[Type the document title] Introduction to Maintenance

Maintenance refers to payments which a husband is under an obligation to make to a wife either during the subsistence of the marriage or upon separation or divorce, under certain circumstances. This liability of the husband flows from the bond of matrimony. A wife is entitled to claim maintenance under the personal laws as well as under the provisions of the code of criminal procedure, 1973. right of maintenance extends not only to the wife and dependent children, but also to indigent parents and divorced wives. Claim of the wife, etc., however, depends on the husband having sufficient means. However, divorced wives who have received money payable under the customary personal law are not entitled to maintenance claims under the Code of Criminal Procedure. In assessing the amount of maintenance, the court takes into account various factors like position and liabilities of the husband. It also judges whether the wife is justified in living apart from husband. justifiable reasons are spelt out in the Act. Maintenance pendente lite (pending the suit) and even expenses of a matrimonial suit will be borne by either, husband or wife, if the either spouse has no independent income for his or her support. The same principle will govern payment of permanent maintenance. Under the Muslim Law, the Muslim Women (Protection of Rights on Divorce) Act, 1986 protects rights of Muslim women who have been divorced by or have obtained divorce from their husbands and provides for matters connected therewith or incidental thereto. (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 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 mehr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to the Muslim Law and (d) all property given to her before or at the time of marriage or after her marriage by her relatives or friends or by husband or any relatives of the husband or his friends. Symbiosis law school, Noida. Page 1

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The definition of maintenance in Islam is Nafaq. In the language of law it signifies all those things which are necessary to the support of life. such as food, clothes and lodging. Indian law on matters pertaining to marriage, divorce and succession are governed by personal laws. In Muslim matrimonial matters, the laws on a Muslim woman's right to maintenance are clearly laid down. In August 2010, the Delhi High Court ruled that a Muslim man is liable to pay maintenance, to his ex-wife and minor children, until she remarries. Further, the court held that a divorced Muslim woman is entitled to maintenance under the Criminal Procedure Code. The court further said that this is applicable regardless of the provisions of the Muslim law. Muslim law also provides that a person is liable to pay maintenance to his divorced wife, only for the Iddat period (nearly 3 months after dissolution of the marriage). In addition, the Act also provides that where a divorced Muslim woman is unable to maintain herself after the period of iddat the magistrate shall order directing such of her relatives as would be entitled to inherit her property on her death according to the Muslim Law, and 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, standard of life enjoyed by her during her marriage and means of such relatives, and such maintenance shall be payable by such relatives in proportion to the size of their inheritance of her property and at such periods as he may specify in his order. 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 parents of such divorced woman to pay maintenance to her. In the absence of such relatives or where such relatives are not in a position to maintain her, the magistrate may direct State Wakf Board established under Section 13 of the Wakf Act, 1995 functioning in the area in which the woman resides, to pay such maintenance as determined by him.

Muslim Women: Laws on Rights to Maintenance

Symbiosis law school, Noida.

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Muslim women are entitled to maintenance under Muslim personal law as well as the Protection of Rights on Divorce Act, 1986. To a layperson, what does maintenance really mean? Simply put, when a couple divorce, the husband is legally bound to provide for the expenses of the wife and children, which is called as maintenance. It must, however, be noted that a Muslim wife is only entitled to maintenance so long as she is faithful to her husband and obeys his reasonable orders. Moreover, the Dissolution of Muslim Marriage Act, 1939 enables a Muslim wife to seek dissolution of marriage on the ground of failure to provide maintenance. Maintenance for Muslim Women: Stipulations of Iddat The Dissolution of Muslim Marriage Act (DMMA) states that a Muslim husband is entitled to maintain his wife only up to the period of iddat. Based on the Shariat terminology, iddat is the mandatory waiting period for a divorced or widowed Muslim woman, which must conclude and thereupon, she can remarry. Once the period of iddat is over, the Muslim husbands liability of maintenance ends as well. The period of iddat is three menstrual cycles or three lunar months after a divorce. However, if a wife is pregnant at the time of the divorce, the period of iddat extends up to the time of delivery (or abortion), even if the event takes place after three months. However, if the delivery takes place before three months, iddat terminates immediately with the event. Entitlement to Maintenance by Muslim Woman in a Polygamous Marriage Several schools of Islam permit Polygamy but section 125(3) of the Code of Criminal Procedure entitles a Muslim wife to live separately and receive maintenance from her husband if he contracts a second marriage or even keeps a mistress. This provision, incorporated in 1973, is a big step towards integrating modern ideas in the Islamic personal and family laws. Most important to note is that this code has been made in full consistency with the spirit and tenor of Mohammedan Law. The code continues to entitle a Muslim husband to have multiple wives, while enjoining him to accord equal treatment to all his wives. A question arises here is as to whether a Muslim woman who has filed for divorce under the DMMA would be entitled to receive maintenance under the Code of Criminal Procedure?

