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Maintenance Of Wife In Hindu, Muslim

And Secular Laws In India

Project Submitted as a partial fulfillment for the


curriculum requirement of Family Law

SUBMITTED TO:

Mr. Sushil Goswami


(Faculty of Family Law)

SUBMITTED BY:

Srinjoy Bhattacharya

Reg. No. 11B149 3rd year, BSW LLB. (Hons.) Gujarat

National Law University


Maintenance of Wife in Hindu, Muslim And Secular Laws In
India

GUJARAT NATIONAL LAW UNIVERSITY, GANDHINAGAR

TABLE OF CONTENTS

Acknowledgement..3

List of Cases...6

Object of Study, Scope and Focus of the study and the Methodology..8

Hypothesis......9

Introduction..10

Evolution..10

Provision...12

Constitutional validity..21

Test of Hypothesis and Conclusion .23

Bibliography.25

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ACKNOWLEDGEMENT

At the outset, I would like to thank Advocate Probal Mukherjee ,Advocate at the Calcutta High
Court, who first showed me the role of law in families and the delicate task of saving families
instead of tearing them apart.

I would also like to thank Mr. Sushil Goswami, our family law faculty, who built on this interest
and has given me the opportunity to delve deep into the various laws affecting families in India
today.

Lastly, I would also like my parents for their uncompromised support to the cause of my
education.

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LIST OF CASES

Abdool Futteh v Zabunnessa, (1881) 6 Cal 631


Abdul Gafor Kunju v. Pathumma Bevi, (1989) 1 KLT 337
Abdul Latif Mondal v. Anuwara Khatun, 2002 (1) CLJ 186
Ajaib Kaur v. Uttam Singh AIR 1960 Punj 117
Ali v Sufaira, (1988) 3 Crimes 147
Ameer Amanulla v Mariam Beebi, 1985 MLJ (Cr) 164
Arab A Abdulla v Arab Bail Mohmuna Saiyadbhai, AIR 1988 Guj 141
Arab Ahmadia v. Arab Bail, AIR 1988 Guj 141
Badri Prasad v. Urmilla Mahobiya 2001 (4) Civil LJ 360
Badruddin v Aisha Begum, 1957 All LJ 300
Bai Fatma v Ali Mahomed Aiyeb, (1912) 37 Bom 280
Bai Tahira v Ali Hussain Fissalli AIR 1979 SC 446
Bammadevara v. Bammadevan (1928) 55 MLJ 242,

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Bhanwar Lal v. Kamla Devi 1986 HLR 235
Bibi Shah Naz v. State of Bihar, II (1999) DMC 85
Chand Dhawan v. Jawaharlal Dhawan 1993 AIR SC 2548
Chatru v the Crown AIR 1928 Lah 681
Danial Latifi v. Union Of India, (2001) 7 SCC 740
Dudhiben. Merakhbhai v. Nathabhai Hazabhai 1998 (2) Civil LJ 443
Durega Das v. Smt. Tara rani AIR 1971 P&H 141
Fazlunbi v Khader Vali, AIR 1980 SC 1730
Govindrao v. Antabai AIR 1951 BOM433
Haron Rashid v. Raqueeba Khatoon, (1997) 1 BLJR 93
Hasenura Begum v Fazar Ali, (2001) 3 Gau Law Reports 576
Jagdish Prasad Tulsan v. Smt Manjula Tulsan AIR 1975 Cal. 64
Jayanti v. Alamelu (1904) 27 Mad 45, 38
Julekha v. M.Fazal 2000 (1) Vidhi Bhaswar 123 MP
Kaka v. Hassan Bano II (1998) DMC 85
Karim Abdul Rehman Shaikh v. Shehnaz karim Shaikh, 2000 (3) Mh LJ 555
Kunhi Moyn v Pathumma, 1976 MLJ (Cr) 405
Lallubhai Keshavram v. Vlth Addl. Dist. And Sessions Judge AIR 1999 All 4
Lalubhai Keshavram Joshi v.. Nirmala Bhen Laluram Joshi (1972) XIII GLR 626
Majitha v Beevi v. Yakoob, 1999 (1) KLT 796
Mansa v. Jiwan ILR (1884) 6 All 617
Mansur v azizul, (1928) 3 Luck 603
Mariyumma v Mohamed Ibrahim, AIR 1978 Ker 231 (FB)
Mohd. Ahmad Khan v shah Bano Begum, AIR 1985 SC 945
Mohd. Muin-ud-din v Jamal Fatima, (1921) 43 All 650
Mohd. Yunus v. Bibi Phenkani, (1987) 2 Crimes 249
Mrs. Veena Kalia v. Dr. Jatindar nath Kalia AIR 1996 Del. 54

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Mutyala v. Mutyala AIR 1958 AP 582
Mythili Raman v. K.T. Raman AIR 1976 Mad 260
Narbadabhai v Mahadev (1881) 5 Bom 99,103
Nizar v Hyrunnessa, 1999 (1) KLT 796
Paditrao Chimaji Kalure v. Gayabai AIR 2001 Bom 445
Parami v. Mahadevi ILR (1910) 34 Bom 278
Prem Nath Sarvan v. Smt. Prem Lata Sarvan. AIR 1988 Del 50
Queen v Marimutta ILR (1882) 4 Mad 243
Rafiq v. Farida BI 2000 (2) MPWN 77 MP
Rajlukhy v. Bhootnath (1900) 4 CWN 488
Ramabai v. Tribbak (1872) 9 Bom HC 283
Ramlal v Surendra Kaur 1995 (2) Civil LJ 204
Sakinabai v. Fakruddin, II (1999) DMC 576
Sarwari v. Shafi Mohammad, (1957) 1 All 255
Secretary of State for India v Abalybhai Narayan 40 Bom LR 422
Shakila Parveen v Haider Ali, 2000(1) CLJ 608
Shibli v Jodh ILR (1833) 14 Lah 750
Sidlingappa v. Sidava ILR (1878) 2 Bom 634;
Sita v Gopal AIR 1928 Pat 375;
Sitanath v Halmbutty 24 WR 337, 379
Smt. Gangh Pundlik Waghmare v. Pundlik Maroti Waghmare AIR 1979 Bom 264
Smt. Lalithamma v. R. Kannan AIR 1966 Mys. 178
Smt. Nandarani Mazmudar v. Indian Airlines AIR 1983 SC 1201
Surampalli v Surampalli (1908) 31 Mad 338
Sushila v R. jagammadham AIR 1964 AP 247
Tulasamma v.Vaddeboyina Sesha Reddi AIR 1977 SC 1944
Ude Singh v Daulat Kaur AIR 1935 lah 386

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Usman Khan Bahamani v. Fathimunnisa Begum, AIR 1990 AP 225
Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 All 150
Vinod Kumar kajriwala v. Usha Vinod Kejriwala AIR 1993 Bom 160
Virasvami v Appasvami (1963) 1 Mad HC 375
Vishnu B Mayekar v. Laxshmi V Mayekar 2000 (2) Civil LJ 926

OBJECT OF THE STUDY

The object of the study of this project is the analysis of the various laws prevailing in Indian
Society in regards to a wifes maintenance be it during the marriage or after divorce. The aim of
this project is to lay side by and side the provisions of the Hindu, Muslim and Secular laws
together in a comprehensive look at all three laws.

