Project on

Divorce- Muslim wifes right to maintenance with

reference to Muslim Women Protection of Rights from
Divorce Act 1986

Submitted for the partial fulfilment of the requirement

for the 3rd semester of BA.LL.B. course of
Uttarakhand Technical University

Submitted to:
Mrs. Nidhi Sharma

Submitted by:
Sanaur Rahman

Faculty of Family Law

B.A.LL.B.

BATCH: 2011-16
SIDDHARTHA LAW COLLEGE, DEHRADUN

Table of Contents

Acknowledgement
Introduction

Section 125 of Code of Criminal Procedure 1973

Evolution of Divorce in Islam
After the advent of Islam

6
7

An Islamic Perspective on Divorce

Muslim Women: Status and Divorce Rights under Islamic Law..10

Methods of divorce13
The Holy Quran mentions divorce in the following maner...13
Concluding note.16
Definition of maintenance..19
Liability for maintenance...19
Principle of maintenance19
Wife during subsistence of marriage.20
She is not entitled to maintenance.20
Suit for maintenance..20
Muslim Women have Right to Maintenance till Remarriage21

Indian Law: Section 125, Cr PC is applicable to Divorced Muslim Women21

Right to Maintenance and Muslim Women's Act 1986.22
Bibliography..25

Acknowledgement

I wish to express my sincere gratitude to Prof. R.H.Gorane, principal and Mrs. Nidhi Sharma,
faculty of Family Law of Siddhartha Law College for providing me an opportunity to do my
project work on Divorce- Muslim wifes right to maintenance with reference to Muslim Women
Protection of Rights from Divorce Act 1986. This project bears on imprint of many people. Last
but not least I wish to avail myself of this opportunity, express a sense of gratitude and love to
my friends and my beloved parents for their manual support, strength, helps and for everything.

Sanaur Rahman
B.A.LL.B. 3RD SEMESTER

Introduction
The Muslim law, like the English Law, treats the property as primarily and naturally individual.
It does not , like the Hindu system contemplates, as the mornal state of things, the existence of
mass and family property kept together through several generations as common fund for the
common needs material and spiritual of its members, nor does it lends itself, so easily as English
law, to artificial limitations of English system by means of entail and family settlements. Only
the wife, she being possessed of property sufficient for her maintenance can claim to be
maintained at the expense of her husband as her right to maintenance is in the nature of
consideration for her marriage contract. Under Muslim law, a man is bound to maintain his wife
3

irrespective of his and her means and his minor children if he is not indegent. He is obliged to
maintain his other relatives from whom he can inherit if he has means to do so and they are
indigent.
A case of Shah Bano came before the Supreme court claiming maintenance from her former
husband who has divorced her. Now the question arises that Islamic Muhamadan Law never
provides maintenance to a divorced wife after the end of iddat period but section 125 of CrPc
defines wife whoever she may be that is either Hindu or Muslim includes divorced wife and she
is entitled to get maintenance from her husband who has divorced her until she gets second
marriage. The question came up before Supreme court and the Supreme Court gave verdict that
the Muhammadan Law will not come in the way for getting maintenance from her former
husband unless she gets another marriage. Hence in order to solve this conflicting issue in
between Muhammadan Law and general law there was an enactment by the parliament in 1986
which was called as The Muslim Women Protection of Rights on Divorce Act 1986 which was
enforced on 19th May 1986.
This Act is comprised of five main sections in which Section 1 deals with tittle and extent,
Section 2 defines definition and Section 3 deals with maintenance and mehar and the movable
and immovable properties which was received by divorced Muslim women as gift by her
parents, relatives, husband and in-laws. The procedure has been given in Section 3 for filing such
application before CJM or Metropolitan Magistrate. After passing of final order if the husband
fails to comply the orders then by virtue of Section 128 of CrPc, the order will be enforced.

Section 125 of the Code of Criminal Procedure, 1973 states that:

(1) If any person leaving sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

4

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority,
where such child is, by reason of any physical or mental abnormality or injury unable to maintain
itself, or

(d) his father or mother, unable to maintain himself or herself,

A Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, father or mother, at
such monthly rate1[***] as such magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct::

Provided that the Magistrate may order the father of a minor female child referred to in clause
(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of' sufficient means.

