Maintenance of divorced woman in Muslim law and implication of Section 125 of Cr.P.C.

Maintenance in general implies basic necessities of life which a person requires for the survival. Maintenance is not defined expressly under the Muslim law. Its meaning has to be inferred from the Hindu Law where it has been used in a wider sense. The Hindu Adoption and Maintenance Act, 1956 defines the term as follows:

“in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage.” [1]

According to Halsbury’s law of England,[2] maintenance is the name given to the weekly or monthly payments which may be ordered on a decree of divorce, or nullity to be made for the maintenance and support of the wife during the joint lives of the spouses, maintenance for the children is a similar provision for their benefit, which may be made in proceedings for divorce, nullity, judicial separation and restitution of conjugal rights. Maintenance varies according to the position and status of the persons concerned.

So maintenance is a term which must vary according to the requirement of the time and the status of the persons entitled to get maintenance and the person liable to maintain.

Under the Muslim Law, the term ‘maintenance’ is called as ‘Nafaqa’ and it includes food, clothing and lodging, though in common parlance it is limited to the first.

Under Shariat[3], maintenance is payable to wife, children and parents. It is an obligation imposed on the part of the parties to a marriage agreement which creates a familiar relationship between the spouses.

The three reasons for which it is obligatory on one person to maintain another are

1) Marriage

2) Relationship and

3) Property.

The highest obligation arises on marriage; the maintenance of the wife and children is a primary obligation. The second class of obligations arises when a certain person has ‘means’ and another is ‘indigent’.

MUSLIM WIFE’S CLAIM ON MAINTENANCE

It is the obligation imposed on the husband to settle claims for maintenance made by the wife. The wife is entitled to maintenance from her husband although she may have the means to maintain herself and although her husband may be without means.

Muslim wife’s claim of maintenance is divided in two different branches of law. One under Muslim Personal Law[4] and another under general law of maintenance as is reflected in Code of Criminal Procedure, 1973[5] which is a secular remedy.[6]

According to the Muslim Personal Law, the husband’s duty to maintain commences when the wife attains puberty and not before; provided always that she is obedient and allows him free access at all lawful times. If a wife deserts her husband she loses her right to maintenance. In addition to the legal obligation to maintain there may be stipulations in the marriage contract which may render the husband liable to make a special allowance to the wife. Such allowances are called kharch-e-pandan, guzara, mewa khore, etc.

If husband refuses to pay maintenance, the wife is entitled to sue him. Her right may be based on the substantive law, or she may sue under the provisions of Code of Criminal procedure which provides for general law of maintenance under Section 125 wherein the term “wife” is widely defined and explained[7] so as to cover the claim of ‘legally wedded wife’ as well as of ‘divorced wife’.[8] So in short Muslim wife’s claim of maintenance arises in following circumstances:

1. Out of the status of Husband & Wife (During the subsistence of marriage & out of the legal obligation imposed on the husband.
2. Out of pre-nuptial agreement and
3. 3) Out of divorce[9].(After dissolution of marriage)

CLAIM OF MAINTENANCE OUT OF DIVORCE

Under other personal laws a divorced wife is entitled to maintenance until her remarriage or indulgence in post-divorce adultery. But the Muslim law does not provide for any maintenance to a divorced wife after the period of Iddat.

With respect to maintenance of divorce wife under the Muslim Law, the right of maintenance commences on divorce or when she comes to know of the divorce and ceases on the death of her husband, as her right of inheritance supervenes. In other cases where husband is alive and has divorced the wife, she can claim maintenance only during the Iddat[10] period and not beyond that. The widow is therefore not entitled to maintenance during the Iddat period commencing after death of the Husband.

This rule has been a bone of contention and on this count there has been a debate in a society as to uniformity[11] of the personal laws. Since in Muslim law it is very easy for the husband to get or to give divorce to the Muslim wife, he can very easily escape the liability of providing maintenance to the wife. As mentioned above it is no longer obligatory for the erstwhile husband to provide maintenance beyond Iddat period.

This point was a great controversy among the judiciary, when the Supreme Court[12] has taken a landmark step and has led to the conflict of law between two different branches of law: Muslim Personal law and general law under Section 125 of Criminal Procedure code, 1973 so far as the claim of (Muslim) divorced wife is concerned, which subsequently led to the enactment of new piece of legislation/law[13]applicable exclusively to the Muslim divorced wife.