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METHODOLOGY

Doctrinal Approach has been used in this project to accomplish the said objectives. A
Descriptive method is also used in completion of this project. Books, Journals, Articles and
World Wide Web are the tools used for the study.

HYPOTHESIS

The study on this topic is carried out by me to ascertain the position of maintenance of wives of the
two biggest population group in our country and how it intermingles and is affected by the secular
provisions for maintenance. This study is not a comparative view of the three laws but merely a
statement on all three and a view on how they intermingle and affect one and another.

POSITION IN MUSLIM LAW

Be it will be significant to precede an in-depth discussion on maintenance under Islamic Law,


by a note on the sources of Islamic Law, which have often been subjected to controversy and

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non-unanimity of opinion. Islamic law is founded upon four principal sources. They are listed as
follows based on the descending order of their binding value.

The Qur'an
It is believed by the Muslims that the Qur'an is the direct words of Allah, as revealed to and
transmitted by the Prophet Muhammad. Therefore, it is imperative that all sources of Islamic
law be in essential agreement with the Qur'an, the most fundamental source of Islamic
knowledge. When the Qur'an itself does not speak directly or in detail about a certain subject,
Muslims then turn to alternative sources of Islamic law. It is a norm/practice to consult the
alternative sources of law, when a certain subject is unspoken of, in the Quran.

The Sunnah
Sunnah is the set of traditions or known practices of the Prophet Muhammad, many of
which have been recorded in the volumes of Hadith literature. The resources include many
things that he said, did, or agreed to -- and he lived his life according to the Qur'an, putting the
Qur'an into practice in his own life. During his lifetime, the Prophet's family and companions
observed him and shared with others exactly what they had seen in his words and demeanour --
i.e. how he performed ablutions, how he prayed, and how he performed many other acts of
worship. People also asked the Prophet directly for rulings on various matters, and he would
pronounce his judgment. All of these details were passed on and recorded, to be referred to in
future legal rulings. Many issues concerning personal conduct, community and family relations,
political matters, etc. were addressed during the time of the Prophet, decided by him, and
recorded. The Sunnah can thus clarify details of what is stated generally in the Qur'an.

Ijma' (consensus)
In situations when Muslims have not been able to find a specific legal ruling in the Qur'an or
Sunnah, the consensus of the community is sought (or at least the consensus of the legal

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scholars within the community). The Prophet Muhammad once said that his community (i.e. the
Muslim community) would never agree on an error.

Qiyas (analogy)
In cases when something needs a legal ruling, but has not been clearly addressed in the other
sources, judges may use analogy, reasoning, and legal precedent to decide new case law. This is
often the case when a general principle has been applied to new situations.

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The Provision of maintenance has been laid down in the Quran, the ultimate
authority in Islamic law in the following way:

And treat not the Verses (Laws) of Allaah as a jest [al-Baqarah 2:231]

It is incumbent on a husband to maintain his wife, whether she be a Muslim or kitabiyyah, poor
or rich, enjoyed or uninjured, young or old. However if the wife is too young for matrimonial
intercourse, she has no right to maintenance from her husband whether she is living in his house

or with her parents. 1

O Prophet! When you divorce women, divorce them at their Iddah (prescribed
periods) and count (accurately) their Iddah (periods). And fear Allaah your Lord (O Muslims).
And turn them not out of their (husband's) homes nor shall they (themselves) leave, except in
case they are guilty of some open illegal sexual intercourse. And those are the set limits of
Allaah. And whosoever transgresses the set limits of Allaah, then indeed he has wronged
himself. You (the one who divorces his wife) know not it may be that Allaah will afterward bring
some new thing to pass (i.e. to return her back to you if that was the first or second divorce)
[al-Talaaq 65:1]

This broad and wide obligation is restricted only in cases where she is not obedient and
does not allow the husband free access at all lawful times. If the husband has not paid the
prompt part of dower or she refuses to live with her husband because of his cruelty the husband
is bound to maintain her. It was held by the Allahabad High Court in Badruddin v Aisha 2 that
where husband has married a second wife or keeps a mistress, the wife may refuse to live with
the husband and still claim maintenance from him.

O you who believe! When you marry believing women, and then divorce them before
you have sexual intercourse with them, no Iddah [prescribed period following divorce] have

1
Baillie, Niel B.E, Digest of Moohummudan law , part First (Hanafi Law) 2nd edn. London 1875, p. 437
2
1957 All LJ 300
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you to count in respect of them. So give them a present, and set them free (i.e. divorce) in a
handsome manner [al-Ahzaab 33:49]

The question of maintenance of wife may arise in the following two cases:

During the Continuance of Marriage

The husband is under an obligation to maintain his wife as she is faithful to him and obeys his
reasonable orders. In an interesting case3, decided by Strachy and Badruddin Tyabji JJ, it was
held that a disobedient wife need not be maintained. Strachy J, observed

The husbands duty to maintain his wife is conditional upon her obedience and he is
not bound to maintain her if she disobeys him by refusing to live with him or otherwise 4 . (here
in this case the wife) only paid occasional visits to his house , staying for a night or so at a time
from the 6th of March to 23rd June 1895 returning on each occasion to her mothers house .. I
am clearly of the opinion that in such circumstances a Mohammadan husband is not bound to
give this wife separate maintenance

However it would be interesting to point out that neither any literature, nor the courts of
law have demarcated the degree of disobedience that may deprive a wife from her entitlement to
maintenance. It may be a ticklish task, to determine the exact borderline between obedience and
disobedience.

To the same effect were the observations of Tyabji J: 5

It is impossible to hold that a mussalman wife defying her husband refusing to live with
him and bringing scandalous charges against him, can yet claim to be maintained separately at
the expense of her husband.

In matters of maintenance, it is immaterial that the wife has the means to maintain
herself while the husband has no means. What is pertinent is that the marriage must be regular

3
(1896) 21 Bom 71
4
Supra note 1, p. 438
5
Supra note 3.

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and lawfully valid. However, a marriage which is irregular solely because of the absence of
witnesses is deemed regular for the purpose of maintenance.