[Provided further that the Magistrate may, during the pendency of the Proceeding regarding

monthly allowance for the maintenance under this sub-section, order such person to make a
1 The words not exceeding five hundred rupees in the whole omitted by Act 50 of
2001, sec. 2(i)(a) (w.e.f.24-9-2001)
2 Ins. by Act 50 of 2001, sec. 2(i)(b) (w.e.f. 24-9-2001)
5

monthly allowance for the interim maintenance of his wife or such child, father or mother, and
the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same
to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and
expenses for proceeding under the second proviso shall, as far as possible, be disposed of within
sixty days from the date of the service of notice of the application to such person]

Explanation. For the purposes of this Chapter.

(a) minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875)
is deemed not to have attained his majority;

(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her
husband and has not remarried.

(2) Any Such allowance for the maintenance or interim maintenance and expenses for

proceeding shall be payable from the date of the order, or, if so ordered, from the date of the
application for maintenance or interim maintenance and expenses of proceeding, as the case may
be.]

3 Subs. By Act 50 of 2001, sec. 2(ii), for sub- section (2) (w.e.f.24-9-2001)
6

(3) If any Person so ordered fails without sufficient cause to comply with the order, any such
Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the
manner provided for levying fines, and may sentence such person, for the whole, or any part of
each month's 4[ allowance for the maintenance or the interim maintenance and expenses of
proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment
for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section
unless application be made to the court to levy such amount within a period of one year from the
dare on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with
him, and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.

Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it
shall be considered to be just ground for his wife's refusal to live with him.

(4) No wife shall be entitled to receive an allowance from her husband under this section she is
living in adultery, or if, without any sufficient reason, if she refuses to live with her husband, or
if they are living separately by mutual consent.

4 Subs. By Act 50 of 2001, sec. 2(iii), for allowance (w.e.f.24-9-2001)

7

(5) On proof that any wife in whose favour an order has been made under this section is living in
adultery, or that without sufficient reason she refuses to live with her husband, or that they are
living separately by mutual consent, the Magistrate shall cancel the order

Evolution of Divorce in Islam

Pre- Islamic background

Among the pre Islamic Arabs, the power of divorce possessed by the husband was unlimited.
They could divorce their wives at any time, for any reason or without any reason. They could
also revoke their divorce and divorce again as many times as they preferred. They could,
moreover if they were so inclined, swear that they would have no intercourse with their wives,
though still living with them. They could arbitrarily accuse their wives of adultery, dismiss them,
and leave them with such notoriety as would deter other suitors; while they themselves would go
exempt from any formal responsibility of maintenance of legal punishment.

According to Abdur Rahim there were four kinds of dissolution of marriage were known in preIslamic Arabia. These were Talaq, Ila, Zihar and Khula. A woman if absolutely separated through
any of these four modes was probably free to remarry, but he could not do so until some time,
called the period of iddat, had passed. It was to ascertain the legitimacy of the child. But it was
not a strict rule. Sometimes, pregnant wife was divorced and was married to other person under
an agreement. It is interesting to note that the period of iddat in case of death of husband then
was a year.

After the advent of Islam.

The prophet of Islam looked upon these customs of divorce with extreme disapproval and
regarded their practice as calculated to undermine the foundation of society. It was impossible
however, under the existing conditions of the society to abolish the custom entirely. The prophet
had to mould the mind of an uncultured and semi- barbarous community to a higher
development. Accordingly, he allowed the exercise of the power of divorce to husbands under
certain conditions. He permitted to divorce parties three distinct and separate periods within
which they might endeavor to become reconciled; when all attempts at reconciliation prove
unsuccessful, then in the third period the final separation became effective.

The reforms of Prophet Mohammad marked a new departure in the history of Eastern legislation.
He restrained the unlimited power of divorce by the husband and gave to the woman the right of
obtaining the separation on reasonable grounds. He pronounced; talak; to be the most detestable
before God of all permitted things for it prevented conjugal happiness and interfered with proper
bringing up of children.

Fyzee says that it sometimes is suggested that the greatest defect of the Islamic system is the
absolute power given to the husband to divorce his wife without cause. Dower to some extent
restricts the use of this power. But experience shows the greatest suffering is endangered by the
husbands withholding divorce than by his irresponsible exercise of the right.

