothing for three months in the course of their divorce.[3] So, it restricts the Muslim divorced husbands to maintain their wife for the period of Iddat which falls for three months after the divorce
RIGHT TO MAINTENANCE–
It is the right of Muslim women to get ‘’nafaqa’’ from their husband for which there are no such provisions that if a woman is a financially strong and can support her or if her husband is not capable enough to support then the court can deny for the maintenance. Hence, this is the positive thing of this law which is contrary to other religious laws that women need not suffer for maintenance and will get it under it. Also, in Mulla’s Mahomedan Law (18th Edition, para 279, page 301), there is a statement to the effect that, “After divorce, the wife is entitled to maintenance during the period of iddat”. [4]
AMOUNT OF MAINTENANCE-
There are no such provisions in the above law that in what quantum court is going to allow for maintenance to the women as it depends upon the situation and circumstances of the case and on the position of women that how much she wants to maintain her and survive, in her life.
ADDITIONAL RIGHTS CONFERRED BY THIS 1986 ACT-
If a woman is not able to maintain her after the period of iddat and is dependent then the court can award her maintenance under Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, under which she get maintenance from her relatives who are entitled to her property after her death.
RESTRICTIONS ON THE MAINTENANCE-
In the following conditions women in not entitled to maintenance-
- She has not attained puberty.
- She has abandoned her husband and marital duties with sufficient reason.
- Where she elopes with some other man.
- in a case where she disobeys the reasonable commands of her husband
Section 125 (4) of CRPC also prohibits maintenance to women in a few situations-
- She is living in adultery,
- She refuses to live with her husband without any sufficient reason,
- If they are living separately by mutual consent.[5]
OTHER PROVISION– According to Section 5 of the Muslim women (protection of right on divorce) act, Option to be governed by the provisions of sections 125 to 128 of Act 2 of 1974.—If on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.[6]
APPLICATION OF SECULAR LAW, SECTION 125 OF CRPC-
The question as to whether section 125 of the Code applies to Muslims is concluded by two decisions of this Court which are reported in Bai Tahira v. Ali Hussain Fidalli Chothia(1) and Fazlunbi v. K. Khader Vali. (2) These decisions took the view that the divorced Muslim wife is entitled to apply for maintenance under section 125.
These provisions are too clear and precise to admit of any doubt or refinement. The religion professed by a spouse or by the spouses has no place in the scheme of these provisions.
The reason for this is axiomatic, in the sense that section 125 is a part of the Code of Criminal Procedure, not of the Civil Laws which define and govern The rights and obligations of the parties belonging to particular, religions, like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. So as a Conclusion, it says ‘Wife’ means a wife as defined, irrespective of the religion professed by her or by her husband. Therefore, a divorced Muslim woman, so long as she has not remarried, is a ‘wife’ for section 125. The statutory right available to her under that section is unaffected by the provisions of the personal law applicable to her.[7]
DECISION IN SHAH BANO CASE-
The decision in the Shah Bano case overrides the well-established principle of Muslim law that the husband of a divorced Muslim wife is not liable to pay maintenance under any circumstances beyond the period of Iddat.
The Court, therefore, concluded that if the divorced wife can maintain herself, the husband’s liability ceases with the expiration of the period of Iddat, but if she is unable to maintain herself after the period of Iddat, she is entitled to have recourse to Section 125 of the Code.
In Tyabji’s Muslim law (4th Edition, para 304, pages 268-269). contains the statement that:
“On the expiration of the iddat after talaq, the wife’s right to maintenance ceases, whether based on the Muslim Law or an order under the Criminal Procedure Code-[8]. But the court concluded that if the divorced wife can maintain herself, the husband’s liability ceases with the expiration of the period of Iddat, but if she is unable to maintain herself after the period of Iddat, she is entitled to have recourse to Section 125 of the Code. [9]
CASE LAW–
In A. A. Abdulla v. A. B. Mohmuna Saiyadbhai, a learned single Judge took the view that a divorced Muslim woman is entitled to maintenance after contemplating her future needs, and the maintenance is not limited only up to the Iddat period.
It is also held that the word “within” under S. 3(1)(a)can not be read as “for” or “during”. Therefore, the husband was held to be liable for making reasonable and fair provision and maintenance to the wife even after the period of Iddat. The learned Judge also held that it cannot be held that Section 3 of the Act of 1986 in any way adversely affects the personal rights of a Muslim divorced woman. Therefore the order passed by the Magistrate under Section 125 of the Code ordering the Muslim husband to pay maintenance to his divorced wife would not be non-est as there is no section in the Act which nullifies the order passed by the Magistrate under Section 125 of the Code.
CONCLUSION-
Under the Muslim law, divorced women are entitled to maintenance only till the period of Iddat gets over and after that, she all rights towards maintenance get ceased. But in the judgment of Shah Bano’s case, it gets to find that if a woman is genuinely not able to maintain her in future and needs support then in that case court can allow her maintenance even after the iddat period gets over. Also, in the same case parliament had introduced another law “The Muslim Women (Protection of Rights on Divorce) Act, 1986” which again prohibits women to get maintenance only for a limited period that is Iddat.
Sources:
[1] https://indiankanoon.org/doc/1056396/
[2] https://indiankanoon.org/doc/976981/
[3] John L. Esposito, ed. (2014). “Nafaqah”. The Oxford Dictionary of Islam. Oxford: Oxford University Press.
[5] https://indiankanoon.org/doc/1056396/
[6] http://legislative.gov.in/sites/default/files/A1986-25_1.pdf
[7] Bai Tahira v. Ali Hussain Fidalli Chothia
Fazlunbi v. K. Khader Vali.
[8] https://books.google.co.in/books?id=ypIDwAAQBAJ&pg=PT159&lpg=PT159&dq=Mulla%27s+Mohammedan+Law(18th+Edition,+para+279,+page+301),&source=bl&ots=vq5hjeeE-ge%20301)%2C&f=false
[9]Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985
This blog is written by Anjali Tripathi, Nirma University
Some of her blogs-
- DIFFERENCE BETWEEN EXECUTION, SUSPENSION, REMISSION, AND COMMUTATION OF SENTENCES
- PROCEDURE FOR MAINTENANCE OF WIFE and CHILD
- DYING DECLARATION
- DOCTRINE OF ESTOPPEL
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