Legal position of Muslim Women relating to maintenance
In Islam, “Maintenance” is termed as “Nafaqah”, which literally means ‘an amount spent by a man over his family. According to many Muslim legal philosophers, maintenance includes all those things which are essential to lead a life such as food, clothing and residence.
It is believed that a woman on her marriage gives up her all other avocations and entirely devotes herself to the welfare of the family. In particular, she shares her emotions, sentiments, mind and body with her husband, and this investment of her in the marriage is a sacramental sacrifice which is far too enormous and can not be measured in terms of money.
Here, let’s have a look at how and to what extent rights of maintenance of Muslim woman has been laid down by the legislation and the judicial precedents in India.
Mohd. Ahmed Khan versus Shah Bano Begum andOrs, 1985 AIR 945
This was a landmark case in the Indian legal history of a 62-year-old woman, who was divorced and therefore, moved Supreme Court for claiming maintenance from her husband as her husband was contesting her claim on the ground that he had already given the payment of mahrdue to her under Muslim personal law so her claim for maintenance should be dismissed.
The Hon’ble Supreme Court while deciding this controversial issue held that, mahr is an amount which is payable in consideration of the marriage. Therefore, no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of the divorce. ‘Mahr’ is paid as a mark of respect to the wife. Therefore, a sum payable to the wife out of respect cannot be a sum payable by the husband to the wife for her maintenance on divorce. It further stated that generally the liability of the husband to provide maintenance to his wife is limited to the period of iddat but if she is unable to maintain herself, she is entitled to take recourse to Section 125 of the Code of Criminal Procedure, 1973. The Hon’ble Court concluded that the right conferred by Section 125 can be exercised irrespective of personal law of the parties.
The Hon’ble Supreme Court also held that Section 125 of the Code of Criminal Procedure, 1973 provides maintenance rights to every woman irrespective of religion.
This case is seen as one of a milestone wherein Hon’ble Supreme Court duly held that in case if any conflict arises between Section 125 of the Code and the personal law, then in such a case former prevails and thus the liability of the husband to pay maintenance to his wife extends beyond the period of iddat in the circumstances where wife does not have sufficient means to maintain herself.
Muslim Women (Protection of Rights on Divorce) Act, 1986
The Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted on 19th May, 1986 to protect the rights of a Muslim women who have been divorced by or have obtained divorce from, their husbands.
The provisions of this Act provided that the former husband must provide “a reasonable and fair provision” as maintenance within the period of iddat. Thereafter, if in case she is unable to maintain herself after the period of iddat, she can claim maintenance from her relatives and in case if they cannot pay, then she can claim from the Wakf Board.
In the case “DanialLatifi Versus Union Of India,(2001)7 SCC 740,” the constitutional validity of the MWPRDA, 1986 was challenged as being violative of the right to equality guaranteed under Article 14 of the Indian Constitution. Further, it deprived Muslim women of maintenance benefits equivalent to those provided to other women under Section 125 of Criminal Procedure Code, 1973 and it was argued that this law would leave Muslim women destitute and thus was violative of the right to life guaranteed under Article 21 of the Indian Constitution as the same excludes Muslim women from the purview of sec 125 of the Code.
The Hon’ble Supreme Court after interpreting the provision of the Act upheld its constitutionality and came to the conclusion that a Muslim husband is liable to pay reasonable amount of maintenance for the future of his divorced wife. It means amount entitled by a wife during the iddat period should be large enough so that she can easily maintain herself during iddat period as well as in future in order to survive and fulfill her basic needs. Thus, a divorced muslim woman is entitled to maintenance for a lifetime until she is married again. The court concluded that the Act does not violate Articles 14, 15 and 21 and hence, is not ultra vires and Section 3 of the Act is only a substitution of Section 125 Crpc and held:-
“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.”
Similar view was taken by the Hon’ble Supreme Court in the case of “IqbalBanoversus State of UP, Criminal Appeal No. 795 of 2001, wherein it was stated that the provisions of the Act do not contravene Articles 14,15 and 21 of the Indian Constitution.
CONCLUSION
Prior to Shah Bano’s verdict, Muslim woman was entitled to claim maintenance only till the iddat period. But after Shah Bano’s case, Muslim Woman could claim maintenance even after the iddat period under Section 125 Crpc. Later, the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was misconstrued as restricting theliability of the husband to maintain his divorced wife only till the iddat period.
However, after the ruling of the Apex Court in “Daniel Latifi Versus Union of India”, the correct interpretation of the Act was provided by uphelding that the husband is liable to pay maintenance to his divorced wife during iddat period not only for the said period but also, for her survival in future as well, unless she marries again.