Discuss the provisions of maintenance of the wife by the husband under the Mohammedan Law. What right of maintenance a divorced wife has under the Mohammedan Law?

Question: Discuss the provisions of maintenance of the wife by the husband under the Mohammedan Law. What right of maintenance a divorced wife has under the Mohammedan Law? Discuss in light of the Apex Court's decision in the case of Shah Bano. [BJS 2018]

Find the question and answer of Muslim Law only on Legal Bites. [Discuss the provisions of maintenance of the wife by the husband under the Mohammedan Law. What right of maintenance a divorced wife has under the Mohammedan Law? Discuss in light of the Apex Court's decision in the case of Shah Bano.]

Answer

In India, maintenance is known as "Nafqah" according to Muslim law. The amount a man spends on his family is referred to as "nafqah". A Muslim woman's right to maintenance is unassailable and unrelated to her ability to support herself. The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse), so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient, unless the refusal or disobedience is justified by nonpayment of prompt dower, or she leaves the husband's house on account of his cruelty.

Therefore, all Muslim women, regardless of whether they are employed or not, are entitled to maintenance, in contrast to most other religious practices where only dependent women are.

Regardless of his financial situation, the husband has a duty and responsibility to give his wife adequate maintenance in all situations. A Muslim woman cannot, however, ask her husband for maintenance in the following circumstances:

1. She hasn't hit puberty yet.

1. She has abandoned her husband and marital duties with sufficient reason.

2. Where she elopes with some other man.

3. In a case where she disobeys the reasonable commands of her husband

Provisions of maintenance of the wife by the husband under the Mohammedan Law

If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance unless the claim is based on a specific agreement.

She may also take shelter of Section 125 of the Criminal Procedure Code, under which the court may allow a monthly allowance for her maintenance not exceeding five hundred rupees or under the "Dissolution of Muslim Marriage Act' 1939, Section 2(ii), a wife is entitled to dissolution if the husband has failed or neglected to provide maintenance for the period of two years.

In terms of Section (3) (a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a Muslim husband is liable to make reasonable and fair provisions for the future of the divorced wife. This includes her maintenance as well. Accordingly, the husband has to make a fair and reasonable provision for the maintenance of the wife beyond the iddat period as per the terms of Section 3 (1) (a) of the Act.

If the wife exercises her right under Mohammedan law and refuses to live with her husband on the ground of non-payment of prompt dower, she cannot enforce her right to maintenance under Section 125 of the Code of Criminal Procedure.

Right of maintenance a divorced wife has under the Mohammedan Law through Apex Court's decision in the case of Shah Bano Case

After divorce, the wife is entitled to maintenance during the period of iddat. If the divorce is not communicated to her until after the expiry of that period, she is entitled to maintenance until she is informed of the divorce.

The right to maintenance after the period of iddat came to be considered under Sections 125 to 127 of the Code of Criminal Procedure. A large number of cases arose particularly in the seventies and eighties. They culminated in the case of Mohd. Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945, where the five Judge Bench of the Supreme Court held that a Muslim husband having sufficient means must provide maintenance to his divorced wife who is unable to maintain herself. Such a wife is also entitled to refuse to live with her husband and claim maintenance because he has contracted another marriage within the limit of four wives.

Facts of the case

In April 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition in court demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer in Indore, Madhya Pradesh. Khan had granted her irrevocable talaq later in November. The two were married in 1932 and had five children — three sons and two daughters. Shah Bano's husband had asked her to move to a separate residence three years before, after a prolonged period of her living with Khan and his second wife.

Shah Bano went to court and filed a claim for maintenance for herself and her five children under Section 125 of the Code of Criminal Procedure, 1973. The section puts a legal obligation on a man to provide for his wife during the marriage and after divorce too if she isn't able to fend for herself. However, Khan contested the claim on the grounds that the Muslim Personal Law in India required the husband to only provide maintenance for the iddat period after divorce.

Decision of the Court

The Court rejected the contention of the husband that Section 125 of CrPC providing maintenance of a divorced wife who is unable to maintain herself is inapplicable to Muslims. It was held that the religion professed by a spouse or the spouses has no place in the scheme of Section 125 CrPC is a measure of social justice founded on an individual's obligation to society, to prevent vagrancy and destitution.

The Court further held that the term 'wife' includes a divorced Muslim woman also, so long as she has not remarried. The Court also rejected the plea that maintenance is payable only till the period prescribed under Muslim personal law, during which she should abstain from sexual intercourse and other luxuries. It further held that the ability of the husband to maintain her divorced wife till the expiration of the 'Iddat ', the period extends only in case the wife is able to maintain herself. Chief Justice Chandrachud gave his own interpretation of the Quranic verses and held that these Ayats of the Holy Quran clearly impose an obligation to provide maintenance to the divorced wife.

The Supreme Court's decision in the Shah Bano case sparked debate. This ruling was opposed by many Muslim leaders because it was against Shariah. They argued that paying maintenance to a divorced woman after the Iddat period is against Islamic law. This opposition led to the Parliament passing the Muslim Women (Protection of Rights on Divorce Act, 1986). Following is a summary of this Act's provisions pertaining to a divorced Muslim woman's maintenance:

(1) The divorced woman has a right to reasonable and fair support from her ex-husband during the Iddat period [Section 3(1)(a)].

(2) Where she is responsible for raising the children she had before or after the divorce, her ex-husband must make and pay maintenance for a period of two years following the respective dates of the children's births (Section 3(1)(b)).

(3) Divorced women who have not remarried and who are unable to support themselves after the iddat period are entitled to maintenance from those relatives who would inherit their inheritance in the event of their passing. [Section 4(1)]

(4) Where a divorced woman is unable to maintain herself and she has no relatives as mentioned above or such relatives or any one of them have not enough means to pay the maintenance the liability to maintain her is cast upon the Waqf Board of the State in which she resides [Section 4(2)].

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