The wife is not entitled to initiate legal action against her husband for past maintenance
unless the claim is based on a specific agreement. As held in Abdool Futteh v Zabunnessa6.
The court stated:

When a woman sues her husband for maintenance for a time antecedent to any order of
the judge or mutual agreement of the parties, the judge is not to decree maintenance for the
past.

This opinion has been validated almost on the same lines in the Hedaya. The decree of
the lower court, which awarded Rs 1400 for arrears of maintenance from March 1878 until the
end of June 1880 at the rate of Rs 50 a month was reversed.

The exceptions to the ground of refusal to free access are his cruelty and keeping a
concubine by him, similarly there are exceptions to the ground of want of consummation her
pre-puberty age, her illness, old age, and his inability to consummate. In these exceptions, she
retains right to maintenance.

Maintenance by agreement
The husband and wife or their guardians may enter into an agreement whereby the wife
is entitled to recover maintenance from her husband on the happening of some specific event
such as ill treatment or disagreements or husbands second marriage, etc. but any agreement in a
marriage which stipulates the non-entitlement of the wife to maintenance shall be void. Here the
key consideration is that the agreement should not be opposed to public policy and Muslim law.

6
(1881) 6 Cal 631

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In a remarkable judgement, Mohd. Muin-ud-din v Jamal Fatima7, the Allahabad High Court
has amply clarified the legality or otherwise of ante-nuptial agreements between husband and
wife or their guardians. In this case:

Mehdi Hasan, the husband of the plaintiff had married twice before and on each
occasion he seems to have ill treated his wife. The father of the plaintiff was, therefore,
naturally anxious that something should be done in order to protect his daughter from similar
ill-treatment and to secure for her maintenance allowance in case his daughter and Mehdi
Hasan could not live happily together. The agreement in question provided that in case of
dissension or disunion the prospective husband and his father should be bound to pay an
allowance of Rs 15 per month, in addition to the dower debt, to the lady for her life; and certain
property was hypothecated to secure the payment of that allowance.

The counsel for the appellants contended that based on Bai Fatma v Ali Mahomed Aiyeb8
that the agreement was unenforceable; but that was a case in which a person, who had a wife
living and wanted to marry another, had entered into an agreement with his first wife that he
would pay her a certain allowance as maintenance if any disagreement took place between her
and him thereafter, the agreement in that case was treated as opposed to public policy because it
encouraged separation between the husband and his wife. The agreement in the present case was
executed before marriage in order to restrain the prospective husband from ill treating his wife
or behaving improperly towards her or capriciously turning her out. It was held that in view of
the circumstances established, the agreement in the present case did not offend the provisions of
section 23 of the Indian Contracts Act 1872 or encourage or facilitate a separation between the
plaintiff and her husband. The appeal was dismissed.

In sharp contrast to the decision of Bai Fatma v Ali Muhomed Aiyeb9 is the case of
Mansur v Azizul10. In this case, an arrangement between a Muslim and his first wife made after
his marriage with a second wife providing for a certain amount of maintenance for her if she
could not in future get on with the second wife was held not void on the ground of public policy.

7
(1921) 43 All 650
8
(1912) 37 Bom 280
9
(1928) 3 Luck 603
10
Ibid

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In all such cases, the key consideration is that the agreement for future should not be
opposed to public policy or Muslim law. Thus an agreement for future separation between
husband and wife and providing maintenance to wife is bad in law. Similarly is the case of an
agreement that the wife would not be entitled to maintenance.

Nevertheless, agreements to provide betel allowance (karch-e-pandan) or allowance for dry


fruits (mewa khori) are valid and binding. These are not opposed to public policy, and thus such
agreements even entered into by guardians of minor parties to a marriage are valid and binding

on the husband.11

11
http://jurisonline.in/2008/03/law-of-maintenance-in-india/

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Muslim Women (Protection of rights on Divorce) Act

1986
The Muslim Women (Protection of Rights on Divorce) Act (hereinafter referred to as the Act)
was passed after the controversial Shah Bano case to once and for all settle the rights of a
Muslim woman on divorce. The Preamble to this Act says that an Act to protect the rights of
Muslim women who have been divorced and further to provide for matters connected and
incidental thereto.

Section 3 of the Act entitles a divorced woman to:

i. reasonable and fair provision

ii. maintenance to her

iii. provisions and maintenance to her children for two years

iv. mehr amount and

v. all properties given to her before or at the time of and after her marriage

Out of these, the provision and the maintenance are to be made and paid to her within
the iddat period by her former husband. The vague wording of this law lead to controversy
when the court was asked in Arab Abdulla v Arab Bail Mohmuna Saiyadbhai 12, whether the
liability of the husband was restricted only to the iddat period. In this case the petitioner had
appealed against the order of the magistrate ordering him to pay Rs 250 per month to his
divorced wife under section 125.

The petitioners case was that in terms of Section 3(1) (a) of the Act, the maintenance
allowance was payable within the iddat period, which implied that it was to be paid only during
the iddat period and not beyond rejecting this contention, the court pointed out that the act

12
AIR 1988 Guj 141

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nowhere specified the period for which she was entitled to get maintenance, nor did the act
provide that it was for iddat only.

Basically the court interpreted Section 3 to state that the maintenance for the entire course
of her life should be paid within the period of iddat thus reducing the iddat to be a deadline
rather than a limitation to pay maintenance. The court further stated that the Section 4, which
allows the woman to approach the Wakf boards was only in addition to the maintenance from
the husband, if she needed further support. On the issue of Section 5 the court stated that the
husband cannot choose between the Code (Code of Criminal Procedure) or the Act as in such
matters, the husband would never abide by the Code and that would be unacceptable. The Court
further held that Section 7 of this Act in no situation whatsoever repelled or restricted Section
125 or 127 of the Code of Criminal Procedure.

The Kerala High Court went against this decision and held in Abdul Gafor Kunju v.
Pathumma Bevi13 that the Act was a special law and it is to be considered over the general law
that is the Code of Criminal Procedure. The Court stated that the only reason Section 125 and
128 has not been repealed is because they apply to other people as well. The court held that the
Act restricts Section 125 of the Criminal Procedure Code as the object and reasons of the Act
were to specify a divorced womans rights and not to add to the rights given under Sections 125
and 128.

There is no consensus over this decision of the Gujarat High Court which can be labeled as
liberal at the very least. The other courts such as the High Court of Andhra Pradesh 14, Kerala
High Court15, Madhya Pradesh High Court16, Guwahati High Court17 and the Calcutta High
Court.18 have not consented to the view of the Honourable Gujarat High Court and have held the
interpretation of section 3 to restrict maintenance only till the Iddat period.