Symbiosis law school, Noida.

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The court has established that a Muslim woman is entitled to receive maintenance under the code despite filing for dissolution of marriage, established under Zohra Khatoon v Mohd Ibrahim1. Maintenance of a divorced Muslim wife has always been a highly controversial and debatable social issue. The issue of maintenance of Muslim wife has been a very difficult path as compared to Hindu wife. This issue has been subject matter of BIG FIGHT by both Muslim fundamentalist and Hindu right wing. Now coming to the legal technicalities of the issue, I would like to highlight the loop holes of statutes and the helplessness of the Legislature. The legal shortcoming of the maintenance law for Muslim Wife was used as a weapon by husbands to protect themselves from the liability of maintaining their wives. Prior to amendment, as per section 125 Cr.P.C.( Criminal Procedure Code), maintenance is granted only to the Wife and therefore the husband started taking defence that the divorced women is no more his wife and henceforth not entitled for anymaintenance. Then the legislature amended the section and inserted an explanation which clarifies that wife includes divorced wives. However, husbands used another shield to protect themselves from the liability of maintaining their wife which was available under section 127(3) Cr.P.C.( Criminal Procedure Code),which says that if a women gets any customary payment after divorce then husband will not be responsible for her maintenance. In numerous cases, it was held that Maher or Dower is the sum mentioned under sec 127 (3). Then the next stage came in, when the court recognized Dower as the sum mentioned under the aforesaid clause but emphasized that such amount should be fair & reasonable as observed in BAI FATIMA vs ALI HUSSAIN 1979 which find further approval of the Supreme Court in FAZLUNBI vs KHADERWALI 1980 (SC) so as to protect Muslim women from destitution. Then another stage came when the court held that no matter whether the dower is paid or not, husband is liable to maintain his wife and held that Dower is not included in clause 3 of sec 127 and the court also mentioned verses of the HOLY Quran from chapter 2 verse 241 and 242 to signify that its a religious duty of a Muslim husband to provide reasonable maintenance

7 September, 1995 ;Equivalent citations: I (1997) DMC 670; Bench: A Gupta.

Symbiosis law school, Noida.

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to his divorced wife. This all happened in the infamous case of SHAHBANO BEGUM v/s MOHD AHMED KHAN2 . However, this led to wide spread demonstrations and controversy which pressurized then Rajiv Gandhi government to pass Muslim Women Protection of Rights on Divorce Act (1986). Once again, this legislation failed to address the real issue. This law created new confusion and contradiction because of loose drafting amongst the views of different High Courts. The most important section relating to controversy was sec 3 which used the word within the iddat period .The controversy was on its peak between Gujrat and Andhra High Courts in the cases of ARAB BAIL AND FATHIMUNNISSA BEGUM . The constitutionality of this act was challenged in 2000 in the case of: Though there is no fixed formula to arrive at the calculation of maintenance. Yet, the figure hovers around 30% to 40% of the salary/income. DANIAL LATIFI vs UNION OF INDIA3 It was held that section 3 of Muslim Women Protection of Rights on Divorce Act entitles a Muslim women for maintenance even beyond IDDAT period and the controversy was set aside once and for all.

Muslim women can claim maintenance: Supreme court

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AIR 1986 : 945 SC AIR 2000 (SC)

Symbiosis law school, Noida.

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In a recent decision, the Supreme Court has revisited and rejuvenated the law of maintenance relating to divorced Muslim wives. The Supreme Court was considering the propriety of the decision given by the Family Court and confirmed by the High Court where maintenance was allowed to the divorced wife only upto the period of Iddat. The Husband sought to justify the decision of these courts arguing that in terms of the 'Muslim Women (Protection of Rights on Divorce) Act, 1986', the maintenance was to be restricted till the period of Iddat only. However from the side of the wife it was argued before the Supreme Court that the lower courts failed to take notice of the fact that in terms of Section 125 of the Code of Criminal Procedure the divorced wife was entitled to maintenance till the time she remarried and that Section 125 being a specific and beneficial legislation would prevail. In these circumstances, the Supreme Court called upon itself to decide as under. "The basic and foremost question that arises for consideration is whether a Muslim divorced wife would be entitled to receive the amount of maintenance from her divorced husband under Section 125 of the Cr.P.C. and, if yes, then through which forum." The Court took note of the provisions of the 1986 Act, Code of Criminal Procedure and the Family Courts Act, 1984 to find favour with the arguments raised on behalf of the divorced wife. It observed, In our opinion, the point stands settled by judgment of this Court reported in Danial Latifi & Anr. Vs. Union of India4 pronounced by a Constitution Bench of this Court. Paras 30, 31 and 32 thereof fully establish the said right of the appellant. The said paragraphs are reproduced hereinunder : A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support are satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right, loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves
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(2001) 7 SCC 740

Symbiosis law school, Noida.

