Verse 34 of the fourth chapter of the Quran, Surah An-Nisa, discusses a husband's role as the protector and maintainer of his wife. It also addresses how he should deal with disloyalty on her part. The verse states that men are in charge of women because of what Allah has given them and what they spend from their wealth. It also says that righteous women are devout and guard the intimacy that Allah has ordained.

Maintenance is also known as NAFQAH which means what a man spend on his family which includes fooding, clothing, lodging and basic necessities of life.

The concept of maintenance is to protect the wife and provide her a dignified life even after the dissolution of marriage is a absolute right. the husband is liable to maintain her wife if she is unable to maintain herself in a valid marriage even if there is no agreement between the two in this regard he would be excused to maintain her if the marriage is void or irregular[1] except when irregularity is because of absence of witness.

Who can claim maintenance?

A person is indentured to maintenance or nafqah to the person as mentioned:

• The wife
• The children (legitimate, illegitimate)
• The parents or grandparents
• The other relatives^[2]

Under Section 127(3) Of Criminal Procedure Code, Divorced women cannot claim for her maintenance under certain circumstances:

1. If she remarries
2. If she has received the whole amount due to her under any customary or personal law
3. If she voluntarily surrenders her right to maintenance after divorce

Maintenance To Wife Under Muslim Law

Under Muslim law it is the absolute right of women to be maintained by her husband. The word "wife" includes deserted wife. The only exception to this general rule is (1) when as a minor is living with her parents (2) she is disobedient, whether living with her husband or not. But if the husband is guilty of cruelty or has married a second wife or has mistress she can live separately and can still claim for maintenance[3].

Under classical Islamic law, husbands liability to maintain her deserted wife extends upto the period of iddat or upto delivery, if pregnancy appears during iddat, after this she joins her parents family and becomes the responsibility of them for her maintenance.

In Chandbi Badesha Mujawar v. Badesha Balwant Mujawar where husband in a written statement said that he divorced her wife 30 years ago and he is not liable to maintain her. It was held that the statement of the fact of such divorce was not proved and the wife would be entitled only to the period od iddat.

After the act of 1973 and 1986 enactments extended the right of women for maintenance.

1. Section 125, Criminal Procedure code 1973.
2. Section 3, Muslim women (protection of rights on divorce) act 1986

The right of maintenance for wife under criminal procedure code is independent of personal laws. The right of women is not affected by personal laws, wife can claim her maintenance even her husband marries to another women.

In the case of Smt.Hafyabi Suleman Darwajkar v/s Suleman Mohd Darwajkar & another[4] where a revision petition was filed before the appellate court. Meanwhile the act 1986 was filed and the application of petition was still pending court said the matter is to be decided by the relevant provisions of the act of 1986 and not under 125-128 where question arised that can personal law prevails over the act of 1973, then court ruled that act of 1973 will override personal laws in case of conflict between the two as personal law limits the liability of husband to provide maintenance till the period of iddat, does not contemplate or countenance the situation envisaged by section 125.

In the case of Zohara Khatoon v. Mohd Ibrahim[5], it was held by the supreme court even if the divorce is obtained in three distinct mode talaq ahsan, talaq hasan, talaq-ul-biddat, khula or mubarat the wife under section 125 of Criminal procedure code 1973 case continues to be wife for the purpose of getting the maintenance for a period until she remarries.

In the case of Bai Tahira v Ali Hussain Fidaalli Chothia[6] court held that no husband can claim absolution under section 127(3)(b) from his obligation under section 125 towards a divorced wife except when on proof of payment of a sum stipulated by customary or personal law whose quantum is more or less sufficient for maintenance duty.

In Mohd Yamen V. Shamim Bano[7], the husband opposed the grant of maintenance made to his wife objected that under muslim personal law she is not entitled to any claim of maintenance, Court negatived this plea as ruled that explaintion (b) to section 125(1) clearly provides for maintenance to divorced wife is not opposed to any law under muslim personal law.

In Mohd Ahmed Khan v. Shah Bano begum[8] Court held that section 125 CrPC, 1973 is secular nature ad not in confict with any particular religion or personal law. There is no conflict on question of Muslim husband's obligation to provide maintenance for his divorced wife who is unable to maintain herself. Also the right of divorced women is not affected by personal laws.

In response to shah bano case parliament enacted the act of Muslim Women (Protection of Rights on Divorce) Act 1986 where in section 3(1)(a) it says that a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. It restricted the maintenance period to the iddat period and tied the amount to the mahr or dowry given to the woman.