13
(1989) 1 KLT 337
14
Usman Khan Bahamani v Fathimunnisa Begum, 1990 Cri. LJ 1364 AP HC
15
Ali v Sufaira, (1988) 3 Crimes 147
16
Rafiq v. Farida BI 2000 (2) MPWN 77 MP, Julekha v. M.Fazal 2000 (1) Vidhi Bhaswar 123 MP
17
Hasenura Begum v Fazar Ali, (2001) 3 Gau Law Reports 576
18
1992 Cri LJ 147

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The Calcutta High Court adopted a softer stand in Shakila Parveen v Haider Ali19and
agreed with the Gujarat High Court decision, this was reinforced by a decision of the full bench
of the Bombay High Court in Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh20.
Similar decisions have also been made in various other cases such as Haron Rashid v.
Raqueeba Khatoon21, Majitha v Beevi v. Yakoob22 and Nizar v Hyrunnessa23

The restrictive interpretation of Section 3 of this act was put under the scanner by the
Honorable Supreme Court of India in Danial Latifi v. Union Of India 24, where the court held
that:

If the construction of Section 3 is under question, the construction that does not make it
ultra vires should be considered. The Muslim Women (Protection of Rights on Divorce) Act,
1986 was a codification of the Shah Bano25 decision and not against it in anyway. The Act
therefore guaranteed the right of a divorcee to claim maintenance under Section 125 of the
CrPC.

19
2000(1) CLJ 608
20
2000 (3) Mh LJ 555
21
(1997) 1 BLJR 93
22
1999 (1) KLT 796
23
Ibid
24
(2001) 7 SCC 740
25
Infra note 36

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MAINTENANCE UNDER SECULAR PROVISIONS

Section 125, Code of Criminal Procedure, (hereinafter referred to as CrPC) is available


to all neglected wives which includes discarded or divorced wife. The provision of Section 125
has inter alia, the objective, as expressed by Krishna Iyer, J 26, To ameliorate the economic
condition of neglected wives and discarded divorcees

Section 125 is meant to serve social, economic and moral purpose . It is also a protection
of equality of sexes and protective discrimination in favour of the weak viz. neglected and
discarded or divorced wives, abandoned children and needy and helpless parents.

The maintenance provision of the CrPC can be traced right back from the old section 488 of
the CrPc which had conferred an independent right to the wife to claim maintenance allowance
irrespective of the provisions of the traditional personal law. The magistrate could compel the
husband to pay an allowance not exceeding Rs 500 per month. In Badruddin v Aisha Begum27
and Sarwari v. Shafi Mohammad28 the Allahabad High Court had held that the CrPC was a
secular law and was not affected by any personal law. Since the statutory right continued only
during the continuance of the marriage, the easy way out of the liability for the husband was to
divorce his wife.

Justie Yahaya Ali of the Madras High Court had held Mohd. Rahimulla, In Re29 that the
foundation upon which the wifes right rested was the relationship of husband and wife, when the
relationship was lawfully dissolved and there was no marital tie either in reason or upon any canon
of justice or even upon the language of 488 and 489, the husband could not be directed to continue
to maintain his divorced wife.30 Mulla was also of the same view: where an order was made for the
maintenance of a wife under Section 488 and she was afterwards divorced, the order ceased to
operate on the expiration of the period of iddat31. But if the divorce
26
Bai Tahira v Ali Hussain Fissalli AIR 1979 SC 446
27
1957 All LJ 300
28
(1957) 1 All 255
29
AIR 1947 Mad 461
30
AIR 1947 Mad 642 SUPRA
31
Mulla, Principles of Hindu Law, Volume II, 19th Edition, Lexis Nexis Butterworths, New Delhi, 2006, p. 301

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was not communicated to her even up to the expiry of the period of iddat, she could get
maintenance even after the expiry of the period of iddat till the divorce was communicated to
her. The Shia and Shafi sects deprived her of maintenance during iddat. This was also in cases
where the marriage was dissolved in irrevocable form; one concession was her pregnancy at the
time of the pronouncement. No maintenance was sanctioned by the old law to an apostate or
criminal wife. In case of dissolution of the marriage due to the death of the husband
maintenance was ruled out even during iddat.

In 1973, Section 488 of CrPC was remolded into Section 125 and stated that a wife was to
include any woman who was divorced by or who had not remarried. It is a prophylactic
provision intended to prevent vagrancy and destitution.

Section 125 applies to all communities; it has these characteristics of a common civil
code. It also extended its protective umbrella over the legitimate or illegitimate minor children,
whether of married or unmarried couples, who are unable to maintain themselves, or even major
children who, due to physical or mental abnormality or injury are unable to maintain
themselves, and parents also, who are unable to maintain themselves. The relevant conditions
are that the person responsible (husband/father/son) should have the means to maintain, yet, he
neglects or refuses. The recipient wife should not refuse to live with the husband if he so
requires, should not be living in adultery. However, she can live separate or refuse to join him if
he has brought another wife to live with him, or keeps a concubine or treats her with cruelty or
is impotent. In these conditions the magistrate can pass an order for maintenance granting a sum
up to Rs 500 per month.

The objective of Section 125 is to ameliorate the economic condition of neglected wives
and discarded divorcees. One achievement towards this welfare goal was to extend the
protection to the divorcee; and second major step was taken by the judiciary by taking mahr to
the doorsteps of maintenance. Mahr has assumed the negative role of representative of the
customary or personal law sum mentioned in Section 127 (3) (b). Just as the strategic divorce
deprived the wife of maintenance under the old Section 488, the provision under the new
Section 127(3) (b) was also ingeniously used by the inconsiderate husband as an escape lane.
Section 127(3)(b) ordains that the Magistrate shall cancel his order passed under Section 125 on

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proof that the divorcee has received from her husband the whole of the sum which under
customary or personal law was payable on such divorce, and the the customary or personal law
sum under Section 127 envisaged the mahr as held by the Supreme Court in Bai Tahira v Ali
Hussain Chothia32. In this case the husband had pressed that the payment of Rs 5000 by him as
mahr money satisfied the requirement under Section 127 and absolved him of further obligation
to pay maintenance to his divorced wife, the plaintiff. Justice Krishna Iyer held:

Section 127 cant rescue the respondent from his obligation. Payment of mahr amount
as a customary discharge is within the cognizance of that provision. But what was the amount
of the mahr? The point must be clearly understood that the scheme of the complex provisions of
chapter IX has a social purpose. Ill-used wives and desperate divorcees shall not be deprived to
material and moral dereliction to seek sanctuary in the streets. This traumatic horror animates
the amplitude of section 127, here the husband, by customary payment at the time of divorce,
has adequately provided for the divorcee, a subsequent series of recurrent doles is

contraindicated and the husband liberated33

The Supreme Court further stated in Fazlunbi v Khader Vali34

The payment of an amount, customary or other, contemplated by the measure must


inset the intent of preventing destitution and providing a sum which is more or less the present
worth of the monthly maintenance allowance the divorcee may need until death or remarriage .
Section 127 (3)(b) takes care to avoid double payment . The Code by enacting Sections 125 to
127 charges the court with humane obligations of enforcing maintenance or its just equivalent
to ill-used wives and castaways ex-wives. Neither personal law nor other plea will hold against

the policy of public law pervading Section 127(3)(b).35

32
Supra note 26
33
Supra note 26
34
AIR 1980 SC 1730
35
Ibid, paras 19(2) to (4)

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The reasoning of why mahr was excluded by the courts under the gambit of Section 127
was stated in Mohd. Ahmad Khan v Shah Bano Begum 36 (herein after refered to as Shah Bano
case):

If mahr is an amount which the wife is entitled to receive from the husband in
consideration of the marriage, that is the very opposite of the amount being payable in
consideration of divorce. Divorce dissolves marriage. The alternative premise that mahr is an
obligation imposed upon the husband as a mark of respect for the wife is wholly detrimental to
the stance that it is an amount payable to the wife on divorce. But he does not divorce her as a
mark of respect. Therefore, a sum payable to the wife out of respect cannot be a sum payable on

divorce37

The decision of the Supreme Court in this case went against the writings of many literary
writers as cited by the counsels, the Supreme Court stated that:

These statements in the text-books are inadequate to establish the proposition that the
Muslim husband is not under an obligation to provide for the maintenance of his divorced wife,
who is unable to maintain herself. [t]hese provisions of MPL (Muslim Personal Law) do not
countenance cases in which the wife is unable to maintain herself after the divorce We are of
the opinion that the application of these statements of laws must be restricted to that class of
cases in which there is no possibility of vagrancy or destitution arising out of the indigence of
the divorced wife Section 125 deals with cases in which a person who is possessed of
sufficient means neglects or reuses to maintain, amongst others, his wife who is unable to

maintain herself. 38

The Madras High Court in Ameer Amanulla v Mariam Beebi39 rejected the plea of
repugnancy between Section 125 and Muslim Personal Law and stated:
36
AIR 1985 SC 945
37
Ibid, Para 24
38
Ibid at 565-566
39
1985 MLJ (Cr) 164

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Maintenance of Wife in Hindu, Muslim And Secular Laws In
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The Provision in the Code of Criminal Procedure for the maintenance of wife and
children gives expression to the fundamental and natural duty of a man to maintain his wife and
children who are unable to maintain themselves. This statutory obligation imposed on the man
and statutory right conferred upon the wife and the children transcends the personal law and
operates irrespective of caste, creed or religion. This is really founded on the doctrine of public
policy, for, the protection of destitute woman and children and the prevention of their vagrancy
are matters of public interest, on which depends the safety and security of the society as a
whole. The responsibility of the state towards this unfortunate section of the community
overrides and has necessarily overridden the personal laws of its citizens. Explanation (b) in
Section 125 of the Code which extends the benefits of maintenance to divorced wives until they
remarry is a bold step in the right direction and a landmark in social legislation. It is one of the
beneficent and progressive pieces of legislation in recent times. The derelict Muslim husband
cannot take umbrage under his personal law in order to defeat his statutory obligation under
the Code of Criminal Procedure.

In Kunhi Moyn v Pathumma40

The last line of argument raised by Mr Hajee P.K.Jamal Mohamed is that Section 125
is repugnant to Article 14 of the Indian Constitution, which enshrines in itself the principle of
equality before the law and the equal protection of laws. This contention is based on sub-
sections (4) and (5) of Section 125 of the Code of Criminal Procedure. It is urged that while the
wife who lives in adultery is disentitled to claim maintenance by virtue of sub-section 4 and 5, a
divorced wife incurs no such disability as she does not enjoy the status of a wife and there is
thus an invidious discrimination between the two.

The same view was upheld by the Kerala High Court in Mariyumma v Mohamed Ibrahim41 and
Ammer Amanulla v Mariam Beebee42

40
1976 MLJ (Cr) 405
41
AIR 1978 Ker 231 (FB)
42
1985 MLJ (Cr) 164

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Does the MW Act 1986 substitute S.125 CrPC so far as the Muslim

Women are concerned?

S. 45 of the MW Act gives the divorced Muslim woman and her former husband an option to
declare that they jointly or separately would prefer to be governed by the provisions of Ss. 125-
128 CrPC the Magistrate shall dispose of the maintenance accordingly (i.e. according to S. 125
etc. CrPC). The Andhra Pradesh HC in Usman Khan Bahamani v. Fathimunnisa Begum43 had
held that after passing of the Act a divorced wife cannot claim maintenance under S. 125; these
(125-128) sections are not applicable after coming into force of the Act. The same was the view
of the Madhya Pradesh HC44 and Patna HC45. The Punjab and Haryana HC have also denied her
recourse to the CrPC after the Act, but held that the Act did not divest the party vested with
determined rights and benefits under S. 125.46 The Gujarat HC in Arab Ahmadia v. Arab Bail
47
that the Act did not take away a divorced Muslim womens rights under personal law or under
general law i.e. S. 125 etc. the court also ruled that orders passed by the magistrate under S. 125
are not nullified on coming into force of the Act. In Karim Abdul Rehman v. Shahnaz Karim48
the second and third questions formulated by the Bombay HC related to the issue under our
discussion, viz: (a) whether the Act has the effect of invalidating the orders passed under S. 125
i.e. whether the Act operates retrospectively so as to divest parties of their vested rights, and (b)
whether after the commencement of the Act, a Muslim divorced wife can apply for maintenance
under the provisions of CrPC? The Bombay HC ruled on question (a) that the provisions of
statutes which touch a right in existence at the passing of the statute or not to be applied
retrospectively in the absence of express enactment or necessary intendment. Therefore, the
orders passed under S. 125 are not nullified; they are binding and the wife is not divested of her
vested rights. As to question (b) the court held that in view of the provisions of Ss. 5 and 7 of
the Act a divorced Muslim women cannot apply for maintenance by invoking the provisions of

43
AIR 1990 AP 225
44
Sakinabai v. Fakruddin, II (1999) DMC 576
45
Mohd. Yunus v. Bibi Phenkani, (1987) 2 Crimes 249 and Bibi Shahnaz v. State of Bihar, II (1999) DMC 85
46
Kaka v. Hassan Bano II (1998) DMC 85
47
AIR 1988 Guj 141
48
2000 (3) Mh L J 555

