SVKMS NMIMS SCHOOL OF LAW

A PROJCT SUBMITTD ON

MAINTENANCE UNDER MUSLIM LAW

IN COMPLIANC TO TH PARTIAL FULFILLMNT OF TH MARKING SCHM

FOR TRIMSTR X 2016-17, IN TH SUBJCT OF FAMILY LAW - I

SUBMITTD TO FACULTY PROF. NADISHA VAZIRANI FOR VALUATION

SUBMITTD BY: KHUSHIL SHAH (A052)

COURS: - B.A. LL.B. (hons.)
DAT: - 12TH SEPTEMBER, 2016
TIM: - 4:00 P.M.

RCIVD BY: - ..
ON DAT: - ..
TIME:-..
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INDEX

SERIAL

TOPICS

PAGE

NUMBER

NUMBER
3

ABBREVIATIONS/ TABLE OF CASES AND STATUTES

INTRODUCTION

RESEARCH METHODOLOGY

LEGAL ANALYSIS

JUDICIAL ANALYSIS

COMPARATIVE STUDY

CONCLUSION

SUGGESTIONS

BIBLIOGRAPHY

4
6
8
14
20
26
28
30

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ABBREVIATIONS
Cr.P.C. Criminal Procedure Code
i.e. that is
SC Supreme Court
HC High Court
SCC Supreme Court Cases
Ed. edition
TABLE OF CASES

Mohammed Ahmed Khan vs. Shah Bano Begum, 1985 SCC (2) 556

Sabra Shamim vs. Maqsood Ansari, (2004) 9 SCC 616

Danial Latifi v. Union of India, (2001) 7 SCC 740

QURANIC VERSES REFERRED

Al- Quran Surah, Al-Talaq, LXV: 7

Al- Quran Surah, Al-Talaq, LXV: 6

Al- Quran Surah, Al- Baqara, 11:233

TABLE OF STATUTES

Muslim Women (Protection of Rights on Divorce) Act, 1986

Moroccon Code of Personal Status, 1957

Iraqi Code of Personal Status, 1959-83

Egyptian Law on Maintenance and Personal Status, 1920-85

Law of Divorced Wifes Right to Residence, 1983

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CHAPTER 1: INTRODUCTION

The concept of maintenance was presented in order to see that if there are children and spouse who
are not independent financially than the other spouse should help him/her in order to make the
living of the other person possible and independent. Giving maintenance means that the other
person who is getting the maintenance should be able to live the life as he or she lived before
marriage in case of divorce and in case where the two partners are not living together and they
seek maintenance than the spouse getting maintenance should be able to live a life as when they
lived together.
The dictionary meaning of the word Nafah (maintenance) is the money someone given to a person
that they are legally responsible for, in order to pay for their food, clothes, and other necessary
things. The implied meaning here is the money given by the husband to maintain his wife and
children. The following verses of the Holy Quran gave rise to the rights and obligations of
maintenance: Let the men of means spend according to his means, and the men whose resources
are limited, let him spend according to what God has given him.1 Let the women live (in iddat)
in the same style as ye live, according to your means.2 But he shall bear the cost of their food
and clothing on equitable terms.3 What is Nafah (maintenance)? Generally, it includes food,
clothing, dwelling and other necessary articles, which are necessary for the livelihood and comfort
of a woman. The basis for the liability of maintenance is marriage. Under the Sharia, a wife cannot
be compelled to cook and stitch her clothes; it is the husband who has to provide her with a servant
fro that work. The husband is also bound to provide her with a separate house or a separate portion
of a house with a separate entrance or exit. If the wife resides at her parents house for a valid
reason, her right of maintenance is not affected. It is obligatory on the part of the husband to
maintain his wife, behave with her on equitable terms and take proper care of the wife. If he has
more than one wife, he should provide maintenance to all of them and treat them equitable, should
not discriminate between them in providing maintenance and should not prefer one against the
other. The valid marriage, it is the liability of the husband to maintain the wife. There is no liability

Al- Quran Surah, Al-Talaq, LXV: 7

Al- Quran Surah, Al-Talaq, LXV: 6
3
Al- Quran Surah, Al- Baqara, 11:233
2

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of maintenance in case of an irregular marriage where irregularity is due to absence of witnesses

at the time of Nikah ceremony. Where the wife refuses to live with the husband due to non-payment
of prompt dower, she refuses to live with the husband or return to his house due to some valid
reason e.g. his cruelty, the right of maintenance is not affected.4
The Prophet of Islam is reported to have said that only those persons are entitles to maintenance
who are not forbidden to beg. It is better for one of you to take rope and bring a bundle of wood
upon your back and sell it than to beg of people. Who is prohibited from begging? Asked people
to the Prophet of Islam of who is thereupon reported to have said that persons possessing 50
dirhams of silver or the values of that in gold or persons possessing a quantity of things which
supports the night and morning are prohibited from begging. Indeed the (i) moral and (ii) legal
duties of maintenance being almost inseparably mixed, it is difficult to say as to what exactly is
legally enforceable and what merely an ethical recommendation is.5 However it appears crystal
clear that the right of maintenance is available only to poor person unable to earn their
maintenance. The test appears to be: Are you prevented Accepting Alms under Islamic Law? If
not, you are poor and entitled to seek maintenance.

https://www.ijhsss.com/files/Taranam-Siddique_h3ncq829.pdf
http://dailyhadith.abuaminaelias.com/2011/10/13/the-prophet-counsels-a-man-to-earn-for-himself-and-his-familyinstead-of-begging/
5

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CHAPTER 2: RESEARCH METHODOLOGY