An Islamic Perspective on Divorce

Marriage as prescribed by God, is the lawful union of a man and women based on mutual
consent. Ideally, the purpose of marriage is to foster a state of tranquillity, love and compassion
in Islam, but this is not always the case. Islam discourages divorce but, unlike some religions,
does make provisions for divorce by either party.
9

God provides general guidelines for the process of divorce with emphasis throughout on both
parties upholding the values of justice and kindness in formalizing the end to their marriage (see
Surah 2: 224-237 for general guidelines regarding divorce).
God encourages the husband and wife to appoint arbitrators as the first step to aid in
reconciliation in the process of divo rce. If the reconciliation step fails, both men and women are
guaranteed their right to divorce as established in the Qur'an, but the question lies in what is the
procedure for each. When a divorce is initiated by the man, it is known as talaq. The
pronouncement by the husband may be verbal or written, but once done, a waiting period of
three months ('iddat) must take place in which there are no sexual relations even though the two
are living under the same roof. The waiting period helps prevent hasty decisions made in anger
and enables both parties to reconsider as well as determine if the wife is pregnant. If the wife is
pregnant, the waiting period is lengthened until she delivers. At any point during this time, the
husband and wife are free to resume their relationship, thereby stopping the divorce process. At
this time, the husband remains financially responsible for the support of his wife.
The divorce initiated by the wife is known as khu" (if the husband is not at fault) and entails the
wife giving her dowry to end the marriage because she is the "contract" breaker. In the instance
of talaq where the husband is the "contract" breaker, he must pay the dowry in full in cases
where all or part of it was deferred.
In the case that the husband is at fault and the woman is interested in divorce, she can petition a
judge for divorce, with cause. She would be required to offer proof that her husband had not
fulfilled his responsibilities. The judge would make that determination based on the facts of the
case and the law of the land. It the woman had specified certain conditions in her marriage
contract, which were not met by the husband, she could obtain a conditional divorce.
The controversy with divorce lies in the idea that men seem to have absolute power in divorce.
The way the scholars in the past have interpreted this is that if the man initiates the divorce, then
the reconciliation step for appointing an arbiter from both sides is omitted. This diverges from
the Quranic injunction. The differences in powers of the husband and wife with regard to divorce
can be extracted from the following verse:
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...but, in accordance with justice, the rights of the wives (with regard to their husbands) are
equal to the (husbands;) rights with regard to them, although men have precedence over them (in
this respect). And God is almighty wise. (2:228)
It is in the next verse, according to existing interpretations, the reason for the small difference:
Men shall take full care of women with the bounties which God has bestowed more abundantly
on the former than on the latter, and with what they may spend out of their possessions. And the
righteous women are the truly devout ones, who guard the intimacy which God has (ordained to
be) guarded. (4:34)
It is clear that the Quran states there is a "degree" of difference with regards to the rights of men
and women in divorce, but it is not clear "how much" and "what" privileges a man is entitled to.
This is what has been interpreted by the jurists. It should also be noted if the difference is due in
part to the man being the financial supporter, then it must follow that if the woman shares or is
the main financial contributor to the family that this privilege should apply to her as well.
Many of the laws regarding divorce are the scholars' interpretations of the relatively few Quranic
references. As with all human laws, they must adapt to dynamic circumstances. Issues like
custody have become controversial. For example, the Quran advises the husband and wife to
consult each other in a fair manner regarding their children's future after divorce (2:232-3)
Various laws regarding custody of the children have been legislated by a few of the jurists. Some
jurists have stipulated that custody of the child is awarded to the mother if the child is under a
certain age and to the father if the child is older. There is no Quranic text to substantiate the
arbitrary choosing of age as a determinant for custody. Similarly with regard to the issue of
alimony, the Quran addresses the ex-husband's financial obligation to his ex-wife but it does not
provide a specific formula for the amount of support (2:241, 65:4-7). This is open for negotiation
between parties and should be in proportion with the husband's financial income.
There has been much distortion and propagation of mistruth about a woman's rights in the
matters of marriage and divorce. It is only with self-education and awareness of the Quranic text

11

that both men and women can come to know the truth of what God has prescribed and to
evaluate the scholarly interpretations closely to ensure that the spirit of justice is carried out:
When you divorce women and they fulfill the term of their (Iddat), either take them back on
equitable terms or set them free on equitable terms; but do not take them back to injure them,
(or) to take undue advantage; if anyone does that, he wrongs his own soul. Do not treat God's
Signs as a jest, but solemnly rehearse God's favors on you, and the fact that He sent down to you
the Book and Wisdom, for your instruction. And fear God, and know that God is well-acquainted
with all things. (2:231)

Muslim Women: Status and Divorce Rights under Islamic Law

Muslim Law could be seen as an admirable system of jurisprudence providing, as it did, many
rational and revolutionary concepts that could not be conceived by the other systems of law then
in force at that distant date. It provided, for example, for the right of inheritance to the females
even when there were male heirs and also the modern concept of divorce by mutual consent,
while the other systems of law took so many centuries to do so. But as a result of deplorable
distortions made by, and unfortunate metamorphosis undergone at the hands of Anglo-Indian
courts, substantial portions of the Muslim law as administered by these courts have quite
obviously failed to earn the appreciation which the Muslim law in its modified frame rightly
deserved because of its rational, realistic and pragmatic approach in many respects. In very old
times, amongst a plethora of existent religions , Islam emerged, consisting of a radically new
concept of a religion, to fulfill the needs and aspirations of the tribes and communities of the
Arabian states.