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the Code. It is only the mutual agreement that they can decide to be governed by the Code. Both
these questions again reappear before the Calcutta HC in Abdul Latif Mondal v. Anuwara
Khatun.49 But before attending them, we may note the observations of the HC regarding the
misuse of the divorce power by the husband. The facts of the case were that the opposite party
i.e. the wife alleged that within few days after her marriage to the petitioner, the latter and his
family members started torturing her for money and gifts; after four years she and her child
were driven out of the matrimonial home; she applied for maintenance for herself and the child
under S. 125; the husband countered on the ground that she had divorced her two years back,
but the Magistrate granted the maintenance allowance; hence this petition by the husband.
Commenting on the misuse of the divorce card by the husband, the HC observed that:

It is true that S. 5 of the Act gives an option to be governed by Ss. 125 128 of CrPC.
But, this looks very hard to come by. Despite the new Act many women approached the court
under S. 125. One reason for this is that significant number of women are not divorced at the
time of approaching the court for maintenance. These women are divorced after filing for
maintenance as a retaliatory measure. The usual tendency of a husband who is called upon by
the courts to defend himself against the claim of maintenance, irrespective of religious
applications is to exploit any legal loophole which will enable him to escape from his financial
obligation towards his wife and children. The wife having been driven away and divorced by
the husband, in distress and in desperate need of money and material to sustain herself and for
that reason, requiring the speedy remedy of S. 125, is not likely to get her embittered ex-
husband easily to join hands for an affidavit or declaration that they prefer to be governed by
the provisions of Ss. 125-128, especially a husband who by all means is bent upon evading the
financial obligations.50

On these facts the HC framed three issues: (a) Whether the Act renders the Judicial
Magistrates order, passed in 2001, under S. 125 a nullity (b) whether the claim of maintenance
is limited only up to the period of iddat (c) whether a divorced Muslim wife can still claim
maintenance under S. 125 after the coming into force of the Act. On the first issue the HC ruled
that on the basis of the latest judgement of the Supreme Court in Daniel Laitifi we possibly
49
2002 (1) CLJ 186
50
2002 (1) CLJ 186

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have enough reason to maintain that the position of S. 125 has not been materially changed.
There is no section in the Act which nullifies the orders passed by the Magistrate under S. 125.
Once the order is passed, her rights are crystallized and she gets vested right to recover
maintenance from her former husband. That vested right is not taken away by the Parliament by
providing the any provisions in the Act and there was no inconsistency between the Act and the
CrPC. As to (b), the Court ruled that the object of S. 125 is to prevent vagrancy and destitution.
The Constitutional Bench in Shah Bano case has given women in destitution a constitutional
right to protection and the Act has nowhere taken away that right, nor can it do so. On the third
point (c) the Court held that:

The provisions of the Act as made available to the divorced Muslim women are in
addition to the claims available to them under S. 125 CrPC. Moreover, it might be borne in
mind that S. 125 provides for speedy and summary remedy to the indigent wife and her children
driven to destitution, the prevention of which is the whole purpose of the welfare legislation. In
a given situation, desperate that it is, if the destitute woman in dire straits instead of taking the
long winding and difficult path in pursuit of justice under the Act, goes straightaway by S. 125
which promises speedy and summary remedy and can thereby secure for her the basic right to
life and a life with dignity, then I believe there is no stopping her- morally as well as legally.

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HINDU MAINTENANCE

Under Hindu Law, the claim to maintenance is a legal right and a demand and refusal are not
necessary for its creation. There is a legal obligation on part of the husband to make
arrangements for his wifes due maintenance even if he goes abroad for business purposes.
When a partition is effected, the Hindu law enjoins that the wife must get an equal share with
his sons. Thus reinforcing the importance character of the right of maintenance which a Hindu

wife or widow possesses under the Hindu Life.51

The wifes right to separate maintenance and residence was regulated by the Hindu
Married Womens Right to Separate Residence and Maintenance Act, 1946. That Act has
now been repealed by S. 29 of the Hindu Adoption and Maintenance Act 1956. Section 18 of
the Act lays down that the wife, whether married before or after commencement of the act, is
entitled to be maintained by her husband during her lifetime, unless she is unchaste or has
ceased to be Hindu by conversion to another religion.

There are two statues that provide for maintenance i.e. Hindu Marriage Act, 1955 (herein
after referred to as HMA) and Hindu Adoptions and Maintenance Act, 1956. (Herein after
referred to as HAMA)

As per Hindu Adoptions And Maintenance Act, 1956 maintenance includes- in all cases,
provision for food, clothing, residence, education and medical attendance and treatment (Sec
3(b)).

Section 18(1) of the HAMA provides for maintenance of wife and states:

Subject to the provisions of this section, a Hindu wife, whether married before or after
the commencement of this Act, shall be entitled to be maintained by her husband during her
life-time.

51
Tulasamma v.Vaddeboyina Sesha Reddi AIR 1977 SC 1944

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A wife is entitled to be maintained by her husband whether he possesses property or
not52. When a man knowingly marries a girl, accustomed to a certain style of living, he
undertakes the obligation arising from the very existence of the relationship, and quite
independent of the possession by the husband of any property, ancestral or self-acquired. 53 The
maintenance being a matter of personal obligation, she has no claim for maintenance against her
husbands property in the hands of a transferee from him. Nor has she any claim against the
government, if his property has been attached under Ss. 87 and 88, Code of Criminal Procedure,
1898, as the property of an absconder54. Her remedy is to obtain a decree of a civil court
creating a formal charge on the property55.

A wife is not entitled, during her lifetime, to be maintained either by her relations or by
her husbands relations, even if she has been deserted by him, unless they have in their

possession, property belonging to her husband56

The Husbands obligation to maintain her comes to an end only when she leaves him
without any good cause or without his consent57. Before 1956, it was a well settled law that an
unchaste wife who continues to live with her husband, was entitiled to, at least, a starving
maintenance58. The Dharamshastra laid down that an unchaste wife, who left her husband but
subsequently repented, performed expiratory rites, and returned to live with her husband, was
entitled to maintenance.59

52
Narbadabhai v Mahadev (1881) 5 Bom 99,103.
53
Jayanti v. Alamelu (1904) 27 Mad 45, 38.
54
Chatru v the Crown AIR 1928 Lah 681
55
Secretary of State for India v Abalybhai Narayan 40 Bom LR 422
56
Ramabai v. Tribbak (1872) 9 Bom HC 283
57
Bammadevara v. Bammadevan (1928) 55 MLJ 242, Sidlingappa v. Sidava ILR (1878) 2 Bom 634; Mutyala v.
Mutyala AIR 1958 AP 582
58
Parami v. Mahadevi ILR (1910) 34 Bom 278
59
Sita v Gopal AIR 1928 Pat 375; Shibli v Jodh ILR (1833) 14 Lah 750

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RIGHT TO SEPARATE RESIDENCE

Under Section 18 (2) of the HAMA, a Hindu wife is entitled to maintenance if she lives
separate from her husband for a justifiable cause like: husbands desertion, cruelty, leprosy,
another wife is living, concubine, conversion or any other justifiable cause. 60. The arrears of
maintenance are recoverable. The court has power to pass interim orders of maintenance
incidental or ancillary to main power.

