Maintenance-
Persons who have the right to be maintained are wife, children, parents, grandparents
etc.
The right to maintenance of a Muslim woman is absolute and not conditional on
whether she can maintain herself or not.
Under what circumstances does the wife is not entitled to get maintenance?
marriage is irregular or void
if she announces marriage life without any valid reason
if she does not obey husband reasonable order
under muta is not entitled to get maintenance
If wife refuses to stay with husband without any valid reason If she gets sentenced to
imprisonment
if her age is less than 15 years i.e she has not attained the age of puberty.
Under Muslim law the rights of the wife to get maintenance during the marriage is
absolute but after the dissolution of marriage her rights are limited. She is entitled to
maintenance from husband after diverse is only till Iddat period ( Iddat is a period of
three menstrual courses aur three lunar months).
Section 125 of CrPC provides for maintenance to divorced wife of all religion
It stated that after divorce if the wife is not able to maintain herself she is entitled to
maintenance from her husband until she gets married again.
The legitimate or illegitimate minor( married or unmarried both) who are not able to
maintain themselves.
The legitimate or illegitimate major child with physical or mental injury due to which
she/ he is not able to maintain itself ( married daughters are not included in this).
Father or mother who are not able to maintain himself or herself.
The act applies this provision to Muslim women also who are not entitled to the
maintenance after the period of Iddat. This act creates liability over husband to
provide maintenance to wife even after the period of Iddat.
Mohd. Ahmed Khan vs Shah Bano Begum 1985
Facts-
The husband and wife got married and had 3 sons, 2 daughters.
He drove her to the matriomonial house and filed for a divorce.
Based on this the wife filed a suit before the judicial magistrate first class that she should be
maintained as per section 125 of crpc.
Respondent’s claim-
He has paid the wife the sum of money as dower after divorce and hence, isn’t obligated to
maintain her.
Issue-
Does the Muslim Personal Law impose no obligation upon the husband to provide for the
maintenance of his divorced wife ?
The question as to whether section 125 of the Code applies to Muslims.
Held-
Section 125[3]of Code Of Criminal Procedure solicited to Muslims too, without any
sought of discrimination.
responsibility of Muslim husband towards her divorced wife is limited to the extent of
" Iddat" period , even though this situation does not contemplates the rule of law that
is mentioned in Section 125 of CrPc.,1973[4]
According to Supreme Court this rule according to Muslim Law was against humanity
or was wrong because here a divorced wife was not in a condition to maintain herself.
husband is legal liability will come to an end if divorced wife is competent to
maintain herself.
But this situation will be reversed in the case when wife is not able in a condition to to
finance or maintain herself after the Iddat period, she will be entitle to receive
maintenance or alimony under Section 125 of CrPc.
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986.
Section 2(b)-
(b) “iddat period” means, in the case of a divorced woman,—
(i) three menstrual courses after the date of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation; and
(iii) if she is enceinte at the time of her divorce, the period between the divorce and the
delivery of her child or the termination of her pregnancy, whichever is earlier;
Section 3. Mahr or other properties of Muslim woman to be given to her at the time of
divorce.—
(a) a reasonable and fair provision and maintenance to be made and paid to her within the
iddat period by her former husband;
(b) where she herself maintains the children born to her before or after her divorce, a
reasonable and fair provision and maintenance to be made and paid by her former husband
for a period of two years from the respective dates of birth of such children;
(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to Muslim law; and
(d) all the properties given to her before or at the time of marriage or after her marriage by
her relatives or friends or the husband or any relatives of the husband or his friends.
If he fails to payment the maintenance amount she can make an application to the
magistrate.
Magistrate sees if he has failed or neglected to pay her during iddar periof the amount
of mehr, for her and children he makes an order directing him to pay.
If he still fails to comply with the order, magistrate will issue a warrant and can as per
crpc sentence such person with imprisonment that may extend to one year.
4. Order for payment of maintenance-
Magistrate is satisfied that a divorced woman has not re-married and is not able to
maintain herself after the iddat period, he may make an order directing such of her
relatives.
Children have to maintain the wife.
If children are unable to maintain her then her parents have to.
Parents fail to- other relatives have to maintain.
Relatives also fail to- order the state Wakf board to maintain her.
5. Option to be governed by the provisions of sections 125 to 128-
Both the husband and wife have to declare by affidavit that they want to be governed
under crpc.
Danial Latifi v. Union Of India
a Muslim husband was responsible to maintain his divorced wife only for the iddat
period and after such period the onus of maintaining the woman would shift on to her
relatives.
constitutional validity of the MWPRDA, 1986 was challenged on the grounds that the
law was discriminatory and violative of the right to equality guaranteed under Article
14 of the Indian Constitution as it deprived Muslim women of maintenance benefits
equivalent to those provided to other women under Section 125 of Criminal Procedure
Code, 1973.
It held that a Muslim husband is liable to make reasonable and fair provision for the
future of his divorced wife extending beyond the iddat period. The Court based this
interpretation on the word “provision” in the MWPRDA, 1986, indicating that “at the
time of divorce the Muslim husband is required to contemplate the future needs [of
his wife] and make preparatory arrangements in advance for meeting those needs”
a Muslim husband’s liability to provide maintenance to his divorced wife extends
beyond the iddat period, and he must realize his obligation within the iddat period,
thereby striking a balance between Muslim personal law and the Criminal Procedure
Code, 1973.
Noor saba khatoon v. Mohd. Quasim-
Husband and wife had 3 children (2 daughters and 1 son), because of disputes
between them he sent her to the matrimonial house and refused to maintain them.
The appellant in her petition filed before the trial court pleaded for maintenance
amount for herself and her 3 minor kids.
Trial court ajudged that the wife will be maintained only till iddat period after that
she won’t. The kids will be maintained under 125 of Crpc.
High court-
Wrongly adjuged that only the 1 and a half year daughter will be maintained as per
section 3 of musim women protection of rights on divorce act as the maintenance is to be
given only till children are of 2 years.
Supreme court-
Set aside the order of HC.
The rights of minor children unable to maintain themselves shall not be affected
by section 3(1)(b) of the Act. Every Muslim child who is below the age of 18
years can obtain maintenance by invoking section 125 of the code in cases where
the parents neglect or refuse to maintain.
Both the Muslim personal law as well as the statutory law requires a father to
maintain his children.