However, Islam claimed to be a universal religion, intended for all times. It emerged as a
practical religion and continued to aid each of its followers, irrespective of race, nationality,
language and gender, the last contention however being debatable.

However, to understand the nature and scope of the rules and procedures envisaged by Islam, it
12

is imperative to understand the position of law prevailing in the pre-Islamic era. The position
accorded to women was of extreme inequality and devoid of any claim over any asset or any
other rights. Polygamy was widely practiced and divorce was almost given out of habit than
necessity. Moreover, woman was never a free agent in marriage, as she was largely given in
marriage by her guardians, her consent being immaterial. The practice of killing and burning
alive of female infants was also not uncommon among Arabs.

In this context, the view expressed by an eminent authority on Islam law, Asghar Ali Engineer is
worth noting;

Although Mecca was an important commercial center of international dimensions, the tribal
social structure had not been dissolved. It continued to be predominant although it was in the
process of disintegration. Again the tribal pattern was patriarchal since the known history of the
area. As the legend has it Abraham, the chief patriarch of the Jewish tribes had two sons Ishmael
and Isaac. The Arabs are said to have descended from Ishmael whereas the Jews from Isaac. All
of them were patriarchal and their value system was accordingly determined.

Thus, on the basic common platform for Judaism and Islam itself, one can see that there exists a
patriarchal value system and therefore, denigrates women and greatly, affects their status in a
deplorable manner.

All family laws- Hindu, Muslim, Parsee, Sikh, Jain and Christian personal laws-have certain
common features. All of them recognize the man as the head of the household, they sanction
patrilineage and patrilocality, they treat women as mere property and consider the father to be the
natural guardian and they perpetuate double standards in sexual morality and property rights.
It is common knowledge among those reasonably acquainted with law that women are greatly
deprived of their rights within the laws that govern crucial aspects of the man woman
13

relationship: marriage and divorce, custody of children and guardianship rights, alimony and
maintenance for divorced women as well as property rights.

The question of women has acquired great importance throughout the world today among all
communities. This is for obvious reasons. For centuries, women have been in total subjugation in
male-dominated patriarchal societies. It has been a natural law to regard women as the inferior
sex and for them to submit to male authority for the smooth functioning of society in its day to
day progress.

However the status of women and their responses to the codification of personal laws was the
most important feature that was not considered by the British, not by the legislators in the post
independence era and even today in the 21st century. Muslim women somehow continue to be
unrepresented, unheard of and carry no form of whatsoever in the formation of laws that have to
be governing them. They are just represented by various interest groups that have vested interest
and political leaders who merely treat communities like Muslims as their vote banks.
It is in the light of such an emerging context of Muslim women and their rights in todays world,
that the researcher hopes to provide an insight to the law governing Muslim women and their
predicament as far as divorce is concerned which is by far one of the most important areas of
personal laws.

Methods of divorce:
Divorce is a vexed question in Islamic law as administered in India. The recognized forms of
divorce being Talaq, Talaq by Tafweez; Kula and Mubaraat; Ilah, Zihar and Lian.
The word talaq which we hear everyday in so many different Hindi movies and propagated by
the mass media, in technical terms amounts to repudiation. The very concept of divorce in
Muslim law is grossly violative of the freedom of the woman as; the husband may pronounce
divorce to the wife when he is of sound mind and moreover, the presence of the wife is not even
necessary. This implies the clear simplicity of divorce for a husband even in the absence of the
14

wife. Moreover, the reasons for divorce are unnecessary as also the intention as long as the
statement in which the divorce is pronounced with or without the presence of the wife is
unambiguous. This accounts for the hassle free attitude of Muslim men with regards to divorce
as they are clearly accorded a dominant status.

The Holy Quran mentions divorce in the following manner:

If ye fear a breach between them twain, appoint two arbiters, one from his family and the other
from hers. If they seek to set things alright, Allah will cause their reconciliation.