So with respect to the claim of Muslim women’s right of maintenance, law is divided and reflected in following legislations:

1) Muslim Personal Law (Shariat Application) Act, 1937[14]

2) Code of Criminal Procedure, 1973[15]

3) Muslim Women (Protection of Rights on Divorce) Act, 1986[16]

GENERAL LAW i.e. SECTION 125 OF CrPC v. (MUSLIM) PERSONAL LAW i.e. MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

The Code of Criminal Procedure, 1973 being a general law has a uniform applicability to all the persons irrespective of their religion, caste or status whereas Muslim personal law is a special law applicable to those who are professing Muslim religion and those who are convert to Muslim. In the event of conflict between a special law and a general law, it is accepted judicial principle that special law shall prevail over the general law.[17]

Section 125 of Cr. P.C, is applicable to the Muslims including divorced Muslim woman [18], irrespective of the fact that in Muslim personal law, wife ceases to be wife on Talaq. Muslim husband is liable to provide maintenance for divorced wife who is unable to maintain herself, so long as she had not remarried.[19]

The statute provides for maintainance of wife by her husband even after the divorce and creates an illusory or fictitious relationship between the two spouses in view of the social conditions prevalent in the country. Further it also prevents the former husband of the divorced wife to drive their erstwhile wives to a state of poverty and destitution till they remarry. So it is clear that woman continues to be the wife within the meaning of section 125 of Code of Criminal Procedure, 1973 irrespective of religion and application of personal law.

Now, If we look from a different view, i.e., from the Muslim Personal law , on the point of claim of maintenance by a Muslim divorced lady, it is no longer obligatory for the erstwhile husband to provide maintenance beyond Iddat period. Therefore, it comes in conflict with right of Muslim divorced lady “to claim maintenance u/Sec. 125 of Code of Criminal Procedure.

In the wake of this controversy as well as contradiction in the two different branches of law, Supreme Court[20] has taken a landmark and bold view by upholding the claim of Muslim divorced lady under Section 125 of Code of Criminal Procedure, 1973. Supreme Court has acknowledged its previous views[21] on the same issue.

Landmark Judicial Pronouncements Relating to the Maintenance of Divorced Muslim Woman

Mohammad Ahmed Khan V/s Shah Bano Begum[22]: A reformatory step.

As noted above the judgement given by the Supreme Court is landmark has paved way towards the unification of personal laws.

Facts of the Case: The case was with respect to Mrs. Shah Bano, a 62-year-old Muslim woman from Madhya Pradesh was divorced by her husband in 1978 and was subsequently denied maintenance. Thereupon she filed a petition under Section 125 of Cr. P.C. in the Court of Judicial Magistrate, Indore asking for maintenance at the rate of Rs. 500 per month. During which the husband divorced her by pronouncing Talaq. She did not remarried. In Defence to Shaha Bano’s petition for maintenance, he took the plea that since she is ceased to be wife after Talaq, he has no obligation to maintain her. However, Magistrate ordered him to pay monthly allowance to his divorced wife, of Rs. 25 per month. Against this order of the Magistrate, Shah Bano filed a revision application in the MP High court praying for the enhancement of maintenance allowance. The MP High Court increased the maintenance rate to Rs. 179.20 per month. Mohd. Ahmed Khan preferred an appeal to the Supreme Court. The Supreme Court dismissed the appeal and confirmed the judgment of the High Court.

Judgment and Principle: The Supreme Court by setting a landmark precedent for the Courts within the territory of India held that Section 125 of Cr. P.C., 1973 applies to all irrespective of the religion practiced by the person and section 125 overrides the personal law, if there is any conflict between the two. To this extent the judicial pronouncement is instrumental. The court also held that

“It would be incorrect & unjust to extend the rule of maintenance under Muslim Law to the cases in which the divorced wife is unable to maintain herself, so if the divorced wife is able to maintain herself, the husband’s liability ceases with the expiration of the period of Iddat, but if she is unable to maintain herself after the period of Iddat, she is entitled to have recourse to Section 125 of Cr. P.C.

Thus it seems from the above mentioned observations of the Supreme Court that there is no conflict between the provisions Section 125 of Cr. P.C and those of the Muslim personal law on the question of Muslim Husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.

So with the help of this judgment Supreme Court has set a new law applicable in the case of Muslim divorced lady that evenif a Muslim woman has been divorced, she would be entitled to claim maintenance from her husband under Section 125 of Cr. P. C. after the expiry of period of Iddat also, as long as she does not remarry.

The case created considerable debate and controversy about the extent of having different civil codes for different religions, especially for Muslims in India. This case caused the government[23], with its absolute majority, to pass Muslim Woman (Protection of Rights on Divorce) Act, 1986 which weakened the judgment of the Supreme Court and, in reality, denied even entirely destitute Muslim divorcees the right to maintenance from their former husbands.

• Muslim Women (Protection of Rights on Divorce) Act, 1986: an illusion.

