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 -
The Highest Obligation arises on Marriage
Obligation to maintain the wife & children

Ordinary Sequence of events- WIFE comes first

The ‘wife’ is entitled to maintenance from her husband even when
she has the means to maintain herself.

Wife is the asl (root) and the child is the far

(branch), wherefore her priority is established.
 - Rights & Obligations to
Maintain -
The husband’s duty to maintain commences
when the wife attains puberty and not before ,
provided that she is obedient and allows him
free access at all lawful times.

There may also be legal stipulations in the

marriage contract which may render the
husband liable to make a special allowance to
the wife.
 - Rights & Obligations to
Maintain -
Such special allowances are
called kharch-e-pandan,
guzara, meva-khori etc.

E.g. a husband may have a

lawful agreement with the first
wife that on his marrying a 2nd
wife, the 1st wife may reside with
her parents and obtain a regular
allowance.
 -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
unless such refusal or
disobedience is
refuses herself to him
justified.
or is disobedient
- Personal Law Obligations -
• A Muslim wife has a ground to seek
Sec.2 (ii), dissolution of marriage if the husband
neglects or fails to provide for her
DMMA, 1939 maintenance for a period of 2 years.

•A Muslim husband’s duty to maintain

his divorced wife extends only up to
During Iddat the period of Iddat, and thereafter his
liability is over.

•A divorced Muslim wife is entitled to

Mahr her unpaid dower which becomes
payable immediately upon divorce.
The Code of
Criminal
Procedure
 •Only a wife who
S.488 continued to be legally the
wife of the respondent
CrPC had a right to be
1868: - maintained.

S.125 •‘Wife’ includes ‘divorced

wife’.
•A radical departure.
CrPC •Object: - To prevent
destitution as a consequence
1973 of divorce.
- Report of the Joint Committee of the Parliament
to the CrPC, 1973 -

Pre-1973
W’s petition for
Since div. is easy
The amendment Maint’ce would be to obtain under
frustrated by the H by Muslim law, it
in S.125 was ‘not divorcing her, thereby caused a lot of
accidental’. impelling the Mag. to hardship to many
dismiss the petition.
wives.
 -S.125: The Parliamentary
Sensitivity-
• The fictional relationship even after div. has
been created by statute in view of the social
Fictional conditions prevalent in the country to
prevent such erring husbands to drive their
Relationship ex-wives to a state of poverty and destitution
till they re-marry.

Thus, the • Under the existing law, a woman

continues to be the wife within
statutory the meaning of S.125 CrPC even
position is… after 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
background came into force.

• Since no relationship of ‘H & W’

Husband’s existed between the parties on the date
of the new code, the wife was not
contention entitled to claim u/s. 125

• In order to avail of this definition of

‘wife’ as given in S.125(1), it is not
The Court 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

husband has contracted a
Explanation 2nd marriage or keeps a
to S. 125(3) mistress, to live separately
and claim maintenance
from her husband.
- husBand’s polygamous marriage: wife
entitled to separate maintenance -

Mohd. Haneefa v. Mariam Bi, AIR 1969 Mad 414

The husband contended that this proviso would not apply to him
as it would supersede the personal law of the Muslims.

Justice K. Reddy, however held:

“One cannot read into the proviso what is not found in it because
some hardship or inconvenience is caused to a husband
governed by the personal law.”
 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. Mohd.
Hussain, Hamid Khan v.
Jammi Bai, Qayyum Khan v.
Noorunnisa]
 LITERAL
INTERPRETATION
The various high courts in
the afore stated cases
construed the provision
literally as including dower
or mahr, thereby denying
maintenance to the claimant
wives.
[Kunhi Moyin v. Pathummai,
Mohd. V. Sainabai]
 LIBERAL
INTERPRETATION
On the other hand the other
High courts gave a liberal
interpretation in the above
cases wherein it was held
that a narrow interpretation
might defeat the provisions
contained in S. 125 of the
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
- 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
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.
***