Since marriage in Islam is a contract, it may be dissolved at any time. A Muslim husband of
sound mind may divorce his wife whenever her so desires without assigning any reason. The
presence of the wife is not even necessary for pronouncing a divorce or any notice need to be
given for that purpose. The most popular form of Talaq is Talaq-al-Bida at which means the
divorce of wrong innovation. It allows instantaneous Talaq, three pronouncements in a single
sitting. This form of divorce is highly criticized as supposedly is opposed to the principles of the
Quran.

It was always advocated by the Muslim Holy Texts and the preaching of the Prophet that a man
must seek for marriage, a woman of equal social status. Though it can be said that Muslim law in
all its egalitarian principles confers upon women equal status is also interpreted in various other
ways. Though it was always felt that the man must marry himself to a woman of equal status,
there was no such provision for the women that a woman must marry herself to a man of equal
status. Rather it was always considered that a man, on marriage with a woman of lower status,
would simply elevate her position to his own position. This concept of equality between the two
parties to a Muslim marriage was traditionally known as kafaa. The idea of faskh demonstrates
the uncommon platform on which men and women stand in Muslim law. This concept was that a
15

woman who contracts herself to marriage with a man of unequal status without the consent of
any of her male relations would render such a marriage voidable and rescindable by the Court.
There were divergent views as to whether the woman could obtain dissolution of marriage with
different schools of Muslim law advocating different views. This system of divorce by judicial
rescission now takes the form of the Dissolution of Muslim Marriages Act, 1939 and now
sponsors the same law for all the various schools of Muslim law. The passing of this law
benefited many women all over the country for it procured for women a right to divorce under
the different schools of law and made no discrimination against them. Sec.3 of the Dissolution of
Muslim Marriages Act speaks of the different grounds on which a woman may obtain a decree of
divorce from her husband, thus, entitling her to divorce in the first instance.

The husband may also delegate his right of divorce to his own wife an authorize her to
pronounce talaq. According to Fyzee, this form of delegated divorce is perhaps the most potent
weapon in the hands of a Muslim wife to obtain her freedom without the intervention of any
court and is now beginning to be fairly common in India. The authority is given to the wife under
an agreement at the time of the marriage or at any time after it. The general practice is to
delegate the power of divorce to the wife upon the husbands failure to fulfill certain conditions
or upon the happening of an event. But the conditions must be of reasonable nature and must not
be against the principles of Islam.

The delegation of the right to talaq incase the husband fails to pay her maintenance may be
delegated. In Hamidool v. Faizunnissa it was held that the power may be delegated at the time of
nuptial agreement or during the married life. The power so delegated cannot be revoked by the
husband. Further in the case of Saifuddin v. Latifunnissa, it said that the wife may exercise the
power to counter a suit for restitution of conjugal rights instituted by the husband and such
exercise will result in talaq.

After having delegated this right to his wife, the husband cannot revoke it because after
delegation it is the wife who owns this right on his behalf. This right to delegate divorce can
16

prove very useful to the wife if the man takes another wife without her consent or if he neglects
her or deserts her or violates any other marriage condition or does anything which the wife
disapproves. If it is, no doubt, a novel concept, which does not exist in any other legal system
and it undoubtedly provides extra security to a married woman. She can stipulate it as one of the
conditions of marriage. From this it can be seen that in addition to the holy Quran Muslim jurists
have also taken care to protect women rights and interests.

Muslim women have the right to seek dissolution of marriage even under the system of Khula;
under this form of divorce a husband is given compensation to release the woman from her
marriage tie, this right is rarely invoked now though the Quran lays down this provision. This
form of divorce by the initiation of the wife is seen by many to be discriminatory as it releases
the wife from the bondages of marriage with conditions imposed by the husband generally
regarding a certain sum of money/consideration which is usually a part or the whole of the
Mehr.

In the leading case Munshee Buzlul Raheem v. Luteefutoon Nissa, the Privy Council described
Khula form of divorce as under:

A divorce by khula is a divorce with the consent and at the instance of the wife in which she
gives or agrees to give a consideration to the husband for her release from the arriage tie. In such
a case the terms of the bargain are matters of arrangement between the husband and wife and the
wife may as the consideration release her dynmahr and other rights or make any other agreement
for the benefit of the husband.