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and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners. Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional. As on the date the Act came into force the law applicable to Muslim divorced women is as declared by this Court in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors5. In this case to find out the personal law of Muslims with regard to divorced women's rights, the starting point should be Shah Bano's case and not the original texts or any other material - all the more so when varying versions as to the authenticity of the source are shown to exist. Hence, we have refrained from referring to them in detail. That declaration was made after considering the Holy Quran, and other commentaries or other texts. When a Constitution Bench of this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material, we do not think, it is open for us to re-examine that position and delve into a research to reach another conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Bano's case without mutilating its underlying ratio. We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Bano's case. The learned Solicitor General contended that what has been stated in the Objects and Reasons in Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts and the law in Shah Bano's case and proceeded to find out the impact of the same on the Act. If the language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in enacting the law will not be of much materiality." Judgment of this Court reported in Iqbal Bano Vs. State of U.P.& Anr6. whereby the provisions contained in Section 125 of the Cr.P.C. have been aptly considered and the relevant portion of the order passed in Iqbal Bano's case reads as under: Proceedings under Section 125 Cr.P.C. are civil in nature. Even if the Court noticed that there was a divorced woman in the case in question, it was
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(1985) 2 SCC 556 (2007) 6 SCC 785

Symbiosis law school, Noida.

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open to it to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings under Section 125 Cr.P.C. and claims made under the Act are tried by the same court. In Vijay Kumar Prasad Vs State of Bihar7 it was held that proceedings under Section 125 Cr.P.C. are civil in nature. It was noted as follows: (SCC p.200, Para 14). 14. The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has essentially enlarged the venue of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with their relatives far away from the place where the husband and wife last resided together. As noted by this Court in several cases, proceedings under Section 125 of the Code are of civil nature. Unlike clauses (b) and (c) of Section 126 (1) an application by the father or the mother claiming maintenance has to be filed where the person from whom maintenance is claimed lives." In the light of the findings already recorded in earlier paras, it is not necessary for us to go into the merits. The point stands well settled which we would like to reiterate. The appellant's petition under Section 125 of the Cr.P.C. would be maintainable before the Family Court as long as appellant does not remarry. The amount of maintenance to be awarded under Section 125 of the Cr.P.C. cannot be restricted for the iddat period only. Learned Single Judge appeared to be little confused with regard to different provisions of Muslim Act, Family Act and Cr.P.C. and thus was wholly unjustified in rejecting the appellant's Revision. Cumulative reading of the relevant portions of judgments of this Court in Danial Latifi (supra) and Iqbal Bano (supra) would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women. Being of this view, the Supreme Court declared the law as under; In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim
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(2004) 5 SCC 196

Symbiosis law school, Noida.

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maintenance from her husband under Section 125 of the Cr.P.C. after the expiry of period of iddat also, as long as she does not remarry. It is crystal clear that even a Muslim divorced woman would be entitled to claim maintenance from a Muslim husband till she has not married (again). This being a beneficial piece of legislation(CrPC), the benefit must accrue to the divorced Muslim women," the court said, referring to an SC judgment. Dismissing the petition filed by a man challenging a lower court's decree that he pay Rs 2,000 a month to his minor daughter living with her mother, the court said the husband owed responsibility to maintain not only his ex-wife but also the children living with her. The court dismissed the man's contention that the right to get maintenance for minor children ceases after two years of divorce as provided in personal law. "I consider this contention baseless. Even a wife who has been divorced under Muslim Law is entitled to claim maintenance under the Criminal Procedure Code after the Iddat period... the benefit cannot be denied to a minor daughter because of any restrictive provision contained in Muslim Women (Protection of Rights on Divorce) Act, 1986," Justice S N Dhingra said.

Conclusion
Symbiosis law school, Noida. Page 9

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By virtue of judicial pronouncements and other steps, rights of Muslim women has been restored but it will become fruitful only when under lying thinking are changed, the Muslim women should emancipate themselves educationally, economically and socially for their well being only and then they can understand their rights and worth and thereafter the social upliftment of the whole community is possible. We should always remember that mother is the first teacher and mentor of his child. It is a historical fact that no society ever lived in peace until their women folk are at peace.

Symbiosis law school, Noida.

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[Type the document title] BIBLOGRAPHY

www.indiankanoon.com

www.manupatra.com

prof. G.C.V Subba Rao

www.wikipedia.com

www.rediffnews.com

www.timesofindia.com

Symbiosis law school, Noida.

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