Maintenance during Subsistence of Marriage

Under Muslim law, a husband is obliged to maintain his wife and family, and the term maintenance signifies the amount he is liable to pay for the same. The term used for maintenance under Muslim Law is is called nafaqa and it comprehends food, raiment and lodging, The wife is entitled to maintenance from husband, despite the fact that she has means to maintain herself. In addition to this, the marriage contract may stipulate payment of special allowances by the husband, and in presence of these, it becomes the obligation of the husband to pay these to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc. This can be claimed as a right.

The Three sources from which these rights emanate are:

1. Muslim Personal Law.
2. Section 125, CrPC.
3. The Muslim Women (Protection of Rights on Divorce) Act, 1986.

Maintenance of Divorcees under Muslim Law:

Maintenance under, CrPC- Before and After 1973:

Initially, it was provided in the CrPC(earlier under section 488) that only a wife is entitled to maintenance by husband. It was claimed by the husbands that once dissolution takes place, a woman ceases to be a wife and hence is not longer entitled to maintenance.

Looking at this loophole, an amendment was made in 1973, wherein under section 125, a divorcee was entitled to maintenance till the time she remarries. Being secular in nature, this provision applies to all women, including Muslim women.

Conflict of Muslim Personal Law with section 125 of CrPC:

Under Muslim Personal Law, a woman is entitled to maintenance only till the end of the Iddat period. Iddat is the period when co-habitation of the parties end, on the expiry of iddat the spouses will stand divorced. The period of iddat consists of three menstrual cycles or three lunar months , in case of pregnant women , the iddat period would extend up to the time of delivery. Hence, we can see a direct conflict, since CrPC does not recognize iddat period and maintenance goes beyond the same.

In Mohammed Haneefa v. Mariam Bi the Court stated that in case of a clash between personal law and CrPC, the former shall prevail. This position was seconded by the Supreme Court in Saira Bano v A.M Abdul Gafoor.

This caused a lot of dilemma in the legislature. To resolve this dilemma, Section 127(3) (b)was added under which that if a divorced woman receives an amount due to customary or personal laws of the community, the magistrate can cancel any order for maintenance in her favour.

Judicial Decisions interpreting the Scope of Section 127:

It was held in Bai Tahira vs Ali Hussain Fissalli Chothia that payment of "illusory sums" focused around the Muslim personal laws ought to be considered to diminish the measure of maintenance payable by the spouse , however that does not acquit the spouse from the liability in light of the fact that each lady independent of her religion is entitled to maintenance. The divorced wife has this right except from when the aggregate payment stipulated by custom is pretty much sufficient to substitute the maintenance.

An extra requirement was included by the Apex court in Fuzlunbi v. K Khader Vali. The sum focused around Muslim law must be pretty much identical to the month by month maintenance to the divorcee, required till her remarriage or demise, with a specific end goal to substitute the maintenance.

The Supreme Court expressed in Zohara Khatoon vs Mohd. Ibrahim that the expression "wife" in S.125 and S.127 of CrPC incorporates Muslim ladies who get separated by method for Talaq or under the Dissolution of Muslim Marriage Act,1939. Therefore, the conflict between Muslim Personal Law and CrPC still continued, and section 127 was not sufficient to satisfy the Muslim community who opposed section 125 as a detriment to their personal laws.

Mohd Ahmad Khan v. Shah Bano Begum or the Shah Bano Case:

In the present case, a 62 year old woman was divorced and subsequently denied maintenance. She had not remarried. On moving the court of the Judicial Magistrate at Indore under section 125 of the CrPC, and claiming maintenance of Rs 500 per month, she was awarded a maintenance of Rs 25 per month from the husband. Aggrieved by the low amount, she filed a revision petition before the Madhya Pradesh High Court, which entitled her to a maintenance of Rs 179.20 per month. The husband appealed against this order before the Supreme Court, his main contention being that since the dissolution had taken place, she ceased to be his wife and under Muslim law, he was not obliged to pay her maintenance. Also, since he had paid the dower amount during the Iddat period, the wife was not entitled to any maintenance.

The Supreme Court dismissed the appeal and upheld the decision of the High Court. The Supreme Court explained this judgment by saying that, even if there is a conflict, section 125 of CrPC is a secular law, and hence, applies to all women, irrespective of their religion. It further stated that CrPC shall prevail over Muslim Personal Law in case of a conflict.

Developments Post Shah Bano Case:

The Rajeev Gandhi government, coming under pressure from Islamist groups decided to nullify the judgment, and in a effort to do the same, it passed The Muslim Women (Protection Of Rights On Divorce) Act, 1986.This act became one of the most controversial legislations enacted. The relevant provisions of this act are sections 3(1)(a) and 4(1), which stated that the former husband must provide “a reasonable and fair provision” and maintenance within the period of iddat and, that in case she is unable to maintain herself after the period of iddat , she can claim maintenance from her relatives and if they cannot pay , then she can claim from the Wakf Board as per S.4(2),respectively.

Position Post Enactment of The Muslim Women (Protection Of Rights On Divorce) Act, 1986- Daniel Latifi v. Union of India:
In this case, a writ was filed under Article 32 challenging the constitutional validity of the Act.

In this case the constitutional validity of the Act was upheld and an interpretation of the provisions of the Act was provided. The court concluded that, one, the Act does not violate Articles 14, 15 and 21 and hence, is not ultra vires.

The court made the following interpretations. Firstly, interpreting the meaning of the term “within” used under section 3(1)(a) of the Act read with the terms terms fair and reasonable, the court arrived at the conclusion that the maintenance, being fair and reasonable, should exceed the iddat period but must be made within the iddat period. Such maintenance made during iddat period should be for her entire future, that is the time after the expiration of iddat period as well. The liability of the husband, therefore, is not limited to the iddat period. Therefore, this Act is not in contravention of section 125 of CrPC.

Effects of Daniel Latifi Judgment:

Daniel Latifi judgment basically revived the principles settled in Shah Bano case that, the husband’s liability to maintain his wife doesn’t end with the iddat period. However, it explained this principle, not as contravening the Act which was enacted as a result of the Shah Bano case, as a commentary on that Act.

Also, the Act is consistent with section 125 of the CrPC and hence, there is no scope for conflict. Hence, the position of law is that, the provisions of the Act basically emanate from principles set forth in the Shah Bano case. The same has not been changed till now, and continues to govern matters related to maintenance of Muslim women after dissolution of marriage.
The Present position

The principle has been seconded by the Supreme Court once again in Iqbal Bano V/s. State of U.P. In the case the court reiterated the position that divorced women are entitled for maintenance beyond the Iddat period and stated that provisions of the Act do not contravene Article 14, 15 & 21 of the Indian Constitution.

The court further observed that “right under Section 125 of Cr. P.C. extinguishes only when she receives “fair or reasonable” settlement u/Sec. 3 of the Muslim Women Act. The wife will be entitled to receive maintenance u/Sec. 125 of Cr.P.C. until the husband fulfils his obligation u/Sec. 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986.

This was once again reiterated in the recent judgement in Shabana Bano v. Imran Khan that after the expiry of iddat, a divorced Muslim woman can seek maintenance under S.125CrPc as long as she doesn’t re-marry. Hence, the position as laid down in the Daniel Latifi case is the settled position and has not undergone any change./