Maintenance simply refers to the amount or the sum sought by or ordered/agreed to be paid to the dependent. The issue of maintenance to Muslim women is riddled with complexities and controversy. Ashish Agarwal outlines the legal aspects of maintenance under the general law as well as Islamic and Muslim Personal law.
I. Introduction – Maintenance To Muslim Women
The right to claim maintenance under general law means the right of any person in a relationship incapable of maintaining oneself and dependent on someone to seek resources for sustenance from that person. However, the nature and scope of maintenance or nafaqa with respect to Muslim women in particular varies under different laws.
It can be said to be jointly covered by –
- Older Muslim Personal Laws
- Criminal Procedure Code (CrPC), Section 125
- The new Muslim Women (Protection Of Rights On Divorce) Act, 1986
The lines between these somewhat conflicting and controversial provisions are defined by the courts in some landmark judgments to be discussed in the article.
The main thing under the microscope with respect to the older personal laws is that the husband was only required to maintain the wife during the period of iddat that followed the dissolution of marriage. Iddat is the period observed by the woman in which, she is prohibited from remarrying. The purpose is to preserve the parentage of any child that she may be pregnant with at the time of dissolution. Hence, it stretches till 3 menstrual cycles or till the delivery of the child, in case she is pregnant.
The conflict arose when the argument was raised that Muslim women deserved maintenance even after the 3 month period as that alone is in no way sufficient to maintain her. Maintenance was sought to be claimed under the secular Section 125 of the CrPC claiming it governed Muslim women and that it stretched beyond the period of iddat. On these are based some of the most important cases and controversial legislation in the Muslim law of maintenance.
II. Maintenance under Section 125 of CrPC
First, it is pertinent to understand briefly the law of maintenance under the general law of CrPC. This section deals with maintenance. This section does not restrict itself to the wife but it also includes, legitimate or illegitimate child, unmarried daughter, and old parents. This section has found its roots from the inability of the dependent to maintain himself/herself under whatsoever circumstances.
The Section 125 of CrPC states that if a person has sufficient means and still decides to neglect his/her wife/husband, children or parents, s/he shall be liable to pay an amount to maintain them. Here, the wife should be unable to take care of herself financially or maintain herself. The amount of maintenance in this law by several judgments is to be such as to allow the person to “maintain” the standard of living they had in their marriage, and not bare survival.
The point of the present discussion is that neither this section restricts itself to a particular religion nor does it impose a time limit within which the maintenance is to be paid.
Now we are about to discuss the case which highlighted the issue in a mainstream light:
- Mohd Ahmad Khan v. Shah Bano Begum (The controversial judgment)
In this case, a 62-year-old woman got divorced and was subsequently refused maintenance. She had not remarried. She approached the court of the Judicial Magistrate at Indore claiming maintenance of 500 rupees per month. The verdict though in her favour awarded a sum of Rs. 25 per month. She moved the High Court at Madhya Pradesh by revision, which awarded her a sum of Rs. 179.20 per month.
On an appeal by the husband came the judgment of the apex court which went on to recognize the secular nature of Section 125 and entitled all Muslim women to maintenance beyond iddat as a legal right and held that in case of a conflict between the CrPC and Personal law, the CrPC prevails. Hence, the appeal of the Muslim husband was dismissed.
- Political Upheaval in its Aftermath
The Shah Bano judgment clearly stung at the heart of a patriarchal and religious Muslim community. This act of the court was seen as an interference with the personal laws and customs of the Muslims by the All India Muslim Personal Law Board and led to an outrage in the Muslim community.
To curb the outrage and prevent any violence, the Rajiv Gandhi government passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 to allow for the maintenance of the wife by the husband and the Act specifically excluded the application of any other law (i.e., CrPC) on the same subject matter.
III. Maintenance under the Act of 1986 (The Controversial Legislation)
Section 3 under the Muslim Women (Protection of Rights on Divorce) Act provides for the amount of maintenance to be paid by the husband during the time of divorce between the parties.
Clause ‘a’ states that the woman shall be paid a fair and reasonable amount of maintenance within the iddat period. Hence, this clause restricts the time during which the husband shall pay the maintenance. Further, the second clause provides that, for the children which may be born before or after the period of divorce, the husband is held liable to pay maintenance for the children if she is maintaining them herself. This amount of maintenance is to be paid for two years.
Apart from this, she is to be paid (if not paid already) the dower or mehr agreed upon at the time of solemnization as consideration for the marital contract. Lastly, she is entitled to receive all properties gifted to her before, during or after marriage by her relatives, friends, husband, his relatives or friends.
In a case where any of the above is not delivered to the woman or it has not been paid to her as per agreed or within a reasonable time after the divorce had taken place, an application can be filed before the magistrate to recover the same.
Very clearly, the law only provided for maintenance till the period of iddat. After said period, it states that maintenance may be sought from her relatives who would inherit her property upon her death, and in the absence of such relatives, she may approach the State Waqf board for her maintenance. The section by way of the non-obstante clause supersedes the Cr.PC and thus, after the Act, the outrage and violence reduced and the people were pacified seeing that the government is with the Muslims.
The Act was a shameful attempt to satisfy some protestors and nothing else. The Act provided for maintenance only during the iddat period which is three months after divorce but it is not sufficient to maintain her after the iddat. Further, no amount of money, either minimum or maximum has been specified by the Act, apart from the words “fair and reasonable”. The Act does not make provision for maintenance of the woman for her entire life and only her properties gifted to her during or after marriage are to be returned, which cannot be proved with certainty in any court of law.
- Daniel Latifi v Union of India (back to the future)
The case set in the aftermath of the controversial vote-banking legislation challenged the constitutional validity of Section 3 of the 1986 Act on the touchstone of the Shah Bano judgment and the Articles 14 and 21 of the Constitution. It sought to remedy the inconsistency between Section 125 of CrPC and Section 3 of the Act – one allowing the maintenance till after the period of iddat while the other limiting it within.
The court played a game of judicial interpretation where it gave the Muslim women their rights while saving the legislature from the additional burden of unconstitutionality. It said that for the maintenance to be “fair and reasonable” within the terms of the impugned Act, it must be sufficient to sustain the woman through her lifetime or till re-marriage and not just the period of iddat. It emphasized on the amount of maintenance instead of the time period, such that it need only be paid within the iddat period as per the Act, but should be enough in quantity to sustain her well beyond it.
Hence, it saved the law from the vice of conflict with Part III while remedying any inconsistency between the law and Section 125 of the Code.
IV. Some Final Judgments (Reiterations)
The court proceeded to reiterate its findings on the law of maintenance in some other cases after Latifi, an important one being Iqbal Bano v. State of UP. It observed in this case that the right under Section 125 only extinguishes if and after the provisions of the 1986 Act are followed. That is to say that if a woman is denied maintenance under Section 3 of the Act and the given procedure fails her, she can still file a claim under Section 125.
The same finding was iterated in Shamim Bano v. Ashraf Ahmedand Shabana Bano v. Imran Khan that the protection of the secular 125 cannot be denied to Muslim women on the basis of her religion only.
 (1985) 2 SCC 556
 (2001) 7 SCC 740
 Appeal (crl.) 795 of 2001
 2014 CR. LJ 4818.
 (2010) 1 SCC 666