Under matrimonial laws if the husband is ready to cohabit with the wife, generally, the claim of
wife is defeated. A wife under Hindu law is not entitled to a separate residence as her first duty
is to her husband is to submit herself obediently to his authority, and to remain under his roof
and protection61. Mere unkindness62 or quarrels63 or a second wife64 are insufficient grounds for
a women to leave her marital grounds and seek a separate residence. However, if she proves that
she has left the marital house due to his misconduct or by his refusal to maintain her in his own
65
place of residence or for other justifying cause, she is compelled to live apart from him . Over
the years, the courts have held that cruelties, keeping a concubine are justifiable reasons to leave
the marital house. Cruelty may not be repetitive and only one act of violence is sufficient reason
to lawfully leave the house.66 A wife, on leaving her marital house without justifiable reasons
does not lose her right to maintenance, she can at any time return to her marital house and
demand to be maintained b her husband. Her right is not forfeited but merely suspended as long
as she commits a breach of duty by living apart from him 67. However, the right of a married
woman to reside separately and claim maintenance, even if she is not seeking divorce or any
other major matrimonial relief has been recognized in Hindu law alone.

60
Sec 18(2) of HAMA
61
Sitanath v Halmbutty 24 WR 337, 379.
62
(1875) 24 WR 377
63
Rajlukhy v. Bhootnath (1900) 4 CWN 488
64
Virasvami v Appasvami (1963) 1 Mad HC 375
65
Ajaib Kaur v. Uttam Singh AIR 1960 Punj 117
66
Ude Singh v Daulat Kaur AIR 1935 lah 386.
67
Surampalli v Surampalli (1908) 31 Mad 338

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Section 18 (3) lays down that, A Hindu wife shall not be entitled to separate residence and
maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to
another religion. This provision is applicable only to sub-section (2) of section 18 of the
HAMA, which provides for separate residence and maintenance of wife in certain cases. It
cannot be applicable to facts falling under sub-section (1), where the wife is still residing with
the husband. This is made clear by section 24 which lays a general disqualification: a non-Hindu
cannot claim maintenance under the modern law. She could also not claim maintenance against
her husband under the old and modern Hindu Law. Her excommunication 68 or the conversion of

her husband69 did not lead to forfeiture of her right to maintenance under the law.

68
Queen v Marimutta ILR (1882) 4 Mad 243
69
Mansa v. Jiwan ILR (1884) 6 All 617

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MAINTENANCE PENDENTE LITE

Sec 24 of HMA provides for maintenance pendente lite70and expenses for proceedings (for court
proceedings). The object of section 24 of the act providing for maintenance pendente lite for a
party in matrimonial proceedings is obviously to provide financial assistance to the indignant
spouse to maintain herself/himself during the pendency of the proceedings and also to have
sufficient funds to carry on the litigation so that the spouse does not unduly suffer in the conduct
of the case for want of funds. This object of the provision is to be applied at the discretion of the
court, having regard to the facts and circumstances of the case71

The legislature by enacting this provision appears to have taken note of the fact that
during the pendency of the proceedings under the act, save for divorce or judicial separation, the
unity of the family will be disrupted and one of the two spouses will be thrown out of the
protection and shelter of the other and would be rendered without any means not only to
maintain herself but also to meet the expenses necessary for the proceedings which she has to
undergo. In order to alleviate such hardship, the legislature thought it fit to make a provision in
the act for maintenance pendente lite and expenses of the proceedings from the spouse who has
means to pay the same, if the other has no means. 72 Once, a wife is divorced her remedy to seek
maintenance is under Hindu Marriage Act, 1955 and she cannot have any recourse under the
Hindu Adoption and Maintenance Act, 195673

In Bhanwar Lal v. Kamla Devi,74 Honourable Rajasthan High Court held that the
object of Section 24 of the HMA is to provide means to a spouse who has no independent
source of income to contest a matrimonial proceeding. Indignant spouses require to be allowed
maintenance pendent lite and litigation expenses against the other spouse.

70
If the husband or the wife has no independent income sufficient for their support and the necessary expenses of
the suit, the Court may on the application of either of them order the defendant to pay the plaintiff all the
necessary expenses of the suit and such weekly or monthly income as considered reasonable by the Court.
71
Dudhiben. Merakhbhai v. Nathabhai Hazabhai 1998 (2) Civil LJ 443; Lalubhai Keshavram Joshi v.. Nirmala
Bhen Laluram Joshi (1972) XIII GLR 626
72
Smt. Gangh Pundlik Waghmare v. Pundlik Maroti Waghmare AIR 1979 Bom 264
73
Paditrao Chimaji Kalure v. Gayabai AIR 2001 Bom 445
74
1986 HLR 235

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In order to award maintenance pendente lite to the wife or the husband as the case may
be, the court has merely to consider whether he or she has any independent income sufficient for
his or her support. If that court from the evidence before it holds that he or she has no
independent income for his or her support. If that court from the evidence before it holds that he
or she had no independent income sufficient for his or her support, the court is competent to
pass an order for maintenance pendente lite. In order to award maintenance under section 24 of
the act, conduct of either party is immaterial. But while passing an order for maintenance under

Section 25 of the act conduct of the parties would be relevant.75

An application under section 24 is to be disposed of during the pendency of the


proceedings, viz., the main petition. It is not right to say that because there are no words
specifically saying that an application under Section 24 has to be heard in the first instance,
before ever the main petition is taken up for trial, the court is at liberty to tack on the application

with the Trial of the Main Petition itself.76

For interim maintenance only income of the claimant has to be taken into consideration
and not his/her property and assets. Husbands actual as well as potential earning (his disposable
income) is seen while deciding maintenance. There is a presumption that every able bodied man
has capacity to earn and maintain his wife. If the wifes earning is sufficient to maintain herself
and live in comfort, husband could be exempted from paying maintenance. Death of a husband
does not extinguish alimony order and maintenance & it is to be paid from the estate of
deceased husband but only for the period till his death. Maintenance has been granted to a wife

of void marriage under HMA 1955 in few cases77.