STATEMENT OF PROBLEMS
The concept of marriage, maintenance and divorce is quite different under Muslim Law. Under
Muslim Law Marriage is a contract which needs to fulfil every minute detail such as proposal by
party and acceptance of the proposal by another. It is very strict under Muslim law that the wife
should not be awarded maintenance after the period of Iddat but after much deliberations and
judgements given by the Supreme Court as well the law passed i.e. Muslim Women Act, 1986
equal rights have been given to the women. The judiciary has shown awareness towards the pitiable
position of Muslim woman and has in real sense empowered Muslim women, especially divorced
woman whose miseries are uncountable.
OBJECTIVES
1. To understand the concept of maintenance under the Muslim law.
2. To analyse Role of Judiciary on the law of maintenance and the importance of Muslim
Women Act, 1986.
REVIEW OF LITERATURE
Maintenance Right to Muslim Wife: Need, Perspectives and Need for Reformation Ashok Wadje
In this paper the focus of the author is on the legislation enacted describing about the maintenance
under the Muslim law. It also describes about the position of Supreme Court and its shift from the
Shah Bano case to the Daniel Latifi Case.
Maintenance Rights in Muslim Personal Law Tarranum Siddique
In India Muslim community, as a whole form the largest minority community. But in India many
Muslim women are not aware of the own rights in relation to Muslim Personal law. In this paper
the author has explained and clarified the perspective of Muslim women maintenance in Muslim
Personal law.

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METHODOLOGY
The research that I will conduct would be strictly non doctrinal. I am going to analyse information
from different journals, case laws, articles, books and research portals like Westlaw and
Manupatra.
RESEARCH QUESTIONS
1. What is the position taken by judiciary to solve the conflict between the General and the
Special law?
2. Is there a need for reform in the law on maintenance of Muslim wives under the Indian
law?
HYPOTHESIS
The Muslim Personal law treats Marriage as a contract and thus no maintenance should be
provided to the wife after the Iddat Period unless she has no other means of survival.
CHAPTERIZATION
1. INTRODUCTION
2. RESEARCH METHODOLOGY
3. LEGAL ANALYSIS
4. ROLE OF JUDICIARY
5. COMPARATIVE STUDY
6. CONCLUSION
7. SUGGESTIONS

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CHAPTER 3: LEGAL ANALYSIS

Every relative within the prohibited degree is entitled to maintenance. If he is male and child, he
is entitled to maintenance only if he is infirm or blind and not otherwise. If she is female and
child she is entitled for maintenance no matter she is an adult.6
The liability to maintain is in proportion to share in the inheritance in accordance with the Islamic
law. A Father is bound to maintain his (1) minor son until he attains puberty (2) daughter until
married (3) widowed daughter and (4) Divorced daughter. The father is not bound to provide
separate maintenance to his son if he refuses to live with him without sufficient cause and so also
he is not bound to provide separate maintenance to his daughter unless circumstance are such as
to justify her staying away. However, the father is not relieved of his obligation to maintain his
children if they are kept in the custody of their mother. Children in easy circumstance are bound
to maintain their parents and also their grandparents. A father in law is not under any legal
obligation to maintain his daughter in law under the strict Islamic Law.
It must be clearly borne in mind that the remedy available under Section 125 of the Code of
Criminal Procedure, for seeking maintenance for aged parents and children being quick, it is usual
and common to make an application for maintenance for children and parents under Section 125
of Cr.P.C. rather than filing a civil suit under the substantive right under the Mohemmedan Law
in a competent civil court. However, it cannot be said and in fact does not indicate that Islamic
Law does not provide maintenance for the aged parents and young children.
It is unnecessary to record that upon marriage, it is the solemn duty of husband to maintain his
wife and hardly there is any controversy on it. The real issue arises when she is divorce, particularly
when it is by way of Talaq. Indeed, it is manifestly clear from Quranic Injunctions that a Muslim
husband is under duty of obligation to provide maintenance. Some of the Quranic injunctions are
as under:
65:1 O Prophet when you people intend to divorce your women then divorce them at the time of
their prescribed periods and count the prescribed period, and fear Allah your Lord. Turn them out

http://www.islamswomen.com/articles/rulings_on_women_in_society.php

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not out of their houses during prescribed period, nor should they themselves go out, unless they
become openly guilty of immoral conduct.7
2:236 No sin upon you if you divorce woman before you have touched them but appoint a portion
fixed for them by you rather pay Mahar and make provision of gift for them, Rich, according to
his poor, according to his means.
2:241 And for divorced women, maintenance should be provided on reasonable scale. It is a
duty/Haq on God-fearing.
2:242 Thus Allah makes clear his signs to you (so that you may understand).8
Thus from the different verses as stated in Quran also prescribes that: 1. Even after divorce, maintenance is prescribed.
2. During Iddat period, wife has to live and not to leave the matrimonial home and thus wife
has to be maintained during Iddat period needless to say that it gives an opportunity of
reconciliation.
3. Even if marriage is not consummated, maintenance is prescribed.
While it is no denying that Muslims are commanded in Quran to provide maintenance to his wife,
even after divorce, there is always an opposition. In India, not only the Muslim Law but also the
Indian Law holds the field. In India, under Section 488 of the Code of Criminal Procedure, 1898,
a provision was made to give effect to the fundamental and natural right of a main to maintain his
wife, children and parents when they are unable to maintain themselves. The object of the
provision was not to punish a person but to prevent homelessness. The Provisions of Section 488
were always subject to final determination of rights of parties by a Civil Court. The word wife by
no stretch of imagination could have been extended to a woman who was divorced. The Muslim
Husbands, therefore, in order to come out from their legal obligation, would quickly give Talaq
and leave their wives to their own misery.9 When the Criminal Procedure Code came to be
amended the word wife was so defined as to include in it even the divorced women. After this the
trick of Muslim Husband to give Talaq could not work because under the new code because now

https://quran.com/65
Number before the Colon shows the chapter number and after the colon shows the verse number
9
http://www.lawleader.in/JudgmentFile/10727_22032016165703.pdf
8

