Define maintenance. Who is entitled for maintenance according to Muslim Law? Is a Mohammedan divorced lady entitled to maintenance?
(b) With reference to Mohd. Ahmad Khan Vs Shah Bano Begum A.I.R 1985 S.C. 945, describe the right of maintenance of Muslim women.
(c) In what respects, the Parliament has altered this law through the Muslim Women (Protection of Rights on divorce) Act, 1986.
Define maintenancein Muslim Law
The Arabic equivalent of ‘maintenance’ is Nafqah, which literally means, “what a person spends over his family”. In its legal sense, maintenance signifies and includes three things- (i) food, (ii) clothing, and (iii) lodging.
Define maintenancein Muslim Law
Definition of Maintenance
According to Hedaya, “Maintenance as all those things which are necessary to the support of life, such as food, clothes and lodging, many confines it solely to food.” According to Fatawa-i-Alamgiri, “Maintenance comprehends food, raiment and lodging, though in common parlance it is limited to the first.”
(a) Requisites for a Claim of Maintenance
As a general rule, only following such a person is entitled to maintenance
(1) Who has no property of his own,
(ii) Who is related within prohibited degrees to the person, and
(iii) The person from whom he claims in “easy circumstances”.
(b) Exception – General rule does not apply to the following-
(i) When the claimant is wife, and
(ii) When the claimants are minor sons or unmarried daughters, except when he has no means.
Persons Entitled to Maintenance
Under Muslim law the following persons are entitled to the maintenance-
I. Wife,
II. Young children,
III. The necessitous parents, and
IV. Other necessary relations within the prohibited degree.
Maintenance of the Wife
Under Muslim law, the wife’s right to be maintained by her husband is absolute. The right arises out of her status. It is a legal obligation of every husband to maintain his wife although the wife may have means to support her and even if the husband has no means to provide her maintenance. A Muslim wife’s right to be maintained by her husband gets priority over the right of maintenance of all other persons. It is interesting to note that in maintenance, the wife is preferred even over the young children because the wife is considered to be the source or root (asl) and a child is the offspring or a branch (fara). Wife’s right of maintenance is regulated by Muslim personal law and also by the statutory provisions (Ss. 125-128) of Cr. P. C. 1973.
Conditions for Wife’s Right of Maintenance
The wife’s right to maintenance is subject to the following conditions
(A) Under Muslim law, the wife is entitled to maintenance from her husband only where the marriage is valid (sahih) . If the marriage is void (batil) or irregular (fasid) , the husband is under no obligation to maintain the wife. However, according to Tyabji, where the marriage is irregular merely because of the absence of witnesses, she is entitled to maintenance.
A Muta marriage is also valid under Shia law. However, Muslim personal law does not entitle the wife to claim maintenance. Since Muslim law recognises Muta marriage as a valid marriage, it is submitted that a Muta wife may claim maintenance from her husband under Section 125 of the Criminal Procedure Code, 1973. Under the old Criminal Procedure Code, Section ___ also gave a Muta wife the right to claim maintenance. 488.
(B) The husband’s duty to maintain commences only from the date when the wife attains puberty.
(C) Although a Muslim wife has an absolute right to receive maintenance from her husband, she must remain faithful and obedient to him in all matrimonial matters. Section 125(4) of the Cr. P.C., 1973, provides that a wife cannot receive maintenance from her husband if she lives in adultery. If the wife herself does not discharge her matrimonial duties, she has no right to claim maintenance from her husband. According to Tyabji, a wife does not lose her right to maintenance in the following cases-
(a) Where she refuses access to her husband on some lawful ground, or
(b) A wife cannot consummate the marriage because
a. She has a malformation or defect in her reproductive organs.
b. The husband has not attained the age of majority; or
c. She lives apart from him with his permission; or
d. She suffers from an illness; or
Enforcement of Wife’s Right of Maintenance
A Muslim wife can file a suit for maintenance in a civil court under her personal law if her husband neglects or refuses to maintain her without lawful justification. She can also enforce her right to maintenance under the Criminal Procedure Code, 1973. Where a wife enforces her right in a civil court, the court applies the rules of Muslim personal law in considering her claim. If Muslim law justifies her claim, the court passes a decree in her favour and directs the husband to pay maintenance to his wife. The court determines the amount of maintenance by considering the wife’s needs and the husband’s socio-economic circumstances. Generally, a wife cannot claim arrears of maintenance. However, under Shia and Shafei law, a wife can claim arrears of her maintenance allowance.
Where a Muslim wife is in urgent need, she may apply for an order of maintenance under S. 125 of Cr. P. C. 1973. A Magistrate of the first class may then, order the husband to provide monthly allowance not exceeding five hundred rupees, for the maintenance of his wife. However, the court may subsequently change the amount ordered if the parties prove a change in circumstances. Moreover, the Magistrate has an authority to cancel or vary his order if the wife has, in the meanwhile, obtained a decree from a civil court. Such allowance is payable from the date of the order, or, if so ordered, from the date of the wife’s application. If a Magistrate has ordered the husband to pay a maintenance allowance to his wife under Section ___, … Cr.P.C. 125 and the husband fails to comply the order without sufficient cause, the Magistrate may issue warrant for levying the amount due in the manner provided for levying fines, and may sentence the husband for non-payment of the maintenance after execution of such warrant. The imprisonment may extend for a term which may extend to one month or until payment, whichever is earlier.
Maintenance of the Divorced Women
Maintenance of a divorced Marines woman may be studied under the following three heads
(a) Maintenance of Divorced Woman Under Muslim Personal Law
The Ayat 241 of Quran provides for the maintenance of a divorced wife in the following words “For the divorced women let there be a provision in kindness, this is an obligation for those who are mindful of God.”