In Danial Latifi v. Union Of India[9] the constitutional validity of Muslim Women (Protection of Rights on Divorce) Act,1986 was challenged in a PIL where Supreme Court upheld the constitutional validity of the 1986 Act also laid:

1. Extended the right of a Muslim woman to get maintenance till she re-marries under the act.
2. Muslim husbands are liable to provide maintenance to their divorced wives under section 3 of the act of 1986 beyond the iddat period.
3. he also has to make arrangement for her future during her iddat, which should be sufficient if she decides not to get married again in future. She even can proceed under section 4 of the act against her relatives who are liable to maintain her.

In this case the ambiguity of the word mentioned in the Act of 1986 i.e. "within the iddat period" was clarified and is not confined to iddat period but beyond it and the arrangement by the husband should be made during her Iddat period.

In the case of A.A. Abdullah v. A.B. Mohamuna saiyadbhai [10] where it was held that a divorced muslim women is entitled to maintenance after contemplating her future needs and the maintenance is not limited upto iddat period. The language mentioned in section(3)(1)(a) indicated that parliament wanted that woman gets sufficient means of livelihood after divorce and should not be thrown outside without roof over her head. The word 'within' cannot be read as 'for' or 'during' and husband is liable to maintain his wife even after divorce.

In Shamima Farooqui v Shahid khan[11], the supreme court held that husband is not absolved from his obligation to provide maintenance merely on his plea of financial constrains, so long as he is healthy, abled-bodied and capable of earning for his own support.

In Iqbal Bano V. State of U.P[12], Supreme court held that Muslim Women (Protection of Rights on Divorce) Act, 1986 only applies to a divorced woman and not to women who is not divorced. Moreover, it was also mentioned that proceedings under section 125 of CRPC are civil in nature so if court notices that if a woman has made an appeal under section 125 of CRPC, court can trate the ame as a petition under The Muslim Women (Protection of Rights on Divorce) Act, 1986 because proceedings under section 125 of CRPC and claims under 1986 Act are tried by the same court.

After the expiration of the Iddat period if the wife is still not able to maintain herself and remains unmarried then in that case she can seek maintenance from wakf board or her relatives or her former husband relatives or the people who are going to get her property after her death.

Conclusion
Thus, from the above article we can clearly see the poor position of the wife for the maintenance, which is her right. We can also state that the maintenance provisions of the Muslim Law are different from other Personal laws. We need more efforts and contribution of judicial system and legislation to improvise the condition of the wives under Muslim law. The law should be followed to provide maintenance to the women which is an absolute right and should not be denied in any condition.

End Notes:

1. https://www.hrw.org/report/2018/04/16/audacity-adversity/lgbt-activism-middle-east-and-north-africa
2. https://hornet.com/stories/middle-east-homophobia-anti-gay-history/
3. https://daleel-madani.org/sites/default/files/Resources/HelemStudy.pdf
4. https://eprints.lse.ac.uk/56822/1/Homosexuality_Middle%20East.pdf
5. https://www.dw.com/en/lgbtq-activism-seeking-queer-love-in-middle-eastern-history/a-66138244
6. https://timep.org/2019/07/17/timep-brief-lgbtq-human-rights-in-egypt/
7. https://www.weforum.org/agenda/2016/01/the-real-story-of-the-gay-middle-east/
8. https://queerintheworld.com/gay-qatar-travel-guide/
9. https://queerintheworld.com/lgbt-rights-in-lebanon/
10. https://www.hrw.org/report/2004/02/29/time-torture/assault-justice-egypts-crackdown-homosexual-conduct
11. https://queerintheworld.com/lgbt-rights-in-egypt/
12. https://apnews.com/article/middle-east-dubai-united-arab-emirates-kuwait-19f74a75f740e7495b7a809a65067f44
13. https://gulfnews.com/world/gulf/bahrain/crossdresser-sent-to-bahrain-jail-for-indecent-behaviour-1.1004003
14. https://www.opendemocracy.net/en/north-africa-west-asia/sunni-islamic-jurisprudence-sex-reassignment-surgery-and-transgender-rights/
15. https://ilga.org/resources/state-sponsored-homophobia-report-2017-ilga/
16. https://www.france24.com/en/20181114-middle-east-matters-cinema-lgbtq-movie-wedding-sam-abbas-yemen-war-jordan-floods
17. https://amerainternational.org/sexual-orientation-and-gender-identity-country-list/egypt-lgbtqi-resources/