Another form of divorce is Mubaraat in which the proceedings might be initiated by either the
husband or the wife, but once it is accepted the dissolution is complete. This is a form of divorce
by common mutual consent wherein if the divorce is initiated by the husband, it is known as
mubaraat.
17

Where the desire for separation is mutual, the law requires a woman to offer her husband
compensation. Muslim law has conferred upon the wifes stipulated right to dissolve her
marriage on her husband from entering into a second marriage and taking a second wife, a force
overriding the sanctity of the first marriage itself. There is also a provision for divorce when a
woman has a right to pronounce Talaq if her husband has delegated that right to her in the
Nikahnama where he has to state that if he commits polygamy or if his wife cannot get along
with him, she has the right to Khula. . It has been held in a recent Pakistani case that such matters
as incompatibility of temperaments, aversion, or dislike cannot form a ground for wife to seek
dissolution of her marriage, at the hands of a Quazii or a court, but they fall to be dealt with
under the powers possessed by the husband as well as the wife under Muslim Law, that is
capacity of making a Khula or Mubarat at divorce.
Concluding note:

The Special Marriage act 1954, which is a secular law of the land has curtailed the extra judicial
and unilateral right to divorce of the Muslim husband, who has married under this act, with a
result that Muslim women also get an equal right to divorce like her husband.
There is a widespread perception that Muslim women are among the most backward, illiterate
and oppressed in the world. They are also depicted as being confined to the four walls of their
homes totally cut off from outside world. The patriarchal Arab culture had its own set
understanding of womens position. Thus the Quranic pronouncements of sexual equality was
understood and implemented through mediation of Arab culture. However, one strongly feels
that this is not the position today. But what is still most upsetting is that the Quranic verses and
Prophets teachings are selectively quoted by those who commanding enough respect to initiate
any form of change thereby defeating any chances of that happening.

However, this doesnt mean that efforts are not being made towards the emancipation of Muslim
women. There are Muslim theologians like Fatima Mirsani from Morocco and Amina Wadood

18

and Riffat Hassan from US and other womens originations like Sisters of Islam from Malaysia
who are working towards the cause for womens rights in the Islamic world.

The many infirmities and misleading principles that are at total variance with the true spirit of
Islamic law, as contained in the Quran are mainly due to the lack of access by courts to the
primary sources of Islamic law. The fear in the minds of the legislators concerning agitations and
reprisals by the conservative and orthodox Muslims has contributed in retarding the pace at
which the legislators reacted to the explicitly faulty situation.

Equality has always been guaranteed to Muslims by their laws and the law of Islam, as rather
contradictory from general perception is very equitable and hardly provides any scope for
discrimination against women

The equality in treatment of both the sexes, as envisaged by Islam, can be ascertained from the
following extract from Quran:

For Muslim men and women, For believing men and women, For devout men and women, For
true men and women, For men and women who are patient and constant, For men and women
who humble themselves, For men and women who give in charity, For men and women who
fast, guard their chastity, and For men and women who engage much in Allahs remembrance for
them has Allah prepared forgiveness and great reward.

More troubling still is that though these conditions can increase a womens access to divorce,
they do not restrict in any way the husbands right to repudiate her unilaterally at will.
Attempts to reform divorce laws in the contemporary Muslim world have been plentiful. Most of
these have attempted to either restrict mens unfettered exercise of their rights to repudiation or
to increase womens access to divorce. In the first case, some nations have accomplished this by
19

requiring some type of intervention or registration from a judge, or by declaring that three
repudiations pronounced at once will count as only one divorce. (This has always been the
predominant Shia view, but only a few individual Sunni jurists have held it.) Some nations have
imposed financial penalties on a husband who divorces his wife without cause. However, despite
these attempts to curb mens impulsive and extra-judicial use of talaq, the courts still consider
mens unilateral repudiations legally effective since they are recognized by traditional
jurisprudence.

When it comes to increasing womens access to divorce, the adoption by Hanafi jurisdictions of
the relatively more liberal Maliki grounds for divorce represents a significant improvement.
However, the interpretation of these provisions varies significantly, and judges wield quite a bit
of discretion in their application. In Egypt and elsewhere, for example, courts have ruled that
while physical abuse may constitute harm for upper-class women, women from lower social
strata can expect some violence from their husbands, and thus it does not meet the criteria for
them to seek divorce. In these cases, though reforms have altered some of the specifics of
divorce laws, they have not challenged the basic idea that divorce is a mans prerogative, while
women may only obtain divorce for cause.
Definition of maintenance:
The Arabic equivalent of maintenance is Nafqah, which 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. Hedayah defines maintenance as all those things which are necessary for the
support of life, such as food, clothes and lodging, many confines it solely to food. Fatwa-iAlamgiri says Maintenance comprehends food, raiment and lodging, though in common
parlance it is limited to the first.