The Muslim Women (Protection of Rights on Divorce) Act, 1986[24] is a declaratory law[25]and codifies some pre-existing rules of Muslim Law. Under this law, maintenance can be claimed from divorced husband, relatives or from Wakf Board. The Act makes provision for:

1. Maintenance of a divorced Muslim woman during and after the period of Iddat and
2. For enforcing her claim to unpaid dower and other exclusive properties.

Mainly the Act provides reasonable and fair provision and maintenance[26] to be made and paid from her former husband within the period of Iddat.[27] The word ‘provision’ in relation to the Act would mean an action of providing something beforehand or arranging in advance to meet the needs of the divorced wife. It may be that provision can be made for her other needs such as clothes, food and such other things depending upon the means of the husband.

But the usage of some words such as ‘within’, ‘reasonable’ & ‘fair’ and ‘provision’ for future life created a problem in interpretation of the Act in favor of divorced Muslim lady. Prima facie it appears that woman is the beneficiary of this Act which is entirely an illusion. Muslim Woman Act seems arbitrary with respect to:

Firstly, Act does not provide a provision by empowering her to get maintenance beyond the period of Iddat, since the word used is ‘within.’

Secondly, Act[28] restricted the application of Section 125 of Cr. P.C. to the Muslim divorced lady as it is left optional for the husband and/or for the Parties to the litigation to be governed by Section 125 of Cr. P.C.[29]

The Judiciary started interpreting the provisions of the Act in different directions, since as stated above provisions & words (including Preamble[30]) of the Act seems unclear and ambiguous.

Daniel Latifi V/s Union of India[31]

With respect to the controversial nature of this Act[32], a writ petition under Article 32 of the Indian Constitution was filed challenging the constitutional validity of the Act by making Section 3 of the Act as the pivotal point since this provision was interpreted restrictively.

By analyzing the Preamble of the Act, Statement of Objects and Reasons of the Act, and the judgment given by Supreme Court in Mohammad Ahmed Khan V/s Shaha Bano Begum, Court has advocated the validity of the Act and came to the following conclusion:

1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.

2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.

3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

Observation: At the same time Court has observed on the basis of appropriate reading of the Act:

“the word ‘provision’ indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her cloths, and other articles. The expression “within” should be read as “during” or “for” and this cannot be done because words cannot be construed contrary to their meaning as the word “within” would mean “on or before”, “not beyond” and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filling an application before the Magistrate as provided in Section 3(3) but nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.

In this case though Courts were of opinion that prima facie the provisions of the Act appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion.

On an analysis of this judgment we can say that the Act is valid and operative since as it is rightly said by the Court in the same case that Legislature does not intend to enact unconstitutional laws and in fact “an appropriate” reading of the Act would reveal that nowhere the Parliament has provided that reasonable and fair provision and maintenance is limited only for the Iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.

With respect to the validity of the Act Court has provided that “it is well settled that when by appropriate reading of an enactment the validity of the Act can be upheld, such interpretation is accepted by courts and not the other way.” Thus the Supreme Court held that a construction that results in making an Act ultra vires has to be discarded and one that upholds the validity of the Act preferred[33]

Conclusion

From above, it is therefore, concluded that the position of divorced wife under other personal laws, is quite different and distinct to that of a Muslim divorced woman. Even the application of general law (Section 125 of Cr. P.C.) was subjected to the fulfillment of the conditions as mentioned under section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 as an option. When a deserted or destitute Muslim (divorced) wife who is unable to get maintenance by virtue of prohibition in Muslim Law, approaches & files application under Section 125 of Cr. P.C., the usual Defence adopted by the husband was to plead that he has already divorced his wife and hence he is not labile to pay maintenance. This argument became stronger after the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986.

Fortunately, the judiciary has shown awareness and took initiative in protecting the interest of Muslim woman and has in real sense empowered Muslim women, especially divorced woman to maintain an adequate standard of life and to defeat the injustice done to them as according to Muslim personal law, it is very easy to get rid of the wife by mere pronouncing Talaq. The decision given by the Supreme Court in Danial Latifi case settles the law in favor of the divorced Muslim wife and vests her with a “constitutional right” to livelihood through maintenance which was first made as an issue in the Shah Bano Begum case. The present Act invites more criticism than praise. The content of the Muslim Women (Protection of Rights on Divorce) Act, 1986 has left an opportunity to the judiciary to not only provide some relief to the divorced Muslim wives but also lead to the growth of an awareness and need to look after them and not to abandon them to destitution. And to provide them dignity and respect of a human being and not to consider them as an object which is used for pleasure and when bored thrown out of the house. Maintenance, thus is a means of surviving and to lead a happy and respectful life.

[1] Section 3 (c) Hindu Adoption & Maintenance Act, 1986. Taken from Marriage & Divorce Laws (Bare Acts), Universal Law Publishing Co. 2011.