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even the divorced wife was given right to maintenance. The Muslim Husbands then found out a
new ground under Section 127(3) (b) of the new Code. The Magistrates under this provision can
cancel the order of maintenance if wife has received the amount she is entitled to receive under
any customary or personal law after she is divorced. The Muslim Husbands would now say that
Mahar, Dower is the said amount, which wife is entitled to receive on divorce under their
personal law and that having being paid, and the order of maintenance must be canceled. 10 Shah
Banos husband took this plea but failed even in the Supreme Court of India. This case became
famous as Shah Banos Case. The Honorable Supreme Court of India in the Shah Banos case,
inter alia, considered the Quranic injunctions and verses 241 and 242 and inter alia held that there
was no conflict between Section 125 of Cr.P.C, 1973 and Muslim Personal law on the question of
husbands obligation to provide maintenance for divorced wife and as such, he (the Muslim
Husband) is also liable to pay maintenance to his divorce wife.11
MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT OF 1986
Some relevant provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986
regarding Maintenance of Muslim Divorce are in need of separate treatment. Section 3(l)(a)12 of
Muslim Women (Protection of Rights on Divorce) Act, 1986 lays down that a divorced Muslim
wife shall be entitled to a reasonable and fair provision and maintenance to be made and paid to
her within the Iddat period by her former husband.
Section 3(1) (b)13 of Muslim Women (Protection of Rights on Divorce) Act, 1986, lays down the
condition where divorced Muslim wife herself maintains the children born to her before or after
her divorce, In this condition she will be entitled to 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.
Section 3(l)(c)14 of Muslim Women (Protection of Rights on Divorce) Act, 1986 lays down that a
Muslim divorced wife shall be entitled to 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. Section
10

http://www.legalserviceindia.com/article/l338-Muslim-womens-right-for-dissolution-of-marriage.html
http://www.wluml.org/sites/wluml.org/files/import/english/pubs/pdf/misc/Shah-Bano-eng.pdf
12
Section 3(1)(a), Muslim Women (Protection of Rights on Divorce) Act, 1986
13
Section 3(1)(b), Muslim Women (Protection of Rights on Divorce) Act, 1986
14
Section 3(1)(c), Muslim Women (Protection of Rights on Divorce) Act, 1986
11

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3(l)(d)15 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 lays down a Muslim
divorcee will be entitled to all the properties given to her before or at the time of marriage or after
the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
Section 3(2)16 of this act lays down that where a reasonable and fair provision and maintenance
or the amount of Mahr or dower due has not been or made or paid or the properties referred to in
clause (d) of sub-Section (1) have not been delivered to a divorced woman on her divorce, she or
any one duly authorized by her may, on her behalf, make an application to a Magistrate for an
order for payment of such provision and maintenance, Mahr or dower or the delivery of properties,
as the case may be.
Section 4 of Muslim Women (Protection of Rights on Divorce) Act, 198617, deals with the rules
as to order for payment of maintenance. Subsection (1) of this Section lays down that regardless
of anything contained in the Act or in any other law for the time being in force, where the
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 as would be entitled to
inherit her property on her death according to Muslim law to pay reasonable and fair maintenance
to her as he determine fit and proper, having regard to the needs of the divorced woman, the
standard of life enjoyed by her during her marriage and the means of such relatives and such
maintenance shall be payable by such relatives in the proportions in which they would inherit her
property and at period as he may specify in his order. There is a proviso in this Section which
provides that where such divorced woman has children, the Magistrate shall order only such
children to pay maintenance to her, and the event of any such children being unable to pay such
maintenance; the magistrate shall order the parents of such divorced woman to pay maintenance
to her. The second proviso of this Section provides further that if any of the parents is unable to
pay his share of the maintenance ordered by the Magistrate on the ground of him not having the
means to pay the same the Magistrate may, on proof of such inability being furnished to him, order
that the share of such relatives in the maintenance order by him be paid by such of the order
relatives as may appear to the Magistrate to have the means of paying the same in such proportion
as the Magistrate may think fit to order. Sub-section 2 of this Section lays down that where
15

Section 3(1)(d), Muslim Women (Protection of Rights on Divorce) Act, 1986

Section 3(2), Muslim Women (Protection of Rights on Divorce) Act, 1986
17
Section 4, Muslim Women (Protection of Rights on Divorce) Act, 1986
16

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divorced woman is unable to maintain herself and she has no relatives as mentioned Sub-section
(1) or such relatives or any one of them have not enough means to pay the maintenance ordered
by the magistrate or the other relatives have not the means to pay shares of those relatives whose
shares have been ordered by the magistrate to be paid by such other relatives under the proviso to
sub-Section (1), the Magistrate may, by order direct the State Wakf Board established under
Section 9 of the Wakf Act, or under any other law for the time being in force in a State, functioning
in the area in which the woman resides, to pay such maintenance as determined by the under subSection (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay,
at such periods as he may specify in his order.
Section 5 of the Muslim Women (Protection of Rights on Divorce) Act, 198618, gives the option
to divorced Muslim wife to be governed by the provisions of Section 125 to Section 128 of
Criminal Procedure Code, 1973, but the condition is that there must be an agreement between the
husband and wife by an affidavit, that they would prefer to be governed by the provisions of
Section 125 to Section-128 of Criminal Procedure Code, 1973. It is also necessary that the
declaration must be made on the date of the first hearing. The explanation of this Section says that
for the purpose 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.
Section 7 of the Muslim Women (Protection of Rights on Divorce) Act, 198619, is the transitional
position which lays down that every application by a divorced woman under Section 125 or under
Section 127 of the Criminal Procedure Code, 1973, pending before a Magistrate or the
commencement of this Act, shall, regardless of anything contained in that code and subject to the
provisions of Section 5 of this Act, be disposed of by such magistrate in accordance with the
provisions of this Act.
MAINTENANCE TO CHILDREN
Children having no independent income of their own, have an independent right of maintenance
under Mohmedden law. No doubt Section 3(1) (b) of the Muslim Women Act, 1986 does allow
the Divorce wife to claim maintenance to of her children from her former husband nevertheless