Liability for maintenance:

A person becomes liable for Nafqah or maintenance on account of a person:20

(i)

Being his wife

(ii)

Being his relative, i.e, children, grand children, aged parents and other relatives and

(iii)

Being his servent.

Principle of maintenance:
The principle upon which the Muslim Law of maintenance is based is briefly summarised as
follows:
1. The Muslim Law is not so catholic in spirit as legal system of the Hindus, so there are
very few provisions for the maintenance of the relatives. As a general rule, no relation
except a wife, who is in easy circumstances, has any claim for maintenance. But a
Muslim is bound to provide and is entitled to receive maintenance from his ascendents
and descendants except under certain circumstances. According to Hanafi Law reciprocal
rights and obligations regarding maintenance arise also between collateral relations of
blood within prohibited degrees.
2. According to Muslim Law only those persons are entitled to maintenance who are
indigent and necessitous and are unable to earn their livelihood.

Wife during subsistence of marriage:

According to the ordinary sequence of natural events, the wife comes first. Her right of
maintenance in this case is absolute. Her rights remains unprejudiced even if she has property or
income of her own and the husband is poor. A husband is bound to maintain his wife, irrespective
of being a Muslim, non Muslim, poor or rich, young or old if not too young to be unfit for
matrimonial intercourse. In addition to the legal obligation to maintain, there may be stipulations
in the marriage contract which may render the husband liableto make a special allowance to the
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wife. Such allowances are called Kharch-i-pandaan, guzara, mewa-khori, etc. the husband is
bound to maintainif she fulfils the following conditions:
(i)

She has attained puberty, i.e., an age at which she can render to the husband his
conjugal rights;

(ii)

She places and offers to place herself in his power so as to allow free access to herself
at all lawful times and obeys all his lawful commands.

(b) She is not entitled to maintenance:

(i) If she abandons the conjugal domicile without any valid cause.
(ii) If she refuses access to her husband without any valid cause.
(iii)

If she is disobedient to his reasonable commands.

(iv)

If she refuses to live with her husband without any lawful excuse.

(v)

If she has been imprisoned.

(vi)

If she has eloped with somebody.

(vii)

If she is a minor on which account marriage cannot be consummated.

(viii)

If she desrets her husband voluntarily and does not perform her marital duties.

(ix)

If she makes an agreement of desertion on the second marriage of her husband.

Suit for maintenance:

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If a husband neglects or refuses to maintain his wife without any lawful cause, the wife may
sue him for maintenance either under Muslim Law or under Section 125 and 126 of the Code
of Criminal Procedure, 1973.

Muslim Women have Right to Maintenance till Remarriage

Indian law on matters pertaining to marriage, divorce and succession are governed by personal
laws. In Muslim matrimonial matters, the laws on a Muslim woman's right to maintenance are
clearly laid down. In August 2010, the Delhi High Court ruled that a Muslim man is liable to pay
maintenance, to his ex-wife and minor children, until she remarries. Further, the court held that a
divorced Muslim woman is entitled to maintenance under the Criminal Procedure Code. The
court further said that this is applicable regardless of the provisions of the Muslim law. Muslim
law also provides that a person is liable to pay maintenance to his divorced wife, only for the
Iddat period (nearly 3 months after dissolution of the marriage).

Indian Law: Section 125, Cr PC is applicable to Divorced Muslim Women:

The verdict was given by the Delhi High Court while rejecting a petition filed by a Muslim
husband, challenging the orders of a subordinate court. The lower court directed him to pay Rs.2,
000 per month, to his minor daughter, who lives with her mother. Further, the subordinate court
held that the Muslim husband was liable to provide maintenance, not only to his estranged wife,
but also to his minor children. However, the Muslim husband contended that the entitlement to
the right to maintenance for minor children comes to an end, after the completion of 2 years of
divorce, under the Muslim law.

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The Delhi High Court held that a divorced Muslim woman shall be entitled to claim maintenance
from his ex-husband, till she is remarried. Also, the benefits under the provisions of section 125
of the Cr PC are applicable to divorced Muslim women.
While dismissing the plea, Justice S.N. Dhingra stated that the contention was baseless. It was
pointed out that even a Muslim woman whose marriage has been dissolved, under Muslim law, is
entitled to maintenance, beyond the Iddat period, according to the Criminal Procedure Code, and
this will continue till her remarriage. Also, it was held that minor children cannot be deprived of
the benefits because of any restrictive stipulation, under the Muslim Women (Protection of
Rights on Divorce) Act, 1986.