[2] Halsbury‟s law of England, 3rd Edn, Vol. 12, p. 290

[3] Muslim personal law

[4] Shariat

[5] Section 125

[6] To the extent of application of Section 125 of Code of Criminal Procedure to the Muslim wife, law is yet not clear and there is divergence of opinions amongst jurists and judges so far as the application of Section 125 is concerned.

[7] Section 125 (1) Explanation (b) says: „Wife‟ includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried.

[8]On this count Muslim Law is different and in conflict with the general law of maintenance.

[9]No question of maintenance arises after death of the husband since her succession right supervenes.

[10] It is duration to be observed by Muslim wife in case of divorce by the husband or death of the husband and serves as a prohibition for any person to marry with her. Sec. 2 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 defines “Iddat”:

” iddat period” means, in the case of a divorced woman

1. i) three menstrual courses after the date of divorce, if she is subject to menstruation; and

(ii) three lunar months after her divorce, if she is not subject to menstruation; and

(iii) if she is enceinte (pregnant) 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;”

[11] For the first time concern was shown in the case of Mohammad Ahmed khan V/s Shaha Bano Begum (AIR 1985 SC 945)

[12] In the case of Mohammad Ahmed Khan V/s. Shah Bano Begum (AIR1985SC945)

[13] Muslim Women (Protection of Rights on Divorce) Act, 1986.

[14] Wherein Section 2 lays down that in the event of ambiguity or controversy or questions or dispute, (un-codified) Muslim Personal Law shall prevail or shall be applicable.

[15] Section 125 of this Code applicable to the persons (wife/wives) irrespective of religion and is a secular remedy wherein even Muslim wife whether divorce or not, can claim maintenance. The provision is not governed or limited by Muslim personal Law. It‟s an independent remedy.

[16] This legislation was enacted after the controversial judgment of Supreme Court in the case of Mohammad Ahmed Khan V/s. Shah Bano Begum (AIR1985SC945)

[17]S. Arumuganainar vs M/S. Jeenath Roadways. Available at: http://www.indiankanoon.org/docfragment/1932121/?formInput=patent fromdate:1-1-2005 todate:31-12-2005 Last visited on November 21, 2012, at 4:30 pm.

[18] As per Explanation (b) appended to Section 125 defines: “Wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

[19]Harron Rashid V/s. Requeeba Khatoon, 1997 (1) BLJR 93. Available at: Dr. Rakesh Kumar Singh Universal Law Publ. Co. Ltd., Ed. 2011, at page 163.

[20]Mohammad Ahmed khan V/s Shaha Bano Begum (AIR 1985 SC 945)

[21] Bai Tahira V/s Ali Hussain (AIR 1979 SC 362) & Fazlunbi V/s K. Khader Vali (AIR 1980 SC 1730) Available at : Dr. Sebastian Champappily, MUSLIM LAW: AN ANALYSIS OF JUDGMENTS, Southern Law Publishers, Cochin, 1st Ed. 2006 at page no. 80.

[22] AIR SC 1985 945

[23] Government led by former (Late) Prime Minister Rajiv Gandhi

[24] Hereinafter called “Muslim Women Act.”

[25] Beauty Banday: MAINTENANCE OF SLIM DIVORCEE FROM WAKF PROPERTY: A SOCIO-LEGAL STUDY, Kashmir Journal of Legal Studies, published by Kashmir Law College, Srinagar, at page no. 55.

[26] Mahr or other properties of Muslim woman to be given to her at the time of divorce

Clause (1) ,(2), (3), and (4)

[27] Section 2 (b) of Muslim Women (Protection of Rights on Divorce) Act, 1986

[28] Sec. 5 Option to be governed by the provisions of sections 125 to 128 of Act 2 of 1974

If on the date of the first hearing of the application under sub-section (2) of section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.

Explanation.- For the purposes of this section, “date of the first hearing of the application” means the date fixed in the summons for the attendance of the respondent to the application.

[29] Hardly any husband consents for the application of Section 125 of Cr. P.C. since it imposes a penal liability in the event of failure to provide maintenance.

[30] Preamble:

An Act to protect the rights of Muslim women who have been divorced by or have obtained divorce from, their husbands and to provide for matters connected therewith, or incidental thereto. (Since Statement of Objects & Reasons refers to the Supreme Court judgment but does not provide any thing to that effect in the body of the statute).

[31] AIR2001SC3958

[32] Muslim Women (Protection of Rights on Divorce) Act, 1986.

[33] Syed Khalid Rashid, MUSLIM LAW, Eastern Book Company, 4th Ed., at page no. 189.

– By Monika Sharma, Amity Law School