18
19

Section 5, Muslim Women (Protection of Rights on Divorce) Act, 1986

Section 7, Muslim Women (Protection of Rights on Divorce) Act, 1986

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that has nothing to do with the Childrens independent right to be maintained by their father. Such
a right of children is not affected by the provision of Section 3(1) (b) of 1986 Act.20
MAINTENANCE AFTER DEATH OF HUSBAND
The wifes right of maintenance from husband under Islamic Law ceases on the death of her
husband. If the husband dies during the period of Iddat, wife then becomes entitled to the
inheritance inasmuch as divorce is incomplete, inconclusive and does not come into force.

20

http://www.archive.india.gov.in/citizen/lawnorder.php?id=16

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CHATER 4: JUDICIAL ANALYSIS

The Shah Bano case [1985 AIR 945, 1985 SCC (2) 556]21 challenged the Muslim personal (Sharia)
law, it also triggered a debate and paved the way for Muslim womens fight for justice. Shah Bano,
a 62 year old woman from Indore, was divorced by her husband in 1978. Unable to support herself
and her five children, she moved the courts to be granted maintenance from her ex-husband. Seven
years and several judgments later, the Supreme Court ruled in favor of granting Shah Bano
alimony. Largely seen as a threat to Sharia law by some Muslims, what followed a debate over the
constitutionality of including different marriage and personal laws for different religion, and
resulted in the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986, by the
government.22
The case was significant for several reasons. In giving its judgment, the Court ordered maintenance
with an upper limit of Rs. 500 monthly, under Section 125 of the Code of Criminal Procedure,
1973, which applies to all citizens regardless of caste or religion. Although seen by many as a
secular judgment, it invoked a strong reaction from the Muslim community, which felt that the
judgment was an encroachment on Muslim Sharia law. It led to the formation of the All India
Muslim Personal Law Board in 1973, an organization that sought to preserve and protect the
applicability of the Muslim Personal Law (Shariat) Application Act, 1937. The backlash from the
Muslim community prompted the government to begin parliamentary procedures that, in essence,
overturned the Supreme Courts decision. The Muslim Women Act (Protection of Rights on
Divorce), 1986, was passed amongst great controversy and debate. Many argued that it was a way
to pacify the minority group that was threatening agitation.
The Act states that the husband must pay alimony during the period of Iddat (3 months following
the divorce). In case the woman has no means to support herself, or has no relatives that can look
after her, a magistrate can order the state Wakf board to provide sustainable maintenance to the
woman and any dependent children. It does not define an upper limit to the maintenance. It states
that women may seek reasonable and fair compensation during the Iddat, and that any children
borne of the marriage are entitled to a further maintenance as well. Because there is no upper limit
21
22

Mohemmed Ahmed Khan vs. Shah Bano Begum, 1985 SCC (2) 556
http://lawzmag.com/2016/03/09/mohd-ahmed-khan-v-shah-bano-begum/

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to the compensation, it is not unusual for Muslim divorcees to receive large lump-sums from their
former husbands. In Sabra Shamim vs. Maqsood Ansari23, the courts ruled that Section 125 of the
CrPC (1973) applies to divorced Muslim women as well,, and that alimony can be sought after the
period of Iddat ends as long as the woman does not remarry.
The Act gave women a chance to claim fair and rightful compensation, but it also drew criticism
from various groups. Minority Rights Group International, an NGO based in the U.K., denounced
the law, commenting that it highlighted the disjunction between constitutional law premised on
the principle of sexual equality and religious laws which discriminate on the basis of this very
category.
Shah Banos case brought the need for a secular Uniform Civil Code into the limelight again. To
date, however, individual Personal Laws based on religion are still in effect. The case remains a
ground-breaking one in Indian divorce law and is often used as a benchmark by the courts.
THE CONSTITUTIONAL VALIDITY OF MUSLIM WOMENS ACT (DANIEL LATIFI
CASE)
The verdict of Supreme Court in Danial Latifi v. Union of India24, deciding some of the unsolved
questions. Issue before the Hon'ble Supreme Court was whether Muslim Women (Protection of
Rights on Divorce) Act, 1986 is an unconstitutional on the ground that it infringed Articles 14, 15
and 21 of the Constitution? Contentions of Petitioner were the following:
(i)

Section 125 Cr. P.C. is a provision made in respect of woman belonging to all religions
and the exclusion of Muslim woman from its benefit would be discrimination between
woman and woman.

(ii)

A part from the gender justice caused in the country this discrimination further leads to
a monstrous proposition of nullifying a law declared by this court in Shah Bano's case.
Thus there is the violation of equality before law but also the equal protection of law
and inherent infringement of article 21 of the Constitution as well as basic human
values.

23
24

(2004) 9 SCC 616

(2001) 7 SCC 740

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(iii)

If the object of Section of 125 Criminal Procedure Code, 1973 is to avoid vagrancy,
the remedy there under cannot be denied to Muslim woman.

