What are the existing legal provisions in India to ensure that Muslim women receive maintenance after divorce? Can a divorced Muslim woman claim protection under section 125 Cr.P.C.? Further, can the maintenance of a Muslim woman be regulated by mutual agreement between husband and wife? Substantiate your answer with reasons and case law.

Question: What are the existing legal provisions in India to ensure that Muslim women receive maintenance after divorce? Can a divorced Muslim woman claim protection under section 125 Cr.P.C.? Further, can the maintenance of a Muslim woman be regulated by mutual agreement between husband and wife? Substantiate your answer with reasons and case law. [Punj JS 2013]

Find the question and answer of Muslim Law only on Legal Bites. [What are the existing legal provisions in India to ensure that Muslim women receive maintenance after divorce? Can a divorced Muslim woman claim protection under section 125 Cr.P.C.? Further, can the maintenance of a Muslim woman be regulated by mutual agreement between husband and wife? Substantiate your answer with reasons and case law.]

Answer

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 called nafaqa and it comprehends food, raiment and lodging, The wife is entitled to maintenance from her husband, despite the fact that she has the 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:

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

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 the 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 the iddat period and maintenance goes beyond the same.

In Mohammed Haneefa v. Mariam Bi, AIR 1969 Mad. 414, 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, 1987 AIR 1103.

This caused a lot of dilemmas in the legislature. To resolve this dilemma, Section 127(3) (b)was added under which 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 v. Ali Hussain Fissalli Chothia,1979 AIR 362, 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 when the aggregate payment stipulated by custom is pretty much sufficient to substitute the maintenance.

The Supreme Court expressed in Zohara Khatoon v. Mohd. Ibrahim, AIR 1243 1981, that the expression "wife" in Section 125 and Section 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.

In Daniel Latifi v. Union of India, (2001) 7 SCC 740, 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 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 the iddat period should be for her entire future, that is the time after the expiration of the 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. These interpretations are reflected in the later judgments.

The Supreme Court once again in Iqbal Bano v. State of U.P., (2007) 6 SCC 785, reiterated the position that divorced women are entitled to maintenance beyond the Iddat period and stated that provisions of the Act do not contravene Articles 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 under section 3 of the Muslim Women Act. The wife will be entitled to receive maintenance under section 125 of Cr.P.C. until the husband fulfils his obligation under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Can the maintenance of a Muslim woman be regulated by mutual agreement between husband and wife?

A Muslim marriage is construed as a contract, an agreement that is made between the parties to the marriage (nikah) which prescribes the rights & duties of both husband and wife. In this agreement, the wife can stipulate some conditions for the husband and in case of breach of such conditions; she has a right to live separately and is also eligible to receive maintenance.

The quantum of the maintenance and the terms are to be agreed upon and settled at the time of marriage itself. The wife can stipulate the contract of the marriage in case the husband ill-treats her/ or takes a second wife or keeps a concubine.

In such a case, she has the right to live separately from her husband and she is also eligible to claim maintenance against the husband. However, it has to be noted that the husband’s liability is limited only till the iddat period and the wife can claim maintenance only during the period of iddat and not beyond that.

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