Right to Maintenance and Muslim Women's Act 1986:

After the furore created by the Supreme Court ruling in 1985 which upheld the rights of divorced
Muslim women for maintenance under Section 125 of the Criminal Procedure Code (CrPC), and
the subsequent enactment of the Muslim Women's Act of 1986, the idea gained ground that a
divorced Muslim woman's rights had been extinguished. The popular notion which prevailed at
the time, that a Muslim woman is stripped of all rights against her husband beyond the iddat
period (three months after the divorce), continues despite several rulings to the contrary. This is
because the myriad and unpredictable ways in which the economic rights of Muslim women
were reaffirmed during the last quarter-century have not received the attention that they
deserved.
The latest in this series is the Supreme Court verdict pronounced by Justices Deepak Verma and
Sudarshan Reddy on 4th December, 2009. Shabana Bano approached the court for maintenance
of Rs 3000 per month; her plea was that when she was pregnant, her husband left her in her natal
home with a warning that she would not be allowed to return after her delivery unless his
demands for dowry were met. Hence she was constrained to file a petition for maintenance under

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Section 125 in the family court at Gwalior. Since the husband pleaded that he had divorced
Shabana and hence he is not entitled to pay her maintenance, the court awarded her Rs 2000 per
month for the four months between her petition and her divorce. The MP high court dismissed
her

appeal.

It

is

against

this

background

that

the

SC

upheld

her

rights.

The gains of this ruling are twofold: it upheld the rights of divorced Muslim women for
maintenance under Section 125 and it also upheld the jurisdiction of family courts over
maintenance issues of divorced Muslim women. Where social legislations enacted to secure the
rights of needy women are concerned, the Supreme Court commented that adherence to rigid
rules of procedure and evidence should be avoided. The judges relied upon two earlier rulings:
the historic constitutional bench ruling in Daniel Latifi in 2001 and the more recent Iqbal Bano in
2007.
The Daniel Latifi ruling upheld the divorced Muslim woman's right to a fair and reasonable
settlement as per Islamic principles which would entitle her to claim a lump sum at the time
of her divorce. After this ruling, every Muslim woman became entitled to a lump sum at her
divorce. The judgment in turn validated several rulings of various high courts which awarded
lump sum amounts ranging from Rs 50,000 to Rs 5,00,000 to divorced Muslim women in the
intervening years after MWA was enacted in 1986, till the verdict was pronounced in 2001.
It also relied upon the Iqbal Bano ruling of 2007, which held that proceedings under Section 125
are civil in nature. Hence even after the divorce, the woman would be entitled to claim
maintenance under Section 125, considering the beneficial nature of the legislation.
Reading these three Supreme Court rulings together, one can surmise the following: first, a
divorced Muslim woman's right to maintenance (or economic settlement) from her husband is
not extinguished upon divorce; second, she has dual claims under Section 125 for recurring
main-tenance, or for a lump sum settlement under MWA. Third, while the jurisdiction for MWA
is in magistrates' courts, where family courts have been set up, divorced Muslim women are
entitled to claim maintenance in family courts.

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While these are significant rulings capable of a far-reaching impact, unless they are used in trial
court litigation and are used to change social norms within communities they will remain merely
ornamental snippets in law journals. Unless all those who are committed or are statutorily bound
to protect the rights of Muslim women lawyers, women's groups and social workers are
aware of these gains, the judicial pronouncements will cease to have an impact upon their lives,
as was the case with Shabana Bano.
Rather ironically, Shabana was married in 2001, after the Daniel Latifi ruling. She had filed for
maintenance in March 2004. But sadly, both the family court of Gwalior and the high court did
not apply the principles laid down in Daniel Latifi to her case. This resulted in grave economic
hardship, and delay in accessing her basic right of maintenance. If ignorance of law is no defence
for an ordinary citizen against commitment of a crime, ignorance of accurate legal provisions
protecting the rights of the vulnerable and marginalised cannot be a defence for lawyers, judges
and conciliators who are duty bound to protect their rights.

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Bibliography
http://www.globalpolitician.com/24674-islam-muslim
http://www.mwlusa.org/topics/marriage&divorce/divorce.html
http://www.lawyersclubindia.com/articles/Right-to-Maintenance-and-Muslim-Women-s-Act1986-2168.asp#.UIkCD2BBmSo

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