(iv)

The Act is un-Islamic, un-Constitutional and it has the potential of suffocating the
Muslim woman and under mines the secular, character which is the basic feature of the
Constitution.

(v)

There is no reason to deprive the Muslim women from the applicability of the provision
of Section 125 Cr.P.C., and consequently, the present Act must be held to be
discriminatory of Article 14 of Constitution.

(vi)

The conferment of the power on magistrate under Section 3 (2) and Section 4 of the
Act is different from the right of a Muslim woman like any other woman in the country,
to avail of the remedies under Section 125 of Cr.P.C. and such deprivation would make
the act unconstitutional as there is no nexus to deprive a Muslim woman from availing
remedies under Section 125 of Cr.P.C., notwithstanding the fact that the conditions
precedent for availing of the said remedies are satisfied.25

The Contention of respondent in the support of the impugned act, were the following:
(i)

Where a question of maintenance which forms parts of the personal law of a

community, what is fair and reasonable is a question of fact in that context. Under
Section 3 of the Act , it is provided that a reasonable and fair provision to be made and
paid by her former husband within the period of Iddat and when the fact has clearly
been stated in the provision , the question of interpretation as to whether it is for life or
for the period of lddat would not arise.

(ii)

The personal law of any community is a legitimate basis for discrimination, if at all and
therefore does not offend Article 14 & 21 of the Constitution.

(iii)

The parliament enacted the impugned Article respecting the personal law of the
Muslims and that itself is a legitimate basis for making a differentiation; that a separate
law for community on the basis of personal law applicable to such community cannot
be held to be discriminatory.

25

Case and Material on Family Law, 2nd Edition, Page 211

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(iv)

The Act resolved all issues, bearing in mind the personal law of the Muslim community
and the fact that the benefit of Section - 125 of Cr.P.C have not been extended to

Muslim woman would not necessarily lead to a conclusion that there is no provision on the Act to
protect the Muslim woman from vagrancy and from being a destitute.
The Hon'ble Supreme Court by analyzing these points held that Section 3 of Muslim Women
(Protection of Rights on Divorce) Act, 1986, lays down two separate and distinct obligations on
the part of the husband, viz,
(i)

To make reasonable and fair provision for his divorced wife,

(ii)

To provide maintenance for her

The emphasis is not on the nature of duration of any such provision or maintenance, but on the
time by which an arrangement for the payment of provisions and maintenance should be concluded
namely, 'within the Iddat period'.
The Court upheld the validity of Muslim Women (Protection of Rights on Divorce) Act, 1986 and
observed in para 31 as under:
"Para 31 - Even under the Act, the parties agreed that the provisions of Section 125 of Cr.P.C.
would still be attracted and even otherwise, the Magistrate has been conferred the power to make
appropriate provision. Therefore, what could be earlier granted by Magistrate under Section 125
of Cr.P.C. would now be granted by the magistrate under the very Act itself. 26
The Court finally concluded in para 36, while upholding the validity of the Act. We may sum up
our conclusions:
(i)

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

(ii)

Liability of the husband of maintains his wife under Section 3(1) (a) of the Act is
not confined to Iddat period.

26

https://indiankanoon.org/doc/410660/, Daniel Latifi vs Union of India

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(iii)

A divorced Muslim woman, who has not remarried and who is not able to maintain
herself after the Iddat period can proceed 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, from such divorced woman including her children and her
parents. In case of any of the relative being unable to pay maintenance, Magistrate
may direct the State Waqf Board, established under the Act to pay maintenance.

(iv)

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

This judgment can be said the commendable and praiseworthy step of the Supreme Court to upheld
the Constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 and
paid due regard to the feelings of the minority community, i.e., the Muslim Community. As the
right of the preservation of personal law is the fundamental right of any community, on that ground
the Muslim Women (Protection of Rights on Divorce) Act, 1986 cannot be called to run counter
to the constitutional mandate. But besides it, it can also be said that in the guise of Judicial activism
the court has given the liberal meaning to term within under Section - 3(1) (a) of Muslim Women
(Protection of Rights on Divorce) Act, 1986 by making the husband liable to make fair and
reasonable provision within the Iddat period, for beyond the Iddat period. It must be noted that the
making of the future provision beyond the Iddat period for the maintenance of the divorced Muslim
wife is foreign to Muslim Personal Law. Indian Muslims have their deep feelings and emotional
attachment to their personal law, so it can also be said here that the sorry position is that even the
Apex court was no more hesitant to venture in the areas well understood and free from legislative
activity. It is to be noteworthy that as the court refers the question of Section 4 of Muslim Women
(Protection of Rights on Divorce) Act, 1986 for upholding the constitutional validity of the same,
is appreciable. This step of the court tried to avoid the jurisdiction of the enactment of Muslim
Women (Protection of Rights on Divorce) Act, 1986.27
JURISDICTION OF COURTS FAMILY COURTS ACT AND THE MUSLIM WOMEN ACT
The Family Courts established under the provision of the Family Courts Act, 1984 have no
jurisdiction to entertain proceedings under the Muslim Women Act, 1986. The Jurisdiction to
adjudicate on rights under Muslim Women Act lies only with the First Class Magistrate and not