The provisions of Section 125 CrPC and section 24 HMA are different. Both these
provisions operate in different sphere and they are independent of each other. 78 There is no
provision in the HAMA for granting maintenance pendente lite and expenses of proceedings as
provided for in Section 24 of the HMA. Hence there is nothing in the scheme of section 24 of
the HMA which is inconsistent with the HAMA as to attract the bar of clause (b) of Section 4 of

75
Lallubhai Keshavram v. Vlth Addl. Dist. And Sessions Judge AIR 1999 All 4
76
Mythili Raman v. K.T. Raman AIR 1976 Mad 260
77
Govindrao v. Antabai AIR 1951 BOM433
78
Prem Nath Sarvan v. Smt. Prem Lata Sarvan. AIR 1988 Del 50

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the HAMA. There are also no inconsistencies between section 18 of HAMA and section 24 of

HMA.79

79
Vinod Kumar kajriwala v. Usha Vinod Kejriwala AIR 1993 Bom 160

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PERMANENT ALIMONY

The power to grant alimony contained in Section 25 of the HMA has to be exercised when the
court is called upon to settle the mutual rights of the parties after the marital ties have snapped
by determination or variation by the passing of the decree under section 10, 11 and 13 of the
HMA act, read with sections 23, 26 and 27 of the HMA, a decree can be assumed to have been
passed when an application for divorce or similar other relief is granted by surely not when the
application is dismissed.80 Permanent alimony can only be granted only when there is a
disruption of the marital status between the parties, such relief cannot be given when the main
petition for divorce is dismissed or withdrawn.81 The Supreme court in the case of Chand
Dhawan v. Jawaharlal Dhawan82, in this case, the Supreme court held that:

By courts intervention under the HMA, affecting or disruption the marital status has
come about, at that juncture, while passing the decree, it undoubtedly has the power to grant
permanent alimony or maintenance.

The death of the husband against whom an order for payment of alimony has been made
does not mean that the widow is left without remedy. Relief is indeed available to her but not
under HMA but the provisions of HAMA that come into play. A decree for permanent alimony
is not extinguished by the death of the husband and the estate is liable to be proceeded against in

the hands of the heirs for the satisfaction of the decree.83

The claim under section 25 of the act has to made on an application furnishing all details
regarding his or her own income or other properties. Further an opportunity has to be given to
the other side to put forth his or her defence. Hence, permanent alimony and maintenance under
section 25 of the act, cannot be granted in the absence of the proper application.84 It is clear that
where there was no disruption of marital status between parties as prayer for divorce under
section 13 of the HMA was disallowed, there was no occasion for the court to pass an order
80
Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988 All 150
81
Badri Prasad v. Urmilla Mahobiya 2001 (4) Civil LJ 360
82
1993 AIR SC 2548
83
Smt. Nandarani Mazmudar v. Indian Airlines AIR 1983 SC 1201
84
D. Balakrishnan v. Pavalamani AIR 2001 Mad 147

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granting permanent alimony to the wife under section 25 of the act.85 If the petition for divorce
filed by the husband on the grounds of cruelty is dismissed, there being remedy either under
section 125 of CrPC or under Section 18 of HAMA, maintenance under section 25 of the HMA
cannot be granted.86

No exception to be taken to the order of the learned single judge, granting alimony to
the respondent merely because an application to this respect was made on her behalf after the

decree of divorce had been made against her.87

In the case of Ramlal v Surendra Kaur,88 section 25 (2) enables either of the parties to
make another application is there is a change in the circumstances of either party at any time
after the order was made under sub-section (1), but not otherwise. Under this sub-section, the
applicant can pray to the court to order permanent alimony which was earlier denied as there has
been a change in the circumstance of either or both parties.89 The court can also look at the
rising cost and inflation when granting an increase in maintenance based on the income and
position of both parties.90

The property and income of the wife which can be taken into account under the HMA is
the property and income which is exclusive that of the wife. it is not proper to take into account
the possibility of the wife inheriting property from her relations like the father.91 In case of

deciding alimony, the income of the parties must be decided in each case based on the facts.92

85
Supra note 82
86
Vishnu B Mayekar v. Laxshmi V Mayekar 2000 (2) Civil LJ 926
87
Durega Das v. Smt. Tara rani AIR 1971 P&H 141
88
1995 (2) Civil LJ 204
89
Sushila v R. jagammadham AIR 1964 AP 247
90
Mrs. Veena Kalia v. Dr. Jatindar nath Kalia AIR 1996 Del. 54
91
Smt. Lalithamma v. R. Kannan AIR 1966 Mys. 178
92
Jagdish Prasad Tulsan v. Smt Manjula Tulsan AIR 1975 Cal. 64

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CONCLUSION

To conclude, I would like to state that as per my hypothesis, I have looked into the various
provisions available to Hindu and Muslim wives for maintenance. Each case is certainly
different and the muslim wife is closely linked to the provisions of the Criminal Procedure code
for her right of maintenance. It is seen that over a period of time, the condition and availability
of maintenance has greatly increased and the laws of maintenance have begun to bend to the
needs of the women, who are unfortunately marginalized in our society.

The reform in maintenance law has been more the work of the judiciary in case of interpretation
of the Muslim Womans act, CrPC and the HMA and HAMA. The judiciary has played an
important part in allowing Muslim woman maintenance after the iddat period and Hindu
women access to courts under Section 24 of HMA and at all times keeping the provisions of
CrPC separate and available to destitute women.

The legislation has also in the recent past joined in with the judiciary of finally redressing the
problems of wives by removing the ridiculous limit of Rs500/- per month on section 125 of
the CrPC.

It is my view and hopes that this trend continues in this direction and finally come to a
point where the man and woman can stand at equal footing in all matters of family
decisions and privileges.

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BIBLIOGRAPHY

Books

Dr. Paras Diwan on Hindu Law, 2nd Edition, Orient Publishing Company, New
Delhi, 2006

Family Law Lectures, Family Law I, Kusum, 2nd Edition, Lexis Nexis Butterworths,
New Delhi, 2003

Hindu Law, Gupte, Premier Publishing Company, Allahabad, 2005

Maynes Treatise on Hindu Law & Usage, 15 th Edition, Bharat Law House, New
Delhi, 2006

Mulla, Principles of Hindu Law, Volume II, 19th Edition, Lexis Nexis Butterworths,
New Delhi, 2006

Muslim Law of Mariage and Succession in India, S.A. Kader, Eastern Law House,
Calcutta, 1998

Outlines of Muhammadan Law, Asaf A. A. Fyzee, 4 th Edition, Oxford University


Press, New Delhi, 2005

Syed Khalid Rashids Muslim Law, 4th Edition, Eastern Book Company, Lucknow,
2006

Statutes Referred

Hindu Marriage Act, 1955

Hindu Maintenance and Adoptions Act, 1956

Gujarat National Law University, Gandhinagar Page 37


Maintenance of Wife in Hindu, Muslim And Secular Laws In
India
Muslim Women (Protection of Rights on Divorce) Act, 1986

Gujarat National Law University, Gandhinagar Page 38

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