A divorced woman can claim maintenance from her former husband under Muslim personal law. If she wants to enforce her claim under personal law, she has to file a civil suit against her former husband. However, under Muslim personal law as applied in India, a divorced wife can claim maintenance from the former husband only for that period during which she is observing her Iddat . The duration, of Iddat on divorce is three menstruation periods or, if pregnant, till delivery of the child. The former husband’s liability extends only up to the period of Iddat.
(b) Maintenance of Divorced Muslim Women Under Criminal Procedure Code
According to S. 125 Cr. P.C., the term ‘wife’ includes a divorce wife’. This enactment is applicable to all the persons in India irrespective of caste and creed. Therefore, S. 125 Cr. P.C. is applicable also to a divorced Muslim wife. It may be noted that the term “divorced wife” also includes a Muslim wife who obtains a decree for the dissolution of her marriage under the Dissolution of Muslim Marriages Act, 1939. Under Muslim personal law, the husband’s liability to maintain his divorced wife terminates after the expiry of Iddat even if she remains unmarried. However, under the Criminal Procedure Code, a divorced wife can claim maintenance from her former husband beyond the period of Iddat, provided that she remains unmarried. However, a divorced wife’s claim to maintenance is subject to S. 127 (3) The Act provides that the court shall cancel the maintenance order in favour of a divorced woman, and she shall no longer receive maintenance under the Cr. P.C. the following, circumstances
(a) Where the divorced woman has remarried,
(b) Where such woman has received the whole sum due to her on divorce under any customary or personal law, and
(c) Where the woman, after obtaining divorce from her husband, has voluntarily surrendered her right to maintenance.
Mohd. Ahmed Khan Vs. Shah Bano Begum, A.I.R. 1985
Facts
Mohd. Ahmad Khan married Shah Bano in 1932. In 1975 Mohd. Ahmad drove his wife out of the matrimonial home. Thereupon she filed a petition under S. 125 Cr.P.C. in the court of Judicial Magistrate, Indore and asked for maintenance at the rate of Rs. 500 per month. In November 1978, Mohd. Ahmad Khan divorced his wife pronouncing irrevocable Talaq. After her divorce, Shah Bano did not remarry. In defence of Shah Bano’s petition for her maintenance, Mohd. Ahmed Khan took the plea that since she ceased to be his wife after Talaq, he has no obligation to maintain her. As regards the maintenance during Iddat and the payment of dower, his contention was that he had already paid the required maintenance to her at the rate of Rs. 200 per month for about two years and had deposited Rs 3000 in the court by way of dower. However, the Magistrate directed Mohd. Ahmad Khan to pay a nominal amount of Rs. 25 per month to his divorced wife. Against this order Shah Bano filed a revision application in the Madhya Pradesh High Court praying for the enhancement of maintenance allowance. The High Court enhanced the maintenance rate to Rs. 179.20 per month. Mohd. Ahmad Khan preferred an appeal to the Supreme Court. The Supreme Court dismissed the appeal and confirmed the judgement of the High Court.
The Supreme Court observed that the right available under S. 125 Cr.P.C. is a statutory right and remains unaffected and also overrides the provisions of personal law if there be
any conflict between the two. However, the court observed that there is no conflict between S. 125 and rules of Muslim law as regards the husband’s liability to maintain his divorced wife. The Muslim personal law, which limits the husband’s liability to provide for the maintenance of the divorced wife upto the period
of Iddat , does not contemplate the situation envisaged by S. 125 Cr.P.C., i.e., whether or not the divorced wife is capable of maintaining herself. The true position, is therefore, that if the divorced wife is able to maintain herself, the husband’s liability to provide
maintenance for her ceases with the expiration of the period of Iddat. If she cannot maintain herself, she can seek relief under Section 125 of the Code.’ The court concluded that because of these reasons there is no conflict between the provisions
of S. 125 Cr.P. c. and the rules of Muslim law.
(c) Maintenance Under the Muslim Women Act, 1986
The Muslim Women (Protection of Rights on divorce) Act, 1986 is the outcome of the controversy that usurped the attention of the Muslim community all over India after the Shah Bano Begum’s case. Besides its other provisions, Parliament enacted this Act to negate the law laid down in the Shah Bano case concerning a divorced Muslim woman’s claim to maintenance beyond the Iddat period. Relevant provisions of this Act are as under :-
(i) Application of the Act
The Act applies to every divorced woman who married under Muslim law and whose husband divorced her or from whom she obtained a divorce under Muslim law.
(ii) Maintenance During the Iddat
During the Iddat period, the divorced woman can claim reasonable and fair provision and maintenance from her former husband.
(iii) Maintenance After the Iddat
If the divorced woman remains unmarried after the Iddat period and cannot maintain herself, she can claim maintenance from those relatives who would inherit her property after her death. If she has no such relatives, or if they lack sufficient means to support her, the Waqf Board of the State where she resides ultimately becomes responsible for her maintenance.
Section 4(1) of the Act
If the Magistrate is satisfied that a divorced woman has not remarried and cannot maintain herself after the Iddat period, the Magistrate may order the relatives who would inherit her property upon her death under Muslim law to pay her a reasonable amount.
Section 4(2) of the act
provides that where a divorced woman who is unable to maintain herself, has no relatives as mentioned above or, where such relatives (or any one of them) have no enough means to pay maintenance, the Magistrate may, by order, direct the State Waqf Board to pay such maintenance as determined by him or, as the case may be, to pay the shares of such relatives who are unable to pay at such periods as he may specify in his order.