27

https://www.mea.gov.in/attach/amb/Volume_08.pdf

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with the family Court. In one case wife had obtained the order of maintenance under Section 125
of Cr.P.C., 1973. When the husband failed and neglected to pay maintenance, wife filed an
Application for execution of the Order of maintenance. However, the Husband gave Talaq during
the pendency of the execution application of the wife. The Bombay High Court held that the
execution proceedings are not affected by the Talaq. But in another case it was held that the order
passed prior to passing the Muslim Woman Act, the same can be enforced in the manned provided
by Section 3(4) of the Muslim Woman Act, which bodily incorporates the provision of Section
125(3) of the Cr.P.C. In yet another case it was held that the Family Court has no jurisdiction to
entertain and try the Application of Muslim Women for maintenance. The Jurisdiction is vested
with the First Class Magistrates. The Court also held that where the Applicant has acquired the
vested right prior to this Act of 1986 coming into force, i.e. prior to 19-5-1986, the provision of
the 1986 Act would not be applicable. But where the Application by wife under Section 125 of
Cr.P.C., 1973 was decided on 1-10-1984 before the Act came into force but the Revision
Application filed by the husband against the order of the Magistrate granting maintenance was
pending on 19-5-1986 when the act of 1986 came into force, the Revision Application being
continuation of the original proceedings, maintenance Application would be deemed to be pending
before the Court For the First Time and consequently, it would be decided according to provision
of 1986 Act. The Order passed by the Magistrate granting maintenance as per provision of Section
25 of the Cr.P.C. was legal and valid.

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CHAPTER 5: COMPARATIVE STUDY

During the subsistence of marriage

The Egyptian Law on Maintenance and Personal Status, 1920-85 declares that the wifes
maintenance is incumbent on the husband, in a valid marriage, from the time she has submitted to
her husband actually or presumptively. Her right is not affected by her being affluent or of a
different religion. Illness of the wife also does not deprive her of the right to maintenance.
Maintenance includes food, clothing, lodging, medical and other expenses recognized by law.
Payment of maintenance is not incumbent if the wife converts to a religion other than Islam or
refuses to have cohabitation without just cause or is unable to consummate the marriage for reasons
not attributable to the husband or goes out of the matrimonial home without the consent of her
husband. However, her right is not affected where she goes without the consent of the husband for
a cause justified under the Islamic Law or custom or by constraint of necessity or for a lawful
employment. The right can be availed by the wife only if this right has not been abused by her or
is not prejudicial to the interest of the family and permission of the husband has been obtained in
this respect. The maintenance payable to the wife, under the Egyptian Law is regarded as a debt
due from the husband from the date when he refrains from paying it. This debt does not lapse
except by payment or release. The claim for past maintenance is entertained only for a period of
one year preceding the date of the claim. The husband is not allowed to set off the debt of
maintenance against any debt due to him from the wife, except in regard to what exceeds her basic
needs. The debt of maintenance is a charge on the property of the husband and has priority over
any other such debt.28
If a wife refuses to live with her husband without justification maintenance can be stopped from
the date of her refusal to return to the matrimonial home on the husbands demand. The demand
has to be in the form of a notice through her nominee. The husband is supposed to indicate in the
notice the place of residence. The wife can file her objections before the court of the first instance
within thirty days of the date of such notice and mention the legal reasons entitling her to reuse to
live with her husband. If she does not file her objection before the expiry of the date fixed for filing

28

Article 1, Egyptian Law on Maintenance and Personal Status, 1920-85

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the same, her maintenance can be stopped from the said date. While pursuing the process, the court
is duty bound to intervene to attempt reconciliation between the husband and the wife so that the
couple may continue to have a cordial conjugal life.29 But if the court funds that the dispute is
grave, it has to order arbitration.30
In Egypt, the amount of maintenance for a wife has to be fixed with reference to the means of her
husband at the time of the claim. However, it cannot be less than what she needs for her basic
necessities even if the husband is indigent. The qadi has to, within two weeks from the date of
filing of the suit, make an interim order for the payment of the maintenance of a deserving wife,
to take effect at once and to be in force until a decree is made in the suit. The husband can adjust
the payment for interim maintenance under the order of the court, provided that the amount to be
finally received by the wife after such deletion is sufficient for her basic maintenance.31
In Morocco, the maintenance of a wife has been expressly declared as a liability of her husband.32
The maintenance includes residence, food, clothing, customary medical aid and necessaries of life
in accordance with custom.33 In the fixation of the scale of maintenance, regard is to be had to the
husbands financial condition, status of the wife, custom circumstances of the time and average
cost of living.34 The husband cannot accommodate with his wife, in the same house, a co- wife
without her consent.35 The husband can be directed to pay maintenance to the wife from the time
it has become obligatory upon him and it shall not lapse on account of disobedience.36 Where the
disobedience continues, the wife may be warned by the qadi to return to her the matrimonial home
and on her failure to do so he may order suspension of her maintenance.37
After The Marriage
Under the Egyptian Law on Personal Status, 1929, a claim of maintenance in respect of the period
of iddat cannot be entertained if made after the expiry of one year from the date of divorce.
Similarly, a disputed claim of inheritance based on the ground of marriage made by a divorced
29

Article 11B, Egyptian Law on Maintenance and Personal Status, 1920-85

Article 7-11, Egyptian Law on Maintenance and Personal Status, 1920-85
31
Article 6, Egyptian Law on Maintenance and Personal Status, 1920-85
32
Article 115, Moroccan Code of Personal Status, 1957
33
Article 118, Moroccan Code of Personal Status, 1957
34
Article 119(1), Moroccan Code of Personal Status, 1957
35
Article 119(2), Moroccan Code of Personal Status, 1957
36
Article 121, Moroccan Code of Personal Status, 1957
37
Article 125, Moroccan Code of Personal Status, 1957
30

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wife after her husbands death cannot be entertained if made after the expiry of one year from the
date of Talaq.38
A wife who after consummation of her valid marriage is divorced by the husband without her
consent and without any fault on her part is entitled, in addition to maintenance of iddat, to mata
equivalent to at least two years maintenance, subject to consideration of the financial status of the
husband, circumstances of the divorce and duration of the marriage between the parties. The
husband shall be entitled to pay such mata in instalments.39
According to the Iraqi Code, Iddat begins immediately after the dissolution of marriage or death,
as the case may be, even if the woman is not aware of the cause. 40 As regards the liability of the
husband to maintain his wife, a divorced wife is entitled to Iddat maintenance even if she is not
obedient, but a widow is not entitled to maintenance during Iddat of Death.41
Under the Moroccan Code of Personal Status, 1958 the wife is entitled to maintenance during iddat
in the same way as during the actual subsistence of marriage. Article 122 of the Code provides that
the maintenance of the wife lapses only by the death of the husband, release by the wife, or by the
exit of a wife observing Iddat of a revocable divorce from the house of the husband without a
lawful excuse and without the husbands consent.
Additional benefits of Women having children
In Egypt, on divorce the husband is bound to provide a proper and independent accommodation to
his minor children from the divorced wife along with her. If he does not do so during the period
of iddat, the matrimonial home (if it is rented) will be exclusively retained by the wife for this
purpose, without divorcing husband, during the legal period of custody. If the matrimonial home
is not rented, the divorcing husband will be entitled to its possession if he provides to the divorced
wife and children a proper and independent house after the expiry of iddat. The qadi is empowered

38

Egyptian Law on Maintenance and Personal Status, 1920-85, Article 17. It is not permissible to execute an order of
maintenance passed after the enforcement of this law for a period for a period exceeding one year from the date of
divorce. It is also not permissible to execute an order passed before the enforcement of this law for one year from the
date of divorce (Article 18)
39
Article 18A, Egyptian Law on Maintenance and Personal Status, 1920-85
40
Article 49, Iraqi Code of Personal Status, 1959-83
41
Article 50, Iraqi Code of Personal Status, 1959-83

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to give the mother an option between living in the matrimonial home and rental for a suit house
for the children in her custody and herself.42
After the expiry of the legal period of custody, the divorcing man can claim back the house with
the children, if he is otherwise legally so entitled. If there is a dispute about the matrimonial home
herein referred to the public prosecution department is empowered to pass necessary orders, to
remain in force until the decision of the court.
In Iraq, the subject has been given due importance and a special law. The law on Divorced Wifes
Right to Residence, 1983 has been enacted to deal with the various aspects of the matter. Under
that the court which has decided the concerned petition for talaq or the dissolution of her marriage
can order on the application of the wife that after divorce or annulment she would continue living,
without her husband, in the house or flat in which she was living with him. The order is to be a
part of the decree of divorce or dissolution of marriage.43 The divorced wife can retain such
residence for a period of three years without consideration, subject to conditions that she does not
rent out the premises wholly or partly. That nobody shall live in it with her except a child under
her legal custody, that she will cause no damage to the house or the flat except the usual
depreciation caused by normal habitation.44 However, the wife may keep with her any of her close
relatives subject to the condition that no woman who has passed the age of legal custody from
amongst those related to her husband shall live with her.
The wife can be deprived of her right if the divorce or dissolution of marriage has been taken place
due to her infidelity or disobedience, she has agreed to divorce or dissolution of marriage or she
owns a flat independently.45
In order to make an order regarding divorced wifes retention of the house or flat effective, the
execution department is required to execute it and to evict the husband and those who are not
permitted to live with her for a period of three years from the date of eviction.46 However if the
divorced wife violated any of the conditions necessary for retaining the residence, the husband can
file a suit for the vacation of the house or the flat and its vacant possession. Where such an order
42

Article 18A, Egyptian Law of Maintenance and Personal Status,1920-85

Article 1, Law of Divorced Wifes Right to Residence, 1983
44
Article 2(1), Law of Divorced Wifes Right to Residence, 1983
45
Article 2(2), Law of Divorced Wifes Right to Residence, 1983
46
Article 4, Law of Divorced Wifes Right to Residence, 1983
43

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of vacation has been passed she will have no right to claim possession for the remaining period.
Where the husband delays making available the house to the divorced wife, the executor of decrees
can impose punishment by way of fine of one hundred dinars for each day for delay.47
Maintenance of children
The Egyptian Code also provides that if a child has the property, the obligation to maintain it shall
fall on its father. The obligation has to be borne by the father, in case of a female child, then if she
has obtained employment from which she can maintain herself. In case of a male child, the
obligation extends up to the age of fifteen years or he can earn a living. However a male child can
continue to claim maintenance from his father, if he is unable to maintain himself because of
physical or mental disabilities, or because he is at school for education as expected of children like
him and proportionate to his capabilities, or because he is unable to get employment. The
maintenance and residence to children is to be provided by the father in accordance with his
financial abilities. The standard of maintenance has to be such as to secure a reasonable standard
of living which children like them deserve. The father can be directed by the court to pay
maintenance to his children from the date on which he refuses to pay it.48
The Iraqi Code envisages that if a child has no property of its own its maintenance is binding on
its father, unless his own financial condition is unsatisfactory.49 As regards the period of
maintenance, a daughter entitled to it till she is married, and boys can claim till they reach the age
in which their equals earn for themselves, unless a boy is in school.50 Under the Code a major son
who is incapable of earning treated as if he was a child.51
According to the Morrocon Code, the father is bound to maintain his minor children who do not
earn. The obligation about the maintenance of a girl continues till the obligation shifts to her
husband and that of boy till he becomes a major and is capable of earning.52 The maintenance
rights of a diligent student continues till the completion of his education or till he attains the age

Article 6, Law of Divorced Wifes Right to Residence, 1983

Article 18, Egyptian Law on Maintenance and Personal Status, 1920-85
49
Article 169, Iraqi Code of Personal Status, 1959-83
50
Article 59(2), Iraqi Code of Personal Status, 1959-83
51
Article 59(3), Iraqi Code of Personal Status, 1959-83
52
Article 126, Moroccan Code of Personal Status, 1957
47
48

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of twenty one years. If a father is incapable of providing maintenance to his children it shall be
the liability of the mother if she is in easy circumstances. 53

53

Article 129, Moroccon Code of Personal Status, 1957

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CHAPTER 6: CONCLUSION

The whole concept of maintenance was introduced in order to see that if there is a spouse who is
not independent financially than the other spouse should help him/her in order to make the living
of the other person possible and independent. Providing maintenance means that the other person
who is getting the maintenance should be able to live the life as he or she lived before marriage in
case of divorce and in case where the two partners are not living together and they seek
maintenance than the spouse getting maintenance should be able to live a life as when they lived
together. Maintenance is the amount which a husband is under an obligation to make to a wife
either during the subsistence of the marriage or upon separation or divorce, under certain
circumstances. At this point of time I would also like to mention that according to my
understanding maintenance not only includes basic necessities like food, clothing and residence
but it also includes the things necessary for comfort and status in which the person entitled is
reasonably expected to live. According to me the main aim of providing maintenance is that the
wife should not be left indigent on separation or divorce from her husband. In a laymens term
maintenance are those things which are indispensable for the survival of human being. The most
important aspect of maintenance is that the party which relies on maintenance has no independent
source of income to support himself/herself. The main point we have to focus on in independent
income. Should the spouse who is claiming maintenance have movable or immovable property,
the spouse can still claim maintenance if the property does not yield any income. The maintenance
of the wife is the mandatory duty of husband in Islam law, in Islamic law is that it makes legal
provision for maintenance of wives, dependent children and other relative who are unable to
maintain themselves, but regardless of his minority, illness, imprisonment or any other disablement
of the wealth of his wife. The rules regarding the maintenance of Muslim wife has been given in
Sharia. According to the ordinary sequence of natural events, the wife comes first. Her right of
maintenance is absolute. Her right remains unprejudiced even if she has property or income of her
own and the husband is poor. A husband is bound to maintain his wife, irrespective of being a
Muslim, non-Muslim, poor or rich, young or old if not young to be unfit for matrimonial
intercourse. 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. Thus the

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conclusion would rest on the real practicalities as well as the Muslim Personal Laws and not on
the Code of Criminal Procedure.

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CHAPTER 7: SUGGESTION

The wrong implementation of the Cr.P.C. 127(3) (b) by not taking into consideration the
legislative history and intention of legislature of inserting it. The judiciary forgot that this
Section was inserted to save the Muslim Personal Law.
The solution made by the judiciary regarding the controversy of maintenance of divorced
Muslim wife within Iddat period went against the Islamic Personal Law,
The loopholes in the drafting of Muslim Women (Protection of Rights on Divorce) Act,
1986, which provides the chance to judiciary to interpret the provisions of the Act against
the Islamic Personal Law.
The indifferent behaviors of judiciary toward the Islamic Personal Law, despite knowing
the fact that this community has deep feeling and emotion regarding their religion.
The expression "who has been divorce by or has obtained divorce from her husband" used
in the act includes.
(a) Unilateral Talaq by Husband
(b) Khula demanded by and effected at the wife's instances whether in or outside the
court
(c) Divorce by mutual consent (mubarat)
(d) Dissolution of Marriage under the provisions of the Dissolution of Muslim marriage
1939
(e) Annulment of void or irregular marriage.
These kinds do not have similar consequences for maintenance in different school. But Act deals
with all forms of divorce without attaching importance of differences.
The definition of term Iddat in Section 2(b) does not expressly state as to upon whom
observing of Iddat is mandatory and on whose part it is not obligatory. For example a
woman divorced before consummation of marriage, is not required to observe Iddat, hence
the definition in Section 2(a) by not excluding such woman is objectionable under Islamic
rules.
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 Despite the clear cut rule of Muslim law that Muslim law cares the maintenance of divorce
who maintains the child is the absolute duty of father, the Section 3(i)(b) is the victim of
confused drafting and bound to be interpreted by court in various ways.
Section 3(i) (c) of the Act states that a divorced woman is entitled to "an amount equal to
sum of Mahr or Dower is payable because in Islamic law there are many situations in which
payment varies. The ambiguous language of said Section makes Mahr payable in every
case of divorce.
Thus by analyzing the aforesaid loopholes of the Act which is now representing manifestly the
Islamic Community to whole world, must be removed and be tried to be reformed in the line
of true Islamic principles.
As the Constitution of India regards the personal laws of every community the judiciary must
not assume the role of legislature and should not try to venture into areas of personal laws
which are well understood and free from legislative activity.
It is also to be noted that the trend which has been set by the Judiciary to maintain Muslim
divorce beyond the Iddat period must be reviewed according to line of Islamic Sharia. As this
concept is foreign to the spirit of Islamic law. The reason is that there is no any interfamily
transfer of girl on marriage unlike Hindu family.

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CHAPTER 8: BIBLIOGRAPHY
Books referred: 1. Family law by I.A. Saiyed
2. Case and Material on Family Law, 2nd Edition, Page 211 by Kusum

Websites Referred: 1. www.ijhsss.com

2. dailyhadith.abuaminaelias.com
3. www.islamswomen.com
4. quran.com
5. www.lawleader.in
6. www.legalserviceindia.com
7. www.wluml.org
8. www.archive.india.gov.in
9. lawzmag.com
10. indiankanoon.org
11. www.mea.gov.in

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